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TOWERS TENANT ASSN., INC. v. TOWERS L.P.

May 5, 1983

The TOWERS TENANT ASSOCIATION, INC., et al., Plaintiffs,
v.
The TOWERS LIMITED PARTNERSHIP, et al., Defendants



The opinion of the court was delivered by: CORCORAN

 CORCORAN, District Judge.

 Before the Court is defendants' consolidated motion, pursuant to Rule 12 of the Federal Rules of Civil Procedure, (1) for a more definite statement of the allegations of paragraph 13 of the complaint, as realleged in Counts I through V; (2) to dismiss Counts II and III of the complaint for failure to state a claim upon which relief can be granted; and (3) to dismiss Count V of the complaint with respect to plaintiff, the Towers Tenant Association, Inc., for failure to state a claim upon which relief can be granted. Plaintiffs have opposed.

 For the reasons stated herein, we deny defendants' motion with regard to (1) and (2) above, but grant their motion to dismiss Count V as brought by the Towers Tenant Association, Inc., since that party concedes it is an improper plaintiff under Count V.

 I. INTRODUCTION

 The focus of this lawsuit is the conversion into a condominium complex of certain residential property known as the Towers of Cathedral Avenue ("the Towers"), located at 4201 Cathedral Avenue, N.W., Washington, D.C. Plaintiff Unit Owners Association of the Towers Condominium ("Condominium Association"), represents the unit owners of the condominium property. Plaintiff, The Towers Tenant Association, Inc. ("Tenant Association"), is a District of Columbia non-profit corporation composed of members who were tenants at the Towers on or before the date that property was converted to condominium ownership. Defendants are the developer of the project, The Towers Limited Partnership ("TLP"), and its two general partners, Towers Development, Inc. ("TDI"), and The Management Group, Inc. ("MGI").

 The complaint is styled in five counts, all of which are based on a common series of factual allegations which purports to show that defendants have breached certain duties and failed to perform the promised rehabilitation of the complex. Count I asserts breach of contract, Count II negligence, Count III breach of implied warranties, Count IV breach of express warranties, and Count V breach of the statutory warranties provided in D.C. Code § 45-1847 (1981 ed.). Plaintiffs seek $650,000.00 in damages for alleged "defects and deficiencies" in the condominium property, which have allegedly diminished the value of the property, and will require the Tenant Association and the Condominium Association to collect assessments from their members to pay for necessary repairs and rehabilitation.

 II. DISCUSSION

 A. More Definite Statement

 Defendants have moved under Rule 12(e) of the Federal Rules of Civil Procedure, for a more definite statement with respect to paragraph 13 of the complaint. That paragraph states:

 
13. In addition to the promises and representations made by T.L.P. in the Agreement and the aforementioned letters, employees and agents of T.L.P. made further written and oral representations and promises to the Tenant Association and the Condominium Association concerning renovation. These oral promises occurred during the course of construction when questions were asked of T.L.P. as to their specific intentions. The Tenant Association and Condominium Association relied on the written and oral representations and promises of T.L.P.

 Defendants contend that, even under the liberal notice-pleading standard of Rule 8, the above language is so vague and ambiguous that they cannot reasonably formulate a response thereto. Plaintiffs argue, and we agree, however, that paragraph 13, if deficient at all, merely lacks the detail more appropriately left for amplification through discovery and thus, a more precise statement is not warranted at this time.

 Plaintiffs correctly point out that Rule 12(e) motions are looked upon with disfavor and are rarely granted in light of the notice-pleading framework of the federal rules. Choat v. Rome Industries, Inc., 480 F. Supp. 387, 391 (N.D.Ga.1979). A complaint need only contain a short, plain statement of the claim, indicating that plaintiff is entitled to relief, and giving defendant fair notice of the nature of plaintiff's grievance. Fed.R.Civ.P. 8; McDougall v. Donovan, 552 F. Supp. 1206, 1208 (N.D.Ill.1982). The basis for granting a motion for a more definite statement is unintelligibility, not mere lack of detail. Cromwell v. Ward, 425 F. Supp. 97, 99 (W.D.N.Y.1977); 2A Moore's Fed.Prac.2d § 12.8, p. 2395 (1982).

 Defendants contend that the references in paragraph 13 to "promises," "employees," and "representations," must be made more specific in terms of dates, times, names and places. We disagree. Such details are the central object of discovery, and need not be pleaded. Plaintiffs have adequately put defendants on notice of the nature of their claims, and a responsive pleading is required at this time.

 Defendants' motion for a more definite statement is, therefore, denied.

 B. Failure to State a Cause of Action for Negligence; Count II

 Count II of the complaint sounds in tort, viz. negligent repair and rehabilitation of the Towers. Defendants argue that the gravamen of plaintiffs' claims is an alleged failure by defendants to fulfill certain promises, representations and agreements concerning repair and rehabilitation of the condominium property. As such, defendants argue, plaintiffs' claims are strictly contractual in nature and do not state a tort claim for negligence.

 Plaintiffs counter that they are not limited to a contractual theory of recovery, but may also, due to the relationship extant between themselves and defendants, seek recovery for breach of an affirmative duty owed them by defendants to exercise reasonable care in the construction and maintenance of the condominium project.

 Plaintiffs' complaint cannot be dismissed pursuant to Rule 12(b)(6) for failure to state claim unless it appears beyond doubt that they can prove no facts in support of their claims which would entitle them to relief. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). It is true, as defendants assert, that the interests sought to be protected by the law of contracts and those of tort law, are distinct. The omission to perform a contractual obligation does not ordinarily create a cause of action in tort as between the contracting parties. Wolfe v. Continental Casualty, 647 F.2d 705 (6th Cir.1981) (applying Ohio law). Rather, an action for breach of contract is the recognized and appropriate avenue of relief. Id. Moreover, "the mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort." Heckrotte v. Riddle, 224 Md. 591, 168 A.2d 879, 882 (Md.1961) (emphasis added); see Matyas v. Suburban Trust Co., 257 Md. 339, 263 A.2d 16, 19 (Md.1970).

 But, if a plaintiff can establish the existence of such an independent legal duty, he may maintain an action in tort, even though the acts complained of also constitute a breach of contract. Charles v. Onondaga Community College, 69 A.D.2d 144, 418 N.Y.S.2d 718 (4th Dep.1979), app. dismd., 48 N.Y.2d 650, 421 N.Y.S.2d 200, 396 N.E.2d 482 (1979). The crucial question in this case, then, is whether plaintiffs can show that defendants' owed them a legal duty, ...


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