*1 A.2d 579 ELDERLY HAGERSTOWN ASSOCIATES LIMITED PARTNERSHIP
v. ELDERLY BUILDING ASSOCIATES HAGERSTOWN Alexander, Inc., PARTNERSHIP, LIMITED H.B. Surety Company. and Seaboard Company, Houck Inc. & v.
Dryvit Systems, Inc. Term, Sept. No. 2001. Maryland. Appeals Court of March *2 P.C., (Bazelon, Feldmaln, Philadelphia, & Paul B. Bech Less Powell, PA; of Law Offices of Leslie Freder- Leslie A. Powell ick), Appellants/Cross-Appellees. (James Tydings Rosen- C. Fraser of & Patrick Burns
Scott (Bacon, LLP, brief), Baltimore, Patriia M. Thornton berg, on (Russell LLP, Lanham, Palmer, brief), R. Thornto & P.A., Gilbert, Hagerstown, on Marks, Digirolamo, Marks & Beckley brief; Beekley, Milakovic of & Thomas A. John G. *3 brief) (John Jr., O’Neill, Madden, on of Rock- Harrisburg, J. brief), ville, Appellees/Cross-Appellants. on RAKER, BELL, C.J., ELDRÍDGE, Argued before and KARWACKI, WILNER, HARRELL, and BATTAGLIA (Retired, specially assigned), ROBERT L. JJ.
RAKER, J. Elderly Associates Limited Partner- Appellant, Hagerstown facility Hagerstown, public housing is of a ship, the owner Maryland known Elizabeth Court. On or about October eleven-story building portion of an exterior wall of the later, 16, 1996, year appel- A on ground. fell to the October Washington County suit in Circuit Court for lant filed the appellees Hagerstown Elderly Building Associates against (HEBA), building, that and the contractor erected the Sea- (Seaboard), surety perfor- Surety Company board the the by bond HEBA connection with construc- mance filed tion, expense restoring building to and recover regarded work. correcting appellant what as deficient Vari- eventually third-party added as ous subcontractors were de- fendants. granted summary judgment to appellees
The Circuit Court (1) contractor, action grounds against on the HEBA, by ten-year was barred statute of codified (1957, Maryland RepLVoL, Supp.) § 5- Code 108(b) (2) Proceedings of the Courts and Judicial Article1 and Seaboard, against surety, by action was barred twelve-year statute of limitations codified in 5-102. We initiative, granted prior any on our own certiorari decision by Special Appeals, present- the Court of to review the issues rulings. ed in those granting summary find no error in the Circuit Court’s
We shall, therefore, judgment to HEBA on I and affirm find, however, judgment. We court erred granting summary judgment appellees on Count II and shall, therefore, judgment. reverse that
I. public housing facility elderly is a and Elizabeth Court persons. project disabled Construction was financed (CDA) Community Development the State Administration and (MHF), Maryland Housing using provided by Fund funds Department Housing the United and Urban States Devel- opment. construction contract appellant between and HEBA, 22, 1982, required HEBA to provide dated October assuring bond appellant and CDA and, completed, that the contractual work would in con- be bond, obligation, appellees formance with that such a issued running jointly appellant obligated The bond CDA. appellees, jointly severally, CDA the *4 $4,284,000 price amount of construction contract the —the —for contract, prompt provided and faithful of but the any suit under the bond must be instituted before indicated, subsequent statutory 1. Unless otherwise references are to (1957, Maryland Repl.Vol., Supp.), Code Courts and Judicial Proceedings Article. payment final on which years of “from the date expiration two falls due.” under the Contract wall of the exterior
HEBA the installation subcontracted to system, That referred system Novinger’s, Inc. (EIFS), consist- system finish as an exterior insulation parties provide intended to multiple layers of of different materials ed of against infiltration protection and thermal insulation elements. inspection a final City Hagerstown of conducted building on for the Occupancy a Use and Permit
issued 16, HEBA and architect filed a Certifi- 1983. December 21,1983. on On Completion cate of December Substantial occupancy for the day, granted permission appellant same to the Certificate project. all 110 units of the Pursuant “punch presented HEBA was with a Completion, Substantial which, in completed, for of final items to be corrected or list” part of the accordance with the construction 28, 1984, HEBA February placed escrow. On all of items completed architect that it had advised the inspection report requested on listed the architect’s so that no escrow reinspect the architect those items required closing. applied would be at final CDA MHF on mortgage proceeds insurance of the advance of October 26, 1984, approved MHF an advance of 1984. On October $316,818.00. A closing, final loan for the release funds, remaining place was set for took November following day, Final to HEBA the was made 2, 1984. on November 14, 1995, Hagers- storm hit unusually
On October an severe town, during large which a section of exterior wall surface building ground. conduct- blew out fell After investigation, appellant an the incident ing concluded system, faulty occurred because construction the EIFS causing eventually Appel- wall to debond and fall. surface know, lant that it no and no knowledge, claimed had reason faulty collapse. construction until the actual On Octo- 16, 1996, suit, seeking I of its ber filed
