B & P ENTERPRISES v. Overland Equipment Co.

HOLLANDER, Judge. This case requires us to consider a number of issues arising from a commercial leasehold agreement. Overland Equip ⁵⁹¹ ment Company (“Overland” or “Tenant”), appellee, operates a motor vehicle towing and storage business on premises leased from B & P Enterprises (“B & P” or “Landlord”), appellant. 1 On appeal, B & P challenges the judgment for damages and order for injunctive relief entered in the Circuit Court for Prince George’s County in favor of Overland, the plaintiff below, following a two-day bench trial. B & P presents the following issues for our review, which we have rephrased for clarity: I. Did the court err in awarding relief to appellee in light of appellee’s failure to give appellant written notice of default and an opportunity to cure as required by the lease?

II. . Was the evidence sufficient to support the award of damages to appellee with respect to the relocation of vehicles, and, if so, did the court use the appropriate measure of damages?

III

Did the court err in awarding appellee attorney’s fees?

IV

Did the court err in granting injunctive relief? A. Did the court err by issuing injunctions prior to appellee’s satisfaction of the notice provisions set forth in the lease? B. Were the terms of injunctive relief supported by the evidence? C. Is the injunctive relief awarded of such a character that effective enforcement is unreasonably difficult, requiring long-term judicial supervision?

For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings. FACTUAL BACKGROUND On August 1,1996, B & P and Overland entered into a five-year written lease agreement (the “Lease”) by which appellant ⁵⁹² leased the premises located at 11732 to 11736 Annapolis Road in Glenn Dale, Maryland (the “Property”) to appellee. The Lease is a printed form containing blanks into which information was typewritten, including the names of the parties and a description of the Property. In addition to the above stated street addresses, the Lease included the following description of the Property: The entire second floor of the existing [commercial] building, as well as the “fenced-in” area to the left of the budding, along with an additional storage lot to on the rear of the property consisting of approx. 10,000+-square feet.

(Exact location of the additional 10,000 +-square feet to be determined) The second floor of the office budding was used to house Overland’s corporate offices. The “ ‘fenced-in’ area to the left of the budding,” which we wdl refer to as the “Old Lot,” was used to store vehicles. The last paragraph of the preprinted form is numbered “15.27,” but a second “15.27” was typed in below it. 2 The typewritten paragraph states: Landlord reserves the right to relocate Tenant’s “fenced-in” storage lot at some future date, should that become necessary, at Landlord’s expense. At trial, James Mdls, Overland’s president, described the Old Lot as a large, rectangular property covered with crushed stone, iduminated by three halogen lights, which abuts an asphalt parking lot located in front of the commercial budding.

According to Mdls, the gate to the Old Lot opened onto the parking lot, and Overland’s drivers had “easy access” to the asphalt parking lot. He explained: “[Y]ou could come in off of the highway, and pud upon the asphalt and back straight into the [Old Lot]. There was [sic] no grades, no hids, no nothing [sic] was in the way.” At the relevant time, the Old Lot had chain link fencing on all sides. Mdls also stated that Prince George’s County required Overland “to have a privacy fence” ⁵⁹³ around the Old Lot.

The “privacy fence” consisted of wood slats attached to the chain link fence. The Lease also referred to the “additional storage lot” (the “Additional Lot”). Mills explained that its location was “to be determined.” According to Mills, these terms were included in the Lease to allow for subsequent expansion of Overland’s vehicle storage capacity. Beginning in October 1997, Overland began to use “some space in the rear” of the commercial building for vehicle storage.

On October 24,1997, the County issued a citation to Overland for parking cars on that space without the appropriate permit. Thereafter, Overland began to pursue a use and occupancy permit in order to use the Additional Lot. Mills claimed that Overland’s efforts to secure the requisite permit were frustrated by B & P’s failure to put stakes in the ground demarcating the Additional Lot. Between August 1996, when the parties executed the Lease, and May 1998, the State Highway Administration of the Maryland Department of Transportation purchased a portion of the Annapolis Road frontage, which evidently included a portion of the Old Lot.

In May 1998, Ted Webersinn, an independent contractor hired by B & P, met with Mills at the Property. According to Mills, Webersinn indicated that he was representing the Landlord and that he was going to be responsible for moving the “fenced-in” area as provided in ¶ 15.27 of the Lease. In June 1998, however, Mills had a conversation with Harvey Blonder, a B & P representative, which changed his view of the prior discussion with Webersinn. The following trial colloquy is relevant: [MILLS:] ...

I explained [to Blonder] what Webersinn told me, and how we thought we had something working, and [Blonder] told me that Ted Webersinn was not an employee, had no ability to make any decisions for him, was simply a contractor, and that nothing—that Ted Webersinn had no grounds at all, it was totally irrelevant to not pay attention to it, that he could not speak for Blonder or [B & P]. ⁵⁹⁴ [APPELLANT’S COUNSEL:] At that point, what did he think about the agreement that you and Mr. Webersinn had worked out? [MILLS:] I was told it didn’t count. It was a wasted effort; that Webersinn had no ability to make any decision. Nevertheless, in a letter dated September 16, 1998, from Blonder to Mills, Blonder said, in pertinent part: I have been advised by Ted Webersinn that a contract has been ratified for the moving of your present lot to the designated area in the rear of the building. This entire effort will be coordinated by Ted with yoar office.

