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Bell v. Rotwein

March 5, 2008

ARTHUR BELL, AS TRUSTEE OF THE ALBERT R. BELL LIVING TRUST, PLAINTIFF,
v.
FRANCES ROTWEIN AND BANK OF AMERICA, N.A. DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION AND ORDER

Arthur Bell, as Trustee of the Albert R. Bell Living Trust, has brought this suit against Frances Rotwein, both individually and in her capacity as co-personal representative of the estate of Joseph Rotwein, and against the Bank of America ("BOA"), as co-personal representative of Joseph Rotwein's estate. Defendant Frances Rotwein has filed a motion to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, this motion will be granted in part and denied in part.

FACTUAL BACKGROUND

In March 1958, Joseph Rotwein, together with his business partners Martin Bell and Lester Abelson, obtained a leasehold interest in the apartment building located at 1500 Massachusetts Avenue NW, Washington D.C. (the "1500 Building"). (Compl. ¶ 9.) Joseph Rotwein lacked the funds to pay for his one-third share of the leasehold, so he offered Albert A. Bell, father of plaintiff and brother of Martin Bell, one-tenth of his one-third share of the leasehold in exchange for $20,000. (Id. ¶ 11.) He offered the same deal to Robert Mayer ("Mayer"). (Id. ¶ 12.) Both Albert Bell and Mayer accepted. (Id. ¶¶ 13-14.) Albert Bell paid Rotwein $20,000 and Joseph Rotwein signed a document assigning to Albert Bell one-thirtieth of the leasehold. (Id. ¶ 13.) Martin Bell also made various partial assignments of his share of the 1500 Building. (Id. ¶ 15.) Because Martin Bell and Joseph Rotwein preferred to keep record title to the leasehold in the names of the three record owners, Mayer and Albert Bell did not record the assignments from Joseph Rotwein, but left them in the safekeeping of Martin Bell in exchange for Rotwein's commitment that he would account to them for the principal and income of their investments. (Id. ¶¶ 19-20.) Although formal record title remained with the record holders, the 1500 Building was operated as a partnership or real estate syndicate (the "Syndicate") and was referred to as such in its financial statements. (Id. ¶ 23.)

Until his death in 1991, Joseph Rotwein distributed to Albert Bell ten percent of any distributions made on his one-third share of the 1500 Building. (Id. ¶ 51.) In the intervening years, the Syndicate expanded its holdings. In 1968, the Syndicate purchased an option to acquire a vacant lot ("Lot 831") adjacent to the 1500 Building. (Id. ¶ 29.) Albert Bell contributed $2,500, or one-thirtieth of the deposit of $75,000. (Id.) The option was purchased in the name of the record owners, but Albert Bell and the other assignees received interest on the deposit money in the same manner as the operating revenue and capital distributions relating to the 1500 Building. (Id. ¶ 30.) In 1973, the Syndicate refinanced the 1500 Building for $5,000,000, which resulted in the distribution of $2,700,000 to the equity owners. (Id. ¶ 33.) Albert Bell received $90,000 for his one-thirtieth interest. (Id.) Finally, in 1980, the Syndicate exercised the option to purchase Lot 831. (Id. ¶ 35.) Martin Bell sent Albert Bell and the other assignees a letter from the record owners offering them the option to decline to participate in the new acquisition. (Id.) Albert Bell elected to participate and began to receive income from the lease of Lot 831 consistent with his share of the Syndicate. (Id. ¶ 37.)

On November 5, 1986, Martin Bell died. (Id. ¶ 38.) On or around February 11, 1987, when his secretary was going through his papers, she found the original assignment documents from Joseph Rotwein to Mayer and Albert Bell. (Id. ¶ 39.) Because Joseph Rotwein and Martin Bell had shared office space, Bell's secretary asked Rotwein what she should do with the documents and Rotwein instructed her to give them to him. (Id.) When Albert Bell learned that Joseph Rotwein was in possession of his original assignment, he requested that Rotwein turn over the assignment document to him. (Id. ¶ 42; Pl.'s Ex. E.) Rotwein responded to Albert Bell in a letter explaining that "[t]he understanding was that persons holding under [Martin Bell] and me would have only derivative rights rather than direct rights as tenants in common," which was "why there was deliberately no delivery to [Albert Bell] of the original of the document." (Def.'s Ex. A.) Rotwein further explained that "several of the people who held under Marty [Bell] were furnished originals but only after executing a manager's agreement which accomplished the same result as withholding delivery" (id.), and offered to send Albert Bell a similar agreement. Albert Bell declined, reassured by the offer and by the continued stream of payments. (Compl. ¶ 47.) On January 31, 1990, the Syndicate purchased the fee title to the 1500 Building. (Id. ¶ 52.)

