4900 Park Heights Ave. v. Cromwell Retail

4900 Park Heights Avenue LLC v. Cromwell Retail 1, LLC, No. 3136, September Term, 2018. Opinion by Fader, C.J. SETTLEMENT — AUTHORITY OF ATTORNEY — EXPRESS AUTHORITY When a client gives an attorney express authority to settle a case, that authority is not negated by the client’s misunderstanding of the legal implications of a settlement term. SETTLEMENT — VALIDITY OF AGREEMENT — DEFINITENESS OF TERMS The circuit court properly enforced the terms of a settlement where the parties placed the material terms of the settlement on the record in open court, the terms were sufficiently definite to be enforceable, and the party challenging enforcement conceded that it intended to be bound by the terms placed on the record. SETTLEMENT — ORDERS ENFORCING SETTLEMENT — IMPROPER MODIFICATION In enforcing a settlement, a court is not permitted to alter the material terms upon which the parties agreed.

Circuit Court for Anne Arundel County Case No. C-02-CV-16-003207 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3136 September Term, 2018 ______________________________________ 4900 PARK HEIGHTS AVENUE LLC v. CROMWELL RETAIL 1, LLC ______________________________________ Fader, C.J., Friedman, Gould, JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: April 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-04-30 13:10-04:00 Suzanne C. Johnson, Clerk 4900 Park Heights Avenue LLC (“4900 Park Heights”), the appellant, owns and operates The Sofa Store, which is located in a Glen Burnie business park developed by the appellee, Cromwell Retail 1, LLC (“Cromwell”). 4900 Park Heights initiated this litigation to resolve whether it had the right to erect on its premises, without Cromwell’s approval, a 30-foot-tall, freestanding pylon sign to advertise its business. On the eve of trial, counsel informed the Circuit Court for Anne Arundel County that the parties had reached a settlement and would not go forward with the trial. The next morning, counsel for both parties appeared in court, confirmed that they had reached an agreement, and placed terms on the record.

The central issue in this appeal is whether the terms placed on the record were binding on the parties. The circuit court determined that they were and, therefore, granted Cromwell’s motion to enforce the settlement agreement. We agree and, as to that issue, will affirm the judgment. However, because the enforcement order impermissibly modified part of the settlement agreement, we also will vacate the judgment in part and remand for further proceedings consistent with this opinion.

BACKGROUND Lot Ownership and the Declaration of Covenants and Restrictions In January 2014, Cromwell transferred ownership of Lot 7R in Cromwell Business Park to 4900 Park Heights, subject to the terms of a 2014 Declaration of Covenants and Restrictions (the “2014 Declaration”). The 2014 Declaration contained a series of “perpetual and irrevocable” covenants that “run with the land within the Property.” Central here are paragraphs 4 and 5 of the 2014 Declaration: 4. Initial Improvements to Property. [Cromwell] shall have the right, in its sole and absolute discretion, to approve or disapprove all aspects of the initial improvements constructed upon the Property and all material modifications to such improvements thereafter (collectively, the “Initial Improvements”). [Cromwell]’s right of approval includes, but is not limited to, all architectural design elements, exterior materials, colors and elevations, signage, and landscaping, and all future material revisions thereto. 5. Future Improvements. [Cromwell] shall have the right, in its reasonable discretion, to approve or disapprove all aspects of the improvements made to the Property after completion of the Initial Improvements (the “Future Improvements”). [Cromwell]’s right of approval includes, but is not limited to, all architectural design elements, exterior materials, colors and elevations, signage, and landscaping, and all future material revisions thereto.

The standard of [Cromwell]’s approval shall be reasonable so long as the Future Improvements are consistent with the Initial Improvements. Notwithstanding the foregoing, in the event that any Future Improvements are materially different from the Initial Improvements, then the standard for [Cromwell]’s right to approve or disapprove the Future Improvements shall be in its sole and absolute discretion. The Declaration also required that, “[b]efore commencement of construction of any improvements,” the owner of the lot “shall submit plans and specifications” to Cromwell for approval. The Underlying Controversy In March 2015, 4900 Park Heights applied to the Anne Arundel County Department of Inspections and Permits for a permit to construct a freestanding, 30-foot tall, LED pylon sign on Lot 7R to advertise The Sofa Store.

