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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 646 SEPTEMBER TERM, 1996 ___________________________________

SHALLOW RUN LIMITED PARTNERSHIP

v.

STATE HIGHWAY ADMINISTRATION

___________________________________

Moylan, Wenner, Cathell, JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed:

December 27, 1996

Shallow Run Limited Partnership, appellant, appeals from a judgment rendered by the Circuit Court for Howard County (Sweeney, J., presiding) directing the specific performance of a land

acquisition contract in favor of the State Highway Administration, appellee (sometimes hereinafter referred to as the State or SHA). Appellant presents two questions, one with multiple parts: 1. Did the Circuit Court err by ordering specific performance of a contract in which a material term was vague and uncertain? 2. Did the Circuit Court err by granting specific performance of a contract for the purchase of property which the Appellee/contract purchaser had previously condemned: A. Was the contract enforceable after the parties failed to settle within the three month deadline contained in the contract? B. Did SHA's conduct constitute a waiver of its right to enforce the contract? C. Was specific performance barred under the doctrine of judicial estoppel? D. Would specific performance of the contract violate the statutory prohibition against abandonment of a condemnation after property is taken by SHA? The Facts

- 2 Appellee entered into negotiations with appellant for the purpose of acquiring 18.591 acres of a larger tract containing approximately 29.691 acres. The acquisition by the State of the

18.591-acre parcel apparently left the remaining parcel "landlocked," i.e., without access to road frontage, at least for a temporary period. certain easement To address the status of the landlocked parcel, provisions were included in the subsequent

documentation, i.e., the option or contract.1

The option or contract

contained provisions requiring appellant to settle within ten days2 and to provide clear title to the State at that time. The contract

also provided that the State could take immediate possession of the property. Other provisions required that the deal be consummated

within ninety days. The property was encumbered price of by mortgages exceeding the

anticipated

purchase

the

property,

and,

therefore,

appellant was required to obtain a release of liens for the subject property. It was unable to do so within the ten-day period, and

There was evidence that other road access might later occur as a result of future construction. If, and when, the future access occurred, the easement would terminate. While the primary proponent of the ten-day period was appellant, the State was acquiring the subject property as wetland mitigation, as required by federal statute, relative to its construction of Route 100. Acquiring the property for wetland mitigation was important in that if not contractually provided for, federal grants for the construction of Route 100 could be delayed. Thus, prompt settlement was a desire of the State as well as appellant.
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- 3 the parties continued to attempt to effectuate settlement. this period, the subject of condemnation came up. During

The State

alleges that it was in the context of a "friendly condemnation."3 Appellant claims otherwise. After the "quick take" condemnation4 was instituted, the State deposited into court the amount of its appraisal of the subject property, which was $13,000 less than the amount it had agreed to pay under the option contract. required. This appraisal was procedurally

The condemnation action then continued.

The sums deposited were withdrawn by appellant and subsequently used, at least in part, to facilitate a release of the interests of the various lienholders. After appellant was able to provide

clear title, the State requested that appellant fully perform pursuant to the terms of the contract option. Appellant refused

and insisted that the contract had been terminated when the State filed the condemnation action and asserted further that the State

"Friendly condemnation" as explained by the State's witness, and as relative to the case sub judice, is used to convince lien holders or recalcitrant co-owners of property to negotiate more expeditiously. It is generally requested or agreed to by one or more of the entities who have an interest in the property. A "quick take" condemnation occurs when the State deposits the acquisition price it proposes for the subject property into court and takes immediate possession of the property. The legal aspects of the condemnation, primarily the amount of the purchase price, is subsequently litigated. Provisions for quick take action are found in Section 40B of the Maryland Constitution, section 12-102 et seq. of the Real Property Article of the Maryland Code, and in Subtitle U of the Maryland Rules.
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- 4 was required to proceed and conclude its condemnation action. The

State then instituted the instant case for specific performance of the option contract. We shall further discuss the relevant facts as we address the respective questions. 1. The Easement Provision Appellant asserts that the provisions in the option contract in respect to its retention of an ingress/egress easement to the "landlocked" property are so vague and uncertain as to make the entire agreement unenforceable. In its answer to the complaint

below, appellant denied generally the allegations of the complaint but made no special answer claiming that the easement provision was vague and uncertain and that the contract was unenforceable for that reason. Appellant did assert the following special defenses:

11. laches.

