Kolker v. Hurwitz et al

Filing 125

OPINION AND ORDER- Denying 99 MOTION to Strike or, in the alternative, to Dismiss the counterclaims asserted by Palmas del Mar Properties, Inc. and Surfside Development Corporation filed by Paul Kolker. Signed by Judge Jose A Fuste on 10/14/11.(su)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

PAUL KOLKER,
Plaintiff
v.

CIVIL NO. 09-1895 (JP)

CHARLES HURWITZ, et al.,
Defendants

OPINION AND ORDER
Before the Court is Plaintiff Paul Kolker’s (“Kolker”) motion
to

strike

or,

in

the

alternative,

to

dismiss

(No.

99)

the

counterclaims asserted by Defendants, and Defendants’ opposition
thereto (No. 100). For the reasons stated herein, said motion is
hereby DENIED.
I.
DEFENDANTS’ FACTUAL ALLEGATIONS
Surfside Development Corporation (“Surfside”) alleges that its
property is across the street from Kolker’s, on a cul-de-sac at
Surfside’s development. Between the two properties is an area roughly
divided by a ditch or gully (the “gully area”) which gradually
descends toward the Atlantic Ocean. Part of the gully area is
adjacent

to

Kolker’s

Surfside’s property.

property.

The

other

part

is

adjacent

to

CIVIL NO. 09-1895 (JP)

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Defendants allege that, in or around January 2007, Surfside
considered the possibility of building certain structures on the part
of the gully area adjacent to Kolker’s property. Pursuant to the
terms of the deed constituting/governing said area, Surfside sought
the consent of the owners of the five properties closest to the
Surfside property, including Kolker, to build the structures. The
other four owners allegedly consented to said construction.
Acting on Surfside’s behalf, Charles Hurwitz allegedly contacted
Kolker to obtain his consent for the proposed structures. Surfside
at all times wished to avoid a potential neighbor dispute. Defendants
allege

that

Kolker

expressed

that

Surfside

could

develop

the

structures as long as they did not impair or block the view from his
property, although Kolker’s property remains completely undeveloped
after more than twenty five years have passed since Kolker purchased
it. Kolker said that Surfside should contact his architect, Evelio
Pina (“Pina”), to discuss the particulars of the project.
Surfside alleges that it engaged architectural and engineering
services to assist in planning and designing the structures to meet
Kolker’s request that the structures not block the view from his
undeveloped parcel. As directed by Kolker, Surfside met with Pina,
who confirmed that, as planned, the structures would not impair or
block the view from Kolker’s property.

CIVIL NO. 09-1895 (JP)

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Defendants allege that Kolker nevertheless claimed not to be
entirely satisfied with the proposed plan for the structures. Induced
by

Kolker’s

representations

that

Surfside

could

develop

the

structures as long as they did not impair or block the view from his
property, Surfside alleges that it commissioned further studies and
work, and invested time, effort and money to come up with a plan for
the structures that would meet Kolker’s request.
Surfside allegedly then proposed to develop the structures on
the part of the gully area adjacent to its property, rather than on
the section adjacent to Kolker’s. Again, Kolker allegedly reassured
Surfside that it could develop the structures as long as they did not
impair or block the view from his property. To that end, the parties’
attorneys

also

engaged

concerning

the

intended

in

substantive,

construction

and

specific
met

with

discussions
Surfside’s

architect, Thomas Marvel (“Marvel”), to consider the new location and
scope of the proposed project. It was allegedly then agreed to have
a follow-up meeting onsite, so Marvel could show Kolker where the
proposed structures would be located, and how these would not impair
or block the view from Kolker’s property.
The follow-up meeting was held at Surfside on September 3, 2009.
At the meeting, Surfside alleges that it fully addressed the points
raised thereat by Kolker. Kolker contributed with ideas regarding the
specifics of the project and again reassured Surfside that it could

CIVIL NO. 09-1895 (JP)

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develop the structures as long as they did not impair or block the
view from his property. It was not possible to have available at the
meeting

the

specific

sketches

or

drawings

for

the

proposed

structures. As a result, Surfside alleges that it was agreed that
Surfside would submit said sketches or drawings to Kolker for him to
confirm that the structures would not impair or obstruct the view
from his property, and Surfside would then proceed with the intended
construction. However, to Surfside’s surprise, Kolker filed this
lawsuit the day after that meeting.
II.
LEGAL STANDARD FOR A MOTION TO DISMISS
According to the Supreme Court, “once a claim has been stated
adequately,

it

may

be

supported

by

showing

any

consistent with the allegations in the complaint.”
v. Twombly, 127 S. Ct. 1955, 1969 (2007).

set

of

facts

Bell Atl. Corp.

