Antigua Condominium Ass'n v. Melba Investors Atlantic, Inc.

RODOWSKY, Judge. Principal among the many issues in this case are those involving limitations on claimed breaches of warranty and of covenant which were asserted by unit owners and their council against a residential condominium developer and its parent corporation. The issues were decided on motions to dismiss for failure of the complaint to state a claim. Antigua Condominium (Antigua) is a fourteen-story structure containing 104 units on 1.84 acres in Ocean City, Maryland.

The owners of forty-five units at Antigua (Unit Owners) and the Antigua council of unit owners (Council), hereinafter collectively “Plaintiffs,” are suing Melba Investors Atlantic, Inc. (Melba) and Bankers Trust Company (Bankers), hereinafter collectively “Defendants.” Bankers had been the construction lender to the original Antigua developer who defaulted before construction was completed. That borrower and Bankers agreed to a deed in lieu of foreclosure under which the property was conveyed to Melba, a wholly owned subsidiary of Bankers. Melba completed the construction at Antigua and was the original vendor of the units. On September 24, 1981, the Council and the owners of thirteen Antigua units sued the Defendants in one of the former equity courts in the Eighth Judicial Circuit (Baltimore City).

On November 23, 1981, the owners of other units at Antigua sued the Defendants in the same court. Both suits sought (1) money damages for alleged construction defects and (2) equitable relief, by way of confirmatory deeds and certificates of title. The trial court ordered the two classes of claims to be segregated into separate actions, one at law and the other in equity. The bill of complaint in the earlier filed action to which the Council was a party, having been amended to include all of the Plaintiffs and to ⁷⁰⁶ assert only claims for money damages, is the action now before us. 1 Defendants responded to Plaintiffs’ amended declaration by a motion for production of documents under former Maryland Rule 326. 2 This motion sought the sales contracts and deeds of each of the Unit Owners and the Antigua condominium declaration.

Plaintiffs raised no objection to the motion and eventually filed the requested documents in court. Under Md.R. 326, then in effect, those written instruments thereby became part of Plaintiffs’ amended declaration. 3 The Defendants prepared from the deeds a schedule listing the Unit Owners chronologically by date of deed and indicating whether the deed was directly from Melba. Unit Owners who did not buy directly from Melba are called “nonoriginal purchasers.” That schedule is attached to this opinion as Appendix A. Using this information the Defendants demurred with Melba arguing, inter alia, that the ⁷⁰⁷ amended declaration on its face disclosed that limitations had run. 4 ⁷⁰⁶ Where any cause of action or defense is founded upon a written instrument, any party shall, upon written demand of the opposite party served upon him within the time allowed for pleading, file in the proceedings such instruments or a true or photostatic copy thereof, which, when filed, shall be treated as if incorporated in the pleading. The time for pleading shall be extended until fifteen days after the filing of such instrument or copy. ⁷⁰⁷ Those demurrers were sustained with leave to amend.

Plaintiffs then filed a second amended declaration to which Bankers again demurred and to which Melba filed a second demand for production of written instruments under former Md.R. 326. This second demand sought “[e]ach and every ‘timely notice’ of defect, breach of contract or breach of warranty given by any Plaintiff by certified mail ... or by personal delivery to Melba____” The trial court issued an order sustaining Bankers’ demurrer and prohibited the Plaintiffs from further amending as to that defendant. Although the court’s order did not state its reasoning, its memorandum opinion sustaining Bankers’ preceding demurrer had found the allegations insufficient to pierce Melba’s corporate veil and to impose liability on Melba’s sole stockholder, Bankers. On July 1, 1984, the current Maryland Rules of Procedure came into effect and former Md.R. 326 was rescinded.

On July 26, Plaintiffs filed five letters as their answer to Melba’s motion to produce written instruments. Melba, on August 27, filed a “demurrer” based on limitations to Plaintiffs’ second amended complaint. Before any ruling on that “demurrer” Plaintiffs filed a “revised second amended declaration” on December 3, 1984, i.e., a third amended complaint. Melba countered with a “motion ne recipiatur and to strike, renewal of demurrer and third demurrer”, filed December 7.

