Motions under Rule 12(b)(6) are largely undeveloped. This appeal comes from the granting of such a motion on an undeveloped piece of land. Hammer Homes contacted the City of Phoenix asking about land restrictions or stipulations. The planner misses some zoning-related stipulations, and Hammer purchased the property. The city later tells Hammer about the stipulations. Hammer alleges the property is undevelopable as planned and demands $2.5 million in lost profits. The trial court holds no duty and, oddly, the representations were legal not factual. (Our guess is the city was looking for immunity or a lack of duty and was having trouble finding it.) The court of appeals holds there is a duty, and based on the allegations, Hammers sufficiently alleges negligent misrepresentation under Restatement (Second) of Tort § 552(1). The court of appeals finds a duty under § 552: the only section in the entire Restatement regarding negligent communication and economic loss. This expansive section includes innocent misrepresentation and states if one has a pecuniary interest and negligently provides false information for the guidance of others in their business, and they rely upon this information, then there may be liability for negligent misrepresentation. The duty, the court of appeals holds, is created by providing information. Since the city would have received fees had the property been developed, the court of appeals hold this “pecuniary interest” is sufficiently pleaded. The city argued Hammer was seeking legal advice on whether applicable zoning and land-use stipulations applied and not factual information. The court of appeals responds: “But Hammer did not request or rely on a legal opinion about a stipulation; it merely asked whether any existed.” The court of appeals rejects additional arguments focusing on whether there could have been justifiable reliance. Since this was decided on a motion to dismiss, we expect better arguments and evidence on summary judgment. Our criticism: Stop issuing opinions on remanded motions to dismiss when neither the facts nor the law is developed. Doing so creates an impression of substance. This opinion creates more questions than answers. Pecuniary interest? Reliance? Lost profits? Better to sort this out on summary judgment. For now, at the notice pleading stage a 12(b)(6) motion is a mumble strip on entry into court.

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