Opinion
Case No. 8:10-cv-650-T-30TBM.
July 27, 2010
ORDER
THIS CAUSE comes before the Court upon Defendant Condominium Owners Association of Sand Cay, Inc.'s Motion to Dismiss (the "Association) (Dkt. 10) and Plaintiff's Memorandum in Opposition of same (Dkt. 13). On July 27, 2010, the Court held a hearing on the Association's motion. For the reasons stated on the record and upon consideration of the motion, response, and argument of counsel, the Association's motion is granted without prejudice to Plaintiff to amend his complaint to state a claim within twenty (20) days from the date of this Order.
As the Court stated at the July 27, 2010 hearing, Plaintiff needs to allege specific facts of an undertaking of a duty on the part of the Association and/or facts that the Association was in actual or constructive possession of Plaintiff's condominium unit in order to state an actionable claim. Additionally, any breach of contract claim must sufficiently allege the existence of a contract, either express or oral. Lastly, the Court notes that the Association's statute of limitations argument is more appropriate at the summary judgment stage because it requires an analysis of the facts as to when Plaintiff knew or should have known of the alleged injury to his unit.
It is therefore ORDERED AND ADJUDGED that:
1. Defendant Condominium Owners Association of Sand Cay, Inc.'s Motion to Dismiss (Dkt. 10) is hereby GRANTED without prejudice for the reasons stated on the record.
2. Plaintiff has twenty (20) days from the date of this Order to file an amended complaint.DONE and ORDERED in Tampa, Florida.