356 HEBA for breach of contract against
complaint recover against HEBA and Seaboard under II to recover Count bond. performance summary Washington County granted Court for Circuit on both counts of the com- appellees in favor of
judgment I, that the court found plaint. respect With Count §in 5- by repose contained action was barred statute 108(b). II, apply to Count the court declined With perfor- provided of limitations two-year statute (1957, bond, Maryland by virtue of Code holding mance Article, § 12-104 of the Insurance Repl.Vol., Supp.) 2001 1998 court public policy and void.2 The provision against that was that period of limitations set applicable concluded that the 5-102(a)(2) namely, that an action on a bond shall §in forth — of action. years of accrual of the cause be filed within twelve period set two-year found limitations Although the court unenforceable, provision it looked to that forth the bond as to when the accrual time parties’ intent determine commenced, date on which final which was “the Although falls the court consulted under the Contract due.” contract and 9.9.2 of the General Condi- Article 3C tions, 1984 ultimately dispositive found CDA’s October items, MHF of list” “punch for final from request that amount was then in which CDA declared its belief days years was filed twelve and six “payable.” As the suit date, court Count II to be barred after held limitations.
II. (1) urges the statute of appeal, appellant 108(b) I §in does not bar the action set forth 5— 12-104(a) (1957, Maryland Repl.Vol., Supp.) § Code surety provision or Article states that a in an insurance Insurance bring a shorter time to an action under contract contract that sets required by law of the State when the contract was issued than that 12-104(b) against public policy void. Section or delivered is state illegal may give an provides that a state court effect to such may provision liability not be and that a defense to under the contract period. on the shorter limitations based actions or contract apply to breach of it does not because containing the arising injury property claims out of (2) the Circuit condition and and unsafe allegedly defective purposes payment due date fixing the final erred Court 10, 1984, bond as October action on the *6 that 5- 1, contends Appellant than November rather two, 108(b) overlapping, rea- for somewhat applicable is not only First, that is directed claims the section appellant sons. of contract. actions on breach at tort actions and not at based classic couched in the urges, expressly it “is language, Second, tort, that the argues contract.” it terminology of or personal injury for applies “only to actions either section other than the personal property or damages to real improvement.” and containing the property unsafe defective added). posits “expressly It that the section refers (Emphasis (a) and ‘condition’ only to situations where a defective unsafe (b) causes a improvement property separately of an to real personal property.” injury to other real or separate avers, that period limitation is set setting, appropriate (e) (c) years and from when the forth subsections —three occurred, collapsed. from wall damage when the II, performance to the action on the With Count bond, trial court was correct appellant concedes that finding limitations and in applying twelve-year statute of payment when final period that the limitations commenced Appellant’s only disagreement HEBA is over when fell due. Appellant urges pay- the final fell due. 1984, the date ment did not fall due until either October or approved mortgage proceeds, that MHF the advance of 1,1984, closing, final loan both dates November the date of the being twelve-year period prior within the commencement essentially two Appellant argues action. that there were (which precedent payment: approval to final CDA’s conditions 10,1984, CDA stated its it claims occurred on October when sum of advance application insurance prior payable”), “now which itself was conditioned on the 1984). (which approval of MHF occurred on November Against III. I: Action HEBA Count Contract complaint, captioned I appellant’s Breach Contract, HEBA alleges entered into design HEBA to obligated construction contract building plans, specifica in accordance with the construct warranted, tions, documents, contract that HEBA other expressly impliedly, or that its would be either defects, full, complete, and from and that the defects sued free surface, upon, including the deterioration the east wall were design in the and construc the direct result of latent defects HEBA building perform tion of the and the failure of its warranties, and work in accordance with the its proper practices. construction degrees 5-108 forth several forms and
