Bright v. Lake Linganore Ass'n

CATHELL, Judge. Richard Bright, Dorothy Bright, Michael James, Valerie James, Brian Rice, Kathy Rice, Cynthia Izadi, and Mohammed Izadi, appellants, appeal a judgment of the Circuit Court for Frederick County (Rollins, J., presiding) that upheld the validity and applicability of certain covenants, restrictions, and servitudes in favor of appellee, Lake Linganore Association, ³⁹⁶ Inc. (an association of homeowners formed, in part, for the purpose of enforcing the covenants, including the collection of maintenance charges). 1 The trial court also imposed liens against the various lots belonging to appellants, pursuant to the Contract Lien Act. It additionally rendered judgment against the Izadis on a quantum meruit count. Appellants presented five issues to us as questions.

We list them as they were presented: 1. Whether the Circuit Court erred in denying Appellants’ Motion for Summary Judgment and ruling against Appellants at trial when it failed to apply the doctrine of collateral estoppel to preclude- relitigation by the LLA of issues dispositively resolved against the LLA in Jurgens? 2. Whether the Circuit Court erred by allowing the introduction of parol and other extrinsic evidence in the face of clear and unambiguous covenants and without a finding of ambiguity in those covenants? 3. Whether the Circuit Court erred, as a matter of law, when it found that covenants, which are. inapplicable by their express terms, imposed a legal duty upon Appellants to pay LLA assessments as a consequence of the mere reference to those covenants in Appellants’ deeds and other recorded instruments? 4.

Whether the Circuit Court erred by interpreting the Maryland Contract Lien Act as allowing for the encumbrance of Appellants’ property in the absence of a contract, and disallowing Appellants an award of their reasonable attorneys’ fees? 5. Whether the Circuit Court erred, as a matter of law, by entering a personal judgment against Mohammed Izadi ³⁹⁷ and Cynthia Izadi under the mutually exclusive theories of breach of contract and quantum meruit? We shall resolve those questions necessary to our affirmance of Judge Rollins’s learned and well-reasoned opinion. We shall first address some of the facts.

The Facts Lake Linganore is a planned phased development in Frederick County, Maryland. One of the phases, if not the earliest phase, was known as “Pinehurst 1, Section 1 of Eaglehead.” Early in the development of that section, the developer, the Linganore Corporation, recorded a document referred to as the Pinehurst Declaration. Recordation was effected by inclusion of the Declaration in a deed to James L. Philapy and Catherine Ann Philapy, their heirs and assigns, that was recorded among the Land Records of Frederick County, Maryland, in Liber 793, folio 370, describing the lot being conveyed to them. The habendum clause to that deed made that lot “subject to the following Declaration, containing ... covenants, which covenants are a part of the considerations ... and are hereby expressly agreed to bind the grantees herein for themselves, their heirs, legal representatives, assigns, and grantees, as covenants running with the land.... ” The Declaration, as we have said, was included in the body of the deed.

The Declaration provided, in relevant part: WITNESSETH: WHEREAS, Declarant is the owner of the real property described in Article I of this Declaration and desires to create thereon a community, primarily residential in nature but with some provision for commercial uses, with a community lake, open spaces, roads, bridle paths and other common facilities for the benefit of the said community; and WHEREAS, Declarant desires to provide for the preservation of the values and amenities in said community and for the maintenance of said lake, open spaces, streets, paths, ³⁹⁸ bridle trails, and other common facilities; and, to this end, desires to subject the real property described in Article I, together with such additions as may hereafter be made thereto, to the covenants, restrictions, easements, charges and liens hereinafter set forth, each and all of which are for the benefit of said property and/or each owner thereof, and shall inure to the benefit of and pass with said property, and each and every parcel thereof, and shall apply to and bind the successors in interest of any owner thereof; and NOW, THEREFORE, the Declarant declares that the real property described in Article I, and such additions thereto as may hereafter be made, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges, and liens (sometimes herein referred to as “covenants and restrictions”) hereinafter set forth. 2. Additions to Development. The Declarant may subject additional lands to this Declaration by recording a supplementary declaration of covenants and restrictions with respect to the additional property.... Such supplementary declaration may contain such additions to and modifications of the covenants---- Additionally, it contained numerous other provisions normally imposed in such declarations.

