Maslow v. Vanguri

HOLLANDER, Judge. In this appeal, we must determine whether a party’s breach of a “High-Low” settlement agreement was material, so as to permit rescission of the agreement. Marina Maslow, appellant, sued Apparo Vanguri, M.D., appellee, for medical malpractice. During the course of a jury trial in the Circuit Court for Baltimore County, the parties entered into what is colloquially referred to as a High-Low settlement agreement (the “Agreement”), the terms of which were placed on the record and reduced to writing. 1 Pursuant to the Agreement, both parties agreed not to appeal the jury’s verdict.

Nevertheless, after the jury returned a verdict in favor of Dr. Vanguri, appellant appealed to this Court, which affirmed. See Maslow v. Vanguri, No. 821, September Term 2003, 159 Md.App. 745 , 750 (filed October 27, 2004) (‘Maslow I”). Accordingly, Dr. Vanguri refused to pay appellant the “low” of $250,000 due under the Agreement. The circuit court subsequently denied Ms. Maslow’s “Motion to Enforce High/Low Settlement Agreement,” leading to her second appeal to this Court.

Ms. Maslow presents the following questions: ³⁰³ A. Did Marina Maslow’s first appeal under the facts of this case justify a rescission of the High/Low Settlement Agreement, or did it instead require Dr. Vanguri to seek his remedy, if at all, in damages? B. To the extent that Ms. Maslow’s appeal required Dr. Vanguri to seek his remedy in damages, did he do everything reasonably necessary and prudent to mitigate his damages, or did he instead waive his right to even complain at all? For the reasons set forth below, we shall affirm. FACTUAL AND PROCEDURAL SUMMARY On December 20, 2000, appellant filed suit against Dr. Vanguri, alleging that he was negligent in performing a vagotomy and antrectomy 2 on September 25, 1997, and complaining that he failed to obtain her informed consent.

Trial commenced on May 12, 2003 (Jakubowski, J., presiding). During the trial, on May 16, 2003, the parties entered into the Agreement that is at issue here. The Agreement provided that, in the event appellee won (as he did) or the jury returned a verdict in appellant’s favor for less than $250,000, appellee would nonetheless pay $250,000 to appellant. The parties also agreed that, in the event the verdict favored appellant and was in excess of $1,000,000, appellee’s obligation would be capped at $1,000,000.

And, if the jury returned a verdict in favor of appellant, in an amount between $250,000 and $1,000,000, the parties agreed that appellee would pay the precise amount within that range. In ³⁰⁴ addition, and of import here, the parties agreed that neither side would take an appeal from the verdict. 3 The parties placed the terms of the Agreement on the record. The following exchange is relevant: [THE COURT]: Do you want to put on the record at this point what you put on the bench— * * -1= [APPELLANT’S COUNSEL]: All right. The agreement is that the Plaintiff and the Defendant have entered into a high/low agreement whereby if there is a, if there’s no finding of liability, the Defendant’s carrier will continue to pay the sum of $250,000 into a Special Needs Trust benefit-ting Miss Maslow.

The trustee will be named later. The trust will be established and approved by the Attorney General’s Office. And, again, I’m not even sure— [APPELLEE’S COUNSEL]: The, the high— [APPELLANT’S COUNSEL]: The high of the figure— [APPELLEE’S COUNSEL]:—is a million dollars. [APPELLANT’S COUNSEL]:—is a million dollars. [APPELLEE’S COUNSEL]: And— [APPELLANT’S COUNSEL]: And if the Jury comes back anywhere in between, that is the figure. [APPELLEE’S COUNSEL]: Yes. Yes.

If they award $600,000 the award is $600,000; if they award a million two the award is a million dollars; if they award 200,000 they get $250. [APPELLANT’S COUNSEL]: The payment will be— [APPELLEE’S COUNSEL]: The payment will be 250. ³⁰⁵ [APPELLANT’S COUNSEL]: We can’t effect [sic] the judgment. [APPELLEE’S COUNSEL]: Yeah, that’s what I was trying to convey. We’ve agreed that there won’t be any newspaper publications of Dr. Vanguri’s name, and there will be no appeal— [APPELLANT’S COUNSEL]: No appeal. [APPELLEE’S COUNSEL]:—by either side. [THE COURT]: Okay. All right. All right.