Section sets damages arising on actions for from limitation defective 5-108(a), improvements property. unsafe real Section regarded which we have statute of rather than one limitations, places twenty-year period an absolute on actions *7 death, damages wrongful injury, injury for or personal from personal property resulting real or the defective improvement property. conditions of an to real No unsafe such cause of action accrues when the and unsafe defective improvement twenty years condition of occurs more than improvement after the date that the entire first became 108(b), which available for its intended use. Section with we 5— here, language deal uses the same format and the same impose ten-year period against a of on actions an architect, engineer, It professional provides: or contractor. section,3
“Except
provided by
a cause of action for
may
and a
damages
person
does
accrue
not seek contri-
architect,
indemnity
any
professional engi-
bution or
from
neer,
damages
wrongful
or contractor for
incurred when
death, personal injury,
injury
personal proper-
or
to real or
5-108(d) provides
exception
twenty-year period
3. Section
an
to the
set
(a)
(b)
ten-year period
in
set
in
forth
subsection
forth
subsection
injuries arising
exposure
for certain actions based on
from
to asbestos
products.
exception
apply
That
does not
in this case.
conditions of an
and unsafe
ty, resulting from the defective
years
than 10
occurs more
property,
to real
improvement
available
improvement first became
after the date the entire
its
use.”
intended
§
also contains
periods
repose,
5-108
addition to these
(c)
that, upon
provides
a statute of limitations. Subsection
(a) and
of a
of action referred to in subsections
accrual
cause
(e),
(b),
years.
within
Subsection
an action shall be filed
three
turn,
§in
5-
injury
“an action for an
states that
described
injury
damage
108 accrues when the
or
occurs.”
appellant’s complaint,
It
I of
which is
is clear that Count
and was based on the defective
unsafe
against contractors
years
improvement,
was not
within ten
condition
an
filed
building—
improvement
that the
after the date
entire
—the
December, 1983,
first
for its
use
became available
intended
Hagerstown’s
inspection
completed,
was
City
when the
issued,
occupancy
permission
a
was
certificate
CDA’s
issued,
occupancy by
was
first
a
occupy
units
5-108(b)
therefore, it would bar
applies,
§
tenant occurred.
If
action.
5-108(a)
(b)
question
or
is limited
its
The
whether
to claims for
application
applies
to tort actions or
as well
essentially
warranty
breach of contract or breach of
was
Pool,
Fox
Md.
In first we concluded under sub- (a), immunity twenty from suit after section defendant’s occupation or on the years depend did not the defendant’s 5-108(a) § type Having of service it concluded provided. we against respondent, covered actions defendants like the applicable only negligence found to the and the section claims, warranty but to claim as liability strict the breach only proceedings remanded the case for further well. We conclusion, issue, respect because of our with to the second legitimate dispute was a of material fact there twenty- brought the action was within the allowable whether year period. (a) (b) indicated,
As almost we subsections are substance, significant identically only worded difference architects, being respect profes with between them contractors, engineers, brought sional the action must be (a) ten, twenty, years. ap within than If rather subsection actions, plies warranty perforce to breach of so does subsec (b). tion Appeals
The United States Court the Fourth Circuit has conclusion with 5-108. reached the same F.3d Sprinkler, Ins. Co. v. American Automatic Hartford (4th Cir.2000), brought by appellant, an action was an company subrogee, damages insurance done to a hotel bursting standpipe from the of a water installed appellee. part which was pipe, sprinkler the overall system, fire-protection had been installed 1982. The appellee sprinkler system work repair had done some January bursting flooding and the occurred within complaint, month which was on both thereafter. The based initial installation work in repair 1982 and the work
361 liability, and negligence, strict 1996, on theories of relied id. at 540. Maryland See contract under law. breach of case, appellate in which reached the issue principal The was whether summary judgment, granting from the court 108(b) that it court ruled to a subcontractor. The applied § 5— of the District Court judgment and affirmed the apply did That 1982 work. claims based on the respect with based on breach barring a of the claim judgment included v. Gypsum Methodist Church U.S. First United contract.4 Cf. 5-108(a) (4th Cir.1989) § Co., 862, (applying 882 F.2d 864-65 against owner warranty property action a to a breach of plaster acoustical asbestos-containing manufacturer § 5- prior action was filed the enactment when the 108(d)). with adopted statutes of
Although many States have
real
improvements to
to actions based on defective
cover,
they
in
who is
vary
terms of what
property, the statutes
statutes ex-
periods
and the time
allowed. Some
protected,
See, e.g.,
of contract actions.