The trial court, with memorandum opinion, granted Melba’s motions without leave to amend. The Court of Special Appeals affirmed in part and reversed in part. Antigua Condominium Association v. Melba Investors Atlantic, Inc., 65 Md.App. 726 , 501 A.2d 1359 (1986). We granted cross-petitions for certiorari. ⁷⁰⁸ I. The Allegations Plaintiffs allege that the condominium declaration was recorded July 25, 1977, that the first sales of units were made in August, that the first deeds of units by Melba were made on September 17, 1977, and that control of the condominium Council passed from the Defendants to the owners of units on October 7, 1978.

In selling units at Antigua, Melba used a standard form of contract containing the following provisions which are central to the instant controversy: The building has been erected on the land, at Seller’s cost and expense, and, except to the extent otherwise expressly provided herein, conforms substantially to the construction plans and specification (construction plans)---- Seller is making certain additions to the building as shown on the drawings attached hereto. The condominium unit sold under this contract has been or is being constructed substantially in accordance with the construction evidence [sic ] that Seller has fully complied with all its obligations hereunder and that Buyer has approved and accepts the condominium unit, building and property as they stand, “as is”, and as being satisfactorily built, equipped and completed, and thereafter no further performance can or shall be required of Seller, except as follows: Seller will make any necessary repairs, adjustments or replacements to the condominium unit and item of personal property specified herein or the common elements of the condominium required as the result of faulty construction, faulty material, faulty manufacture or faulty installation, provided that notice of the defect shall be given Seller within a period of one (1) year accounting from the date of settlement under this Contract. We shall call the immediately preceding provision the “Repair Clause.” ⁷⁰⁹ Count one asserts claims on behalf of the Council, both for itself and as a representative of the Unit Owners. That count is predicated, at least in part, on the Repair Clause.

Paragraph 11 of the count states that the Council, within the year following September 17, 1977, “notified the [Defendants ... of all of the construction defects discovered in the common elements and in the individual units which defects are hereinafter detailed in paragraph 12.” Paragraph 12 alleges a long list of defects (the ¶ 12 defects), including “[h]oles and cracks in walls causing severe water damage into the common elements and into the individual [units.]” Paragraph 11 further alleges “[t]hat from the time of the first such notice of defect through May 6, 1980, the Defendants received all notices of defects and agreed to repair all defects____[and] actually started making repairs to correct the water seepage into the units and common elements[.]” Paragraph 11 goes on to say that the Council first learned of the Defendants’ intentions concerning repairs by a letter of May 6, 1980, from Melba. That letter is an exhibit to the complaint. In the letter Melba responds to eight categories of complaints which had apparently been made in a letter of September 10, 1979, by the Council. With respect to “Waterproofing,” Melba replied: The resealing of the building resumed on April 10, 1980 after a winter recess, and we have been advised by the contractor that the work should be completed within two or three weeks depending on weather conditions.

At the same time another contractor, Clifton Gray and his crew has been working incessantly throughout the winter correcting water related damages within each unit and has assured us that the interior work will be completed in 3 to 4 weeks. Also we have a project engineer who monitors the quality of the work and its progress. In light of the above, the concern expressed by the Board about “delays” appears unfounded and unjustified since we wasted no time at all in moving toward completion. ⁷¹⁰ With respect to the other seven categories of alleged defects the May 6, 1980, letter denied that Melba had any obligation to repair them. Melba’s letter concluded by saying: “We further feel that the warranty work which has been on going for quite some time extended far beyond our legal obligation.” Count one is followed by ninety-three more counts in the complaint.