The one thing that we may not be able to control since this is going to go to verdict is I understand that you’re not going to do anything to seek publicity but, I have to tell you, court reporters are around here all the time. [APPELLEE’S COUNSEL]: I understand that. [THE COURT]: And if there’s a Plaintiffs verdict, or even if there’s a defense verdict, it’s typically put in the paper. [APPELLANT’S COUNSEL]: Mm-hmm. [APPELLEE’S COUNSEL]: What I had asked is that [appellant’s counsel] agree not to, you know, himself to contact the media— [THE COURT]: Okay. [APPELLEE’S COUNSEL]:—and provide that. [APPELLANT’S COUNSEL]: I, I have agreed. [THE COURT]: And you have agreed to that? [APPELLANT’S COUNSEL]: Yes. [THE COURT]: Okay. But he’s—there’s certainly things they do right in/around this courtroom. I have to tell you I haven’t seen one during this trial, but— [APPELLEE’S COUNSEL]: And I can speak for Dr. Vanguri. He’s in agreement with this high/low settlement agreement.

Perhaps it would be good for Miss Maslow to be advised of her rights from the bench— [THE COURT]: Okay. [APPELLEE’S COUNSEL]:—just to have on the record. [THE COURT]: Okay. All right. I, I’m happy to do that. ³⁰⁶ [APPELLANT’S COUNSEL]: Yes. [THE COURT]: Miss Maslow, do you understand, has your attorney explained to you what the high/low agreement is? [APPELLANT]: Yes, he has. [THE COURT]: Okay. So you understand that you do not have to accept a high/low; you can just wait and see what the jury does, not have any sort of agreement preverdict, and whatever the Jury does you would then be bound to[,J subject to any appellate rights.

Do you understand that? [APPELLANT]: Yes. Actually, I’m doing a favor to Dr. Vanguri. [APPELLANT’S COUNSEL]: Right. [THE COURT]: Okay. Bub- [APPELLANT]: (Nodding head yes.) [THE COURT]:—you understand that if the Jury comes back with a Defense verdict— [APPELLANT]: Yes. [THE COURT]:—that you will still get $250,000? [APPELLANT]: Yes. [THE COURT]: Okay. [APPELLANT]: And it’s up, no. [THE COURT]: If- -right. That’ll be payable to a Special Needs Trust. [APPELLANT]: Right.

Yes. [THE COURT]: If the Jury, however, comes back with $2 million, the most you can recover under this agreement is a million dollars. [APPELLANT]: Yes. [THE COURT]: You understand that— [APPELLANT]: Yes. [THE COURT]:—and you agree to that? [APPELLANT]: Yes. [THE COURT]: Okay. All right. ³⁰⁷ [APPELLANT’S COUNSEL]: And just so I can be sure, I’ve explained to you about the expenses of the litigation, how they must be deducted first; I’ve talked about the fees— [APPELLANT]: Yeah. [APPELLANT’S COUNSEL]:—with regard to my fees and the fees of the attorney who’s setting up the Special Needs Trust. [APPELLANT]: Yes. [APPELLANT’S COUNSEL]: And you’re in agreement that they have to be paid? [APPELLANT]: Yes. [THE COURT]: Okay. [APPELLANT’S COUNSEL]: And, in addition to any liens that are outstanding. Okay. Okay. [THE COURT]: At this point.

Okay. [APPELLEE’S COUNSEL]: We’re good then. [THE COURT]: Okay. So we’ll resume a little after 1 o’clock. So that’ll give the, you time to talk.... (Emphasis added.) In addition, appellant executed a two-page, handwritten document, dated May 16, 2003, specifying the terms of the Agreement.

That document, the first page of which bears appellant’s signature, states: A high-low offer has been extended by the Defendant’s insurance company. The high is $1,000,000.00 and the low is $250,000.00. If the pending case is won on the issue of liability, the most I can recover is $1,000,00.00[.] If the case is lost, the insurance company will still pay $250,000.00. By agreeing to this high-low agreement, I understand that I am giving up any right of appeal and any attempt to recover an award over $1,000,000.00 either from the Defendant directly or by way of an assigned bad faith case.