pressly exclude breach
(2001);
§ 87-1-27
§
12-810
N.M. Stat. Ann.
Ann.
D.C.Code
(Michie 2001).
of contract
expressly
Others
include breach
(2001);
See,
§ 6-5-218
e.g.,
claims.
Conn. Gen.Stat.
AlaCode
(2001).
In
that have statutes similar
§ 52-584a
those states
5-108,
wording
appears
split
§to
there
to be
over whether
to contract claims.
applies
the statute
Co., 21
Shutrump
In Kocisko v. Charles
& Sons
Ohio St.3d
98,
(1986),
damages
installation of held statute A applied only to tortious conduct. similar result was reached Wells, Assoc., Inc., v. Denbrook 308 Minn. Cty. Kittson & (1976), court which the noted N.W.2d legislative history no to indicate although there was available *10 statute, it assumed that the statute was a purpose liability from response expansion to the elimination of the it privity logical of contract doctrine and found to confine the by not in persons privity law to tort actions with the defen- dant. Shelmire, contrast,
In in Dallas Mkt. v. Beran Ctr. & rejected court notion that (Tex.App.1991), S.W.2d 218 repose engineers the statutes of for architects and —one claims, applied only noting: one for to tort contractors — legislative of repose recognition “The statutes demonstrate protracted vulnerability of the to lawsuits of extensive building professionals and contractors. We face this same negligent evil with to contract claims based on in performance previously addressed tort cases. The in actions only limitation both statutes is that the out of a or unsafe condition of arise defective the real property.” (internal omitted).
Id. at 222 citations in Appeals The view of the Texas Court of Dallas Market is holding much more consistent with our in Rose and the holdings Appeals of the United Court of for the Fourth States Circuit Insurance and First United. As we made Hartford 5-108(a) (b) Rose, protect §§ clear in were intended architects, contractors, engineers, and others involved in the industry being construction from hauled into court reason years of latent defects that did not become manifest until after completion of construction. providing protection, Assembly carefully weighed competing General inter- architects, years ests and struck the balance noted—ten engineers, twenty years and contractors and for others. That indeed, protection fragile, if depended would be on how a plaintiff plead chooses to frame and its of action. cause As tort and noted, claims both most of this nature involve cases that the defendant emanating from the assertion of its contractu- way negligent in some whether, injury if or The issue should be al duties. of an and unsafe condition from the defective damage arises damage occurs injury or property, to real improvement (or date the entire twenty) years than after “the more ten use,” and for its intended improvement first became available or tort. as one contract pleaded the claim is whether 5-108(b) damages per- of actions for when speaks Section property” results ipjury injury personal “or to real or sonal improvement of an and unsafe condition “from the defective in either the justification, can find no property.” real We statute, drawing a distinc- purpose or wording defective condition situations which the latent tion between damage property other than the property has caused in which it subject of contract and those has was the containing the defective condi- damage property caused *11 5-108(b) liability §of was to terminate tion. The clear intent (or damage by for caused twenty) years after ten Therefore, appellant’s breach any property. latent delect to ten-year claim is statute of contract barred 5-108(b), grant §in Court’s of sum- codified the Circuit complaint to HEBA on I of the is mary judgment affirmed. II: Action on the Performance Bond
IV. Count substituting The Circuit Court was correct 5-102(a)(2) § of limitations contained in twelve-year statute bond, performance two-year limitation contained parties finding in the case before dispute and none disagreement parties, us. between the with The sole 5-102(a)(2) application appellant’s performance §of to the claim, was “due” bond is when the final under the Contract, triggering that was the event Construction because action. for the statute of limitations on the bond parties Section 3 of the Construction Contract between the HEBA, monthly progress payments to be made called CDA,” equal in an amount to the “[s]ubject approval work, acceptably completed plus the value of materi- value equipment als and delivered to the construction site and Contract, properly stored. Section 3C the Construction specifically payment, which with final stated dealt expiration of payable upon balance due to HEBA “shall be days fully completed” (empha- the work is after hereunder added), provided required government inspections sis that all had completed, required government approvals had been all issued, permission occupy and CDA had issued been project. units of the provi-