Plaintiff's

action

is

barred

by

12. Plaintiff has failed to state a claim upon which relief may be granted. 13. Plaintiff action by waiver. is precluded from this

14. Those who signed the Option Contract on behalf of Defendant, lacked the capacity and were without authority to bind Defendant. 15. Plaintiff is precluded from pursuing this claim because of a pending condemnation action which by law may not be dismissed.

- 5 On May 10, 1994, appellant filed a motion for summary judgment that, as relevant to this question, asserted: "The option contract . . . should be disregarded as a matter of law for failure of express conditions precedent." In the affidavit in support of this

motion, appellant asserted that the provision of an easement by the State was one of the conditions precedent5 (as was the ten-day settlement period and the three-month delivery of deed and title period). The State opposed the granting of the motion for myriad

reasons, including: "[P]aragraphs (D)(1) [the easement provision], (D)(2) [the ten-day settlement provision], and (E) [the three-month period for delivery of marketable title] are not conditions

precedent . . . ."

The trial court denied appellant's summary

judgment motion by written Memorandum and Order dated June 29, 1994. The court made no separate finding on the easement issue.

Ultimately, the trial court, in its final judgment, addressed the matter of the easement, as well as the other matters appellant claimed were conditions precedent.6 It stated:

Shallow Run also argues that the contract contains conditions precedent which were not fulfilled and that, as a result, the contract is not enforceable. Shallow Run argues that those conditions required that (1) S.H.A. provide easement access to Shallow Run for We fail to understand how the State, as a condition precedent, could provide an easement over land that appellant refused to convey to it. We include its entire holding on the alleged conditions precedent at this point in our opinion and refer back to it as necessary when, and if, we discuss the other claimed conditions.
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- 6 ingress and egress to the rear parcel and front parcel; (2) that the State settle within ten (10) days of its acceptance of the Option, on the condition that Shallow Run provided good and marketable fee simple title to the front parcel; and (3) that Shallow Run deliver good and marketable fee simple title to S.H.A. within three months of acceptance of the Option. As to the providing of an easement for egress and ingress, this was not a condition precedent. This obligation was an ongoing one to be effectuated by the State. There is no indication that the State will not provide the easement needed in a timely fashion. The ten-day provision is not a condition precedent, but was inserted at the request of Shallow Run's agents for Shallow Run's benefit. The ten-day provision was never viewed by Shallow Run prior to the filing of the instant litigation as a condition precedent. Indeed, Shallow Run's representatives were acting throughout the course of the pre-litigation history in full understanding that an enforceable contract existed. Shallow Run did have an obligation to deliver good and marketable fee simple title to S.H.A. within three months of acceptance of the Option. This was not a condition precedent to the contract's enforceability but an obligation that Shallow Run could not or would not comply with. It is just such an obligation that a specific performance action can seek to enforce. It should also be noted that the time provisions in the contract were in many respects put into the contract more as goals than mandates. The actions of the parties to the contract prior to the initiation of the condemnation litigation demonstrate an intent to continue to work to fulfill the terms of the contract, regardless of the specific wording as to time limit. S.H.A. has consistently wanted to do this deal, and it appears that Shallow Run's representatives also did, at least from May to September, 1992. Even if the time provisions at issue were viewed

- 7 differently, the actions of the parties clearly waived any time mandate that Shallow Run now relies on. Laches in bringing this matter has been raised by Shallow Run. The Court rejects this. While S.H.A.'s approach to enforcing its rights under the contract was at times confused and haphazard, the Court does not believe that there has been any inequitable delay or substantial prejudice to Shallow Run from S.H.A.'s somewhat plodding efforts to enforce its rather clear contract rights. The trial court found that the easement provision, as stated in the contract, was not intended to be a condition precedent to settlement but rather a continuing obligation of the State. agree. We

Moreover, there was evidence that the parties knew of the

initial proposed location of the easement and that the State had the right to change that location. Mr. Gorsuch, an employee of the

State Highway Administration and "team leader" for the Western Region (team leaders were previously called Assistant Chiefs of Right of Way),7 testified that he initially had a conversation with a contract purchaser of the Shallow Run property, Mr. Bean.8 In

his initial discussion with Mr. Bean, the subject of easement access to the "landlocked" parcel came up. Mr. Gorsuch

Mr. Gorsuch testified that team leaders supervise negotiations, negotiate with potential sellers of property, manage property, and acquire properties. Mr. Bean of the contract indication that interest in the
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later sat in on discussions and the consummation with appellant and the State. There is some the State compensated him separately for his property.

