Giardina v. Farms Co.

Menchine, J., delivered the opinion of the Court. In August, 1968 Harry B. Giardina (Giardina) began employment by The Farms Company (Farms) as its general superintendent. Farms was engaged in the construction of high-rise condominiums in Ocean City, Maryland. Giardina commenced employment during the construction of “Beachmark,” continued it during the construction of “High Point,” ended it on December 15, 1971 in the course of the construction of “High Point North.” Giardina had been furnished living quarters as a part of his compensation — in the beginning Unit 3 of “Thirteen on the Beach” — from May, 1969 until the present in Unit 4 of the latter condominium.

The subject litigation was initiated by Giardina by a bill for specific performance of his allegedly accepted option to purchase Unit 4 for $28,500.00, subject to an annual ground rent of $450.00, from Farms. A counter-action by Farms sought a decree directing Giardina to vacate those premises and an award of damages for his alleged continuing wrongful possession. The Circuit Court for Worcester County by its decree denied the relief prayed by Giardina; ordered him to vacate Unit No. 4, Thirteen on the Beach Condominium; and extended judgment against him for $8500.00 in favor of Farms. Giardina has appealed.

A written option to purchase 1 was executed on September 15,1969 and reads as follows: “Received from Harry Giardina, hereinafter referred to as purchaser $10.00 as consideration for an option to purchase the following described property from the Farms Company, hereinafter referred to as Seller. Townhouse number 4 as shown on a plat ²⁰³ entitled Thirteen on the Beach Condominium at 43rd Street, Tenth Election District, Ocean City, Worcester County, Maryland. at and for the price of $28,500, to be paid in full at settlement, plus $450.00 annual ground rent. “This option shall continue in effect during purchasers employment with The Farms Company. Purchaser shall notify seller in writing of his intention to exercise the option before termination of employment. In the event purchaser does not exercise the option, this agreement shall be declared null and void and of no further force or effect and the consideration paid shall be retained as liquidated damages by seller. “In the event seller [sic] exercises the option, the consideration shall be applied to the purchase price and settlement shall be held on or before 60 days from such notice.” It will be observed: (a) that the option provided that it “shall continue in effect during purchaser’s (Giardina’s) employment with the Farms Company” and (b) that “Purchaser shall notify seller in writing of his intention to exercise the option before termination of employment.” (Italics supplied) On these two phrases “hang all the Law and the Prophets.” 2 Employment.

Status of Giardina The relationship between Giardina and Farms seems to have been most cordial until December 15, 1971. Better understanding of the events of that day requires a brief statement of the chain of command of The Farms Company and the status of construction of High Point North at that point in time. John S. Whaley, president of Farms, also was its principal stockholder. W. L. Griffith, a vice president, was in charge of management of the whole construction operation.

Giardina was job superintendent. James Edward ²⁰⁴ Lee was assistant job superintendent. Raymond Milton Hindel was foreman in charge of the steel placing crew. As Whaley put it: “Mr. Hindel would obey the orders of Mr. Lee, and both Mr. Lee and Mr. Hindel obey the orders of Mr. Giardina, and everybody obey [sic] the orders of Mr. Griffith and Mr. Griffith obeys [mine].” Whaley thus described the status of High Point North at the time: “We were having serious construction problems at the time, which later would have resulted in [a] very serious financial situation.” Griffith pinpointed those problems in the days immediately preceding December 15, 1971 in the following testimony: “ [0]n the 13th of December, which I believe was a Monday, we were back into operation for the first time after being shut down for over a month when we had problems with the crane.

This, as you can imagine in a project, it caused tremendous difficulties. When we got back into operation on the 13th we had been — we were starting to implement a new schedule to try to recover some of the time that had been lost by this crane damage. “It’s my recollection that we really didn’t work a full day on Monday, that the crane didn’t go in operation until sometime during the day. On Tuesday was the first full day, and I believe it was crucial to this schedule, that we were trying to fulfill, that the night shift work — every part of this schedule had to be fulfilled each day or else the subsequent operations could not take place. “I heard on that Tuesday night, I believe it was, that the night shift had been laid off, told not to work by Mr. Giardina. So that after having had the schedule in operation for one day, it was already out of phase. “Late that night, of Tuesday — I assume this is what you want me to do, is to recount this incident — late that night, of Tuesday, Mr. Giardina came ²⁰⁵ into the office at 47th Street, and he and I worked together for, I would suppose, several hours.

It was quite late. It was after 11:00 when we finished trying to arrive at a method to get ourselves back on the schedule and to get the job back in track, let’s say, the following morning.” Griffith then went on to describe his discussion with Giardina on December 15,1971: “When I arrived at the job, the following morning, which was Wednesday, the 15th, I saw this, as I arrived, that we were — the job, the operations being performed were not the things that Mr. Giardina and I had discussed late the night before. It was this which led to the conversation that has been referred to here. I would say that it was — I was critical of Harry.

I, perhaps, spoke harshly. I had been told that sometimes my appearance is that of being more harsh than I mean to be. But, the substance of what I said to Mr. Giardina was if we couldn’t reach an agreement on what we were going to do as late as 11:00 the night before for what we were going to do the following morning, and, then, proceed with it, there was no way that we could make a schedule for the job. “This is as close as I can recall to my exact words. * * * [M]y recollection is that after that I turned and left the job.” Giardina confirmed his confrontation by Griffith on the morning of December 15,1971 in the following language: “ * * * so I started to proceed out to the job site when Mr. Griffith came and met me halfway out in the field, and what he said to me, T wonder why you can’t remember what you did or what you told me eight hours ago’, which I had told him the day before how I was going to set up the cranes for the following day and I couldn’t remember, he said. He just literally let it go, and said that I wonder why ²⁰⁶ you can’t remember. ‘How do you expect to get a building back on schedule if you can’t remember what you told me eight hours ago.’ ” Giardina then described his immediate reaction to that confrontation: “I didn’t feel good, and I walked away, for I knew being on the job site, like this, sometimes you do get upset and you get mad and you say things you are not supposed to say.