The County issued a permit in July 2015. In September 2016, without first seeking approval from Cromwell, 4900 Park Heights began construction. Cromwell promptly sent 4900 Park Heights a cease and desist letter. Cromwell asserted that 4900 Park Heights was violating the 2014 Declaration by constructing the 2 sign without Cromwell’s advance approval.

The letter stated that if 4900 Park Heights did not cease all work on the sign, Cromwell reserved “the right to seek injunctive relief and recoupments of any costs or expenses incurred in enforcing the Declaration of Covenants and Restrictions.” 4900 Park Heights beat Cromwell to the punch. In October 2016, 4900 Park Heights filed a complaint in the Circuit Court for Anne Arundel County, asking the court to declare that Cromwell had unreasonably withheld its approval of the sign and, therefore, that construction of the sign could proceed.1 In February 2017, with the litigation still pending, 4900 Park Heights finished construction of the sign. The following month, Cromwell filed a counterclaim in which it sought, among other things, declaratory and injunctive relief against 4900 Park Heights. The March 28, 2018 Hearing The parties’ opposing claims were scheduled to proceed to trial on March 28, 2018.

The evening before that, however, counsel for the parties reached what they both believed to be a settlement. That night, Cromwell’s counsel sent an e-mail to the court, copied to counsel for 4900 Park Heights, which stated in pertinent part: “Counsel will appear Wednesday to place on the record their agreement which settles this case as well as another case pending before the Court.”2 1 The original complaint named 4900 Park Heights’s predecessor in interest as the plaintiff. 4900 Park Heights substituted itself as the proper plaintiff in an amended complaint filed in January 2017. 2 In addition to the declaratory judgment action, 4900 Park Heights had also filed a separate petition for judicial review of a decision by the Anne Arundel County Office of 3 The following day, counsel for both parties—Thomas M. Wood, IV, for 4900 Park Heights, and Jonathan P. Kagan, for Cromwell—appeared before the circuit court. After a preliminary discussion, the court noted that it was “happy that the parties have reached an agreement” and asked, “[W]hich side would like to memorialize the terms of the agreement?” The following discussion ensued: MR. WOOD[]: I think we have sort of roughly done it.

I think [Cromwell’s counsel] is just going to come up here and put it on the record. This is going to be followed by a settlement agreement. THE COURT: Great. Okay.

MR. KAGAN: Yes. So, I can just generally put the terms, if I may, on the record. ... Your Honor, just again to memorialize the general terms which will be reduced to a settlement agreement, first, that the parties agree that [4900 Park Heights]’s freestanding pylon sign, that is, the Sofa Store sign, shall remain in its present location, except that the top of the sign shall be lowered 12 feet, . . . provided that if [Cromwell], in its sole absolute discretion, determines that [Cromwell]’s pylon sign is not impeded, that it may only be lowered 11 feet.

So, there will be some discretion between 11 feet and 12 feet, depending on whether there is any obstruction. THE COURT: Okay. MR. KAGAN: [4900 Park Heights] and [Cromwell] shall each pay their own legal fees. [4900 Park Heights] shall pay court costs.

The parties agree to modify the [2014 Declaration] . . . so that all initial and future improvements, as defined therein, must be approved by Planning and Zoning granting Cromwell a nonconforming use exception for Cromwell’s own freestanding sign. In that litigation, Cromwell alleged that its own pylon sign was obscured by 4900 Park Heights’s sign. 4 Cromwell Retail 1, LLC, which shall be in the sole and absolute discretion of Cromwell Retail 1, LLC. THE COURT: Now, is that only amended vis-à-vis 4900 [Park Heights]? Or are there other present owners that would be incorporated within that?

MR. KAGAN: So, it just applies to the particular lot that the Sofa Store is on. THE COURT: Okay. MR.