Thereafter, subsequent phases of the general development were completed, including those phases (or the phase) in which the lots of the various appellants are located. Appellants Richard and Dorothy Bright received their title to Lot 40, Coldstream Village, by deed from Terhane Group, Inc., recorded among the Land Records of Frederick County in Liber 1066, folio 488. The habendum clause of their deed stated that the Brights were to hold the lot to their use and to the benefit of them, “their heirs and assigns ... but subject to all of the restrictions, conditions and covenants fully set forth in a deed from J. William Brosius to Linganore Corporation ³⁹⁹ ... recorded ... in Liber No. 850, folio 248, and in a deed from Linganore Corporation to ... Brosius ... recorded in Liber No. 900, folio 252” in the land records of Frederick County.

This last deed, recorded at Liber 900, folio 252, contained in its body what is referred to by the parties as the SanAndrew Declaration. The SanAndrew and Pinehurst Declarations, as relevant to the issues in the case at bar, are identical. We shall sometimes refer to the two of them as the “Original Declarations.” The deed to the Brights noted expressly that the covenants are a part of the consideration hereof and are hereby expressly agreed to bind the Grantees herein for themselves, their heirs ... and assigns, and grantees, as covenants running with the land. Terhane Group, Inc., acquired the property through two deeds.

One was a confirmatory deed recorded at Liber 1024, folio 147 from Brosius Homes Corporation, Debtor in Possession, to Terhane, its successors and assigns, and was also executed by Terhane Group, Inc. The confirmatory deed noted that it was subject to the covenants, conditions, restrictions and covenants contained in a deed there referenced. That referenced deed was the other deed to Terhane from Brosius Homes Corporation recorded at Liber 1008, folio 419. It was also a two-party deed. This deed’s habendum clause stated that Terhane was to hold the property to the benefit of itself “their heirs and assigns ... but subject to all of the ... covenants ... in ... deed[s] from ...

Brosius to Linganore Corporation ... recorded ... in Liber 850, folio 248, and ... Liber 900, folio 252” (the SanAndrew Declaration deed) and again stated that those covenants were part of the consideration, were intended to bind the grantee, its successors and assigns, and were intended to bind the land, ie., “running with the land.” The next relevant deed back in the chain of title as to Lot 40, “Coldstream,” was a two-party deed “by and between” Linganore Corporation and Brosius Homes Corporation, its “heirs and assigns.... ” Its habendum clause again added the “heirs and assigns” language and noted that the land was ⁴⁰⁰ subject to the restrictions, conditions and covenants fully set forth in a deed from LINGANORE CORPORATION to James L. Philapy and Catherine Ann Philapy, his wife dated Nov. 6, 1969 and recorded in Liber 793 folio 370 ... which covenants are a part of the consideration hereof and are hereby expressly agreed to bind the grantees herein for themselves, their heirs, legal representatives, assigns, and grantees, as covenants running with the land. The Philapy deed contained the Pinehurst Declaration. Thus, this lot is subject to both of the Original Declarations.

The deed then stated: WITNESS the corporate name of the grantor ... and the hands and seals of said grantees. It was executed by Brosius Homes Corporation, the grantee. A notary noted that the appropriate officer of Brosius had appeared before him and acknowledged that Brosius “executed the [deed] for the purposes therein contained, and in my presence signed and sealed the same.... ” As to Lot 40, Coldstream, part of the Brights’ property, we shall refer to this last deed as the “Key Deed” in that chain of title. The Brights acquired their Lot 39, Coldstream, 2 from Mark R. Diehl and Judith Diehl by deed recorded in Liber 1223, folio 53.

That deed expressly stated that the lot was “SUBJECT, HOWEVER, to the ... covenants fully set forth in” the Philapy deed that we have discussed above. The Diehls acquired Lot 39 directly from the Linganore Corporation by a two-party deed. This deed subjected Lot 39 to the covenants contained in two deeds, one from J. William Brosius to Linganore Corporation, recorded at Liber 850, folio 248, and the other, recorded at Liber 900, folio 252, between the Linganore Corporation and J. William Brosius. The latter deed also contained what we have referred to as the SanAndrew Declaration.

Thus, this lot is subject to both of the Original Declarations. These prior deeds subjected the property to the covenants at issue. The deed between the Diehls and Linga ⁴⁰¹ nore Corporation was a two-party deed signed by the grantees as well as the grantor and contained language similar, if not identical, to that contained in the “Key Deed” to Lot 39. This deed is also what we will refer to as a “Key Deed” in the chain of title because it was executed by both the grantor and grantee. 3 Appellants Michael and Valerie James acquired Lot 93, Block B, Plat 4, Eaglehead, Coldstream, Section 1, by deed from Clarence J. Hylton Jr. and Roberta J. Hylton, recorded at Liber 1513, folio 846. 4 It notes that the conveyance was “SUBJECT to covenants, easements and restrictions of record.” The Hyltons had acquired the property from Joseph D. Baker by a deed recorded at Liber 1221, folio 715, which contained the express language that it was subject to the restrictions, conditions and covenants set forth in the original deed to the Philapys, supra, which, as we have said, incorporated the Pinehurst Declaration.