He will advise your office when the cars are to be moved from the upper lot by you, at your expense, and he has further advised that your cars will not be protected by a fence for the couple of days it takes to do this job. Therefore, you will have to make other arrangements to protect these cars during this time. At trial, Mills indicated that he did not know what contract Blonder meant. Moreover, he did not “have any idea what [Blonder] and [Webersinn] are doing at this point.” When asked by appellee’s counsel what he did upon receipt of Blonder’s letter, Mills responded that he did “[absolutely nothing” in light of Blonder’s previous contention that Webersinn was not authorized to act on B & P’s behalf.

In a subsequent letter to Mills, dated September 25, 1998, Blonder stated: Please be advised that the removal of the fence around your storage lot will begin on Wednesday, September 30 at 8:30 am, starting at the front portion of the [Old Lot]. As indicated in my previous letter ... you will need to move the cars from the upper lot and you will need to provide protection for your cars during this moving process. In response to the second letter, Mills contacted Overland’s attorney, John Barr, 3 because, in his view, Overland’s “County ⁵⁹⁵ towing [license] requires that the cars be in a restricted confined area, under certain guidelines, in a fenced in lot, lights and so forth.” Barr responded to Blonder’s letter of September 25, 1998, by a facsimile the same day. Barr’s letter of September 25,1998, stated, in part: Because it believes that B & P has announced these unilateral actions without honoring its lease obligations, Overland has instructed me to take such steps and actions as are necessary to protect their interests.

Accordingly, be advised the [sic] unless these disputes are settled and resolved, in writing, by the parties hereto, I will on September 28, 1998 ... file a Petition for Ex Parte Injunctive Relief in the appropriate court of the State of Maryland in Prince George’s County. Thereafter, on September 28, 1998, Overland filed suit in the circuit court seeking, inter alia, a temporary injunction prohibiting B & P from removing the fencing surrounding the Old Lot, issuance of a show cause order, a declaratory judgment establishing the rights and obligations of the parties to the Lease, and costs. By “Order to Show Cause” dated September 29, 1998, the circuit court denied Overland’s request for a temporary injunction, but required B & P to show cause by November 6,1998. In the meantime, on October 2, 1998, Blonder sent Mills another letter concerning the proposed move, which stated: We were not able to start our Project as of September 30, 1998, due to the fact that we could not get the temporary fencing on that date.

Therefore, the temporary fencing will be done on Monday, October 5,1998 beginning at 8:00 a.m., and shortly thereafter we will start pulling down the present fence to relocate it. Please be further advised that in addition the 10,000 square feet is also available. ⁵⁹⁶ Mills testified that temporary fencing, was installed around an interim lot on the premises, which was to function as the “fenced-in” area pending the move of the permanent fence (the “Interim Lot”). Overland employees subsequently moved the vehicles from the Old Lot to the Interim Lot. By facsimile dated October 21, 1998, from Tom Mehl, comptroller of Overland, to Blonder, Overland advised B & P that B & P was responsible for the costs of that move: We at Overland ... are anxiously awaiting final approval to relocate our vehicles into their new domicile.

However, before proceeding we would greatly appreciate your cooperation [sic] in satisfying the bill for moving the vehicles to the [Interim Lot]. We relocated 95 vehicles at $35 per car for a total due of $3325.00. For your convenience we accept VISA, MC and American Express. Fully detailed invoices for each car are available upon request.

In a facsimile to Mills dated October 22,1998, Blonder said: “I have been advised that your office has been delivered a copy of the final approval for the new storage area [ (the “New Lot”)]. Therefore, please be advised that the ‘temporary’ fencing will be taken down on Friday, October 23, 1998 and your cars must be moved into the [New Lot].” Consequently, less than one month after moving vehicles from the Old Lot to the Interim Lot, Overland employees moved more than 100 vehicles from the Interim Lot to the New Lot. Mehl sent a request for payment of the costs associated with the second relocation of vehicles on October 28,1998, stating: Pursuant to your instructions in your fax dated October 22, 1998, [Overland] moved 112 vehicles from the [Interim Lot] into the [New Lot]. However, although your fax indicates that the occupancy permit was delivered on that date, we did not, in actuality, receive it until about 10:00 a.m. the following morning at which time the fence contractor was removing the temporary fence exposing the “secured” vehicles and our company to legal liability.

Due to the rushed nature of the events we were forced to employ the services of personnel for security measures adding additional expense to the relocation bill. ⁵⁹⁷ The “bill” detailed the costs of the second move, totaling $14,045.00, as follows: (1) a supervisor working 73 hours at $50.00 an hour; (2) a yard man working 73 hours at $35.00 an hour; and (3) the “rush” towing of 112 vehicles at $70.00 each. Additionally, Mehl requested that B & P satisfy the earlier “bill” of October 21,1998, in the amount of $3,325.00. Blonder responded via facsimile the next day, October 29, 1998, stating: “We are in receipt of your bill dated October 21,1998, as well as another one received on October 28,1998____ [T]hese bills are not our responsibility, as they were not a part of our agreement with you.” Thereafter, on November 5, 1998, B & P answered the circuit court’s show cause order, alleging that “[t]he injunctive relief prayed in the complaint should not be granted as all work is complete and the whole case is moot at this point and such other reasons as will be set forth at the time of the hearing.” Also on November 5, 1998, Overland filed a “Line” in the circuit court stating that the purpose for the show cause hearing, scheduled for November 6, 1998, had “been resolved by the parties.” It is not clear why Barr filed the Line. It is apparent, however, that alleged deficiencies in the preparation of the New Lot continued to spark controversy.