KAGAN: And the declarant in that declaration is Cromwell Retail 1, LLC, but it applies specifically to the lot of the Sofa Store, or the Plaintiff in this case. . . . The parties in this case will dismiss all claims and counterclaims without prejudice . . . until the sign has been relocated. I believe the parties agreed that [4900 Park Heights] would try to accomplish that within 45 days of today and that, again, upon completion of that, that the parties would agree that both lawsuits, that is this current lawsuit, as well as the petition for judicial review, would then be dismissed with prejudice. THE COURT: Okay.

MR. WOOD[]: And assuming also that we can agree on the language of the covenants and we can agree on the mutual release. MR. KAGAN: Right.

THE COURT: So, you are asking the Court to hold not everything in abeyance? Just dismiss it without prejudice and then file a line in 45 days, assuming everything -- is that right? MR. KAGAN: Right.

Essentially, following the completion of the lowering of the sign, as well as the other terms of the settlement agreement; that once all the terms of the settlement agreement have been met, that the parties will then agree to file lines of dismissal with prejudice for both matters. THE COURT: I see. MR. KAGAN: Also, lastly, that the parties will agree to a mutual general release as well. 5 THE COURT: Okay.

Any modifications, additions, deletions, Mr. Wood? MR. WOOD[]: No, Your Honor. THE COURT: All right.

Well, that sounds very reasonable. Mr. Kagan, are you putting together the settlement agreement? MR. KAGAN: Yes.

THE COURT: Okay. The court expressed a preference that the parties “resolve any wordsmithing issues” with the agreement, and sign the final draft, before forwarding it to the court. Before dismissing the parties, the court reiterated that it was “pleased you reached a settlement.” Cromwell’s Motion to Enforce On May 4, 2018, counsel for Cromwell wrote to the court to request that the court grant the parties “an additional 10 days, until May 14, 2018, to finalize and execute the settlement documents and file a Stipulation of Dismissal with the Court.” The letter, which was copied to counsel for 4900 Park Heights, stated that “[w]hile the material terms of the settlement were agreed to on the record, the parties are still in the process of working out the terms of the Settlement Agreement and Release, and Restated Declaration of Covenants and Restrictions that will need to be filed with Land Records.” The letter also stated that the parties had exchanged drafts of the settlement agreement, but that changes received from 4900 Park Heights the previous day were “substantive and the parties need additional time to try to resolve all issues before having to file any motions to enforce the Settlement Agreement or request the matter be reset for trial.” 6 On May 15, 2018, Cromwell filed a motion to enforce the settlement as set forth on the record at the March 28 hearing and as memorialized in a draft settlement agreement and draft amendment to the 2014 Declaration that Cromwell had composed. 4900 Park Heights opposed the motion. The court held a hearing in October 2018 before a different judge.

The court addressed two issues. First, the court considered whether the parties had entered a binding settlement agreement during the March 28 hearing. On that issue, the court declined to take evidence. Instead, the court took judicial notice of the transcript of the March 28 hearing and, based on the transcript, found “that each of the parties clearly intended to be bound by th[e] terms” placed on the record.

The court also concluded “that the terms of the agreement are definite and the language put on the record was clear, unambiguous and there were no open material terms to the agreement.” The court declined to admit into evidence documents submitted by 4900 Park Heights that reflected the parties’ communications after March 28. 4900 Park Heights argued that the documents revealed that the parties disagreed regarding two terms of the settlement, the proposed amended declaration and the mutual general release. Notably, however, 4900 Park Heights never argued that the parties had not intended to be bound by the terms placed on the record on March 28. Indeed, Mr. Wood conceded that they had. Instead, 4900 Park Heights asserted that the settlement documents Cromwell had drafted did not reflect the agreement the parties had reached.

The following passages capture the essence of that argument: 7 THE COURT: . . . I believe everybody in the courtroom thought you had an agreement otherwise you would have proceeded to trial. MR. WOOD: Yes, Your Honor.

THE COURT: The 45 days was to implement the terms of the agreement as I read this. MR. WOOD: That is true, Your Honor, but the agreement was not implemented because – certainly we went into that courtroom to put on the record that we had settled the case but the amended covenant was, as I just said earlier, was changed in many substantial ways. THE COURT: But that is different.

That – MR. WOOD: But the release, also the release, which was an essential term. The release. We never got the release, and to this day we don’t have the release.