The Baker-Hylton deed was a one-party deed. Baker had acquired the property from Samuel Steen by deed recorded at Liber 1110, folio 72 that also subjected the lot to the covenants and restrictions contained in the Philapy deed. Steen acquired the property by deed from the Woods recorded at Liber 1061, folio 818. It, too, contained the language subjecting it to the restrictions in the Philapy deed.

The Woods acquired the property by two-party deed from Linganore Corporation recorded at Liber 813, folio 418. This deed contained all the pertinent language of the other “Key Deeds,” including the fact that it was ⁴⁰² subject to the covenants of the Philapy deed. As to Lot 93, it is, thus, a “Key Deed.” Appellants Mohammed Izadi and Cynthia Izadi acquired Lot 119, Block C, by deed from Ahamed Fourian and Mohammed Izadi dated August 24,1990 (the recordation information is illegible in the Extract). The deed noted that it was subject to covenants, easements, and restrictions of record.

Mohammed Izadi and Ahmed Fourian acquired the property by deed from A. Wayne Six and Karen Six recorded at Liber 1484, folio 281. It also noted that it was subject to covenants, easements, and restrictions, of record. The Sixes acquired the lot by deed from Randall P. Guiler recorded at Liber 1461, folio 819. This was a one-party deed, but contained the language that it was subject to the Philapy deed covenants.

Guiler obtained sole title to the property by a “no consideration” deed from his wife. The Guilers acquired their lot by deed from Edward and Judith Ungar recorded at Liber 1148, folio 691. A one-party deed, it stated that the conveyance was subject to the covenants contained in the Philapy deed. The Ungars acquired the property by a two-party deed recorded at Liber 813, folio 420 from Linganore Corporation containing all of the subjecting language of the other “Key Deeds.” As to Lot 119, it was itself a “Key Deed,” signed by the Ungars for themselves, their heirs and assigns.

Appellants Kathy and Brian Rice acquired Lot 206, Cold-stream Village, by a one-party deed from Robert Brown and Hubert Brown t/a Brown Properties recorded at Liber 1713, folio 1093. The deed noted that the conveyance was subject to the covenants, easements, and restrictions of record. The Browns acquired the property from Ellis P. Schlossnogle by deed recorded at Liber 1628, folio 0029. It noted that it was subject to the covenants, easements, and restrictions in a deed recorded at Liber 793, folio 370 (the Philapy deed).

Schlossnogle acquired the lot from Robert Rankin and Carol Rankin by a one-party deed recorded at Liber 1206, folio 264. It was also made subject to the covenants contained in the Philapy deed. The Rankins acquired the property from Wilbur L. Brightbill and Ethel Brightbill by deed recorded at Liber ⁴⁰³ 1002, folio 64. That deed also contained language subjecting the lot to the covenants contained in the Philapy deed.

Additionally, it noted that the “covenants are a part of the consideration hereof and are hereby expressly agreed to bind the grantees herein for themselves, theirs heirs, legal representatives, assigns, and grantees, as covenants running with the land.” The Brightbills acquired the property by a two-party deed from the Linganore Corporation recorded at Liber 813, folio 540. It, too, was a “Key Deed” as we have heretofore described them. Each chain of title is subject to covenants contained in two-party deeds we have identified as “Key Deeds.” The respective chains of title are as follows: LOT 40 LOT 39 [[Image here]] ⁴⁰⁴ LOT 93 LOT 119 LOT 206 [[Image here]] Each of the “Key Deeds,” ie., the deeds first subjecting each of the lots at issue in the case sub judiee to either the “Pinehurst” Declaration or the “SanAndrew” Declaration, or both, was a two-party deed. Each contained language in the granting clause that the property was being conveyed to the grantees, “their heirs and assigns.” In each of the habendum clauses, the deeds noted that the properties were to be held to the use and benefit of the grantees, “their heirs and assigns,” but were “subject to the restrictions, conditions and covenants fully set forth in a deed from LINGANORE CORPORATION to James L. Philapy and Catherine Ann Philapy” dated November 6, 1968, and recorded at Liber 793, folio 370 and/or to the deed between Brosius and Lake Linganore Corporation recorded at Liber 900, folio 252.

