IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF CHRISTIANSTED AT ST. CROIX



IRVING BALL



PLAINTIFF

CIVIL NO. 84/82

Vs.

ACTION FOR BREACH OF CONTRACT

STEPHEN A. TOTH



DEFENDANT



MEMORANDUM OPINION

(MAY {3 11982)



JOHN B. NICHOLS, Esq.



7 King Street

Christiansted, St. Croix.

--Attorney for Defendant



RONALD T. MITCHELL, Esq.

P.O. Box 9517



St. Thomas, U.S.V.I.

--Attorney for Defendant



SILVERLIGHT, Judge



This matter comes before the Court on Motion of Defendant to |

Dismiss pursuant to Rule 12(b) (6) F.R.Civ.P. or in the cikaaneaect

for Sumer, Judgment pursuant to Rule 56 F.R.Civ.P. Since the

contract annexed to the complaint and referred to suaeay is



incorporated in and constitutes a part of the complaint, we may



proceed under Rule 12(b) (6) F.R.Civ.P. The Motion will be DENIED.



The thrust of defendant's position is that plaintiff cannot

prevail because his claim asserts representations allegedly made



but not included in the written agreement thereby barred by the



bys



~ Rule 10(c) provides, in pertinent part

...A copy of any written instrument which

is an exhibit to a pleading is a part

thereof for all purposes.

atl,

7 a



BALL V. TOTH

MEMORANDUM OPINION



PAGE 2

2/



doctrine of integrated agreements. There is no doubt that the

doctrine is applicable to the case at bar. See generally

Restatement of Law, Second, Contracts, sections 209 et seq.

However, defendant misses the mark in failing to recognize that

plaintiff's claim is asserted as fraud in the inception.

Paragraph 4 of the complaint expressly refers to the assurances



allegedly given by defendant prior to the execution of the contrac



and paragraph 5 asserts the plaintiff's reliance on those |

assurances.



While it is conceded that the complaint may be inartfully

drawn, it cannot be said that the pleading falls short of giving



3/



notice to defendant of the nature and scope of the claims.



If plaintiff can prove by clear and convincing evidence that

defendant's assurances induced plaintiff to enter into the agree-

ment, plaintiff will be able to prevail at trial. See Restatement



(Second) Contracts 214.



Professors Wright and Miller addressed the question of Rule



Seen nee eetemeben Oar ae i



12(b) (c) dismissals in their texthook which has attained the

status of a procedural handbook of the law. They state that:



The motion to dismiss for failure to state

a claim is viewed with disfavor and is

rarely granted. Rule 8 indicates that a

complaint need only set out a generalized

statement of facts from which defendant -

will be able to frame a responsive pleading.

Few complaints fail to meet this liberal



. Standard and become subject to dismissal.

Moreover, the courts are reluctant to

dispose of the complaint on technical grounds

in view of the policy of the federal rules

to determine actions of their merits.



~



WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL §1357 at



2/

' This doctrine is commonly called the parol evidence

rule. a



af

~ See Fules 8(a) (2); 8(e)(1) and 8(£) F.R.Civ.P.



Fo eG ee

=e ore

2 eee ee tree



——seee



BALL V. TOTH

MEMORANDUM OPINION

PAGE 3



598-99(1960 & Supp. 1982).

Accordingly, the motion to Dismiss and



Summary Judgment will be DENIED.



DATED: May /3, 1982



ENTERED:



the Motion for



MN SL



IRWIN J. SIL sae



Flea



SA a EO en