Each of them, from count two through count ninety-four, incorporates the first twelve paragraphs of the complaint wherein are found the allegations reviewed above. Counts two through four also claim damages for the II12 defects. In count two the Council, for itself and in a representative capacity, claims damages on the theory that the ¶ 12 defects constitute breaches of express and implied warranties. Count three undertakes to claim for all of the Unit Owners based on the Repair Clause with respect to the If 12 defects.

In count four all Unit Owners allege breaches of express and implied warranties because of the ¶ 12 defects. Counts five through ninety-four present the claims of specific Unit Owners and allege, unit by unit, defects in addition to the ¶ 12 defects. Water damage to the particular unit involved is alleged in each of these counts. The odd numbered counts assert breach of the standard sales contract while the even numbered counts rest on express and implied warranties.

Other than by incorporating complaint paragraphs one through twelve, counts five through ninety-four contain no allegations about notice having been given by the respective Unit Owners. The Court of Special Appeals affirmed dismissal on limitations grounds of all claims against Melba other than those claims which (1) sought damages for other than ¶ 12 defects, (2) were based on breach of the Repair Clause, and (3) had been brought by Unit Owners who took title on or after September 22,1977. Finding the latter claims timely on the allegations, the intermediate appellate court reversed and remanded as to them. Judgment for Bankers nevertheless ⁷¹¹ was affirmed because the complaint failed to allege any basis for piercing Melba’s corporate veil.

II

Claims Against Melba A. The Repair Clause Claims Central to the Court of Special Appeals’ limitations analysis of the Repair Clause claims is the allegation in ¶ 11 of the complaint that the Council had given notice of the ¶ 12 defects within one year after September 17, 1977. That meant that all ¶ 12 defects were known to the Plaintiffs no later than September 18, 1978. The action was not filed until more than three years thereafter, on September 24, 1981. Under the general statute of limitations “[a] civil action at law shall be filed within three years from the date it accrues____” Md.Code (1974, 1984 Repl.Vol.), § 5-101 of the Courts and Judicial Proceedings Article.

The intermediate appellate court concluded that claims based on breach of the Repair Clause and seeking damages for the ¶ 12 defects (i.e., counts one and three) had accrued on or before September 18, 1978, and were barred. This analysis postulates that accrual for limitations purposes of the cause of action for breach of the Repair Clause cannot occur later than the time when a Plaintiff discovers a defect covered by the Repair Clause and implicitly reasons that discovery had to have occurred on or before the date of notice. 5 The Court of Special Appeals also concluded that breach of contract claims brought by Unit Owners for damage to particular units were not controlled by the allegation that notice of all ¶ 12 defects had been given to Melba by ⁷¹² September 18, 1978. Paragraph 11 of count one, which was incorporated into all succeeding counts, additionally alleged that notice of defects had been given to Melba as late as May 6, 1980. The Court of Special Appeals interpreted this allegation, correctly in our view, to relate to defects other than the II12 defects.

Under the allegation referring to May 6,1980, one or more unspecified Unit Owners, acting in compliance with the Repair Clause, could have given notice to Melba on the last day of the one year notice period accounting from the date of settlement under that Unit Owner’s sales contract. The court, working backwards from the actual date of institution of this action, then calculated in the following fashion the latest date on which a Unit Owner could have settled without having the claim barred by limitations. September 24, 1981— date action instituted. September 23, 1978— three years prior to institution of action and latest date for notice to Melba per the one year notice condition of the Repair Clause.

September 22, 1977— latest day on which a Unit Owner could have settled and given one year notice by no later than September 23, 1978. The Court of Special Appeals reversed the dismissal by the circuit court of those counts in which a Unit Owner who had settled after September 22, 1977, claimed breach of the Repair Clause based on defects other than ¶ 12 defects. 6 As it had done in reviewing count one, the court equated the giving of notice by a Unit Owner with accrual for limitations purposes of a cause of action based on breach by Melba of the Repair Clause. ⁷¹³ The Plaintiffs challenge this analysis. They say Melba gave more than a warranty of compliance with plans and specifications and against certain defects; Melba also promised to repair those defects. Plaintiffs say that the action for breach of the covenant to repair does not inexorably accrue, as a matter of law, on the day by which a Unit Owner must have discovered a defect as evidenced by the giving of notice of the defect.