The best thing to do is to walk away from it.” Although there is complete agreement that Giardina left the job site at 9:30 a.m. on December 15, 1971 and that he never thereafter performed any services for Farms, the reason for his leaving is a subject of dispute. The resolution of that dispute was a cardinal issue for decision by the trial court. Brief references to some of the testimony on the issue will serve to illustrate the conflict in the testimony: Giardina: “* * * I went home sick that morning of December 15th. * * * I hadn’t been feeling good the day before * * * I guess, about 9:30 or quarter to ten I asked this gentleman to take me home. * * * As I was approaching the trailer, I passed Mr. Whaley coming out of my trailer. I didn’t say anything to him.

I walked right on by him and went inside my trailer and told Mrs. Thelma Baker [his secretary], I said, T don’t feel good. I’m quitting for the day, and I’m going to go home.’ * * * I asked * * * Bob Robertson to please drive me home. As we walked out the gate I stopped and I said, ‘Wait, I have got to make — I have got to get Mr. Lee off the building and tell him I’m leaving.’ * * * And I said, ‘I’m not quitting, I’m just quitting for the day. I don’t feel good.’ ” Giardina acknowledged that he had not disclosed either to Whaley or to Griffith that he was ill on the morning of December 15,1971. ²⁰⁷ There was testimony by Farms employees in direct conflict with that of Giardina.

We shall cite only fragments of such testimony to demonstrate that conflict: Lee: “* * * Harry [Giardina] said the hell with this job, that I quit, and was going home, and if anybody wanted him they could come after him. * * * Then I told Harry to go in the trailer and to cool off but he said to hell with it, and left the job.” Hindel: “* * * Harry came out of the trailer with his hat in his hands and coat on outer arm, waving his arms and he called me. * * * he said * * * ‘Get Jimmy, [Lee, then assistant superintendent] I quit * * *.’ And I said ‘Oh, for God’s sakes, go on back in the trailer and sit down and cool off.’ * * * Then he said, ‘ “f” John Whaley, “f” Bill Griffith, and the whole works.’ He said, ‘I’m quitting. Get Jimmy.’ ” The trial judge in the course of his written opinion stated: “The threshold question, therefore, is to determine the status of Mr. Giardina with regard to his employment by The Farms Company on and after 10:00 o’clock A.M. on December 15, 1971. The Court specifically finds that Mr. Giardina, as of that time had left the construction site, had quit his job, and had voluntarily left the employment of The Farms Company.” The testimony previously quoted herein demonstrates that there was abundant evidence to support that finding. We cannot find that his conclusion was clearly erroneous.

Rule 1086. Giardina has raised for the first time in this Court, a contention that his employment by Farms was for a definite term and that he was therefore entitled to notice that his services were being terminated. The issue is not before us. Rule 1085.

In any event, our examination of the record shows not a scintilla of evidence to support the contention ²⁰⁸ that Giardina’s employment was for a definite term. To the contrary, all of the evidence shows that his employment was for an indefinite term. In the absence of contract or statutory provisions such an employment contract can be terminated at the will of either party. Washington B & A R. Co. v. Moss, 127 Md. 12, 21 , 96 A. 273, 276 ; Vincent v. Palmer, 179 Md. 365, 370-71 , 19 A. 2d 183, 187 ; Taylor v. Greenway Restaurant, Inc., 173 A. 2d 211 (Mun.

Ct. of App., D.C. 1961). It is quite clear, accordingly, that Giardina, in order to prevail in the specific performance action, must show that there was a lawful acceptance by him of the option granted by the document of September 15, 1969, supra, before 10:00 a.m. on December 15, 1971, when his employment was terminated. Acceptance of the Option The undisputed evidence shows that the only written notice by Giardina to Farms was given on December 16, 1971. Giardina contends, however, that Farms had waived the option requirement that “Purchaser shall notify seller in writing of his intention to exercise the option.” He contends further that lawful oral notice had been given, after such waiver and prior to December 15, 1971.

Farms denies that it waived the option requirement. The case of Bio-Ramo v. Abrams, 229 Md. 494 , 184 A. 2d 831 , is precisely on point and provides the rules of law governing determination whether there is a waiver of a requirement for written acceptance of an option. In Bio-Ramo it is said at 499, et seq. [833-34]: “While a contract which is required by the statute of frauds to be in writing may not ordinarily be modified by a subsequent oral agreement, Abrams v. Eckenrode, 136 Md. 244 , 110 Atl. 468 (1920), the law is well settled that an optionor may, by his words or conduct, waive strict compliance by the optionee of the terms of the option as to a condition precedent, and it is ²⁰⁹ immaterial that the option is a part of the instrument which is required to be in writing under the statute of frauds. “In Achtar v. Posner, 189 Md. 559 , 56 A. 2d 797 (1948), involving an option to renew a three-year lease (made three days before the term began) for another period of three years, upon the giving of written notice within the time specified in the original lease, it was held that a landlord can waive the requirement of written notice from a tenant of his desire to exercise the option to renew the lease and extend the lease upon verbal notice.