I am accepting this high-low arrangement based on representations by Louise Gonzales, Esq. who has been advising me through my attorney, Paul Weber. Ms. Gonzales has ³⁰⁸ indicated that the proceeds of a high low award can be protected by way of a special needs trust. I understand that no proceeds of the award under the high low agreement may be paid directly to me. A special needs trust must be established and approved by Maryland’s Attorney General’s Office.

I understand that the approval process will take at least 6-8 weeks. I also understand that amounts of the medical may have to be determined by Medicare before such a special needs trust can be established. I understand that I will have to meet with Louise Gonzales, Esq. in order to establish this special needs trust and that her fees for these services have been estimated to be $3000.00. I understand that the retainer agreement between me and Paul Weber remains in effect.

I understand that all fees, litigation advanced expenses and established liens and letters of protection must be paid first out of any proceeds paid under the high low agreement. I hereby agree to accept the high low agreement offered and I do so on my own free will and after consideration of the issue with my family. (Emphasis added.) On May 19, 2003, the jury returned a verdict in favor of appellee. It found that he did not breach the standard of care, appellant was eontributorily negligent, and that appellee had obtained appellant’s informed consent for the surgery.

From the adverse verdict, appellant, pro se, filed a motion for a new trial and a notice of appeal. In the motion for a new trial, appellant claimed that the jury should have been permitted to review witness depositions, as had been requested, and that the court erred in its instruction to the jury. On July 3, 2003, the circuit court denied the motion for new trial. On October 21, 2003, appellant’s trial attorney filed a notice of his withdrawal of appearance as well as a “Motion to Enforce High/Low Settlement Agreement of May 16, 2003.” That motion stated: ³⁰⁹ Now comes Paul J. Weber and Hyatt, Peters & Weber, LLP, former counsel of the Plaintiff, Marina Maslow and moves this Honorable Court to enforce the high/low agreement entered between the parties on May 16, 2003 and for reasons states as follows: 1.

During the course of trial in the above-captioned matter, the parties entered in to [sic] a high/low agreement which provided that if the pending case was won by the Plaintiff on the issue of liability, the most the Plaintiff would recover would be One Million Dollars ($1,000,000.00). If the case resulted in a Defendant’s verdict, the insurance carrier on behalf of the Defendant would still pay the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) to the Plaintiff. Both parties agreed that they were waiving the right of Appeal and that the Plaintiff was giving up any attempt to recover an award over one million dollars, either from the Defendant directly, or by way of an assigned bad faith case. 2. This Agreement was placed on the record during the course of the trial and, in addition, a document was executed by the Plaintiff, Marina Maslow, documenting the terms of the Agreement.

A copy of this document executed by Mrs. Maslow on May 16, 2003 is attached hereto as Exhibit A. 3. On May 20, 2003, a judgment was entered in this matter on behalf of the Defendant. 4. Thereafter, unknown to counsel, the Plaintiff filed a pro-se motion with this Court and filed a Notice of Appeal. This Court denied the post-trial motion filed by the Plaintiff as it was not filed in a timely manner.

The Appeal was dismissed by the Court of Special Appeals as no pre-hearing information report was filed by the Plaintiff.[ 4 ] 5. The Plaintiff, Marina Maslow, has now employed counsel in an attempt to overturn the dismissal of the Appeal by the Court of Special Appeals. ³¹⁰ 6. As Plaintiff, Marina Maslow, has employed new counsel, this movant has withdrawn his Appearance on behalf of Ms. Maslow and now moves this Court to enforce the High/Low Settlement Agreement entered on May 16, 2003. WHEREFORE, the movant, Paul J. Weber and Hyatt, Peters & Weber, LLP moves this Honorable Court for an Order enforcing the High/Low Agreement entered by the Plaintiff and the Defendant on May 16, 2003.