There also must be, following notice, a reasonable time within which Melba can perform. Failure to render that performance is the breach which fixes the time of accrual and begins the running of limitations. Melba says the Repair Clause is, “simply, [its] promise to sell the Condominium to [Plaintiffs] constructed in accordance with the plans and specs[,]” with “a limitation upon the time afforded [Plaintiffs] to discover and notice claims ... and a conditioning of [Plaintiffs’] right of action under the single contractual obligation____” Melba submits that construing the contract to contain a second promise to repair, in addition to the guarantee, is as redundant as reading a promissory note to contain a second promise to pay in the event of default. The dispute, at bottom, involves interpreting the contract.

To review, the key provision reads: Seller will make any necessary repairs, adjustments or replacements to the condominium unit and item of personal property specified herein or the common elements of the condominium required as the result of faulty construction, faulty material, faulty manufacture or faulty installation, provided that notice of the defect shall be given Seller within a period of one (1) year accounting from the date of settlement under this Contract. Literally this covenant is one to repair. The scope of the covenant to repair defines the scope of the defects against which it might be said that Melba guaranteed. A provision indistinguishable from the Repair Clause involved here was interpreted in President & Directors of ⁷¹⁴ Georgetown College v. Madden, 505 F.Supp. 557 (D.Md. 1980), aff'd in part and appeal dismissed in part, 660 F.2d 91 (4th Cir.1981).

Paragraph 40 of Georgetown College’s contract in part read: “The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final acceptance of the work____” The general contractor’s, bonding company argued that this provision contractually established a one year statute of limitations. Judge Kaufman, rejecting that contention, explained the provision: Paragraph 40, however, does not embody a limitations period. Instead, that contract provision sets forth an additional promise by the contractor that should defective work be discovered within one year, the contractor would repair the same. Refusal to repair such defective work would have resulted in a separate breach of contract aside from the breach resulting from the defective work.

Paragraph 40 is, therefore, an additional remedy for the owner—a right to have the defective work repaired—and not a limitations period. See Fowler v. A & A Co., 262 A.2d 344, 347-48 (D.C.1970); see also Zellan v. Cole, 183 F.2d 139 (D.C.Cir.1950). [ 505 F.Supp. at 564 n. 8.] Zellan v. Cole, cited in Georgetown College , involved a contract to build a residence which provided that “ ‘the basement shall be dry and shall remain dry for a period of three years.’ ” In light of the conduct of the parties the court construed the provision as a promise to maintain a dry basement for that length of time. Under that construction “the statute of limitations began to run when the contractor abandoned his efforts” to cure and not when water was discovered in the basement. Zellan, 183 F.2d at 139 .

The time at which limitations began to run on an action for breach of a contract like the Repair Clause also was decided in Spinoso v. Rio Rancho Estates, Inc., 96 N.M. 5 , 626 P.2d 1307 (Ct.App.), cert. denied, 96 N.M. 17 , 627 P.2d 412 (1981). That contract provided: ⁷¹⁵ Seller agrees, at its sole cost and expense, to remedy any substantial defect in workmanship or materials of the structural components of the dwelling that shall be called to its attention by notice in writing from Purchaser on or before the first anniversary of the date of closing of title. [ 96 N.M. at 7 , 626 P.2d at 1309 .] The purchasers gave notice on the date of closing and further notices four months, ten months, fourteen months, and thirty-four months after closing. The statute of limitations allowed suit to be brought within six years from the date the cause of action arose. During the three years following the first written notification of defects, the seller made various attempts at repair which were unsuccessful.