(One of the “Key Deeds” ⁴⁰⁵ refers not to the Philapy deed but to a deed recorded at Liber 850, folio 248 and is a two-party deed between Brosius and Linganore Corporation that itself subjects the property to the covenants in the Philapy deed.) Each of the “Key Deeds” notes that the covenants imposed were part of the consideration and were “expressly agreed to bind the grantees herein for themselves, their heirs, legal representatives, assigns, and grantees, as covenants running with the land.” Each of the “Key Deeds” further contained a notarized acknowledgement by the grantees that they had executed the document for the purposes set forth therein. We shall now address those questions presented that are necessary to a final resolution of the matter. We rephrase some of them to an objective form where required. We may not address them in the order presented—or necessarily address all of them.

The Questions 1. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANTS’ MOTION FOR SUMMARY JUDGMENT AND RULING AGAINST APPELLANTS AT TRIAL WHEN IT FAILED TO APPLY THE DOCTRINE OF COLLATERAL ESTOPPEL TO PRECLUDE RELITIGATION BY THE LLA [LAKE LINGANORE ASSOCIATION] OF ISSUES DISPOSITIVELY RESOLVED AGAINST THE LLA IN JURGENSl] The prior “Jurgens” case began as a collection case in the District Court. It was appealed to the circuit court. That court reversed the District Court on a ground not resolved by the District Court, and not, as we shall indicate, properly raised in that lower court.

In Klein v. Whitehead, 40 Md.App. 1, 15-19 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978), we noted: Collateral estoppel does not require that the causes of action be the same, but it applies only with respect to issues of fact actually determined in the earlier proceeding. ⁴⁰⁶ Before considering that theory, however, we should discuss the ground relied upon by the lower court—that of collateral estoppel. For that doctrine to apply, we must conclude that the issues raised in this proceeding were actually litigated in the earlier actions (or that the facts necessary to resolve these issues were adjudicated in those actions). This we are unable to do. [Emphasis added.] We note that: Nonmutual collateral estoppel can be invoked offensively or defensively. It is used offensively when a plaintiff attempts to bar a defendant from relitigating an issue the defendant previously litigated unsuccessfully in another action against a different party.

Defensive use of nonmutual collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue which the plaintiff previously litigated unsuccessfully in another action against a different party. Leeds Federal Savings and Loan Ass’n v. Metcalf, 332 Md. 107, 115-16, n. 4 , 630 A.2d 245 (1993) (citation omitted). In Leeds, the Court of Appeals noted that it had first embraced the exception to the usual rule, that a party seeking to utilize collateral estoppel against another party had to have been a party to the earlier litigation (as well as the party sought to be collaterally estopped), in Pat Perusse Realty Co. v. Lingo, 249 Md. 33 , 238 A.2d 100 (1968). We look, therefore, to Pat Perusse to see what limitations, if any, were applied when the exception was first created in Maryland.

In Pat Perusse, parties involved in domestic difficulties sought to sell their property and listed it for sale. The wife later refused to consummate a sale in reference to a contract allegedly producéd by the real estate broker. The broker sued the husband and wife but, having personally served the husband only, proceeded against him alone for the payment of the commission. The broker was unsuccessful in her cause when the trial court found that the broker had not produced the buyer. ⁴⁰⁷ Thereafter, the broker sought to collect the same commission on the same facts from the wife.

The wife defended on grounds of res judicata. Realizing that the wife had not been properly made a party in the prior litigation, the court initially noted that “[t]he rule of mutuality always has had exceptions, modifications and extensions....” Id. at 35 , 238 A.2d 100 . “The wall of mutuality never having been solid, the likely has happened and courts have gradually widened the breaches.” Id. at 36 , 238 A.2d 100 . The Court in Pat Perusse quoted extensively from State of Maryland v. Capital Airlines, Inc., 267 F.Supp. 298, 303-04 (D.Md.1967), including: Four questions must be answered in the affirmative in order for the doctrine of collateral estoppel to be applicable.... “[1] Was the issue decided in the prior adjudication identical with the one presented in the action in question? [2] Was there a final judgment on the merits? [3] Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” [4] Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue? ■ Pat Perusse, 249 Md. at 45 , 238 A.2d 100 . The Court of Appeals then adopted the exception for Maryland.

In the case sub judice, it appears clear that the Association was the identical party in the prior Jurgens case (that we shall address, infra). It is equally clear that the judgment there rendered was a final judgment. The questions quoted in Pat Perusse that remain as we shall hereafter address the issue of collateral estoppel are: (1) whether the issue was identical; and (2) whether the Association had a full and fair, opportunity to be heard on the issue. The Prior “Jurgens” litigation In our examination of that case, we are limited to what is included in the record in this case about that case.