(Emphasis added.) On November 3, 2003, appellant’s new attorney filed a response to the motion filed by her former trial attorney. Through counsel, appellant argued that, under the Agreement, “nobody relinquished any appellate rights between the bracketed high/low sums but only above and below said risk limiting figures.” Thus, appellant insisted that she relinquished her appellate rights only in regard to a verdict in excess of $1,000,000. Moreover, she argued: “The defendant’s carrier should be directed to honor its promise as set forth in the high/low settlement agreement and to pay $250,000.00 as directed therein, notwithstanding plaintiffs exercise of her appellate rights within the bracketed high/low sums.” The circuit court did not rule on the motion at that time. Counsel for appellee wrote to counsel for appellant on March 11, 2004, stating: I spoke with the claims representative for Princeton Insurance Company yesterday concerning the appeal of this matter which, as you know, violates the letter and the spirit of the High/Low Settlement Agreement we arrived at in the trial of this matter.

As you know, Princeton had generously agreed to abide by its previous agreement to pay Mrs. Maslow the low amount of the agreement if she would drop the appeal. Now that the record in the appeal has been received and docketed and the parties are preparing to proceed with the appeal, that offer is withdrawn. As of the date of this letter, Princeton will consider that by her actions, Mrs. Maslow has unilaterally rescinded the agreement thus relieving Princeton of any obligation to make any payments to her. ³¹¹ On October 27, 2004, in an unreported opinion, this Court affirmed the verdict in favor of Dr. Vanguri. Regarding the motion to enforce the Agreement, the Maslow I Court explicitly noted in a footnote the terms of the Agreement, including the provision “not to appeal” and the pendency in the circuit court of Weber’s motion to enforce the agreement.

Moreover, the Maslow I Court stated: “The parties agree that the effect of that agreement is not before this court in this appeal.” In a letter dated February 24, 2005, appellant’s counsel wrote to Judge Jakubowski, advising “that Ms. Maslow’s appeal to the CSA was denied, and her Petition for Writ of Certiorari to the Court of Appeals was also just recently denied.” Therefore, he asserted that “the appeal process is now concluded, and jurisdiction over the pending residual proceedings for enforcement of the parties’ high-low settlement agreement is now properly before Your Honor.” Appellant’s lawyer also asked the court to “schedule a hearing to enforce the terms of the high-low settlement agreement, with the aim, at least from plaintiff’s point of view, of requiring defendant’s liability carrier to pay the sum of $250,000, as it had previously contracted to do.” On February 28, 2005, Judge Jakubowski replied: 1 am in receipt of your letter of February 24, 2005. This Court is not in a position to schedule a hearing at this point in time since there is no pending pleading. If you wish to bring something formally to the attention of the Court you need to file the appropriate pleading and allow the Defendant time to respond. This Court will take no further action at this period in time.

On March 25, 2005, appellant filed “Plaintiff Marina Maslow’s Motion to Enforce High/Low Settlement Agreement of 5/16/03,” along with a request for a hearing. She averred: 1. The parties entered into a high/low settlement agreement on 5/16/03 while the case was still being tried before a jury. 2. The purpose of the agreement was to avoid catastrophic risk for each side, so that a jury award over ³¹² $1,000,000 would be capped at $1,000,000 to save the defendant from undue risk, while a jury award under $250,000 or for the defendant outright would bottom out at $250,000 to spare the plaintiff from undue risk. 3.

The settlement agreement also provided that the parties would not appeal the case, among other things. 4. The jury returned a verdict for the defendant, and on 5/20/03 judgment was entered for the defendant. 5. The plaintiff filed a pro se appeal to the Court of Special Appeals, and thereafter hired the undersigned counsel to prepare a brief and give oral argument thereon. Her original attorney withdrew his appearance. 6.

The Court of Special Appeals ultimately heard the case and affirmed the judgment of the Circuit Court as aforesaid. A petition for writ of certiorari was denied by the Court of Appeals. 7. Plaintiff has since made demand upon the defendant for payment of the sum of $250,000, payable to Marina Maslow and her attorney Paul Weber, but the defendant has refused or failed to pay same in material breach of the high/low settlement agreement of 5/16/03. 8. Defendant contends that the plaintiff forfeited her rights to the monetary benefits under the referenced high/ low settlement agreement by reason of her appeal as aforesaid. 9.