As such, in order to

survive a motion to dismiss, a complaint must state a claim to relief
that is plausible on its face, not merely conceivable.

Id. at 1974.

The Court of Appeal for the First Circuit has interpreted Twombly as
sounding the death knell for the oft-quoted language of Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Rodríguez-Ortiz v. Margo Caribe,

CIVIL NO. 09-1895 (JP)

-5-

Inc., 490 F.3d 92, 94-95 (1st Cir. 2007) (quoting Twombly, 127 S. Ct.
at 1969).

Still, a court must draw all reasonable inferences in

favor of the non moving party and accept all well-pleaded facts in
the complaint as true. Sanchez v. Pereira-Castillo, 590 F.3d 31, 36
(1st Cir. 2009).
III.
ANALYSIS
Plaintiff
Defendants’

moves

for

counterclaims.

the

Court

to

Specifically,

strike

and/or

Plaintiff

dismiss

argues

that

Defendants’ counterclaims are untimely and therefore should be
stricken. In the alternative, Plaintiff states that the Court should
dismiss the breach of contract counterclaim because Defendants failed
to adequately plead the existence of a contract and the tort claim
because it is time-barred. Defendants oppose the arguments. The Court
will now consider Plaintiff’s arguments.
A.

Motion to Strike
In the instant case, the Court ordered Defendants to file their

responsive pleading on or before February 24, 2011 (No. 89). On
February 24, 2011, Defendants filed their answer (No. 90). No
counterclaims were asserted in the answer. However, on March 17,
2011, Defendants, without requesting leave of Court, filed an amended
answer to the complaint and asserted counterclaims against Plaintiff
(No. 91). Thereafter, Plaintiff filed the instant motion arguing that

CIVIL NO. 09-1895 (JP)

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the counterclaims were untimely under Fed. R. Civ. P. 13(a) because
Defendants did not assert said counterclaims when they originally
answered Plaintiff’s complaint.
After considering the argument, the Court finds Plaintiff’s
argument unpersuasive. Under the Federal Rules of Civil Procedure,
“[a] party may amend its pleading once as a matter of course within
. . . 21 days after serving it[.]” Fed. R. Civ. P. 15(a)(1) (emphasis
added). A party would be required to request leave to amend the
pleading or acquire the written consent of the opposing party if the
party had previously amended its pleading and/or if the 21 day period
had expired. See Fed. R. Civ. P. 15(a)(2).
Here, Defendants amended their answer within the 21 day period
allotted by the rules. Also, Defendants had not previously amended
their responsive pleading. As such, Defendants were entitled to amend
their answer as a matter of right and include the counterclaims.
Accordingly, Plaintiff’s motion to strike is hereby DENIED.
B.

Motion to Dismiss
Plaintiff states that the Court should dismiss the breach of

contract counterclaim because Defendant failed to properly plead the
existence of a contract and the tort claim because it is time-barred.
1.

Breach of Contract Counterclaim

“Under Puerto Rico law, a contract has three elements: consent,
a definitive (and legal) object, and consideration.” Citibank Global

CIVIL NO. 09-1895 (JP)

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Markets, Inc. v. Rodriguez-Santana, 573 F.3d 17, 24 (1st Cir. 2009)
(citing P.R. Laws Ann. tit. 31, § 3391; Quinones-Lopez v. ManzanoPosas, 141 D.P.R. 139 (1996)). Plaintiff argues that Defendants’
breach of contract counterclaim fails because Defendants failed to
plead sufficient facts to meet any of the three elements of a valid
contract.
a.

Consent

“Consent is shown by the concurrence of the offer and acceptance
of the thing and the cause which are to constitute the contract.”
P.R. Laws Ann. tit. 31, § 3401. Plaintiff argues that Defendants’
counterclaim should be dismissed because Defendants did not plead the
required meeting of the minds to establish offer and acceptance. Said
arguments fails. In the instant case, Defendants alleged that Charles
Hurwitz contacted Plaintiff on Defendant Surfside’s behalf and that
Plaintiff stated that Surfside could develop the desired structures
as long as they did not impair or block the view from his property.
Said allegations support a finding that Defendants alleged a meeting
of the minds in which Plaintiff consented to the proposed new
improvements on the condition that they did not block his view. Thus,
the Court finds that Defendants have pleaded sufficient facts to
support the consent element.