On December 28, 1991, Joseph Rotwein died, leaving his widow, Francis Rotwein, as his principal legatee and as co-personal representative of his estate, along with BOA's predecessor.

(Id. ¶ 54.) Joseph Rotwein's one-third interest in the Syndicate's property transferred automatically to Frances Rotwein, as personal representative and to the bank as her co-personal representative. (See Def.'s Reply 3; D.C. Code Ann. § 20-105.) On September 28, 1999, BOA and Frances Rotwein, as co-personal representatives of the estate, deeded to Frances Rotwein personally, the estate's 26.67% interest in the 1500 Building and Lost 831. (Id. ¶ 57.) The balance of 6.67%, which represented the shares assigned to Albert Bell and Mayer, remained in the possession of Frances Rotwein and BOA as co-personal representatives. (Id. ¶ 60.) Albert Bell continued to receive the distributions on his 10% interest in the property of the Syndicate in his own name, and later through the Albert Bell Living Trust, which he established in the mid-1990s as part of his estate planning. (Id. ¶ 73.)

At some point in November 2006, plaintiff learned from a family member associated with the Martin Bell share that the record owners were considering selling the 1500 Building. (Id. ¶ 96.) On February 16, 2007, plaintiff's attorney sent a letter to the management company of the 1500 Building and to the record owners asserting plaintiff's right to a one-thirtieth share of the property. (Id. ¶ 97.) On February 28, 2007, defendant's attorney responded denying knowledge of the arrangement and stating that the original assignment was not in defendant's possession. (Id. ¶ 98.) Further correspondence did not resolve this dispute, and on September 5, 2007, plaintiff filed a complaint requesting a declaratory judgment requiring defendant to acknowledge plaintiff's interest in the property (Counts I, II) and alleging that defendant has breached the contract between plaintiff and Joseph Rotwein (Count VI) and breached her fiduciary duty to plaintiff by indicating her intention to deny plaintiff any of the proceeds of the sale of the 1500 Building (Counts III, IV, IX). Plaintiff further claims that defendant is equitably estopped from refusing to acknowledge plaintiff's interest in the property (Count V) and that defendant is liable for the common law torts of conversion (Count XI), negligent misrepresentation (Count VIII), spoilation (Count X), and fraud (VII). Finally, plaintiff maintains that defendant has committed fiduciary waste by failing to properly maintain the 1500 Building (Count XII) and requests an accounting of recent distributions. (Count XIII).*fn1 The defendant has moved to dismiss all counts. The Court will address each of defendant's arguments in turn.

ANALYSIS

I. Legal Standard

A complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted if it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 137 S.Ct. 1955, 1974 (2007). At this stage, all reasonable factual inferences must be construed in plaintiff's favor, and all allegations in the complaint are presumed true. Maljack Prods., Inc., v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). "However, the court need not accept inferences drawn by the plaintiff[] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Comm'cns. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). To survive a motion to dismiss, the factual allegations of the plaintiff "must be enough to raise a right to relief above the speculative level." Bell Atl., 137 S.Ct. at 1965.

II. Laches

Defendant first argues that plaintiff's six equitable claims are barred by laches because she has been prejudiced by plaintiff's 20-year delay in asserting those claims. (Def.'s Mot. 4.) Laches is an equitable doctrine that is "founded on the notion that equity aids the vigilant and not those who slumber on their rights." Pro-Football, Inc. v. Harjo, 415 F.3d 44, 47 (D.C. Cir. 2005) (quoting NAACP v. NAACP Legal Def. & Educ. Fund, Inc., 753 F.2d 131, 137 (D.C. Cir. 1985) (internal quotation marks omitted)). "This defense . . . 'requires proof of (1) lack of diligence by the party against whom the offense is asserted, and (2) prejudice to the ...


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