On November 6, 1998, Mehl sent Blonder a letter complaining that (1) the area allotted within the fencing surrounding the New Lot was deficient; (2) “the gate overlapped] by two feet”; 4 (3) extra materials were left over from the relocation; (4) the gate was uneven when closed, leaving a one foot gap at the bottom; and (5) certain sections of the fence were only four feet high. Blonder responded by letter of November 19, 1998, stating: When we completed the fence move, we asked Tom Mehl of your office to inspect the job and report any problems to us particularly because we still had the contractor ready to make any corrections. He said the fence was fine, and his ⁵⁹⁸ only concern at this time was the lights, which we are getting Baltimore Gas and Electric to handle. Because of your acceptance of the fence we paid the Contractor. ****** ... [Y]ou never legally had more than 6,000 [square feet] of car storage area in the first place.

Your own permit consultant only got you 6000 [square feet] within the old fenced area that could be used for car storage. In other words, you have never had a use and occupancy permit for use of the entire 14,000 +-[square feet] and have been in violation for years. We obtained for you the full use of the 14,000+-[square foot] fenced area in the rear (plus 16,000 [square feet] of the surrounding area ... ) and the Use & Occupancy permit that makes it legal. The final written communication of. this campaign was sent by Mehl to Blonder on January 20, 1999.

In addition to complaining that floodlights had not yet been installed for the New Lot, Mehl raised several matters concerning the access and entrance to the New Lot. He said: The [Old Lot] was paved outside and graveled inside the gate. When the yard was relocated behind the building, the old bluestone from the [Old Lot] was scraped and moved [to the New Lot] as far as it would spread. Unfortunately, this method was insufficient to cover the entrance and too light to establish good water drainage in many spots throughout many other areas.

Additionally, it should be noted that the blueprints show a gravel road access---- As a result of recent rains and ice, the lot is a veritable mud bog. We have been unable to get vehicles in or out and have even had difficulty getting tow trucks through the mush. The yard in this condition is intolerable. Overland filed its “First Amended Complaint” on February 16, 1999.

The four-count complaint sought, inter alia, an injunction requiring B & P to provide all-weather access to the New Lot and a compensatory award for its previous failure to do so (Count I); an injunction requiring B & P to make the ⁵⁹⁹ fence “sight tight” on all four sides and generally to bring the New Lot into compliance with the Prince George’s County Code, and a compensatory award for the expenses associated with moving the vehicles from the Old Lot to the Interim Lot, and then to the New Lot (Count II); an injunction requiring B & P to expand the New Lot to include the same square footage as was provided by the Old Lot (Count III); and an injunction requiring B & P to mark and/or post the undetermined area, a monetary judgment to recover rent paid for the undetermined area that was not provided, and punitive damages (Count IV). B & P answered the first amended complaint on March 1,1999. The case proceeded to trial on June 4, 1999. Mills, Mehl, and Charles Holbrook, Overland’s night supervisor and a tow truck operator, testified on behalf of Overland.

At the conclusion of Overland’s case, the court granted B & P’s motion for judgment as to Overland’s request for punitive damages. On the second day of trial, the defense offered the testimony of Blonder, Webersinn, and Dean Packard, an expert in civil engineering. The court’s judgment is embodied in its order entered July 8,1999. It provides, in part: ORDERED, that as to Count One (I) judgment is entered in favor of Plaintiff against the Defendant, and this Court hereby enjoins the Defendant from further interfering with the Plaintiffs reasonable access to the Plaintiffs current lot location, which is the “fenced-in” area as referenced in the Lease Agreement between the parties, and the additional 10,000 square foot lot also referenced in the Lease.

That the defendant is further ordered to provide reasonable accessibility to the current fenced-in location and the additional 10,000 square foot lots by improving, upgrading and filling-in the entranceway and roadway to both said lots with gravel or other substance. That this Court finding that said entranceways to said lots contains [sic] slopes, the Defendant is further ordered to eliminate the slopes in the said entranceways and roadways to said lots. That Counsel for the parties shall monitor the above-referenced work, at the ⁶⁰⁰ expense of the Defendant. The cost of said work is limited to $2,500.00, unless this court approves an additional, or different, expenditure.

That the above-mentioned work shall be done to the approval of the Plaintiff and Defendant and by a contractor that is mutually agreed upon by both the Plaintiff and Defendant. If the parties are unable to agree upon the proper completion of said work or the contractor to perform said work, this Court will consider the appointment of an outside engineer, surveyor or contractor to perform said work and, if necessary, to determine the proper completion of said work, at the expense of either party or both, as determined by this Court as to which party should bear said expense; and it is hereby ORDERED, that as to Count Two (II) judgment is entered in favor of Plaintiff against Defendant. The Defendant is hereby ordered to repair the gate and/or install a new gate to the current fenced-in lot, at the expense of the Defendant. The Defendant is further ordered to fully and completely enclose all sides of the current fenced-in lot.

As there was testimony that one side of the fence is only 4 feet tall, which is lower than the remaining sides, the Defendant is hereby ordered to repair the side of the fence that is 4 feet tall to make it the same height as the other sides of said fence. The Court is not ordering the installation of a new fence. Counsel for the parties shall monitor these gate and fence repairs and/or installations. In addition to the above-mentioned gate and fence repairs, a judgment in the amount of Five Thousand One Hundred and Twenty-Five Dollars ($5,125.00) is hereby entered in favor of the Plaintiff against the Defendant for the Plaintiff’s moving of 205 vehicles, on two separate occasions, at the cost of $25.00 per car, to accommodate the Defendant’s lot relocation, and it is further ORDERED, that at [sic] to Count Three (III) judgment is entered in favor of the Defendant against the Plaintiff; and it is hereby; ORDERED, that as to Count Four (TV) this Court finds in favor of the Plaintiff against the Defendant regarding ⁶⁰¹ paragraph One (1) of the prayer for relief and orders that the Defendant define the exact location, at the expense of the Defendant, of the additional 10,000 square foot lot a referenced in the Lease Agreement by and between the parties by staking out said 10,000 square foot lot by an engineer or surveyor contracted for at the Defendant’s expense.