Section 14 of the Construction Contract contained dealing incomplete sions with the escrow of funds for items. final part, provided In relevant when CDA issued its desig- it could project report declaring complete, construction specific improvements incomplete, along with nate certain (the completion an estimated cost for the of each such item items). “punch provided that would list” The Contract CDA require, closing, parties as a condition of final loan that the agreement, pursuant enter into an escrow to which deposit would withhold from the escrow equal an amount to twice the CDA estimate of the cost of the incomplete any items. HEBA would forfeit claim Under any punch or in the funds allocable to list interest escrowed incomplete specified at escrow item still the time agreement. 9.9.2 of the
Section General Conditions Construction stated, in part, pay- Contract relevant that neither the remaining percentage ment nor the retained would become due to HEBA until HEBA submitted to the architect an paid affidavit that all bills connected with the work had been *12 surety payment, to final the consent as well assurances, might certain other or satisfaction that releases,_ required by appellant. be determining
The critical date for the commencement of the of limitations on claim is appellant’s statute bond payment final fact that the date fell due. The mere
365 on October requested payable sum was declared CDA was due on that 10, payment that the final 1984 does not mean amount as a Dictionary “payable” Black’s Law defines date. Dictionary paid.” Black’s money “that is to be sum Law ed.1999). (7th may “An be explain: on to amount goes It 1150 commonly payable long are payable being without due. Debts they fall Id. before due.” parties, Contract between
Pursuant to the Construction closing, final loan not until the payment final due 1, specifi The contract which on 1984.5 occurred November payment” “final would portion that a cally contemplated incomplete cost of closing at the to cover the be escrowed fact, $17,000 put items, and, than was withheld more Therefore, closing. at final loan into escrow the closing than the any made earlier could have been 1st. November found in Perlmutter interpretation for this can be
Support
case,
(1950).
99,
In that
Md.
This case somewhat the earlier decision Knott, A. Md. Henry in Bal. v. Dep’t Court Co. supra, Paragraph General Conditions of the 5. As indicated 9.9.2 of the payment would specifically dictated that the final Construction Contract had submitted an affidavit not “become due’’ until Contractor surety outstanding paid, had attesting debts had been that all had payment, to final and tha1 all releases and satisfactions consented completed. been *13 366 (1964). aby
A.2d 369
That case involved a suit
contractor
construction contract.
trial
recover on
school
court
limitations,
suit on the basis of the
dismissed the
statute
engineer
finding that a letter
from the construction
acceptance”
Education
a “final
Board of
constituted
building, thereby triggering
running
one-year
stat
ute of limitations for school construction contract suits. See
reversed,
419-20,
id. at
By
same
in this
the CDA’s certification
remaining
“payable”
case that
sum was
on October 10th
automatically
did not
make
due on
Therefore,
granting
sum
date.6
Circuit Court erred
II,
mary judgment
appellees
on
performance
brief,
matter,
HEBA
as a
its
also maintains
substantive
no
warranty
action based on breach of
lies under the
bond.
granted summary judgment
solely
As it
based
limita
the statute of
tions,
Appellate
the Circuit Court did not address that issue.
courts
generally will not address matters that were not raised or decided in the
DiPino,
642, 655-56,
401,
v.
trial court. See Davis
337 Md.
655 A.2d
circumstances,
(1995).
exceptional
appellate
407-08
Absent
an
court
grant
summary judgment only upon
grounds
will review a
relied
East,
408, 422,
upon by the trial court. See
v.