- 8 told him [Mr. Bean, that] I thought there wouldn't be a problem getting an easement, I would have to get a plat prepared to show where we would probably allow an easement to be. . . . . . . . . . . I told him that I thought we could get an ingress and egress easement over that property. . . . . . . . Q. you? . . . . A. They could put a driveway, whatever they needed, for access to the rear property. . . . I specifically put in for an eighty foot wide easement . . . . Mr. Gorsuch then discussed the initial conversation he had with Mr. Stultz, president and general partner of appellant, prior to setting up the meeting between appellant and himself: "He questioned me about the easement . . . . I told him there would be an What does ingress and egress mean to

easement and that I would have a plat attached to the option contract showing the easement area." Later, Mr. Gorsuch was asked:

Q. . . . Were you ever asked by . . . [appellant] to provide an easement that was developed, that was graded, that was paved, that was improved in any way? A. I was not asked to provide that . . . and I emphatically stated we would not provide or construct a bridge or a road for that. He then testified that he obtained the option document and then attached to it "the plat delineating the eighty foot easement." He

- 9 testified that that plat was attached to the contract when it was executed by appellant and that Mr. Knott, another of appellant's principals, initialed the plat in the lower right-hand corner. There are initials on the lower right-hand corner that appear to be those of Mr. Knott. 1,579.11-foot-long That plat clearly shows an 80-foot-wide, along the western and southern

easement

boundaries of the subject property.

Mr. Gorsuch testified that he

showed Mr. Stultz and Mr. Knott the plat: "I gave them [Mr. Stultz and Mr. Knott] the contract -- each one [had] a copy of it to read, and we discussed the easement. the plat." I showed them the easement area on

On cross-examination, he testified further about the

easement and the State's modification rights: A. I believe it said in the contract that this could be moved . . . or subject to relocation. . . . . . . . Q. In other words, . . . [the plat] you were showing to Mr. Stultz and Mr. Knott was one person's idea of where . . . but somebody else in your department could decide that it wouldn't go there. . .? A. Mr. I believe that's correct.

Bean testified that he discussed with appellant the He

discussions he had with the State regarding the easement issue.

stated: "I probably told them that I had asked and tried to get the State to build . . . a structure across the stream and was unsuccessful and basically telling them, I guess, they still had the right to try and get that but I was not successful . . . ."

- 10 Mr. Knott, a limited partner of appellant, testified that appellant had told appellee during negotiations that "we still needed access to the back piece of property . . . . [W]e [he and Mr. Gorsuch] Mr. Knott

discussed the access and various items in the access." was asked: Q. . . . [D]id you discuss with him specifically where the access would be . . .? . . . . A. He [Gorsuch] showed us . . . a drawing showing where . . . the possible access could have been. . . . [H]e said, "Well, your right-of-way could go here, but we could move it according to what your needs were."[9]

Later, Mr. Knott described further his understanding "that road was a temporary road, because once the people developed the piece of property in the back, we had to bring another road in. . . . We

couldn't spend a lot of money on putting a temporary road of two years . . . that was a key in that negotiation." (Emphasis added.)

The easement language in the option agreement provides that the State would provide an ingress/egress easement to the landlocked parcel and that the easement [would] be extinguished at the end of two (2) years or at such time as physical and legal access becomes available through Parcel 285 . . . whichever shall occur last. The said easement delineated on a property plan attached hereto is subject to modification

There were other discussions relating to the costs of a road and bridge that do not concern the issue of vagueness now being asserted.

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- 11 based upon the State Highway Administration's final wetlands mitigation design. This uncertain. language, in the first instance, is not vague and

It is clear the State is required to grant the 80-foot-

wide by 1579.11-foot-long easement delineated on the plan attached to the contract. The State is permitted to change the location of It

that easement depending upon its final plans for the property.

is apparent from the evidence that all parties knew that to be the case. Appellant may not like it, and may not have liked it even The contract is clear --

when it agreed to it, but it did agree.

what may be uncertain is the end result, i.e., the precise location of the easement. easement. But it is certain that appellant will get an

In that regard, we note what the Court of Appeals stated

in Sibbel v. Fitch, 182 Md. 323, 327 (1943) (quoting 28 C.J.S., Easements

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