Agenda - Planning Commission - 11/01/2007

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Zoning Bulletin of the beach access road, but Mustique claimed that it had received-- permission from the city for Stockton and other property owners in the development to access the beach via an undeveloped beachfront lot. Stockton claimed that Mustique gave him that information prior. to, and for the purpose of persuading him into, entering the pur- chase agreement. . Some time after the sale, Stockton found that the approval that Mus- tique claimed to have had not been given, and was never obtained, by the city. Stockton sued .Mustique in court, claiming breach of contract over the misrepresentation. Mustique countered that a clause in the contract relieved him from liability. In relevant part, the clause read: "The Purchaser acknowledges that ... the Purchaser is not entitled to rely and has not relied upon any oral representations of the Seller or the agents of the Seller that differ in any respect from. the written material submitted to the Purchaser con- cenl.ing the Unit." Relying on this clause, Mustique asked the court to dismiss the complaint. DECISION: Request d~nied. When a court heard a motion to dismiss, the moving party had to show beyond a doubt that no part of the nonmoving party's claim could be successful at trial. Mustique's argument depended on the assumption that it could establish that there was no written representation that it had obtained city approval for Stockton to have beach access through the vacant lot. When considering a motion to dismiss, the court was limited to re- viewing: the complaint; attachments to it, and certain other documents that were both undisputed in authenticity. and central to the claim. Here, Mustique attached only two documents and the purchase agree- ment in support of his motion to dismiss, but the purchase agreement referenced seven attachments. Because five of those attachments were not produced, Mustique could not prove that the representation about beach access did not appear in one of the missing attachments. Further, Mustique claimed that the two attachments that it did pro- duce represented "the universe of written material" given to Stockton. The court disagreed that the other documents were not relevant to the claim. Mustique could not support its argument that it provided no written representation of city approval to use the beachfront lot for beach access unless it presented the court all the written material that it had submitted to Stockton, and it did not do so: Mustique's argument failed also because Stockton claimed that he had received written. representations regarding the city's approval of 6 80