363
PaineWebber
Md.
768
Farm,
1029,
(2001);
225, 234,
Bishop
A.2d
1036
v. State
360 Md.
757
783,
542,
(2000);
County,
A.2d
787-88
Gresser v. Anne Arundel
349 Md.
552,
740,
Medical,
(1998);
709 A.2d
v. Greater Baltimore
Geisz
301,
5,
658,
(1988).
appellate
Md.
314 n.
545 A.2d
662 n. 5
When an
grant
summary judgment
court reviews a trial court's
and finds its
erroneous,
appellate
ordinarily
to be
will
basis
court
undertake
judgment by ruling
ground
upon
to sustain the
on another
not ruled
234,
787-88;
Bishop,
the trial court. See
Concurring opinion and J., BATTAGLIA, joins. which judgment and with join opinion
I Court’s the but, I from its complaint, respect, I of with dissent the action on bond. I believe judgment as to Count II—the the misconstrued Court has both failed to consider and the concluding that final under the relevant documents closing on contract did not fall due until the final loan 1,1984. November contract,
The Court notes that 3C of the construction specifically payment, which dealt with final stated payable upon expiration due HEBA “shall be of 30 balance days fully completed, provided after work hereunder is government inspections completed, that all had required been issued, required government approvals had been CDA permission occupy project.” had all units of the It issued (1) § 14 notes as well that under of the construction CDA, upon issuing project report declaring its construc- complete, designate specific improvements tion could certain Court, remanding opportunity will to the Circuit there be an for the parties fully develop arguments regarding appel- more their whether warranty claim can lie bond in lant's breach of under this case. along completion with an cost for incomplete, as estimated (2) items, event, require, in that would as a of those CDA closing, parties of final that the into an condition enter escrow agreement, pursuant to which the owner would withhold from deposit equal in escrow a sum to twice incomplete estimate of the cost of the items. What the CDA mention, however, flatly pre- the Court omits to because it reaches, although that the is cludes the result Court interest, carry expressly sum was to no contract escrowed HEBA, belonged subject sum declared the escrowed only to work forth in completion set the escrow its than agreement specified agreement. not later the time parties full contract between the included number Documents, of which attachments known the Contract one was a document entitled General Conditions the Contract Construction, a form prepared document the American approved by Institute Architects the Associated Gener- al of America. Section 9.9.2 of Contractors those General stated, part, relevant the final Conditions neither *15 nor payment remaining percentage retained shall become (1) to HEBA until HEBA an due submitted to architect that payrolls affidavit all and other bills connected with the work, might responsible, for which the owner be had been (2) (3) surety to final if paid, payment, the consent and owner, required by payment, certain other assurances of releases, or satisfaction. City
The court that evidence before the showed a final Hagerstown inspection project conducted on 16,1983, Occupancy December .that it issued a and Permit Use 21, 1983, day, the same that on December the architect appellant accepted certified and work was substantial- that, 21, ly complete, granted and also on December CDA permission occupancy project. for the 110 units of the first occupancy tenant assumed on December 20. At- Completion tached the architect’s Certificate of Substantial “punch was the list” completed. items be corrected or amount, record, clearly Some identified was with- placed completion held and escrow order to assure 28, 1984, HEBA advised the February those items. On on all of items listed completed architect that it had 6, 1983, and inspection report of October architect’s no items so that reinspect the architect those requested required closing. at final escrow would be reinspect- architect It is not clear from the record when the that, 10, 1984, CDA only know on October ed the items. We mortgage MHF for of the advance of applied to insurance that, 26, 1984, an approved MHF proceeds October $316,818. application, In its October 10 CDA advance of information, knowledge, to the best of its certified belief, A final loan requested payable.” “the sum is now funds, was for and closing, remaining for the release of the set day, instruct- place took on November 1984. On CDA $24,839 Jersey bank for the ed its trustee to wire a New $17,706 special to a appellant account of and to transfer Account—Final Surplus escrow account as a “Construction supporting Draw.” A memorandum shows that the disburse- $17,706 surplus ment would be from the construction account $79,112 “sponsor.” may However one view these was, fact, instructions, appears that final made day, to HEBA the next on November 1984. We are told to HEBA was in the amount $111,360, although explanation is no as to how that there amount was calculated.1
