Reference no: EM133199908
Draft a Memorandum of Law that supports a Motion to Dismiss under Md. Rule 3-311 using the case facts below. The Memorandum of Law should thoroughly explain the law and cases that support Folly's request for a dismissal.
Case Facts: Sherman Helmsley originally leased Apartment 1-B in the College Park Apartments to Jack Lemmonaid. In the lease, Mr. Lemmonaid agreed, among other things, that he would not use the premises "for purposes other than that of a private residence." He also agreed "not to assign or sublet all or any part of the premises without the written consent of the Landlord."
The lease contained a similar provision concerning additional tenants moving into the unit after the start of the lease term, i.e., such an arrangement required the prior written consent of the landlord. Several months into his lease, Mr. Lemmonaid was fired from his job as a drink vendor at the University of Maryland sports arena; he was concerned he would not be able to make the next month's rent payment.
On his last day on the job, the Maryland Terrapins won the national basketball championship and mayhem ensued at the arena. Bitter at his employer for firing him, Mr. Lemmonaid took advantage of the commotion around him and took some equipment and supplies from his workplace.
Mr. Lemmonaid returned home with a plan to sell drinks out of his apartment to raise his rent money. Convinced he would make a lot of money with all the college students in the area, he decided to do some market research in a local pub. There, he struck up a conversation with the bartender, Emily Folly. Ms. Folly works at the pub part-time to earn extra money for her tuition as a part-time student at University of Maryland University College. She also works full-time at the local library. Mr. Lemmonaid was surprised to learn from Ms. Folly that the State of Maryland required a liquor license to sell alcoholic beverages. In appreciation for her advice, Mr. Lemmonaid volunteered to ask whether any apartments in his building were available for rent. Ms. Folly was looking for a place to live with her two children. Her house recently burned down, and she and her eight-year-old twins have been moving around among different friends' houses as Folly could not find a suitable, affordable place to live.
Mr. Lemmonaid took a walk before returning home, racking his brain about the type of drinks he could sell with his ill-gotten equipment and supplies. He passed a lemonade stand operated by neighborhood children. Suddenly, he turned and exclaimed to the children, "That's it! I will sell iced tea from my apartment! That's perfect for a first-floor apartment! Thirsty people can walk right onto my patio for a refreshing drink!" He ran the rest of the way home to the apartment complex. He was so excited that he shared his idea with the front desk clerk and manager, Betsy Evans.
The next day, Mr. Helmsley delivered a memo on College Park Apartments letterhead reminding Mr. Lemmonaid that he was not to use his apartment for commercial purposes. The letter further stated that if he attempted to open an iced tea stand as reported, management would turn off his water supply.
Mr. Lemmonaid was in a bind as he could not afford to pay his rent. He decided to skip town but before he did, he stopped by the pub and told Ms. Folly she could have his apartment. He said that the landlord was very nice and would have no problem with her moving in as long as the rent was paid on time. Ms. Folly was elated. The apartment was affordable, large enough for her and her two children, and within walking distance to the twins' elementary school.
Ms. Folly paid $250 to Lemmonaid for his security deposit under the lease and Lemmonaid gave her a copy of the lease. She and her twins moved in that same day. Ms. Folly took over Mr. Lemmonaid's rent payments, sending them directly to College Park Apartments, and enjoyed her new apartment for the next six months. Neither Mr. Helmsley nor the apartment manager, Betsy Evans, noticed that Mr. Lemmonaid no longer lived at the apartment complex until one day when Mr. Helmsley smelled smoke coming from Apartment 1-B.
Mr. Helmsley found Ms. Folly frantically running around the kitchen; she was baking pies for a church fundraiser and one of the pies had burned in the electric oven. The following morning Mr. Helmsley delivered a letter to Ms. Folly written on College Park Apartments letterhead declaring that the lease was "null and void and cancelled" because it had been assigned to her without written consent. Additionally, Mr. Helmsley wrote that "The past, present and/or continued acceptance of checks that we receive as payment of rent shall not be construed as approval of assignment of the lease by Mr. Lemmonaid..."
Despite this letter, Mr. Helmsley continued to accept rent from Ms. Folly for several months, until Betsy Evans noticed Ms. Folly occasionally carrying pies out to her car. One morning, Betsy greeted Ms. Folly as she entered the building and asked about the pies. Ms. Folly told Ms. Evans that she was now selling pies to church members for their family dinners and special occasions. Through the church fundraiser, she had stumbled upon an untapped market for her pies, and the orders had begun to pour in. She bakes about ten pies per week and sells them to church members at a price that is just enough to cover her cost for ingredients. She delivers all the pies baked in her apartment kitchen to church members. Sometimes, the church lets her bake pies in the church kitchen oven. Mr. Helmsley, believing this to be a violation of the lease, has sent Ms. Folly a note stating that, even if she had a lease with him, he intends to repossess the apartment by evicting her for carrying on a commercial activity in the apartment that is to be used only for a residence.
More than 60 days have passed since Mr. Helmsley's letter. Since the date of the letter, College Park Apartments has continued to accept Ms. Folly's rent payments.