We shall summarize it as concisely as possible. Its evidentiary stage, as we have indicated, initially involved a simple District Court ⁴⁰⁸ collection proceeding and decision. The appeal from the District Court decision to the circuit court was an on-the-record appeal. With that in mind, the identity of the issues must perforce relate back to the issues raised in the District Court and the issues in that District Court case must be identical to the issues presented in this case in the circuit court and now before us on appeal.

We also shall consider both the Jurgens District Court and the circuit court proceedings to determine whether the Association had a full and fair opportunity to litigate that issue. 5 The Jurgenses did not present any opening statement or any defense before the District Court. In closing argument, their main thrust was that the covenants did not bind the property of the Jurgenses because the Jurgenses had not signed their deeds. During an extensive argument on that issue and the issue of limitations, the Jurgenses’ counsel inserted one phrase, that we hereafter emphasize: Mr. and Mrs. Jurgens did not sign anything____ They are not bound to these covenants____ [TJhat I submit is conclusive of the case.... I would make it as a matter of argument that those covenants ... by their own terms____ [T]hey do not apply to Pinehurst....

Now there is ... nothing in this case, which would make applicable any statute of limitations.... The Jurgenses’ argument included extensive other discussion both prior to and after that which we have furnished above. That phrase we have emphasized is the only reference to the issue that appellants now assert is foreclosed by reason of collateral estoppel. After hearing from the LLA’s counsel, the court then acknowledged that it was leaning towards accepting the assertion proffered by the Jurgenses’ counsel that, because the Jurgenses had not signed their deed, the restrictions in prior ⁴⁰⁹ instruments were not binding on them. 6 The District Court then informed the parties that it was going to allow the Association an opportunity to research and address the issue of whether the deed had to be signed by the Jurgenses, but limited the Association by saying, “But I’m not going to leave the 'case open for you to file additional information or materials to bolster the Plaintiffs position.” After the reconvened hearing, the District Court then ruled that the assessment could be increased: “I’m going to rule in favor of the Plaintiff [the Association] on that point.” It went on to state: I’m going to rule that the limitations are not [a] proper defense.

I’m going to allow the Plaintiff to make its claim then for the entire period.... ... [T]he Court will issue this then as a nisi judgment in favor of the Plaintiff as against both Defendants. Mr. Price [Jurgenses’ counsel], I think without the real property code section [7] , that it may have been [a] ... different ball game. The District Court in its decision did not consider the general applicability of the covenants. The Jurgenses then took an appeal to the circuit court.

Thereafter, in the circuit court, Mr. Price asserted that the record before the District Court reflected that there were “no covenants applicable to the defendants’ lot or, indeed, to any lot ... in Pinehurst Section I.” The circuit court immediately responded: ⁴¹⁰ I think you’re absolutely right, in which case how did the District Court judge arrive at the decision he arrived at? MR. PRICE: I don’t know that, Your Honor.... Mr. Price went on to argue, in part: “[TJhere is nothing to show that the plaintiffs’ lot ... is subject to these covenants ----” The court then interrupted him and the'following transpired: THE COURT: Well, they can add additional covenants ... but it tells you specifically how they’re to do it.

MR. PRICE: Specifically how to do it, and I submit ... that that is the exclusive way, because not anybody and everybody can just inject another piece of property into the Linganore development plan. The matter of how the property could be subject to the restrictions and whether it was done properly had never been adequately presented to the District Court. The correctness vel non of subjecting subsequent phases of the development to the master declaration by a declaration in a deed for a lot in that subsequent phase, declaring that the subsequent lot is subject to the recorded covenants contained in a deed in an earlier phase of the development, had never been adequately presented or argued to the District Court.

The District Court had not based its decision upon any consideration of that issue. Later, the circuit court asked Mr. Winegar (Lake Linganore’s counsel) to try first to persuade it, “if you can, that these covenants are applicable to Mr. Price’s clients.” Mr. Winegar then—for the first time—because the issue had never been presented before the District Court—argued the general applicability of the covenants “and that’s what was done ... incorporating covenants by reference____” What occurred, and has occurred in all of the present transfer transactions in the case sub judice, is that the Jurgenses’ lot was encumbered, not by a reference in another deed, but by a reference in its deed to the covenants set out in full in another deed. In other words, itf was what we have previously referred to as the “Key Deed”, a deed in the Jurgenses’ chain of title, that imposed the restrictions by ⁴¹¹ incorporating language contained in another recorded instrument. It was the language in the Jurgenses’ deed, not some other deed, that declared the Jurgenses’ lot to be subject to the restrictions set out elsewhere.

During the circuit court’s exchange with the Association’s counsel, it was pointed out by counsel that this issue had not been sufficiently raised below. Mr. Winegar stated: [B]ut its [sic] beyond ... the scope of the trial, but I’ll be happy to attempt to [address the issue not raised below]. THE COURT: Where are you going to find them? They’ve only been imposed on Section I?