Appellant urges essentially two conditions there were §in B precedent payment. Keying language to final on the terribly confusing. requi- Appellant’s 1. The record in case is draw sition, application, attached to the CDA showed a "FAF Escrow Re- 5110,000, $17,706, surplus fund” of construction account of $189,112, $316,818. Sponsor” totaling "Balance to those three items remaining CDA’s ultimate authorization to release the funds identified *16 $17,706 Surplus the as the "Construction Account —Final Draw.” It is documents, impossible anything to else in the tell from these or from record, $110,000, payment” whether the “final to HEBA was to be $17,706, noted, apparent or some other amount. As the final $111,360. confusion, tell, Apart from this so far as I can items, agreement, incomplete escrow the list of and the architect’s final inspection “punch of the list” items are not in the record. There was a nearly eight-month HEBA hiatus between the time certified final com- that to HEBA payments “[s]ubject of the contract were CDA,” of it approval approval contends CDA’s was one payment. ability provide approval, condition to CDA’s further, prior approval argues it was conditioned on the For that it in proposition, MHF. relies the statement application pay- CDA’s October 10 for insurance of advance particular that it to disburse the sum on a date ment intended (that record) was left blank the document included “provided prior approval.” approval we receive That from MHF, claims, did not occur until November 1.
Appellant’s reasoning, which has become the Court’s reason- unduly ing, reading is strained. Under the most rational contract, was due to HEBA on December completion. By when the architect certified substantial time, required inspections completed, had been a use permit City had occupancy Hagers- been issued town, permission occupancy granted and CDA had all 110 units. The final draw was then authorized. It is true part required placed that some of that amount was to be escrow, items, but, completion “punch list” assure the contract, §of 14 of wording dealing under the clear with situation, HEBA, money placed belonged escrow subject only right to the forfeiture of its to such of those funds complete. allocable to an item that thereafter failed to funds, therefore, part pay- escrowed constituted HEBA ment to under the construction contract. Section “punch pletion of the list” items and the time CDA confirmed that delay. completion, explanation with no for the I cause of the cannot tell from the documents how much was withheld after substantial items, completion “punch put in escrow for the list” or whether copies application additional were CDA funds also withheld. The of the approval application MHF and the Fund’s of that included in the signed; appellant’s record contain blanks and are not nor is draw requisition. Compounding these uncertainties is the fact notwith- l(i) standing Maryland pre- Rule direction 8—50 that documents reproduced only sented to the trial court more than once shall be in full extract, documents, many once in the record such reprinted certainly construction are several times. It would helpful complete if were have been the record more and the record prepared way. extract had been in a more coherent *17 as a declaration completion of substantial treated declaration delay in arrangement as a completion of 100% the escrow delay than as a payment, of the final rather disbursement payment became due. when if funds were to be treated as with-
Even the escrowed contract holding payment from final under the construction hold, itself, insists and the Court seems to CDA’s requested payable” to MHF that sum is now certificate “the payment 10 as date final was due. establishes October matter, actually pay Although, practical as a CDA could not MHF, date, closing that sum until its loan with the the critical view, my is not when CDA was able to disburse the It not at all but when that fell due. is delayed unusual for of sums due to the disbursement be sign-offs preparation closing docu- pending lender Accordingly, I would hold that the Circuit Court did ments. II finding by barred limitations. err concurring dissenting Judge joins BATTAGLIA opinion.
OF
v. LABOVITZ, Respondent.
Richard S. Term, Sept. Misc. No. 2001. AG Appeals Maryland. Court March ORDER Upon consideration the Joint Petition Disbarment 16-772, pursuant Maryland it is Consent filed herein Rule March, 2002, day this 14th