Commercial & Industrial Properties, Inc. v. Anello

Powers, J., delivered the opinion of the Court. The somewhat unconventional basis upon which we return this case to the Circuit Court for Anne Arundel County follows logically the unconventional basis upon which the case came here from that court. Appellants (Commercial) filed a bill of complaint on 14 May 1976 asking the circuit court to declare that an ¹⁹² agreement for the sale of land had been breached by appellees (the Anellos), and that Commercial should have an additional 30 days to resolve a minor title problem, and asking the court to pass a decree requiring the Anellos to perform the agreement to sell the land to Commercial. Numerous documents were attached to and m^de a part of the complaint.

The answer of the Anellos, also enlarged by numeroüs appended documents, was filed on 22 June 1976. It raised many issues which appeared to go to the merits of the case. Among them was an averment that the plaintiffs did not have the financial ability to complete the transaction, nor the intention to do so, and that the complaint was not filed in good faith, but was merely a ploy to enable the plaintiffs to secure financing, or to sell the contract. In extremely brief outline, the agreement, originally entered into on 17 July 1974, and extended and amended as late as 2 April 1976, and calling for settlement on or before 30 April 1976, ultimately provided for the sale and purchase of 15 acres of land on New Mountain Road in Anne Arundel County for the sum of $400,900.00, of which $47,000.00 had been paid.

A determination of the case on its merits would unquestionably have required the resolution of many issues of fact and questions of law. The case never reached the point of a decision on its merits. On the same day that the answer was filed, the Anellos zeroed in on Commercial’s financial ability to settle, by filing a “Motion To Require Tender And For Admission of Facts”. They moved that the court require Commercial to tender into court the sum of $375,000.00, or be required to admit that it is not able to consummate the purchase of the property.

The motion was not accompanied by a statement of points and citation of authorities, as required by Maryland Rule 319. On the same day, the court ordered Commercial to show cause why the relief prayed in the motion should not be granted. On 6 July 1976 Commercial answered the motion, saying in substance that there was no provision in Máryland practice for compulsory tender into court in a specific ¹⁹³ performance case, or for court ordered admissions of fact. After a hearing on 6 August 1976 the court ordered Commercial, within 15 days, to tender into court the sum of $375,000.00, or am enforceable loan commitment for that amount from a responsible third party, or to post a bond in that amount.

Commercial timely filed what it considered to be compliance, In the nature of a commitment from a third party. The Anellos filed a Motion For Dismissal on 31 August 1976, purportedly pursuant to Maryland Rule 310 a., 1 attacking the sufficiency of Commercial’s showing of compliance. There was no statement of points or authorities. Rule 319.

Commercial filed an answer, or memorandum opposing the Motion For Dismissal. The motion was heard before the chancellor on 24 September 1976. A Memorandum Of Opinion And Order, signed by the Chancellor on 5 October 1976, and filed the following day, dealt primarily with the previous order requiring Commercial to show financial responsibility, and the insufficiency of Commercial’s compliance with that order. The court concluded: “'The [financial commitment agreement] filed by the plaintiffs in these proceedings leaves open too many questions concerning its enforceability and Cordish’s fiscal soundness to assure the court of plaintiffs’ ability to perform according to the terms of the contract.

Moreover, a reasonable time having expired since the date for performance under either of the contracts with the Anellos, this court declines to entertain the petition. It finds that the obligations existing between plaintiffs and defendants are not fair, reasonable, and certain in all terms. “For the above reasons, plaintiffs’ bill of complaint is ¹⁹⁴ dismissed, with costs to be assessed to the plaintiffs. It is so ORDERED this 5th day of October, 1976.” On the merits of the single question then being considered by the court — the financial ability of Commercial to consummate the contract — there was much to be said on both sides. It did not, as the Chancellor put it, “assure the court of plaintiffs’ ability to perform”, and for that reason 2 the Chancellor dismissed the bill of complaint.

The financial ability to pay the contract price is, of course, a prime element of the obligations which a