MR. WINEGAR: ... [AJgain, this is outside the scope, but you will find them [supplementary declarations] when this lot ... was first granted by the developer to whoever was in title, I mean whoever was the first grantee, [the “Key Deed” grantee] when he specifically says, “This property is being conveyed to you subject to the restrictions and covenants found at”---- The circuit court initially reversed the District Court judgment on the sole ground that the District Court lacked jurisdiction to have heard the case in the first instance. That circuit court judgment was, in turn, reversed by the Court of Appeals, Lake Linganore Ass’n v. Jurgens, 302 Md. 344 , 488 A.2d 162 (1985), which held that the District Court did, in fact, have jurisdiction. On remand, the circuit court again reversed the District Court but only addressed, erroneously, the applicability of the covenants themselves, an issue never sufficiently raised in the District Court.

Conclusion on Collateral Estoppel The appeal to the circuit court, as we have said, was an on-the-record appeal. The issue upon which the circuit court based its opinion was not, as we have indicated, sufficiently raised by one sentence in an extended argument in a collection case before the District Court. Additionally, that issue was ⁴¹² not even addressed by the District Court in its decision and was not there resolved. In sum, the issue was not properly before the circuit court.

The issue properly before the circuit court in Jurgens did not include the issue that is currently being litigated in the case sub judice. Thus, we decline in the first instance to find that identical issues were ever properly litigated in the Jurgens case because, generally, an appeal is limited to the issues raised and decided in the lower court and, generally, it is inappropriate to address and resolve issues neither properly presented to, nor resolved by, the lower court. See Davis v. DiPino, 337 Md. 642 , 655 A.2d 401 (1994); County Council v. Offen, 334 Md. 499, 508 , 639 A.2d 1070 (1994); Maryland Rule 8-131(a). Moreover, at the very least, the Jurgens case fails to satisfy the fourth requirement of collateral estoppel, that the litigant against whom collateral estoppel is a being asserted must have had a full and fair opportunity to have been heard on the issue in the prior litigation.

We do not perceive that the Association was afforded such an opportunity. For the reasons we have noted, we hold that appellee was not collaterally estopped from litigating the issue in this case. 3. WHETHER THE CIRCUIT COURT ERRED, AS A MATTER OF LAW WHEN IT FOUND THE COVENANTS IMPOSED A LEGAL DUTY UPON APPELLANTS TO PAY THE LAKE LINGANORE ASSOCIATION, INC., FEES, ASSESSMENTS AND CHARGES BECAUSE OF DECLARATIONS AND OR SUPPLEMENTAL DECLARATIONS, FOUND IN DEEDS IN THE VERTICAL CHAIN OF TITLE TO THE RESPECTIVE PROPERTIES OF APPELLANTS? In responding to this question, we note that in our case of Gallagher v. Bell, 69 Md.App. 199 , 516 A.2d 1028 (1986), we discussed extensively the concept of the law of real covenants applicable here.

We shall discuss Gallagher, infra. As we do not perceive any substantive change since Gallagher , we shall ⁴¹³ not repeat most of its holding here. We shall discuss to some extent the interpretation of deeds, privity, and the meaning and implications of the term, “chain of title.” The Construction of Deeds of Conveyance In Mims v. Armstrong, 31 Md. 87, 95-98 (1869), the Court dealt with a deed of assignment by which a debtor assigned his property for the benefit of creditors. The property was described in a schedule annexed to the deed.

Thereafter, a controversy arose as to whether property not described in the schedule would nevertheless pass under the general provisions of the deed. The Court opined: [W]e must suppose that the grantor had a purpose in the more particular description.... To withhold this meaning from the words of reference to the schedule is to deny to them all import whatever; and that is justified by no rule of construction. ... [I]n a legal instrument every word used is entitled to have its proper and ordinary meaning considered in the construction____ The words were certainly intended to have a meaning, and if so, we must attribute to them their ordinary signification. [Citations omitted.] Shortly thereafter, the Court of Appeals revisited the law of interpretation that remains viable today, when it opined, in Maryland Coal Co. v. Cumberland & Pennsylvania Railroad Co., 41 Md. 343, 352 (1875): In the interpretation of written contracts it is the duty of courts to ascertain, if possible, the intention of the parties, as manifested by the terms of the instrument. If the intention ... is plainly manifest upon the face of the instrument there is no room for interpretation....