That said staking out of this 10,000 square foot lot shall be arranged for and monitored by Counsel for the parties. Thereafter, this Court may order the appointment of an engineer or surveyor to stake out this said 10,000 square foot lot at the expense of either, or both, of the parties, to be determined by this Court; and it [is] further ORDERED, that as to Count Four (IV) this Court finds in favor of the Defendant against Plaintiff regarding paragraphs Two (2) and Three (3) of the prayer for relief— [ 5 ] We shall include additional facts in our discussion. DISCUSSION I. Maryland Rule 8—131(c) provides the standard by which we ordinarily review cases tried without a jury. It states, in pertinent part: [T]he appellate court will review the case on both the law and the evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. ⁶⁰² The trial court’s findings of fact are not clearly erroneous if they are supported by substantial evidence. See Porter v. Schaffer, 126 Md.App. 237, 259 , 728 A.2d 755 , cert. denied, 355 Md. 613 , 735 A.2d 1107 (1999); Walker v. State, 125 Md.App. 48, 54 , 723 A.2d 922 (1999); Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners, 115 Md.App. 5, 31 , 691 A.2d 750 , cert. dismissed, 347 Md. 622 , 702 A.2d 260 (1997) . In making this determination, we may not substitute our judgment for that of the fact finder, even if we might have reached a different result.

Nicholson Air Servs., Inc. v. Board of County Comm’rs, 120 Md.App. 47, 67 , 706 A.2d 124 (1998) . The clearly erroneous standard applies only to findings of fact, however. Thus, we do not defer to the circuit court’s legal conclusions. Oliver v. Hays, 121 Md.App. 292, 306 , 708 A.2d 1140 (1998).

Moreover, we will “review the trial court’s application of the law to the facts on an abuse of discretion standard.” Porter, 126 Md.App. at 259 , 728 A.2d 755 ; see Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); Provident Bank v. DeChiaro Ltd. Partnership, 98 Md.App. 596, 603 , 634 A.2d 973 (1993), cert. denied, 334 Md. 210 , 638 A.2d 752 (1994). Because appellee’s suit arose out of alleged breaches of the Lease, B & P avers that Overland’s failure to follow the notice procedure set forth in the Lease constitutes an absolute bar to appellee’s recovery. Appellant refers us to the following Lease provisions: ARTICLE 13. DEFAULT * * * :j: * # 13.3.

Landlord’s Default. If Landlord fails to perform any covenant, condition, or agreement contained in this Lease within thirty (30) days after receipt of written notice from Tenant specifying such default, or if such default cannot reasonably be cured within thirty (30) days, if Landlord fails to commence to cure within said thirty (30) day period, then Landlord shall be liable to Tenant for any damages sustained by Tenant as a result of Landlord’s breach____ If, after notice to Landlord of default, Land ⁶⁰³ lord fails to cure such default as provided herein, then Tenant shall have the right to cure such default at Landlord’s expense____ $ $ sjc , ífe s£ Ht ARTICLE 15. GENERAL PROVISIONS 15.22. Notices.

Wherever in this Lease it is required or permitted that notice or demand be given or served by either party to this Lease to or on the other, such notice or demand shall be in writing and shall be deemed duly served or given only if personally delivered or sent by United States mail, certified or register [sic], postage prepaid, to the address of the parties as specified below____ It is undisputed that Overland never notified B & P of an alleged default under the Lease via certified mail, registered mail, or personal service. Appellant claims that the notice procedures of the Lease constituted a condition precedent to recovery. Appellee counters that because B & P had actual notice of its complaints and was not prejudiced by Overland’s failure to give notice in accordance with the Lease, the trial court properly provided the requested relief. 6 Although the issue was raised below, the trial court made no specific findings as to whether the notice provision contained in the Lease was a condition precedent to recovery. ⁶⁰⁴ It is implicit in the court’s decision, however, that the court did not think so. We are satisfied that the provision does not preclude Overland’s recovery under the Lease.

We begin our analysis with a review of the law governing the interpretation of contracts. Cf. Cloverland Farms Dairy, Inc. v. Fry, 322 Md. 367, 373 , 587 A.2d 527 (1991) (applying rules of contract interpretation to lease); Nicholson Air Servs., Inc. v. Board of County Comm’rs, 120 Md.App. 47, 63 , 706 A.2d 124 (1998) (same). A fundamental principle of contract construction is to ascertain and effectuate the intention of the contracting parties, unless that intention is at odds with an established principle of law.

Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 290-91 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). Thus, “[t]he primary source for determining the intention of the parties is the language of the contract itself.” Scarlett Harbor Assocs., 109 Md.App. at 291 , 674 A.2d 106 .

Moreover, “[a] contract must be construed as a whole, and effect given to every clause and phrase, so as not to omit an important part of the agreement.” Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 113 Md.App. 540, 554 , 688 A.2d 496 (1997) The law of objective interpretation of contracts applies. See Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 340 , 731 A.2d 441 (1999); Calomiris v. Woods, 353 Md. 425, 435 , 727 A.2d 358 (1999); Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996).

