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Council of Unit Owners Milestone Townhouse Condominiums v. Beazer Homes, LLC

United States District Court, D. Maryland, Southern Division

March 20, 2019

COUNCIL OF UNIT OWNERS OF MILESTONE TOWNHOUSE CONDOMINIUMS, Plaintiff,
v.
BEAZER HOMES, LLC, Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         In this case, Plaintiff, the Council of Unit Owners of Milestone Townhouse Condominiums, seeks to recover from Defendant Beazer Homes, LLC for an alleged violation of the Maryland Consumer Protection Act, Maryland Code Commercial Law § 13-301 et seq. ECF No. 2. Pending before the Court is Defendant's Motion to Dismiss. ECF No. 12. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion to Dismiss is denied.

         I. BACKGROUND [1]

         Plaintiff is a condominium association that represents the interests of most owners of units in the Milestone Condominium project-a development established by Declaration on September 23, 1997. ECF No. 2 ¶¶ 1-3. Defendant acted as the Milestone developer during a period that included June 1997 through August 2000. Id. ¶ 8. Defendant hired and supervised contractors, architects, professional engineers, and others to make real property improvements to what became the Milestone common areas and condominium units. Id. ¶ 9. Defendant also acted as the seller of units between June 1997 and 2001. Id. ¶ 10.

         Although proper installation of weather resistant barriers between exterior siding and wall sheathing is a requirement per applicable building codes, the Milestone project does not include weather resistant barriers. Id. ¶¶ 12-13. These barriers are to include flashing, taping and other measures around windows, doors, seams and other breaks in weather resistant sheeting to prevent the intrusion of moisture into the sheathing and structural elements. Id. ¶ 12.

         Because of the hidden building defects, water entered beneath the exterior cladding, damaging or threatening to damage structural elements of the buildings that are common to two or more units. Id. ¶ 18-19. Plaintiff alleges that unit owners therefore paid more than market value for their condominiums. Id. ¶ 20. Defendant's failure to disclose the defects also meant that repairs were not made in a timely fashion and that Plaintiff lost its opportunity to assert warranty and contract claims. Id. ¶ 21. Plaintiff discovered the lack of weather resistant barriers while making repairs in 2016. Id. ¶ 13. Plaintiff alleges that Defendant knew or should have known that the buildings lacked weather resistant barriers and that Defendant concealed this defect. Id. ¶¶ 14-15, 16.

         Plaintiff sued Defendant in the Circuit Court for Montgomery County Maryland on March 23, 2018, and Defendant removed the case to this Court on May 18, 2018. ECF No. 1. Plaintiff alleges that Defendant violated the Maryland Consumer Protection Act (CPA) by failing to disclose building defects to purchasers. ECF No. 2 at 8-13. Defendant filed a Motion to Dismiss, arguing that Plaintiff's CPA claim is barred by the Maryland Statute of Repose, § 5-108(b).

         II. STANDARD OF REVIEW

         Defendant moves to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6), asserting that it fails to state any claim upon which relief can be granted. To state a claim that survives a Rule 12(b)(6) motion, a complaint, relying on only well-pled factual allegations, must state at least a “plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The “mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012).

         In reviewing a motion to dismiss, the Court may consider allegations in the complaint, matters of public record, and documents attached to the motion to dismiss that are integral to the complaint and authentic. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). While a court may review affirmative defenses asserted in a Rule 12(b)(6) motion to dismiss, such a motion should be granted only in the “rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint.” Goodman v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Moreover, a movant cannot merely show that the elements of the defense appear on the face of the complaint or in properly considered documents, but must also “show that the plaintiff's potential rejoinder to the affirmative defense was foreclosed by the allegations in the complaint.” Id. at 466.

         III. DISCUSSION

         Defendant contends that Plaintiff's CPA claim is time barred by the Maryland Statute of Repose. That statute, § 5-108, provides for a ten- and twenty-year time bar under the following relevant circumstances:

(a) . . . no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when . . . injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
(b) . . . a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when . . . injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years ...

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