However, plaintiff contends that no forfeiture language was ever expressed in the high/low settlement agreement, and that she had never agreed not to pursue her appellate rights within the parameters of the high/low settlement agreement. In addition, the plaintiff contends as follows: 10. The high/low agreement was entered into solely for the purpose of eliminating catastrophic risks for both sides of this litigation, i.e., eliminating the risk of an excessive award against the defendant in exchange for eliminating the risk of a stingy award or no award that would be harmful to the plaintiff. ³¹³ 11. Both litigants have already benefited [sic] and continue to benefit from the object of said high/low agreement.

Defendant was not, is not, and will never be, exposed to liability greater than $1,000,000 while plaintiff was not, is not, and will never be, exposed to recovery under $250,000. However, the action of the defendant has indeed infringed on the contractual benefit to the plaintiff. 12. Despite the fact that defendant did benefit and did continue to benefit from, the cap of $1,000,000 placed on any plaintiffs verdict, nevertheless, defendant seeks to strip away, repudiate or invalidate the reciprocal benefit legally owed to plaintiff, by refusing to pay her the agreed minimum sum of $250,000 that was expressed in the high/low agreement. 13. Despite the fact that the high/low agreement makes no express mention of any forfeiture of rights, defendant, nevertheless, unilaterally imposes a forfeiture of rights against the plaintiff, by refusing to issue and deliver that which defendant did expressly promise in the high/low agreement, to wit: $250,000.

This, despite the fact that defendant has already benefitted from the risk-eliminating consideration of the $1,000,000 high-end cap. 14. Despite the fact that Mr. Paul J. Weber has a statutory interest in the $250,000 payment, in the form of an attorney’s fee and lien secured under Section 10-501 of the Business Occupations and Professions Article of the Annotated Code of Maryland, nevertheless, defendant seeks to repudiate his interest, and even his standing, in this controversy. Mr. Weber was the disclosed statutory partner of Ms. Maslow, at least to the extent of his attorney’s lien. He did disclose his expectation of attorney’s fees at p. 91 of the transcript and continues to have standing in this matter. 15.

Alternatively, the defendant had notice of Mr. Weber’s standing, in the context of an expressed third party beneficiary to the contract, even while the defendant challenges the plaintiff’s rights. His standing was made clear at p. 91 of the trial transcript. ³¹⁴ * * * 17. Unilateral forfeitures, imposed by one side against the other, are always self-serving, due to unjust enrichment. In the absence of express contractual language authorizing the forfeiture in the manner now advanced by the defendant, it amounts to a repudiation of the high/low agreement without consent of the plaintiff. 18.

At common law, parties to a contract may rescind it only by mutual consent. Talbert v. Seek, 210 Md. 84 , 122 A.2d 469 (1956) (emphasis added). Obviously, the imposition of a forfeitu™ by defendant against plaintiff, in the instant case, is done without the plaintiffs consent. 19. Only where there had been a material breach in the agreement, causing irreparable injury or damages which are impossible or difficult to determine, only then can a party seek the aid of equity to obtain a rescission of the contract.

Vincent v. Palmer, 179 Md. 365 , 19 A.2d 183 (1941). 20. In the instant case, defendant suffered no irreparable injury by reason of plaintiffs pro se appeal. Defendant was still protected by the high-end cap of the high/low agreement. 21. With respect to the interpretation of the text of the agreement, there is absolutely nothing contained within the four corners of the text, where Ms. Maslow expressly waives her right to appeal from a low verdict up to $1,000,000, and nothing to indicate that any forfeitures may be imposed, eyen if she did so appeal. 22.

Even if one did construe the agreement to prohibit all appeals, even then, the sole remedy available to the defendant is not forfeiture, but rather to ask the Court of Special Appeals to dismiss the appeal, a right which defendant did not exercise before the CSA. 23. Defendant should never be permitted to escape from its solemn, expressed promise to pay the low-end sum of $250,000. On April 4, 2005, appellee filed “Defendant’s Response to Plaintiffs Motion to Enforce High/Low Settlement Agree ³¹⁵ ment.” He claimed that Ms. Maslow’s arguments were “without merit,” given the express language of the agreement. Dr. Vanguri argued that, “[i]n Maryland, where there has been a material breach of a contract, the non-breaching party has the right to rescind the agreement.