Finally the seller refused to make further repairs and the purchaser sued. The court dispatched the seller’s statute of limitations argument in a footnote, saying “the cause of action did not arise at the time the defect was first noted, but when defendant refused to cure the defect.” Id. at 9 n. 3, 626 P.2d at 1311 n. 3. We do not interpret the Repair Clause as simply a warranty of the condition of a unit or of the common elements as of the time of closing with a Unit Owner. Had Melba simply guaranteed the condition of the property as of the date of closing with a Unit Owner, any breach of that guarantee would necessarily occur at closing and, absent a special statute, the cause of action would accrue for limitations purposes when the breach was discovered.

See Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981). Here, however, Melba additionally promised to repair if notified timely. The breach of that covenant to repair does not occur at closing or necessarily when notice is given. Conceptually, the ways in which one who has contracted to repair could breach that contract include repudiating the obligation before any notice is given, or, after being on notice of the defect, failing to undertake the repairs within a reasonable time, expressly refusing to repair, or, after undertaking to repair, abandoning the work before completion.

See generally Beaudry Motor Co. v. New Pueblo ⁷¹⁶ Constructors, Inc., 128 Ariz. 481 , 626 P.2d 1113 (Ct.App. 1981); Fowler v. A & A Co., 262 A.2d 344 (D.C.1970); Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 , 389 N.E.2d 130 , 415 N.Y.S.2d 817 (1979). 7 Our holding may be further explained by contrasting it to Booth Glass Co. v. Huntingfield Corp., 304 Md. 615 , 500 A.2d 641 (1985). There the owner of a newly constructed building claimed that a subcontractor who had installed exterior glass in the structure had been negligent in the original installation. The owner knew for more than three years prior to suit that the glass might have been negligently installed. We held the statute of limitations had run on the claim and had not been tolled by the subcontractor’s efforts to repair the defects.

In Booth Glass we were careful to point out that the owner had not based the action upon negligence in the repair process. “Nor was the suit in any way predicated upon a contract created by Booth’s promise to Huntingfield to repair the leaks.” 304 Md. at 621-22 , 500 A.2d at 644 . On the issue now under considera ⁷¹⁷ tion, Plaintiffs say limitations start on accrual of their action for breach of the contract to repair and, unlike Booth Glass, Plaintiffs do not rely on Melba’s efforts at repair, in and of themselves, to defer or interrupt the running of limitations on an earlier accrued action. Under our interpretation of the Repair Clause, limitations do not begin running at the time a defect is discovered. As a consequence, even though giving notice of a defect presupposes discovery of the defect, it does not follow that limitations cannot begin to run later than the date on which notice of a defect was given.

After timely notice Melba was not required to repair instantly. There was a period of time during which Melba could investigate the problem and prepare to perform the actual repair work. That period affects when Plaintiffs should have discovered that Melba breached the Repair Clause. Specifically, counts one and three allege notice to Melba of the ¶ 12 defects by September 18, 1978.

Suit was filed September 24, 1981, by some Plaintiffs and on November 23, 1981, by other Plaintiffs. All Plaintiffs were in court within two months beyond three years from that September 18, 1978, notice to Melba. It further appears from Melba’s May 6, 1980, letter that Melba’s contractor had been working on the leak problem for some time prior to the winter of 1979-80. For all the record discloses, this could have been in response to a September 1978 notice.

We cannot say on the basis of the facts alleged that any of the Plaintiffs should, as a matter of law, have discovered Melba’s alleged breach of the Repair Clause within two months after Melba had been asked to repair the 1112 defects. The same analysis applies to the odd numbered counts wherein individual Unit Owners allege damage to their units by breach of the Repair Clause. The worst scenario for any Unit Owner involves the earliest closing which was held on September 17, 1977. That Unit Owner could have satisfied the condition of the Repair Clause by a ⁷¹⁸ notice given as late as September 18, 1978.

