Coleman v. Columbia Credit Co.

Morton, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for ¹⁹⁹ Montgomery County (McAuliffe, J.) granting summary judgment in favor of the appellee, Columbia Credit Company (Columbia). Appellants, Maurice W. and Luna Coleman, husband and wife, sued Columbia under a two-count declaration alleging breach of a construction contract and negligence. The lower court granted summary judgment as to the contract count on two alternative grounds: that it was barred by limitations; and that the matter in dispute had already been submitted to binding arbitration and an award had been made thereon, “so that an action at law may not now be maintained as to the same controversy.” As to the negligence count, the lower court found appellants’ pleading defective, stating “there are no facts sufficient in Law to support that action.” Appellants’ claims arise from their dissatisfaction with Columbia’s efforts to control an erosion problem in the rear yard of their home.

The record indicates that on February 23, 1972, appellants entered into a contract with Columbia for the purchase of a new house. Clause II of that contract provided, in pertinent part: “Seller agrees to make necessary repairs to rear bank to prevent erosion and replace missing earth and sod.” At the time of settlement on June 7, 1972, the repairs to the yard had not yet been made. As agreed in the original contract, the parties signed a “Builder’s Warranty” on June 9, 1972, in which they promised, inter alia, “to be bound by the compulsory arbitration provision of Tthe Suburban Maryland Home Builders Association (SMBHA)L” Still dissatisfied in late January, 1973, appellants filed a formal complaint with the SMBHA charging, among other things, that the necessary erosion control work in the back yard had not been performed. A hearing was held on February 20, 1973, before the Arbitration Board of the SMBHA.

The Board ruled in favor of appellants in a decision dated March 2,1973, which stated, in pertinent part: “Item #5 — Back yard erosion control work and resultant landscape restoration not completed. When weather permits, the builder is to contact the Montgomery County Erosion Control Department ²⁰⁰ and complete the work in compliance with their standards.” The Board’s decision further provided that the “corrective measures are to be completed within sixty days.” It appears that in June or July, 1973, pursuant to the arbitration order, Columbia made certain repairs to appellants’ back yard. A letter dated July 9, 1973, from the Montgomery County Sediment Control Section to the Colemans indicated that an inspection of the property had “revealed no sediment control violations.” Appellants, however, experienced further erosion problems and continued to express their dissatisfaction to Columbia. In late September, 1975, unusually heavy rains washed away a substantial portion of appellants’ yard.

Columbia disclaimed liability for this severe erosion in a letter to appellants dated October 6,1975. As a result, appellants filed their declaration in the instant lawsuit on May 3, 1976, and an amended declaration on September 20, 1976. Summary judgment in favor of Columbia was granted on June 5,1978, for the reasons noted above. It is quite plain from the record that the erosion problem in the back yard was one of the matters submitted to arbitration at the express request of appellants.

It is also clear that this matter was considered by the arbitration association and was specifically addressed in the ensuing order. The work performed by Columbia in its attempt to comply with the order indicates that it too believed the proceeding to be binding