This is black letter Maryland law....” As appellee explained, the “parties to the agreement were seeking two things: limitation of their exposure risk and finality.” In his view, Ms. Maslow’s “adamant refusal to comply with the no appeal provision of her agreement” constituted a material breach of the Agreement, because “the agreement not to appeal goes to the heart of the highfiow agreement.” In support of his assertion that appellant’s breach was material, Dr. Vanguri observed that it “caused substantial costs to the defendant, caused substantial delay which defeated the finality to which he was entitled, imposed additional stress” on him, and left him “open to the possibility that a new trial would be granted by [this Court],” which “potentially could have exposed him to the costs, stress, and financial exposure of a new trial.” Moreover, Dr. Vanguri insisted that “[t]here is no basis for the contention that the sole purpose of the high/low agreement was to eliminate ‘catastrophic risks.’ ” Rather, said appellee, “[i]t clearly also was the intent of the parties to bind themselves to accept the outcome of the jury’s determination and bring finality to the litigation.” He added that he “would not have entered into such an agreement absent the provision that would give finality to the jury’s determination.” Appellee also addressed the interest of appellant’s first attorney in “the $250,000 payment in the form of an attorney’s lien.” He observed that “Mr. Weber’s rights flow from a separate contract between himself as attorney and Mrs. Mas-low as client.” According to appellee, appellant’s attorney was not a party to the Agreement, and appellee “has no direct or even indirect obligation to Mr. Weber.... His rights, if any, are against Mrs. Maslow.” 5 ³¹⁶ Regarding appellant’s contention that appellee’s “sole remedy” was to seek dismissal of the appeal in Maslow I, appellee argued that his right to ask this Court to dismiss the appeal “would not have been an adequate remedy since it would not have avoided” the cost and delay of the appeal, or the stress caused by the appeal. Further, he characterized as “preposterous” the contention that he “should never be permitted to escape from [his] solemn, expressed promise to pay the low end sum of $250,000,” given that appellant “obstinately refused to honor her part of this agreement,” despite “ample opportunity to cure the breach.” Appellee also requested a hearing on the motion. The court scheduled a hearing for May 23, 2005.

Nevertheless, without a hearing, it signed an order on April 12, 2005, denying appellant’s motion to enforce the Agreement. 6 The court did not provide any explanation for its ruling. We shall include additional facts in our discussion. DISCUSSION I. Settlement agreements are enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts. Langston v, Langston, 366 Md. 490 , 784 A.2d 1086 (2001); Bruce v. Dyer, 309 Md. 421, 433 , 524 A.2d 777 (1987); Goldberg v. Goldberg, 290 Md. 204, 212 , 428 A.2d 469 (1981); Fultz v. Shaffer, 111 Md.App. 278, 298 , 681 A.2d 568 (1996).

Moreover, public policy considerations favor the enforcement of settlement agreements. As ³¹⁷ the Court of Appeals reiterated in Clark v. Elza, 286 Md. 208, 219 , 406 A.2d 922 (1979), “courts should ‘look with favor upon the compromise or settlement of law suits in the interest of efficient and economical administration of justice and the lessening of friction and acrimony.’ ” (quoting Chertkof v. Harry C. Weiskittel Co., 251 Md. 544, 550 , 248 A.2d 373 (1968), cert. denied, 394 U.S. 974 , 89 S.Ct. 1467 , 22 L.Ed.2d 754 (1969)); see Chernick v. Chernick, 327 Md. 470, 481-83 , 610 A.2d 770 (1992) (for policy reasons, a party should not be able to renege on divorce consent judgment, in that the judgment reflects an agreement reached between the parties); Bernstein v. Kapneck, 290 Md. 452, 459 , 430 A.2d 602 (1981) (“particularly in this era of burgeoning litigation, compromise and settlement of disputes outside of the court is to be encouraged and, thus, the settlement agreement evidencing accord and satisfaction is a jural act of exalted significance which without binding durability would render the compromise of disputes superfluous”); Nationwide Mutual Ins. Co. v. Voland, 103 Md.App. 225 , 653 A.2d 484 (1995) (discussing public policy favoring settlement agreements); David v. Warw ell, 86 Md.App. 306, 309-312 , 586 A.2d 775 (1991) (same). Because settlement agreements are governed by contract principles, the well-honed principles of contract construction are pertinent here.