The rule is well settled that, in ascertaining the meaning of words in a deed or other written instrument, technical words must be given their technical meaning and signification. See also Bishins v. St. Barnabas Corp., 221 Md. 459, 463 , 158 A.2d 94 (1960). ⁴¹⁴ “... [I]n the construction of deeds ... the intention of the parties shall prevail unless it violates or infringes some established principle of law. To ascertain this meaning and intent of the parties resort must be had to the whole deed that every word of it may take effect and none be rejected...” Logsdon v. Brailer Mining Co., 143 Md. 463, 474-75 , 123 A. 113 (1923) (emphasis added, citations omitted). See also Adams v. Parater, 206 Md. 224, 236 , 111 A.2d 590 (1955) (“the intention of the parties as determined from the whole deed given effect”); Needy v. Middlekauff, 102 Md. 181, 184 , 62 A. 159 (1905).

The Court in Watson v. Raley, 250 Md. 266, 268-69 , 242 A.2d 488 (1968), in which an inconsistency in a clause of a deed was alleged, noted, “[T]he only rule of construction to which the Court adheres ... is that the intentions of the parties should prevail____ [W]e may view the language employed in light of all of the facts and circumstances of the transaction.” (Citations omitted.) See also Delphey v. Savage, 227 Md. 373, 378 , 177 A.2d 249 (1962); Brown v. Whitefield, 225 Md. 220, 225-26 , 169 A.2d 920 (1961); Whittington v. Mann, 211 Md. 199, 207 , 126 A.2d 617 (1956) (“not necessary to construe the language of the ... deeds strongly against the grantor ... since this rule of construction need be referred to ‘only where all other rules ... fail to reach ... the intention of the parties’ ”); McKenrick v. Savings Bank, 174 Md. 118, 128 , 197 A. 580 (1938) (Even when covenants do not expressly provide words of inheritance or running with the land language, “if ... it was the intention ... that the restrictions were part of a uniform general scheme or plan ... which should affect the land granted and ... retained alike, they may be enforced in equity....”); Legum v. Carlin, 168 Md. 191, 194 , 177 A. 287 (1935) (“Where the intention is clearly ... manifested by the language used ... it will be gathered from the words used. But where the contract is open to construction ... the court may consider the circumstances as the parties viewed them____”) (citations omitted, emphasis added); Hammond v. Hammond, 159 Md. 563, 566 , 152 A. 107 (1930); Neavitt v. Lightner, 155 Md. 365, 375 , 142 A. 109 ⁴¹⁵ (1928), quoting Maryland State Fair v. Schmidt, 147 Md. 613, 621 , 128 A. 365 (1925), (“[T]o ascertain its true meaning the situation of the parties and the circumstances attending the execution of the deed may be considered.”). [I]n the construction of deeds ... the intention of the parties shall prevail unless such intention infringes some established principle of law. To ascertain this meaning and intent, we must look to the whole deed.... [T]he court should take into consideration the language employed, the subject matter, and surrounding circumstances. Weiprecht v. Gill, 191 Md. 478, 484-85 , 62 A.2d 253 (1948).

A strict construction rule formerly applied in construing the meaning of the covenants and restrictions contained within a declaration of restrictions. “[WJhere the language employed in a restrictive covenant requires construction, it must be strictly construed.” Trunck v. Hack’s Point Community Assoc., 204 Md. 193, 196 , 103 A.2d 343 (1954) (emphasis added). See also Martin v. Weinberg, 205 Md. 519, 526-27 , 109 A.2d 576 (1954) (“We have frequently ... applied the rule of strict construction in favor of the unrestricted use of property. But this does not mean that language must be so narrowly construed as to defeat its general purpose.” (citations omitted)). 8 Whether, however, a declaration of restrictions even exists in the first instance, and is applicable to a property, as distinguished from the meaning or interpretation of a restriction, is first determined by both the language of the declaration and the intentions of the parties. In Adams v. Parater, 206 Md. 224, 229-30 , 111 A.2d 590 (1955), when referring to the deed at issue there, the Court noted: ⁴¹⁶ Some question has been raised as to whether any evidence other than the deed itself may be considered in construing it.

We think that there is no doubt that the existence of a general plan of development may be shown and that the right of other property owners to enforce a covenant by which they are benefited may be shown by inference from sources outside the deed. The Court added: It would be incorrect to say that the absence of an expression of the intention is decisive. And it would be incorrect to say that any ground of valid inference must be disregarded. An inference which appears with sufficient clearness from any source should be accepted. ...