It was a mutual, general release, and we weren’t given a mutual general release. There are some – THE COURT: But what you are talking about is enforcement of the agreement, not whether there was an agreement. MR. WOOD: There was a general agreement to settle, yes.

I am not disputing that. THE COURT: Okay. MR. WOOD: But was it to be embodied in two documents, which were going to contain essential terms.

A general release, for instance. And we never got those terms. Sitting here today, we still don’t have a general release. ... THE COURT: Okay, but again we are talking about enforcement issues not whether there was an agreement.

Do you concede that there was an agreement to settle the – agreement on the terms, which settled the case, on March 28, 2018? MR. WOOD: There was an agreement to agree to settle the case. THE COURT: I don’t think there was an agreement to agree.

I don’t think the Court would have pulled the hearing if there was an agreement to agree. 8 ... MR. WOOD: So the question is did we intend to be bound? Yes, we intended to be bound[] but the question is what did we intend to be bound to, and that had to be embodied in those two documents.

The amended declaration and the mutual release. ... [Falls Garden Condominium Association v. Falls Homeowners Association, 441 Md. 290 (2015)] says even if an intention to be bound is manifested by both parties, too much indefiniteness may invalidate the agreement because of the difficulty of administering the agreement. I submit that there was this indefiniteness. Look what we got. We got an amended declaration that was changed in five or six different ways.

We got a release that didn’t give us a general release. Based on its conclusion that the terms placed on the record were clear and unambiguous, the court determined that “what happened after the parties reached their agreement and placed it on the record is not of significance.” Otherwise, the court reasoned, “anybody could enter into any kind of agreement on the record and then simply try to change the terms or argue about the terms that they placed on the record afterward and invalidate the agreement.” The second issue the court addressed at the October 2018 hearing was 4900 Park Heights’s contention that its counsel, Mr. Wood, did not have his client’s express authority to agree to the terms put on the record on March 28. On that issue, the court heard evidence, which included testimony from counsel for both parties who were involved in the negotiations leading up to March 28: Mr. Wood, for 4900 Park Heights, and Harry Blumenthal, for Cromwell. 9 According to the testimony, Messrs. Wood and Blumenthal were engaged in settlement negotiations by telephone throughout the day on March 27, and Mr. Wood communicated with his client representative, Cary Luskin, throughout those negotiations.

At one point during a phone call in which both counsel and clients participated, Cromwell demanded that 4900 Park Heights pay Cromwell’s legal fees as part of any settlement. 4900 Park Heights refused, and the call ended. Mr. Blumenthal later called Mr. Wood with a new offer: Cromwell would drop its request for fees if 4900 Park Heights would agree that Cromwell would have “sole and absolute discretion on all matters dealing with the covenants.” Originally assuming that this term concerned only signage at the property, and not other improvements, Mr. Wood obtained Mr. Luskin’s agreement. When Mr. Blumenthal clarified that Cromwell wanted sole and absolute discretion with respect to all improvements, not just signage, Mr. Wood indicated he needed to check again with Mr. Luskin. When he did so, Mr. Luskin said, “I don’t care about the covenants.” Mr. Wood testified that he understood Mr. Luskin’s response to mean that his client consented to the amendment.

He therefore called Mr. Blumenthal back and communicated that agreement. On that basis, the parties informed the court of the settlement and placed its terms on the record on the morning of March 28. Later that same day, Mr. Wood learned that Mr. Luskin had a different interpretation of his comment about the covenants. Specifically, according to Mr. Wood, Mr. Luskin had intended to convey that he did not care about giving Cromwell sole and absolute discretion to approve any future improvements proposed by 4900 Park Heights, but that he had not 10 understood that the change would bind its successors.

Mr. Luskin “was concerned that he would not have the ability to sell the property with those restrictions.” Mr. Wood did not inform the court or Cromwell of that alleged misunderstanding until months later, after the parties had already exchanged multiple drafts of the settlement documents. Mr. Wood acknowledged that the terms stated on the record during the March 28 hearing were consistent with his own understanding of the authority he had received from Mr. Luskin on that date. Based on the evidence presented, the court found that “Mr. Wood had express authority to bind his client” and, accordingly, granted Cromwell’s motion to enforce the terms of the settlement. The court asked the parties to work together to submit appropriate paperwork to implement its ruling.