We turn to review them. “The interpretation of a contract, including the determination of whether a contract is ambiguous, is a question of law, subject to de novo review” by an appellate court. Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 163 , 829 A.2d 540 (2003); see Myers v. Kayhoe, 391 Md. 188, 198 , 892 A.2d 520 (2006); Towson Univer. v. Conte, 384 Md. 68, 78 , 862 A.2d 941 (2004); Lema v. Bank of Am., N.A., 375 Md. 625, 641 , 826 A.2d 504 (2003). As a fundamental principle of contract construction, we seek to ascertain and effectuate the intention of the contracting parties. Mercy Med.

Center, Inc. v. United Healthcare of the Mid-Atlantic, 149 Md.App. 336, 372 , 815 A.2d 886 , cert. denied, 374 Md. 583 , 824 A.2d 59 (2003); Phoenix Services ³¹⁸ Limited Partnership v. Johns Hopkins Hosp., 167 Md.App. 327, 391 , 892 A.2d 1185 (2006). In that process, we construe a contract “as a whole to determine the parties’ intentions.” Sullins v. Allstate Ins. Co., 340 Md. 503, 508 , 667 A.2d 617 (1995). Moreover, “the primary source for determining the intention of the parties is the language of the contract itself.” Hartford Accident & Indem.

Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 109 Md.App. 217, 290-91 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). Of equal import, we construe the words consistent with their usual and ordinary meaning, unless it is apparent that the parties ascribed a special or technical meaning to the words. Id.; see MAMSI Life & Health Ins.

Co. v. Callaway, 375 Md. 261, 279 , 825 A.2d 995 (2003); Dutta v. State Farm, Ins. Co., 363 Md. 540, 556 , 769 A.2d 948 (2001); Fister v. Allstate Life Ins. Co., 366 Md. 201, 210 , 783 A.2d 194 (2001); Cheney v. Bell Nat’l Life Ins. Co., 315 Md. 761, 766 , 556 A.2d 1135 (1989).

To ascertain the parties’ intent, courts in Maryland “have long adhered to the objective theory of contract interpretation, giving effect to the clear terms of agreements, regardless of the intent of the parties at the time of contract formation.” Myers, at 198, 892 A.2d 520 . See Taylor v. NationsBank, N.A., 365 Md. 166, 178 , 776 A.2d 645 (2001); 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); B & P Enterprises v. Overland Equip. Co., 133 Md.App. 583, 604 , 758 A.2d 1026 (2000). Under this theory, when a contract is clear and unambiguous, “its construction is for the court to determine.” Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 251 , 768 A.2d 620 (2001).

A court will presume that the parties meant what they stated in an unambiguous contract, -without regard to what the parties to the contract personally thought it meant or intended it to mean. See Dennis v. Fire & Police Employees Ret. Sys., 390 Md. 639, 656-57 , 890 A.2d 737 (2006); PaineWebber Inc. v. East, 363 Md. 408, 414 , 768 A.2d 1029 (2001). ³¹⁹ Put another way, “the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean.” Ashton, 354 Md. at 341 , 731 A.2d 441 . Rather, “contractual intent is determined in accordance with what a reasonable person in the position of the parties at the time of the agreement would have intended by the language used.” Faulkner v. American Cas.

Co. of Reading, 85 Md.App. 595, 605-606 , 584 A.2d 734 , cert. denied, 323 Md. 1 , 590 A.2d 158 (1991). Notably, a contract is not ambiguous merely because the parties do not agree as to its meaning. Fultz v. Shaffer, 111 Md.App. 278, 299 , 681 A.2d 568 (1996). Contractual language is considered ambiguous when the words are susceptible of more than one meaning to a reasonably prudent person.

Ashton, 354 Md. at 340 , 731 A.2d 441 ; Calomiris, 353 Md. at 436 , 727 A.2d 358 . To determine whether a contract is susceptible of more than one meaning, the court considers “the character of the contract, its purpose, and the facts and circumstances of the parties at the time of the execution.” Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388 , 488 A.2d 486 (1985).

If a trial court finds that a contract is ambiguous, it may receive parol evidence to clarify the meaning. See Beale v. Am. Nat’l. Lawyers Ins.