The allegations of the bill as to the existence of a general plan are, accordingly, to be considered as well pleaded and hence may be taken into consideration in passing upon the appellees’ demurrer to the bill. The fact that a few lots are not subject to restrictions is not fatal to the existence of a general plan. Schlicht v. Wengert, supra [ 178 Md. 629 , 15 A.2d 911 (1940) ]; Martin v. Weinberg, 205 Md. 519, 525 , 109 A.2d 576, 578 . It is not ... necessary to rely upon the existence of a general plan if the promises can be implied from the deeds and surrounding circumstances.

Another and more fundamental rule, we think, is involved-that unless some positive rule of law is contravened, every part of a deed is to be given effect, if possible, and the intention of the parties must prevail. Id., 206 Md. at 230-31 , 111 A.2d 590 (emphasis added, some citations omitted). This Court upheld the applicability of restrictions in Guilford Ass’n, Inc. v. Beasley, 29 Md.App. 694, 700 , 350 A.2d 169 , cert. denied, 277 Md. 735 (1976), where we noted: The courts, it would seem, are under a duty to effectuate rather than defeat an intention which is clear from the context, the objective sought to be accomplished by the restriction and from the result that would arise from a ⁴¹⁷ different construction.... [C]ourts ... must consider the circumstances surrounding the parties at the time the covenant was made.... Real Covenants—Privity of Estate One of our leading cases involving real covenants is Gallagher v. Bell, 69 Md.App. 199, 202 , 516 A.2d 1028 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987), where the Gallaghers, as buyers, promised in a contract of sale “to dedicate half of streets ... and shall share pro-rata cost of installing street and utilities....” 9 The contract would be binding on the principals and their respective “heirs, successors, and assigns and ... its provisions would ‘survive the execution and delivery of the deed ... and shall not be merged therein.’ ” Id., 69 Md.App. at 203 , 516 A.2d 1028 .

These provisions were inserted in the Gallagher contract because of provisions in a prior conveyance from the same grantor to the Bells, who became, by reason of the two conveyances, owners of abutting property. The Bells were developers who had purchased their property for a proposed subdivision. In spite of the provisions contained in the contract of sale, the Gallaghers’ deed made no mention of the above promises. Nevertheless, the Gallaghers entered into a direct agreement with the Bells (with whom, as we have mentioned, they shared a common grantor) to do that which the Gallaghers had earlier promised to do in the original contract of sale.

Thereafter, the Gallaghers sold their property to a Ms. Camalier, who insisted that they indemnify her for expenses in respect to the road improvements. Ultimately, the Bells filed suit against the Gallaghers for reimbursement for a pro rata share of road expenses. 10 ⁴¹⁸ We noted, initially, that, in respect to land conveyances, “[c]ovenants ... may be regarded as being either personal in nature or as running with the land.” Id. at 206 , 516 A.2d 1028 . The difference, we opined, depended on whether burdens and benefits of the promises made “can devolve upon” the promisors’ successors in title. We then described how conflicts over covenants generally arise, specifically, “when either the party seeking to enforce ... or when the party against whom enforcement is sought” is neither the original covenantee or covenantor, respectively.

We noted, however, that the Gallaghers and Bells were, or at least could be deemed to be, original contracting parties, because the Gallaghers were being requested to perform under their contractual agreement with the Bells. That agreement was subsequent to the Gallagher’s original contract of sale. It was also subsequent to their deed and to the original contract between the common grantor and the Bells. As relevant to the case sub judice, we noted that covenants to pay money for the maintenance of services relating to the land clearly, in our view, touched and concerned the land.

We also stressed the importance of the parties’ intent that covenants run with the land and opined that that intent may be determined from the language contained in the agreement or from other indicia. We discussed that the Bells had made their intentions clear when they insisted that the common grantor include restrictions in the conveyances of the land subsequently conveyed to the Gallaghers. We noted that the covenant in the contract of sale included those restrictions; that the covenant expressly extended to the Gallaghers’ assigns; that it was intended to benefit the land retained by the covenantee; 11 that the charges and dedication of a portion of the parcel for road purposes required by the covenant might not be incurred until after the Gallaghers no longer possessed the property; and that both original parties had maintained ⁴¹⁹ that the covenants ran with the land. We held that the parties to the covenants intended that they bind the land and the assigns by running with the land.

We then discussed the “modern view” of privity that abolished the requirements of both horizontal and mutual privity, retaining only the requirement of vertical privity, ie., the person receiving the benefit or bearing the burden of the covenant is a successor in title to the original covenantor or covenantee. Id. at 216-17 , 516 A.2d 1028 . We saw nothing precluding the adoption of the “modern view” and, though not in express language, applied that view by stating that “vertical privity” focused on devolutional relationships, where we perceived “the focus should be.” Id. at 217 , 516 A.2d 1028 . While our cases have discussed vertical privity,