When the parties, unable to reach agreement, submitted dueling proposals, the court entered an order that adopted the proposed order and the mutual general release submitted by 4900 Park Heights and the amendment to the 2014 Declaration submitted by Cromwell. 4900 Park Heights filed a motion to alter or amend, which the court denied. 4900 Park Heights then filed this timely appeal. DISCUSSION 4900 Park Heights argues that the court erred in enforcing the settlement agreement because (1) Mr. Wood did not have express authority to bind 4900 Park Heights; (2) the general terms placed on the record at the March hearing did not constitute a valid, binding agreement; and (3) even assuming a valid agreement existed, the court’s order adopting 11 Cromwell’s version of the amendments to the 2014 Declaration impermissibly modified the terms to which the parties had agreed. “In reviewing [a ruling on] a motion to enforce a settlement agreement, we review the circuit court’s factual findings for clear error and its legal conclusions de novo.” Na v. Gillespie, 234 Md. App. 742, 749 (2017). “A trial court’s factual findings are not clearly erroneous as long as they are supported by any competent material evidence in the record.” Saxon Mortg. Servs. v. Harrison, 186 Md. App. 228, 262 (2009) (citing Figgins v. Cochrane, 403 Md. 392, 409 (2008)). Although a trial court’s entry of an order reflecting a settlement is subject to an abuse of discretion standard, a court abuses its discretion if it enters an order containing terms that vary from, or otherwise fail to reflect, those to which the parties have agreed.

See Smith v. Luber, 165 Md. App. 458, 467, 479 (2005); cf. Long v. State, 371 Md. 72, 89 (2002) (holding that court improperly entered a modified consent order that “materially altered the agreement reached by the parties”). An “attorney’s authority to settle claims is a question of fact.” Scamardella v. Illiano, 126 Md. App. 76, 84 (1999). “Whether or not there was an agreement of settlement, and if so, what were its terms[,] are, upon conflicting evidence, questions for the trier of fact” as well. Grain Dealers Mut. Ins. v. Van Buskirk, 241 Md. 58, 70 (1965); see also Eisenberg v. Air Conditioning, Inc., 225 Md. 324, 331-32 (1961) (in dispute over contract’s compensation term, where “there was conflict in the testimony as to whether any such compensation was ever agreed upon, . . . [i]t was [] a function of the trial court to evaluate the evidence”).

However, “if the facts and permissible inferences are undisputed, 12 . . . a court will rule on the point as a matter of law.” Barnes v. Euster, 240 Md. 603, 608 (1965). “Settlement agreements are enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts.” Erie Ins. Exch. v. Estate of Reeside, 200 Md. App. 453, 460 (2011) (quoting Maslow v. Vanguri, 168 Md. App. 298, 316 (2006)). “The interpretation of a contract, including the determination of whether the language of a contract is ambiguous, is a question of law, subject to de novo review by an appellate court.” Erie, 200 Md. App. at 461 (quoting Maslow, 168 Md. App. at 317 ). We interpret contracts under “the objective theory of contract interpretation.” Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 393 (2019). “Under this approach, the primary goal of contract interpretation is to ascertain the intent of the parties in entering the agreement and to interpret ‘the contract in a manner consistent with that intent.’” Id. (brackets omitted) (quoting Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 88 (2010)).