CIVIL NO. 09-1895 (JP)
b.

-8-

Definitive Object

“The object of every contract must be a thing determined with
regard to its kind.” P.R. Laws Ann. tit. 31, § 3423. Plaintiff argues
that there was no definitive object to the contract because there was
no description of the specific construction and on the specific area
where said construction would take place.
After

considering

the

argument,

the

Court

disagrees

with

Plaintiff. Defendants alleged Plaintiff and Defendants “entered into
a contract pursuant to which Kolker gave his consent for Surfside to
build the proposed structures, subject to the condition precedent .
. . that the structures did not impair or block the view from
[Kolker’s] property[]” (No. 91, p.13 ¶17). Based on said allegation,
the Court finds that the object of the contract was the right to
build new improvements which would not block Plaintiff’s view from
his

property.

While

the

exact

characteristics

of

the

proposed

construction were not completely decided, the Court finds that the
proposed project was sufficiently determined to support the existence
of

a

contract.

Thus,

the

Court

finds

that

Defendants

pleaded

sufficient facts to support the definitive object element.
c.

Consideration

“Contracts

without

consideration

.

.

.

have

no

effect

whatsoever.” P.R. Laws Ann. tit. 31, § 3432. Plaintiff argues that
there was no valid contract because Defendants offered Plaintiff no

CIVIL NO. 09-1895 (JP)

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consideration. Said argument fails. Under Puerto Rico law, it is
presumed

that

consideration

exists

and

is

legal

until

proven

otherwise. P.R. Laws Ann. tit. 31, § 3434. At the motion to dismiss
stage, Plaintiff cannot prove that there was no consideration.
Moreover, under Puerto Rico law, mere liberality or a detriment
to the other party can be sufficient consideration for a contract.
P.R. Laws Ann. tit. 31, § 3431; Westernbank Puerto Rico v. Kachkar,
2009 WL 6337949 at *35 (D.P.R. Dec. 10, 2009) (citing Bennett v.
Boschetti,

31

P.R.R.

809,

814

(1923)).

Here,

Plaintiff’s

mere

liberality is sufficient consideration and so is the detriment to
Defendants that any new improvements will have to conform to certain
limitations in order to not block Plaintiff’s view. Defendants have
also incurred in additional expenses while relying on Plaintiff’s
alleged consent for Defendants to develop new improvements as long
as these do not block Plaintiff’s view. Therefore, Defendants have
alleged sufficient facts to support the consideration element.1
Accordingly, the Court finds that Defendants have alleged
sufficient facts to support a finding that there was a valid contract
between Plaintiff and Defendants.

1

The Court notes that Plaintiff’s reliance on Mercado v.
Mercado, 66 D.P.R. 38 (1946) is unpersuasive because, if anything,
said case supports a finding that there was sufficient consideration
in this case.

CIVIL NO. 09-1895 (JP)
2.

-10-

Tort Counterclaim

Plaintiff argues that the tort counterclaim, filed on March 17,
2011, is time-barred because it was filed over one year after the
alleged incidents giving rise to the counterclaim. Plaintiff also
restates his arguments from the motion to strike that the compulsory
counterclaim would have been timely only if it had been asserted when
Defendants filed their original answer.
Plaintiff’s argument fails. It is well settled that the filing
of a complaint tolls the limitations period for any compulsory
counterclaims based on the same transaction or occurrence. See, e.g.,
Bonilla v. Trebol Motors Corp., 913 F. Supp. 655, 660 (D.P.R. 1995).
In the instant case, Plaintiff’s filing of the complaint tolled the
statute

of

limitations

for

the

compulsory

counterclaims

that

Defendants are asserting. Also, as explained in the motion to strike
section of this Opinion and Order, Defendants’ amendment of the
answer to assert counterclaims has no effect on the timeliness of the
counterclaims in this case because Defendants could amend their
pleading without leave of Court. As such, Plaintiff’s argument fails.
Accordingly, the Court hereby DENIES Plaintiff’s motion to
dismiss Defendants’ counterclaims.

CIVIL NO. 09-1895 (JP)

-11IV.
CONCLUSION

Thus, the Court DENIES Plaintiff’s motion to strike and/or
dismiss Defendants’ counterclaims.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 14th day of October, 2011.

S/JOSE ANTONIO FUSTE
JOSE ANTONIO FUSTE
UNITED STATES DISTRICT JUDGE