THOMPSON, Associate Judge:
In January 2013, plaintiffs/appellants Michael Francis and Queue, LLC ("Queue") brought suit against defendants/appellees Munir Rehman and HAK, LLC ("HAK"), alleging breach of contract, unjust enrichment, breach of fiduciary duties, and fraud and seeking an accounting. After the Superior Court dismissed certain of the claims and afforded appellants leave to amend their fraud claim, appellants voluntarily dismissed the remaining claims, positioning themselves to bring this appeal challenging the court's order that granted in part appellees' motion to dismiss. Although a developed record might show that appellees are entitled to judgment on the ground that the underlying contract (for "design services") was unenforceable because appellant Francis lacked a license to practice architecture in the District of Columbia, we are persuaded that the court could not so determine at the motion-to-dismiss stage. Accordingly, we reverse the judgment and remand for further proceedings.
Appellants alleged the following in their First Amended Complaint. Appellant Francis is the owner and operator of appellant Queue and is a minority owner of HAK. Appellee Rehman is a nightclub and restaurant developer and the controlling owner of HAK, which operates a bar/restaurant/nightclub establishment at 1219 Connecticut Avenue, N.W. ("1219 Connecticut").
In 2008, Francis and Queue agreed to provide "design services" for Rehman's then-new 1219 Connecticut venture. Appellants were "to be compensated through profits obtained with Mr. Francis as a co-owner of the business. Specifically, Francis and Rehman agreed that Francis would be reimbursed for his actual expenses in obtaining the various services, would be paid a fee of $25,000, and would have a 2.5% ownership interest in HAK. The "design services consisted of ... obtaining design services from a licensed architect and third party consultant services[,]" such as those of lighting designers and structural engineers. The First Amended Complaint further alleges that, "[w]ith [Rehman's]
According to the First Amended Complaint, Francis obtained the services of Clark and "advanced the expenses for third party consultants[,]" and design work on the 1219 Connecticut project was completed by late 2009, but Rehman paid Francis only a $15,000 fee, failed to pay Francis any of the profits of HAK or to provide its financial records, and failed to reimburse Francis for expenses.
The First Amended Complaint further alleges that Rehman and Francis entered into another agreement, which was never memorialized in writing, under which Francis would provide similar services in connection with a Rehman establishment located at 1223 Connecticut Ave., N.W. ("1223 Connecticut"). Under the agreement, Rehman was to "cover expenses [Francis] incurred in the design" and Francis was to receive "a 5% ownership interest in [the 1223 Connecticut establishment] in exchange for over $125,000.00 in services obtaining the designs from Architect Clark and procuring third party consultants for those designs." The Complaint avers that appellants provide the contracted-for services, that Francis "loaned funds to [Rehman] in the form of payments to third party consultants for [the project] ... with the express agreement that [Rehman] would reimburse those loans[,]" and that the 1223 Connecticut establishment opened in 2010, but that Rehman has not repaid the loans and Francis has not been paid any profits owed to him.
Appellants filed their Initial Complaint on January 22, 2013, and their First Amended Complaint on May 8, 2013. Count I of the First Amended Complaint alleges that appellees breached the contract relating to 1219 Connecticut. Count II alleges that appellees breached the contract relating to 1223 Connecticut. Although captioned "Unjust Enrichment (1223 Connecticut)," Count III alleges that appellants conferred benefits on appellees by providing services and advancing expenses for both the 1219 Connecticut and 1223 Connecticut ventures and that appellees have been unjustly enriched by retaining those benefits. Counts IV and V allege breach of fiduciary duty. Count IV is based on Rehman's failure to reimburse Francis in connection with the 1219 Connecticut project and to pay him his share of HAK profits. Count V is premised on appellees' failure to reimburse appellants and to pay Francis profits in connection with the 1223 Connecticut project. Count VI alleges fraud based on appellees' false representations that Francis and Queue would be compensated and reimbursed as described above.
Appellees moved to dismiss the First Amended Complaint pursuant to Super. Ct. Civ. R. 12(b)(6) for failure to state a claim upon which relief may be granted. On July 17, 2013, the Superior Court judge (the Honorable Natalia M. Combs Greene) granted the motion to dismiss Count I, reasoning that "Plaintiff Francis is not a licensed architect" and that "negotiat[ing] a contract to provide architectural services
Subsequently, appellants filed a Second Amended Complaint, eliminating the dismissed counts, renumbering the remaining counts, and providing specificity regarding the fraud claim. Appellees again moved to dismiss. Judge Combs Greene denied the motion to dismiss. However, explaining that the court's July 17, 2013, ruling had "effectively gutted" their case, and in order to expedite an appeal of the portions of that ruling that dismissed the claims that appellants assert are their "primary claims," appellants thereafter moved to voluntarily dismiss without prejudice all the counts set forth in their Second Amended Complaint.