Accordingly, “unless a contract’s language is ambiguous, we give effect to that language as written without concern for the subjective intent of the parties at the time of formation.” Ocean Petroleum, 416 Md. at 86 . That is, where the language is unambiguous, “we consider the contract from the perspective of a reasonable person standing in the parties’ shoes at the time of the contract’s formation.” Id. 13 I. THE CIRCUIT COURT DID NOT CLEARLY ERR IN FINDING THAT MR. WOOD HAD EXPRESS AUTHORITY TO SETTLE ON BEHALF OF 4900 PARK HEIGHTS. 4900 Park Heights contends that the circuit court erred when it found that “Mr. Wood had express authority to bind his client” on March 28, 2018. In making that finding, the court observed that: (1) Mr. Wood “was in conversations with his client throughout the negotiations”; (2) he “communicated . . . back and forth with his client” throughout the discussions; and (3) “any reasonable person” would have understood Mr. Luskin’s comment, “I don’t care about the covenants,” to mean that Mr. Wood “had the authority to agree to the proposal on the covenants.” Moreover, the court noted, no client representative of 4900 Park Heights appeared in court on March 28, which further suggested “that Mr. Wood had that party’s authority to act on their behalf on that day.” At the outset, we emphasize that 4900 Park Heights does not argue that Mr. Wood lacked express authority to agree to a settlement on March 28.

Indeed, 4900 Park Heights concedes that Mr. Luskin, its duly-authorized client representative, and Mr. Wood both understood (1) that Mr. Luskin had expressly authorized Mr. Wood to settle the case, and (2) that the authorization extended to an amendment to the 2014 Declaration that would give Cromwell sole and absolute discretion to approve future improvements to Lot 7R. Instead, 4900 Park Heights premises its argument on Mr. Wood’s alleged misunderstanding of what Mr. Luskin intended when he told Mr. Wood that he “d[id]n’t care about the covenants.” According to 4900 Park Heights, while Mr. Wood understood 14 that any such alteration would bind the successors of 4900 Park Heights, Mr. Luskin did not. “The relationship of lawyer to client is generally one of agency.” In re Alijah Q., 195 Md. App. 491, 520 (2010) (citing Salisbury Beauty Sch. v. State Bd. of Cosmetologists, 268 Md. 32, 45 (1973)). “The actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency.” Salisbury Beauty Sch., 268 Md. at 45 . “There is a prima facie presumption in Maryland ‘that an attorney has authority to bind his client by his actions relating to the conduct of litigation.’” Mitchell Props. v. Real Estate Title Co., 62 Md. App. 473, 483 (1985) (quoting Kinkaid v. Cessna, 49 Md. App. 18, 22 (1981)). An attorney’s implied authority does not, however, extend to settlement. “[A]n attorney by virtue of the attorney-client relationship does not have implied authority to settle his client’s claim. There must exist express authority to the attorney to authorize him to settle the client’s case.” Accrocco v. Splawn, 264 Md. 527, 533 (1972); see also Kinkaid, 49 Md. App. at 22 (“[A]n attorney has no implied authority to compromise his client’s claim.

Express authority is required.” (internal citations omitted)). It is the burden of “the party seeking to enforce a settlement order [to] prove: (1) that the other party’s counsel acted with the authority of his client; and (2) that such authority expressly extended to the settlement of the claim.” Mitchell Props., 62 Md. App. at 483 . At the hearing, the court heard testimony from Mr. Wood that: (1) he was in communication with his client throughout the settlement negotiations; (2) he informed his 15 client that, in exchange for dropping its demand for attorney’s fees, Cromwell requested that 4900 Park Heights agree to amend the 2014 Declaration to provide Cromwell with sole and absolute discretion to approve all future improvements; (3) in response, Mr. Luskin told Mr. Wood that he “d[id]n’t care about the covenants” and authorized him to settle the case; (4) Mr. Wood conveyed to Mr. Blumenthal that the parties had an agreement on that term; and (5) the parties placed on the record the terms of the agreement Mr. Wood understood his client to have authorized.3 This constituted “ample evidence to support” the court’s finding of express authority. See Carroccio v. Thorpe, 230 Md. 457, 463 (1963); see also Posko v. Climatic Control Corp., 198 Md. 578, 583 (1951) (“[E]xpress authority may be shown through the testimony of the agent.”).

Although 4900 Park Heights characterizes the disconnect between Mr. Luskin and Mr. Wood as a misunderstanding regarding the terms Mr. Luskin had authorized, it is more accurately characterized as a misunderstanding regarding the legal effect of a change to the 2014 Declaration. There is no genuine dispute regarding whether Mr. Luskin authorized a change to the covenant. By Mr. Wood’s account, Mr. Luskin could hardly have been clearer in informing Mr. Wood that he “d[id]n’t care about the covenants” and, therefore, was amenable to the requested amendment. Mr. Luskin might not have understood fully 3 We also think it noteworthy that although Messrs.