This means that the clear and unambiguous language of a written agreement controls, even if the expression is not congruent with the parties’ actual intent at the time of the document’s creation. Ashton, 354 Md. at 340 , 731 A.2d 441 ; Calomiris, 353 Md. at 436 , 727 A.2d 358 ; Nicholson Air Servs., 120 Md.App. at 63 , 706 A.2d 124 ; Baltimore Gas & Elec. Co., 113 Md.App. at 554 , 688 A.2d 496 ; see General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306 (1985) (“[T]he true test of what is meant is not what the parties to the contract intended it to mean, but what a ⁶⁰⁵ reasonable person in the position of the parties would have thought it meant.”). Therefore, “ ‘the clear and unambiguous language of an agreement will not give way to what the parties thought that the agreement meant or intended it to mean.’ ” Calomiris, 353 Md. at 436 , 727 A.2d 358 (citation omitted).

Contractual language is considered ambiguous “if, when read by a reasonably prudent person, it is susceptible of more than one meaning.” Calomiris, 353 Md. at 436 , 727 A.2d 358 ; accord Ashton, 354 at 340, 731 A.2d 441 ; Heat & Power Corp., 320 Md. at 596 , 578 A.2d 1202 . In determining whether language is susceptible of more than one meaning, we are not precluded from considering “the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.” Pacific Indem. Co. v. Interstate Fire & Cos. Co., 302 Md. 383, 388 , 488 A.2d 486 (1985).

If ambiguity is found to exist, then extrinsic evidence may be used to determine the parties’ intent. Sullins v. Allstate Ins. Co., 340 Md. 503, 508 , 667 A.2d 617 (1995); Pacific Indem., 302 Md. at 389 , 488 A.2d 486 ; see Kendall v. Nationwide Ins. Co., 348 Md. 157, 170 , 702 A.2d 767 (1997); cf. Calomiris, 353 Md. at 433 , 727 A.2d 358 (“All courts generally agree that parol evidence is admissible when the written words are sufficiently ambiguous.”).

But, it is well-settled that a contract is not ambiguous merely because of a controversy concerning the proper interpretation of its terms. See Lerner Corp. v. Three Winthrop Properties, Inc., 124 Md.App. 679, 685 , 723 A.2d 560 (1999). As the Court of Appeals recently said in Calomiris, 353 Md. at 434 , 727 A.2d 358 , “ ‘[t]he question of whether a contract is ambiguous ordinarily is determined by the court as a question of law.’ ” (Alteration in original) (quoting State Highway Admin, v. David A. Bramble, Inc., 351 Md. 226, 239 , 717 A.2d 943 (1998)); see Ashton, 354 Md. at 341 , 731 A.2d 441 ; JBG/Twinbrook Metro Ltd. Partnership v. Wheeler, 346 Md. 601, 625 , 697 A.2d 898 (1997). The Calomiris Court explained, 353 Md. at 434-35 , 727 A.2d 358 : ⁶⁰⁶ [T]he determination of ambiguity ... is subject to de novo review by the appellate court---- [T]he review is essentially a “paper” review where the same contractual language is before the appellate court as was before the trial court.

Since neither the credibility of witnesses nor the evaluation of evidence, other than the written contract, is in issue, the policy reasons behind deferring to the trial judge under the clearly erroneous standard are inapplicable. In essence, an appellate court reviewing a contract must determine whether the trial court was legally correct. See id. If the trial court determined that the contract is ambiguous, and that determination is upheld on appeal, then the clearly erroneous standard is implicated as to the lower court’s use of extrinsic evidence with respect to the contract.

See id. As indicated,- appellant contends that ¶ 13.3 created a condition precedent. A condition precedent has been defined as “a fact, other than mere lapse of time, which, unless excused, must exist or occur before a duty of immediate performance of a promise arises.” ... The question whether a stipulation in a contract constitutes a condition precedent is one of construetion dependent on the intent of the parties to be gathered from the words they have employed and, in case of ambiguity, after resort to the other permissible aids to interpretation.

Although no particular form of words is necessary in order to create an express condition, such words and phrases as “if’ and “provided that,” are commonly used to indicate that performance has expressly been made conditional. Chirichella v. Erwin, 270 Md. 178, 182 , 310 A.2d 555 (1973) (citations omitted); accord Hartford Fire Ins. Co. v. Himelfarb, 355 Md. 671, 680 , 736 A.2d 295 (1999); New York Bronze Powder Co. v. Benjamin Acquisition Corp., 351 Md. 8 , 14 n. 2, 716 A.2d 230 (1998). Generally, when a condition precedent is unsatisfied, the corresponding contractual duty of the party whose perfor ⁶⁰⁷ manee was conditioned on it does not arise.

See NSC Contractors, Inc. v. Borders, 317 Md. 394, 405 , 564 A.2d 408 (1989); Laurel Race Course, Inc. v. Regal Constr. Co., 274 Md. 142, 154 , 333 A.2d 319 (1975). Given the potentially severe implications of the imposition of a condition precedent, courts have been careful to distinguish a condition precedent from a covenant, which ordinarily requires only substantial compliance. See Himelfarb, 355 Md. at 681 , 736 A.2d 295 .

Beckenheimer’s Inc. v. Alameda Assocs. Ltd. Partnership, 327 Md. 536 , 611 A.2d 105 (1992), is instructive. That case involved an option to renew a sublease. The lessor of the property, a shopping center, sought injunctive relief and a declaratory judgment that the option to renew the sublease had not been properly exercised because of the failure to furnish a certain financial document.