Because appellants voluntarily dismissed the counts included in the Second Amended Complaint, the only issues on appeal
II. Applicable Law
A court considering a Rule 12(b)(6) motion must "construe the complaint in the light most favorable to the plaintiff by taking the facts alleged in the complaint as true." Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 709 (D.C.2013). "[A] defendant raising a 12(b)(6) defense cannot assert any facts which do not appear on the face of the complaint itself." Carey v. Edgewood Mgmt. Corp., 754 A.2d 951, 954 (D.C. 2000). "When the trial court decides a Rule 12(b)(6) motion by considering factual material outside the complaint, the motion shall be treated as if filed pursuant to Rule 56, which permits the grant of summary judgment if there are no material facts in dispute and the movant is entitled to judgment as a matter of law." Kitt v. Pathmakers, Inc., 672 A.2d 76, 79 (D.C.1996). However, "when treating a Rule 12(b)(6) motion as a motion for summary judgment, where outside factual material is not excluded, the trial court must give the parties notice of its intention to consider summary judgment and an adequate opportunity to present affidavits or other matters appropriate to a ruling on such a motion." Washkoviak v. Sallie Mae, 900 A.2d 168, 178 (D.C.2006) (internal quotation marks omitted); see also Herbin v. Hoeffel, 727 A.2d 883, 886-87 (D.C.1999) ("[F]or the trial court to have relied on those facts outside the complaint, without notifying Herbin that it intended to do so and giving him an opportunity to present additional material relevant to a summary judgment motion, is reversible error.").
"[D]ismissal under Rule 12(b)(6) is appropriate where the complaint fails to allege the elements of a legally viable claim." Chamberlain, 931 A.2d at 1023. "To prevail on a claim of breach of contract, a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach." Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C.2009) (emphasis added). However, to state a claim for breach of contract so as to survive a Rule 12(b)(6) motion to dismiss, it is enough for the plaintiff to describe the terms of the alleged contract and the nature of the defendant's breach. Nattah v. Bush, 605 F.3d 1052, 1058 (D.C.Cir.2010) (reasoning that plaintiff was not required
D.C.Code § 47-2853.63 (2012 Repl.) provides that "unless licensed to practice architecture ... no person shall engage, directly or indirectly, in the practice of architecture in the District[.]" The statute defines the term "practice of architecture" to mean "rendering or offering to render services in connection with the design and construction, enlargement, or alteration of a structure ... that ha[s] as [its] principal purpose human occupancy or habitation, as well as the space within and surrounding the structures." Id. at § 47-2853.61; see also 17 D.C.M.R. § 3410.1 (2008) (same). "These services include planning and providing studies, designs, drawings, specifications, and other technical submissions, and the administration of construction contracts."
The architect licensure requirement is intended "to safeguard life, health, and property, and to promote the public welfare." Id. at 254-55 (internal quotation marks omitted); see also Holiday Homes, Inc. v. Briley, 122 A.2d 229, 231 (D.C.1956) ("The Architect's Registration Act ... is a regulatory act designed for the public welfare[.]"). "[A] contract made in violation of a licensing statute that is designed to protect the public will usually be considered void and unenforceable, and [the] party violating the statute cannot collect monies due on a quasi-contractual
While cases in some other jurisdictions explicitly recognize that an unlicensed entity may contract to provide architectural services through a licensed architect,
We also note that 17 D.C.M.R. § 3403.1(b) provides that an individual applying for an architect's license by examination must "[s]atisfy the Intern Development Program (IDP) training requirements,"
In this case, Judge Combs Greene granted appellees' Rule 12(b)(6) motion to dismiss because "[t]he First Amended Complaint and Plaintiffs' response do not contain facts sufficient for the Court to find that a valid contract was formed between the parties." July 17, 2013, Order at 4. The court explained first that "Plaintiff Francis is not a licensed architect" and that "any agreement that he `negotiat[ed]' or entered into for the provision of architectural, interior design, or design service is `void and unenforceable.'" July 17, 2013, Order at 4 (quoting Sturdza, 11 A.3d at 252-57).
However, nowhere in the First Amended Complaint did appellants state that appellant Francis is not licensed as an architect in the District of Columbia,
We conclude that before the court could "find that [no] valid contract was formed between the parties," it was obligated to treat appellees' motion as a motion for summary judgment and to afford appellants an opportunity to come forward with affidavits, documentation,
Appellees argue that the new factual allegations contained in the First Amended Complaint (such as the allegation that appellants performed work under the direct supervision of a licensed architect) are irreconcilable with the allegations in the Initial Complaint, which appellees assert appellants changed in order to respond to the motion to dismiss. Appellees assert that the "irreconcilable" allegations of the First Amended Complaint "must be disregarded" and only the allegations in the Initial Complaint accepted as true for purposes of analysis. However, "`[o]nce an amended pleading is interposed, the original pleading no longer performs any function in the case[.]'" Hayward v. Cleveland Clinic Found., 759 F.3d 601, 617 (6th Cir.2014) (quoting 6 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed.2002)). We also do not agree that the allegations in the Initial Complaint and the First Amended Complaint are irreconcilable; the allegations that appellants "provided design services" to appellants and "performed design services" for appellee Rehman's ventures, Initial Complaint ¶¶ 1, 7, do not necessarily conflict with the allegation in the First Amended Complaint that "[t]hose design services consisted of [appellants] obtaining design services from a licensed architect[.]"
For the foregoing reasons, we hold that it was error to grant the motion to dismiss for failure to state a claim. Wherefore, insofar as the July 17, 2013, order dismissed appellants' breach of contract claim relating to the 1219 Connecticut project and the related unjust enrichment and breach of fiduciary duty claims, the order is reversed, and the case is remanded for further proceedings consistent with this opinion.