That Unit Owner’s claim involves the same two month period as was explained above in relation to counts one and three. It cannot be said on motion to dismiss that the Unit Owners should have discovered Melba’s alleged breach of the Repair Clause more than three years prior to suit. For the foregoing reasons the claims asserted in all of the odd numbered counts are remanded. B. The Notice Condition In its brief as cross-petitioner Melba submits that the Court of Special Appeals erred in remanding certain Unit Owners’ Repair Clause claims after it had concluded that the Plaintiffs, by their May 6, 1980, allegation, might have satisfied the one year notice condition of the Repair Clause.

As a matter of pleading, the general allegation in each odd numbered count that the Plaintiff had given the notice prescribed by the Repair Clause was sufficient. MD.R. 2-304(b) provides that “[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” To support its position Melba relies on the Plaintiffs’ response to Melba’s second motion under former Md.R. 326 which had called for production of the written notices. Because Melba asserts that the five documents produced were inadequate as notice, it urges that all Repair Clause claims should be dismissed, even if these claims pass muster under the statute of limitations. Melba’s argument presupposes that the writings produced on July 26, 1984, by the Plaintiffs became a part of the complaint, but former Md.R. 326 had been rescinded prior to the Plaintiffs’ production.

There is no rule in effect after July 1, 1984, which operates on the pleadings in the manner of former Md.R. 326. This Court’s order of April 6, 1984, adopting the current rules provided that they “shall take effect and apply to all actions commenced on or after July 1, 1984, and insofar as practicable, to all actions then ⁷¹⁹ pending[.]” The current rules could have been, but were not, applied “insofar as practicable” to Plaintiffs’ July 26, 1984, filing if the trial court had treated it as a response by Plaintiffs to a motion pursuant to MD.R. 2-422 for the discovery of documents. But this Court cannot consider that the notice argument is supported by discovery documents in the absence of an initial decision by the trial court. An argument to the circuit court in support of Melba’s motion to dismiss the complaint based upon matters not in the pleading but in the record as discovery material would have invoked MD.R. 2-322(b).

The relevant portion of that rule reads: If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501____ Thus, to have applied this rule, the circuit court would first have to have determined not to exclude the matter which was outside the pleading. The circuit court would then have to have given the Plaintiffs a reasonable opportunity to present, in a form suitable for consideration on summary judgment, additional pertinent material. See generally 5 C. Wright & A. Miller, Federal Practice & Procedure § 1366, at 678 (1969). We cannot exercise the discretions which are in the first instance committed to the trial court.

Further, even if the circuit court, treating the matter as if on summary judgment, had dismissed after following the procedure of MD.R. 2-322(b) and the Court of Special Appeals had affirmed, we would not agree that this record supports dismissal for lack of notice. Each count which claims breach of the Repair Clause alleges that the building leaks and that there has been water damage. One of the ⁷²⁰ documents produced by the Plaintiffs is a letter of September 21, 1979, from the Council to Melba which states its purpose to be “a clear identification of Antigua problems requiring resolution.” Under the heading “WATERPROOFING,” the letter reads: The exterior ecotex as well as many portions of the interior ecotex are flaking and many leaks are in evidence around caulked areas. The exterior is to be resurfaced, work has already begun.

All work should be done in a manner to ensure continuous bonding of caulking and sealing material and present a uniform exterior appearance. It is understood that the refinishing and repainting of water-stained and damaged interior walls will be accomplished at the seller’s expense upon completion. [Emphasis added.] In the letter of May 6, 1980, from Melba to the Council, Melba advised, in part, that “[t]he resealing of the building resumed on April 10, 1980 after a winter recess, and we have been advised by the contractor that the work should be completed within two or three weeks depending on weather conditions.” These documents, on the very skimpy factual record before us, are sufficient to support an inference that Melba had some notice, at least with respect to the problem of leaks and water damage, and that Melba waived strict compliance with the condition precedent. One party to a contract, by continuing to perform after the other party is in breach of the contract, may waive the breach. Pumphrey v. Pelton, 250 Md. 662 , 245 A.2d 301 (1968).