The contract provision allowing for the renewal of the sublease read, in part: Sublessee shall have the right to renew this Sublease for the additional five (5) year [sic] terms of five (5) years each (the “Renewal Term(s)”) provided for in the Lease, provided as a precondition to the exercise of each Renewed Term, (1) Sublessee shall have given Sublessor notice of Sublessee’s election to do so at least one hundred twenty (120) days prior to the expiration of the initial ten (10) year term or the then current Renewal Term of the Lease (2) Sublessee shall not be in default under this Sublease at the time of such notice and (3) the net worth of Sublessee on the date of such notice (as evidenced by the most recent certified financial statements of Sublessee which shall be included with such notice) is at least equal to the net worth of Sublessee on the date hereof. All terms and conditions of this Sublease for each Renewal Term shall remain the same as for the initial term except that the annual base rental (not including percentage rental) shall be Sixty-six Thousand and 00/100 Dollars ($66,000). Id. at 540-41 , 611 A.2d 105 (alteration in original) (emphasis in original). ⁶⁰⁸ The Court determined that the requirements of notice, absence of default, and equivalent net worth were conditions. Id. at 553 , 611 A.2d 105 .

It rejected the argument, however, that the language “(as evidenced by the most recent certified financial statements of Sublessee which shall be included with such notice)” was also a condition. Id. at 553-54 , 611 A.2d 105 . Rather, the Court determined that the parenthetical was a covenant. Id. at 554 , 611 A.2d 105 .

When notified of the failure to provide the financial statement, the sublessee immediately supplied it. The Court concluded that the sublessee’s breach of the covenant by failing to include a financial statement along with its notice of renewal was not a material breach. Id. at 555 , 611 A.2d 105 . Accordingly, the Court stated: “Inasmuch as the three express conditions precedent to [the lessor’s] contractual duty to renew have been fiilfilled, equity could specifically enforce the covenant to renew.” Id. at 555-56 , 611 A.2d 105 .

In arriving at this result, the Court quoted Restatement (Second) of Contracts § 227(2) (1981) (the “Restatement”). Section 227 of the Restatement provides: (1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk. (2) Unless the contract is of a type under which only one party generally undertakes duties, when it is doubtful whether (a) a duty is imposed on an obligee that an event occur, or (b) the event is made a condition of the obligor’s duty, or (c) the event is made a condition of the obligor’s duty and a duty is imposed on the obligee that the event occur, the first interpretation is preferred if the event is uñthin the obligee’s control. ⁶⁰⁹ (3) In case of doubt, an interpretation under which an event is a condition of an obligor’s duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform. (Emphasis added).

The “preference” set forth in Restatement § 227(2) is explained in corresponding commentary: Condition or duty. When an obligor wants the obligee to do an act, the obligor may make his own duty conditional on the obligee doing it and may also have the obligee promise to do it. Or he may merely make his own duty conditional on the obligee doing it. Or he may merely have the obligee promise to do it____ It may not be' clear, however, which he has done.

The rule in Subsection (2) states a preference for an interpretation that merely imposes a duty on the obligee to do the act and does not make the doing of the act a condition of the obligor’s duty. The preferred interpretation avoids the harsh results that might otherwise result from the non-occurrence of a condition and still gives adequate protection to the obligor under the rules ... relating to performances to be exchanged under an exchange of promises. Under those rules ... the obligee’s failure to perform his duty has, if it is material, the effect of the nonoccurrence of a condition of the obligor’s duty. Unless the agreement makes it clear that the event is required as a condition, it is fairer to apply these more flexible rules.

The obligor will, in any ease, have a remedy for breach. In many instances the rule in Subsection (1) will also apply and will reinforce the preference stated in Subsection (2)____ Restatement § 227 cmt. d. In our view, ¶ 13.3 contains an express condition. First, we observe that the terms “if’ and “then” are used in ¶ 13.3, evidencing the creation of a condition precedent.

See Chirichella, 270 Md. at 182 , 310 A.2d 555 . Second, the plain language of the Lease reflects that the Landlord’s liability to Overland for a breach of the Lease is premised on notice from ⁶¹⁰ the Leasee of alleged default, via personal delivery, registered mail, or certified mail, as required by ¶ 15.22. Our discussion does not end here, however. Restatement § 229 provides: To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.

Again, helpful guidance can be found in the commentary: Disproportionate forfeiture. The rule stated in the present Section is, of necessity, a flexible one, and its application is within the sound discretion of the court. Here, as in § 227(1), “forfeiture” is used to refer to the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that ex-change____ The extent of the forfeiture in any particular case will depend on the extent of that denial of compensation. In determining whether the forfeiture is “disproportionate,” a court must weigh the extent of the forfeiture by the obligee against the importance to the obligor of the risk from which he sought to be protected and the degree to which that protection will be lost if the non-occurrence of the condition is excused to the extent required to prevent forfeiture.

The character of the agreement may ... affect the rigor with which the requirement is applied. Id. § 229 cmt. b. The illustration that follows is also illuminating: A, an ocean carrier, carries B’s goods under a contract providing that it is a condition of A’s liability for damage to cargo that “written notice of claim for loss or damage must be given within 10 days after removal of goods.” B’s cargo is damaged during carriage and A knows of this. On removal of the goods, B notes in writing on the delivery record that the cargo is damaged, and five days later informs A over the telephone of a claim for that damage and invites A to participate in an inspection within the ten day ⁶¹¹ period.

A inspects the goods within the period, but B does not give written notice of its claim until 25 days after removal of the goods. Since the purpose of requiring the condition of written notice is to alert the carrier and enable it to make a prompt investigation, and since this purpose had been served by the written notice of damage and the oral notice of claim, the court may excuse the non-occurrence of the condition to the extent required to allow recovery by B. Id. cmt. b, illus. 2 (emphasis added). We are also guided by the decision of the North Dakota Supreme Court in Red River Commodities, Inc. v. Eidsness, 459 N.W.2d 805 (N.D.1990). There, a grain dealer initiated suit against a farmer for breach of his contract to deliver sunflowers.

