Landlord Is Given 14 Days to Cure Breach of Contract Claim vs. Global Tower

U.S. District Judge Richard Bennett for Maryland in Baltimore signed a memorandum opinion Tuesday (docket 1:22-cv-02456) granting defendant Global Tower’s Jan. 31 motion to dismiss with prejudice property owner Olcan III’s claims for negligent misrepresentation, negligence and public nuisance emanating from a dispute over a rooftop cell tower.

Bennett dismissed without prejudice Olcan III’s breach of contract claim against Global Tower, giving the property owner 14 days to cure the defects in that claim by filing a second amended complaint. The amended complaint “may still be subject to dismissal by reason of repeated failure to cure deficiencies or futility of the amendment,” said the memorandum.

Olcan’s first amended complaint alleged Global Tower’s careless use of an easement to access its cell tower on the rooftop of a building in Baltimore that Olcan owns caused Olcan to incur repair costs and to lose rents and profits (see 2211140050). It sought $75,000 in damages. Global Tower countered in its motion to dismiss that Olcan “neglected its property for years, failing to conduct the routine upkeep and care required to maintain the building” (see 2302010046).

Olcan's breach of contract claim “likely relates to the parties’ easement agreement,” said Bennett’s memorandum. But the claim is otherwise “completely devoid of any factual allegations” for the court to interpret, it said. Olcan failed to plead any terms of the easement agreement, and it’s “consequently unclear what contractual obligation Global Towers could have breached,” it said.

Olcan also didn’t allege “what type of damage has resulted from the purported breach,” said the memorandum. Its allegations “wholly fail to include facts supporting its breach of contract claim and amount to mere recitation of the elements,” it said.

Olcan’s claims for negligent misrepresentation and negligence are predicated on damage to its real property, in light of Global Tower’s alleged agreement that it would repair, replace and maintain the area of the easement, said the memorandum. Claims of negligent misrepresentation and negligence “both require that a defendant owe a plaintiff a duty separate from a contractual obligation,” it said.

A negligence claim is improper where it’s based “solely on an underlying breach of contract,” said the memorandum. The relationship between Olcan and Global Tower was “purportedly contractual,” and Olcan failed to allege “any other duty it was owed,” it said. Olcan brings these negligence claims based solely on Global Tower’s “alleged failure to comply with a contract,” it said. Without a duty “independent from that contract,” there’s simply no claim that can be founded in negligence, it said.

Even if Olcan had properly asserted it was owed a duty independent of the parties’ alleged contractual obligations, Global Tower also argues Olcan “failed to allege any facts supporting causation,” said the memorandum. “Without more, there is not enough factual matter for a cognizable claim,” it said. Olcan didn’t plead any facts about “how or in what way Olcan uses the cellphone towers," nor does it even “explain the apparent damages to same,” it said. Olcan’s claims for negligent misrepresentation and negligence “are without basis,” it said.

Olcan’s claim of private action for public nuisance claim asserts Global Tower damaged its property and the damage is an invasion of Olcan’s uses and enjoyment of its property, said the memorandum. Olcan’s complaint doesn’t plead that Global Tower’s use of the cell tower easement is an unreasonable interference, nor does it allege use of the cell tower is a right common to the public, it said.

Olcan’s opposition to the motion to dismiss “purportedly concedes that its claim is one for a private, and not public, nuisance,” said the memorandum. “A plaintiff cannot amend a complaint through briefings on a motion to dismiss,” it said. Even if the court “were to entertain the notion” that the complaint included a claim for a private nuisance, “the facts are so deficiently plead that dismissal would be warranted nonetheless,” it said.