Thus, a liability insurer may, by undertaking defense without a reservation of rights, waive the failure of the insured to give prompt notice of the accident. See Columbia Casualty Co. v. Ingram, 154 Md. 360 , 140 A. 601 (1928); London & Lancashire Indemnity Co. v. Cosgriff, 144 Md. 660 , 125 A. 529 (1924). Indeed, a party to a contract may waive the benefit of a provision specifying that waiver of the other party’s breach is not a waiver of a succeeding breach. See Pumphrey v. Pelton, supra. ⁷²¹ There is no merit to Melba’s contention that the Plaintiffs, by arguing waiver in answer to Melba’s lack of notice point, have violated MD.R. 885.

Melba’s notice argument first surfaced in its cross-petition for certiorari seeking review of the remand ordered by the Court of Special Appeals. Under these circumstances the Plaintiffs have not violated MD.R. 885. Melba also submits that the Plaintiffs cannot plead compliance with the condition precedent of notice and then argue waiver by Melba. We express no opinion on the validity of the underlying proposition.

It is sufficient to note that this argument cannot apply here because Melba did not contend that there should be a dismissal for failure to give notice until it cross-petitioned for certiorari, when the Plaintiffs could not amend to allege a waiver theory. We express no opinion as to whether nonoriginal purchaser Unit Owners may sue for alleged breach of the Repair Clause. That issue is not before us. In its brief as cross-petitioner Melba pointed out that twelve nonoriginal purchasers are Plaintiffs and then said: [Plaintiffs’] Special Appeals Brief raised no specific argument with the circuit court’s silence on this issue in its sustaining of the Demurrer as to all claims.

Melba thus presumed that those claims were not appealed and likewise did not address the non-original purchaser issue in its Brief. In accordance with Md.Rule 1085, the Court of Special Appeals likewise did not consider the “non-original” purchaser issue. Although the opinion by the Court of Special Appeals did not address the rights of a nonoriginal purchaser under the Repair Clause, the mandate of the Court of Special Appeals allowed the contract claims of at least nine Unit Owners who are nonoriginal purchasers to proceed (counts five, nine, twenty-one, forty-one, forty-three, fifty-nine, sixty-one, eighty-three, and ninety-three). It therefore was incumbent upon Melba to raise the issue in its cross-petition and in its brief as cross-petitioner if Melba sought reversal of the ⁷²² remand on the ground that nonoriginal purchasers could not sue on the Repair Clause.

C. Warranty Claims 1. Statutory Background Melba began conveying units at Antigua on September 17, 1977, and the latest closing by it involving a Plaintiff was on April 23, 1981. Throughout that period Title 10, Subtitle 2 of the Real Property Article (RP) provided and still provides for certain express and implied warranties in the sale of a newly constructed private dwelling unit. Title 11 of the Real Property Article is the Maryland Condominium Act, enacted by Ch. 246 of the Acts of 1981 effective July 1, 1981.

It replaced the predecessor Horizontal Property Act. Title 11, in § 11-131, creates implied warranties on units and common elements in sales by condominium developers. Title 10 express warranties may be created by a written affirmation of fact or promise, by a written description of the improvement, including plans and specifications, or by sample or model, all as provided in § 10-202. 8 The implied warranties created by § 10-203(a) are that: [T]he improvement is: (1) Free from faulty materials; ⁷²³ (2) Constructed according to sound engineering standards; (3) Constructed in a workmanlike manner; and (4) Fit for habitation. Limitations on actions based on Title 10 warranties are provided in § 10-204 which, prior to amendments in 1985 which are not relevant to the issues before us, read as follows: (b) Expiration of warranty.—Unless an express warranty specifies a longer period of time, the warranties provided for in this subtitle expire: (1) In the case of a dwelling completed at the time of the delivery of the deed to the purchaser, one year after the delivery or after the taking of possession by the purchaser, whichever occurs first; and (2) In the case of a dwelling not completed at the