Due to a drought, the farmer was unable to deliver the flowers pursuant to the contract, which said, in pertinent part: Fire, strikes, accidents, acts of God and public enemy, or other causes beyond the control of the parties hereto, shall excuse them from the performance of this contract. Should said events occur, either party is to notify the other within 10 days of the event by Certified Mail. Grower shall be obligated to notify [the dealer] and the contracting representative identified below. Excuse from performance of this contract is dependent upon delivery of this notice.

Red River, 459 N.W.2d at 808-09 . Although the contract between the parties contained an excuse clause for “acts of God,” the dealer’s position was that because the farmer failed to provide notice pursuant to the terms of the contract, the farmer was not excused from performance. The farmer acknowledged that he did not provide notice, but argued that the dealer had actual knowledge of the drought and its effect on his sunflower crop, because he orally notified the dealer’s agent. The trial court disagreed, and found the farmer in breach.

Id. at 807 . On appeal to the North Dakota Supreme Court, the farmer argued that, inter alia, actual knowledge of the dealer’s agent ⁶¹² provided the dealer with notice. The dealer maintained that, regardless of actual knowledge, the farmer failed to send the required notice via certified mail. Interpreting the terms of the agreement, the court stated that the farmer “did not assume the risk of performing if his crop was affected by causes beyond his control, but he did agree to give [the dealer ] notice of the occurrence of adverse events in a certain way, in writing by certified mail.” Id. at 809 (emphasis added).

Nevertheless, the court concluded that the trial court “incorrectly applied the law.” The court explained: By delivering all of the sunflowers that he did produce, [the farmer] fulfilled his contract to the extent that the supervening contingency of the drought permitted. If, by [the farmer’s] notice to its agent, [the dealer] actually and seasonably knew that [the farmer’s] sunflower harvest and deliveries would be reduced because of the drought, it is doubtful that [the dealer] was harmed or prejudiced by the lack of a particular form of notice. Id. Further clarifying its conclusion, the court opined: “If the purpose of certified mail notice was fulfilled by [the farmer’s] actual notice to the agent and by actual knowledge of [the dealer] (other than through generalized knowledge of drought conditions), the departure from the form of notice was insignificant and trifling.” Id.

Transmitting written notice by personal delivery, certified mail, or registered mail undoubtedly protects the parties to a contract by insuring that no question arises as to whether a contracting party is, in fact, on notice. Here, however, we are satisfied that appellant had actual, ongoing knowledge of appellee’s complaints under the terms of the Lease. In fact, appellant’s counsel admitted in closing argument that his client “[s]urely had actual notice in [this] case.” The extensive paper trail created by the parties, as recounted above, makes clear that notice effected pursuant to ¶ 15.22 in this case would have been, at best, duplicative. Cf.

Arkla Chem. Corp. v. Palmer, 250 Ark. 405 , 465 S.W.2d 335, 341 (1971); Red River, 459 N.W.2d at 809 . Nor are we aware of any prejudice to ⁶¹³ appellant. We will, therefore, proceed to consider the remaining questions presented by appellant.

II

As appellant’s second issue concerns ¶ 15.27, we restate it here for convenience: Landlord reserves the right to relocate Tenant’s “fenced-in” storage lot at some future date, should that become necessary, at Landlord’s expense. Appellant avers that, under the unambiguous language of ¶ 15.27, B & P was responsible for moving the “facility,” but that did not include the lot’s “contents.” In other words, B & P concedes that it was financially responsible under the Lease for relocating the elements of the “fenced-in” lot, e.g., fencing, but not the automobiles situated on that lot. Appellee maintains here that ¶ 15.27 is ambiguous. Therefore, Overland contends that the trial court correctly considered extrinsic testimony from Mills concerning the parties’ intentions.

The following testimony of Mills is relevant. [APPELLANT’S COUNSEL:] So, you fully negotiated this lease with B & P? [MILLS:] Okay. [APPELLANT’S COUNSEL:] Now, directing your attention to [¶ 15.27] of the lease, on page 12. ****** [APPELLANT’S COUNSEL:] The landlord reserves the right to relocate tenant’s fenced in area[.] [MILLS:] Yes. [APPELLANT’S COUNSEL:] And, you are aware that was in the lease when you signed it, because you initialed on the left-side? [MILLS:] Yes. It was explained to me at the time that it would be like moving an office. So that it would be at the Landlord’s expense to move the office. All of the furniture and everything would be moved, and so that is what we agreed upon. ⁶¹⁴ [APPELLANT’S COUNSEL:] Is that set forth anywhere in the lease? [MILLS:] It says plainly in the lease, that the Landlord reserves the right to relocate the tenant[’]s fenced in storage at some future date, should that become necessary, at the Landlord’s expense. [APPELLANT’S COUNSEL:] Did you ask that it ever be included in the lease as to what exactly they would pay? [MILLS:] No. I was told it would be like moving an office. [APPELLANT’S COUNSEL:] You didn’t ask? [MILLS:] You move the office, and you move the contents. [APPELLANT’S COUNSEL:] Mr. Mills, the question was, did you ask for a provision in the lease specifically stating what would be included in the move? [MILLS:] I was told that it said at the Landlord’s expense, everything would be moved. [APPELLANT’S COUNSEL:] Did you ask for a specific written statement in the lease as to what would be included? [MILLS:] No, sir.