Wood and Luskin apparently became aware of the misunderstanding on the same day the settlement was placed on the record, they did not assert a lack of authority at that time, nor did they promptly inform the court or Cromwell of the disconnect. Instead, for months afterward, they purported to engage in the exercise of finalizing the paperwork for the settlement that had been placed on the record. 16 that the amendment would bind any future owners of Lot 7R in addition to him, but that does not detract from his agreement to it.4 Moreover, even if there were any ambiguity in what Mr. Luskin authorized—as opposed to whether Mr. Luskin understood fully the implications of what he authorized— we would not deem clearly erroneous the circuit court’s finding that Mr. Wood reasonably interpreted Mr. Luskin’s statement and, therefore, had authority to act in accord with it. See, e.g., Dickerson v. Longoria, 414 Md. 419, 442 (2010) (“Actual ‘authority to do an act can be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal’s account.’” (quoting Citizens Bank of Md. v. Md. Indus. Finishing Co., 338 Md. 448, 459 (1995))); accord Harris v. Ray Johnson Constr.

Co., 534 S.E.2d 653, 654-55 (N.C. Ct. App. 2000) (holding that an attorney who “reasonably believed at the time of negotiation that he could settle the case for [a gross sum of] $2000 . . . possessed actual authority to settle in that amount,” notwithstanding that his client had “intended to net $2000 from the settlement” after legal fees and medical expenses (emphasis added)); 4 By its unambiguous terms, the 2014 Declaration applies not only to the current owner of Lot 7R, but to all successors in interest. Indeed, that is a key feature of a recorded declaration containing covenants that run with the land. See County Comm’rs v. St. Charles Assocs. Ltd. P’ship, 366 Md. 426, 448-49 (2001); cf. 21 C.J.S. Covenants § 38 (2020) (“Restrictions running with the land are intended to limit the grantee’s use of the land to specified purposes, with the object of protecting the interests of all landowners in the same allotment.”).

Whether Mr. Luskin understood the legal implications of what he was agreeing to was (and remains) between him and his counsel. Neither the court nor the opposing party is charged with divining a represented party’s subjective understanding of unambiguous contractual terms. 17 cf. Restatement (Third) of Agency § 2.02(2) (2006) (“An agent’s interpretation of the principal’s manifestations is reasonable if it reflects any meaning known by the agent to be ascribed by the principal and, in the absence of any meaning known to the agent, as a reasonable person in the agent’s position would interpret the manifestations in light of the context, including circumstances of which the agent has notice and the agent’s fiduciary duty to the principal.”). Although 4900 Park Heights asserts that a client’s express authorization to settle a case will be negated by a misunderstanding between attorney and client regarding a particular term of the settlement agreement, the cases it cites do not support that contention. 4900 Park Heights relies most heavily on Kinkaid v. Cessna, 49 Md. App. 18 (1981), which it contends “is controlling” and presents “precisely the same situation [as] the instant case.” In Kinkaid, before trial in a negligence case, the plaintiff’s counsel spoke with his client’s wife about a settlement proposal the attorney had received. Id. at 20 .

As plaintiff’s counsel later recalled, his client’s wife told the attorney that her husband was “upset, but he believes that he ought to go on with it.” Id. The attorney thought that meant his client wanted to “go forward and settle the claim,” and he so informed the other side and the court. Id. He later learned, however, that his client actually wanted to “go on with” the trial.

Id. Notably, plaintiff’s counsel provided this account during his argument on the defendants’ motion to enforce the settlement, not under oath. Id. Nonetheless, on the basis of those representations, the trial court concluded that the plaintiff’s attorney had not received 18 express authority to agree to the settlement and, therefore, denied the motion to enforce.

Id. at 21 . This Court did not reach the merits. Instead, we held that the defendants “did not sustain their burden of proof” as to “the express authority of [plaintiff]’s counsel to settle the lawsuit” because they “presented no evidence.” Id. at 23 . We did, however, address the defendants’ alternative argument that plaintiff’s attorney had