I did not specify which gravel pieces they would move. It is unclear from the record who from B & P made the purported representations to Mills about which party would bear the cost of moving the vehicles among the lots. In closing argument, after referring to ¶ 15.27, appellee’s counsel said: “Mr. Mills testified that he took [the relocation provision] to understand that included the whole entire lot. The cars, the gravel, the lights, everything in the lot.” Further, appellee states in its brief: Mr. Mills testified at the trial of this case that his intent was that moving the lot would be just like moving an office “you move the office and you move the contents.” Moreover, Mr. Mills testified that he was told by the landlord that everything, including the contents, would be moved if relocation became necessary____ [T]his lease provision is susceptible, to a reasonable person, of more than one interpretation---The lease itself does not define “lot”. [The court ] was ⁶¹⁵ correct in hearing testimony as to what Mr. Mills’ intent was at the time he entered into this lease agreement and relying on those facts to reach [its ] decision in this case.

(Emphasis added). We observe, however, that appellee relied on the terms of the Lease in its suit to support its contention that B & P was liable for the costs associated with moving the vehicles. Appellant did not elicit testimony from its own witnesses with regard to its intent at the time the Lease was executed. Nor did it challenge the testimony elicited from Mills as to the meaning of the Lease.

But, in closing argument, appellant’s counsel said: What we had an obligation to do under the lease was to move, relocate the fenced in storage lot. It was no language in the lease that said and it’s [sic] contents. There’s no language that lease ever made any mention other than relocating the lots. Now what the parties anticipated is essentially open to conjecture the court would have to do, you know [sic].

No testimony was offered that there was an ambiguity in the lease. What it really meant or I had thought it was [sic]. It’s just what the lease says and that’s it. Neither in its oral opinion nor in its July 1999 order did the circuit court make a specific finding as to whether ¶ 15.27 of the Lease is ambiguous so as to justify extrinsic evidence as an interpretive aid.

The court acknowledged, however, “that there is a provision of the [L]ease that has been subject to different interpretations dealing with the relocation of the fenced in portion of the storage area.” It follows that the court’s award of damages to appellee for moving the vehicles resulted from one of two determinations: (1) the court concluded that the Lease was ambiguous with respect to the relocation of the “fenced-in” lot and, consequently, considered extrinsic evidence to ascertain the intent of the parties, or (2) appellant was obligated under the unambiguous terms of the Lease to reimburse appellee. ⁶¹⁶ The parties agree that it was appellant’s responsibility under ¶ 15.27 to move the “ ‘fenced-in’ storage lot” to a new location. The dispute rests on what physical elements were included within the term “ ‘fenced-in’ storage lot.” As noted, appellant contends that ¶ 15.27 of the Lease is unambiguous and its duty did not include the movement of the ears on the lots. We agree with appellant that the contract is -not ambiguous, but our conclusion in that regard favors appellee. We explain.

As we observed, contractual terms are to be given their ordinary meaning. See Ashton, 354 Md. at 343 , 731 A.2d 441 ; ST Systems v. Maryland Nat’l Bank, 112 Md.App. 20, 34 , 684 A.2d 32 (1996). Moreover, common sense underlies the principles of contract construction. See Continental Oil Co. v. Horsey, 175 Md. 609, 612-13 , 3 A.2d 476 (1939); Philadelphia Indem.

Ins. Co. v. Maryland Yacht Club, Inc., 129 Md.App. 455, 472-73 , 742 A.2d 79 (1999). We may also look to a dictionary to construe the words of a contract. See Ashton, 354 Md. at 343 , 731 A.2d 441 ; Pacific Indem., 302 Md. at 388 , 488 A.2d 486 .

Merriam-Webster’s Collegiate Dictionary (10th ed. 1997) (“Merriam ”) defines “relocate” to mean “to locate again : establish or lay out in a new place ... : to move to a new location.” Id. at 988. It provides that something is “fenced” when it is “enclose[d] with[in] a fence.” Id. at 428. The. term “storage” refers to a “space or place for storing.” Id. at 1159. To “store” is, inter alia, “to place or leave in a location (as a warehouse, library, or computer memory) for preservation or later use or disposal.” Id.

A “lot” is “a portion of land b: a measured parcel of land having fixed boundaries and designated on a plot or survey.” Id. at 689; see Black’s Law Dictionary 653 (6th abr. ed.1991) (defining a “lot,” in the context of real estate, as: “A share; one of several parcels into which property is divided. Any portion, piece, division or parcel of land. Fractional part or subdivision of block, according to plat or survey; portion of platted territory measured and set apart for individual and private use and occupancy.”). ⁶¹⁷ In our view, reasonable persons would have construed the contract to mean that relocation of the “‘fenced-in’ storage lot’ ” referred to the lot in its entirety, including the components of the lot—fencing and gate, the gravel, the lighting, and the vehicles stored on the lot. After all, this was a commercial Lease between two business enterprises for property that expressly included a “ ‘fenced-in’ storage lot,’ ” which the parties knew would be used by appellee for storing vehicles in connection with appellee’s business.

Paragraph 7.1 of the Lease provided that “Tenant shall use or permit the Premises to be used only for Offices and Auto Towing Station and shall not use or permit the use of the Premises for any other purpose without obtaining the prior written consent of Landlord.” Although the Lease permitted the Landlord, if necessary, to move the lot without risking a breach, the Tenant, who rented premises containing a storage lot, was not contractually obligated in that circumstance to bear the expense of moving. We turn to consider appellant’s contention as to damages. In its written order, the court awarded appellee a judgment of $5,125.00, representing payment for the movement of 205 vehicles among the Old, Interim, and New Lots at the rate of $25.00 per vehicle. At the end of trial, the court explained its reasoning: I have set this figure at $25 per car.

There was some testimony that initially the cost was $70 per car, then it was $35 per