Reciprocal, 379 Md. 643, 660 , 843 A.2d 78 (2004); Bushey v. N. Assurance, 362 Md. 626, 632 , 766 A.2d 598 (2001). On the other hand, “evidence is ordinarily inadmissible to vary, alter, or contradict a contract that is complete and unambiguous.” Higgins v. Barnes, 310 Md. 532, 537 , 530 A.2d 724 (1987). And, of import here, it is not the province of the court to rewrite the terms of a contract so as to avoid hardship to a party, or because one party has become dissatisfied with its terms. See Canaras v. Lift Truck Services, Inc., 272 Md. 337, 350 , 322 A.2d 866 (1974); Fultz, 111 Md.App. at 298 , 681 A.2d 568 .

Applying the principles of contract construction outlined above, we are of the view that the Agreement constituted a clear and unambiguous contract. By its terms, it barred an ³²⁰ appeal of the jury’s verdict, in exchange for the parties’ commitment to pay or accept the high-low figures. As noted, the jury returned a verdict entirely in favor of appellee. In the absence of the Agreement, appellee would not have had any financial obligation to appellant.

Under the Agreement, however, Dr. Vanguri owed appellant $250,000, despite the jury’s exoneration of him. Then, in breach of the Agreement, appellant pursued an appeal to this Court, and lost. The record indicates that, while the appeal was pending in Maslow I, appellee’s insurance carrier agreed to abide by the Agreement, and offered to pay the $250,000 to appellant, conditioned on her abandonment of the appeal. Appellant declined to do so.

We are satisfied that appellant’s conduct constituted a material breach of the Agreement, thereby entitling appellee to rescission. We explain.

II

Appellant does not dispute that, under the Agreement, no appeal was permitted from the jury’s verdict. But, she contends that her breach was not material. Therefore, she argues that appellee was merely entitled to damages, not rescission. Moreover, she contends that rescission was not appropriate here, because the parties never expressly agreed to the remedy of rescission in the event of a breach.

Appellant proceeds to challenge the six cases cited below by appellee in support of his claim that, “[i]n Maryland, where there has been a material breach of a contract, the non-breaching party has the right to rescind the agreement.” Appellant maintains that “to study them in detail is to discover that none of them actually supports the defendant’s position, and all of them ironically favor the plaintiffs position.” In addition, appellant discusses five other cases that she claims support her position “that rescission is only granted where the root consideration has been totally defeated, and, even then, only where the party seeking rescission has equitably offered to return the party to the status quo ante.” ³²¹ Appellee counters that “appellant’s arguments about the Maryland case law cited by Dr. Vanguri in the court below miss the point.” He asserts that the cases on which he relied “articulate in some form of words the proposition for which Defendant Dr. Vanguri cited them.... ” Further, he argues that “the other cases relied upon by the appellant, when interpreted correctly, provide no ground for overturning the trial court’s ruling in favor of Dr. Vanguri.” III. Generally, a contract is defined as “a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Richard A. Lord, 1 Williston on Contracts § 1:1, at 2-3 (4th ed. 1990) (“Williston”). Accord Restatement (Second) Contracts § 1, at 5 (1981) (“Restatement”). “A contract is formed when an unrevoked offer made by one person is accepted by another.” Prince George’s County v. Silverman, 58 Md.App. 41, 57, 472 A.2d 104 (1984). Thus, mutual assent is an integral component of every contract.

See Lacy v. Arvin, 140 Md.App. 412, 426 , 780 A.2d 1180 (2001); Kiley v. First National Bank of Maryland, 102 Md.App. 317, 333-34 , 649 A.2d 1145 (1994), cert. denied, 338 Md. 116 , 656 A.2d 772 , cert. denied, 516 U.S. 866 , 116 S.Ct. 181 , 133 L.Ed.2d 120 (1995). As we said in Mitchell v. AARP, 140 Md.App. 102, 116 , 779 A.2d 1061 (2001), “An essential element with respect to the formation of a contract is ‘ “a manifestation of agreement or mutual assent by the parties to the terms thereof; in other words, to establish a contract the minds of the parties must be in agreement as to its terms.” ’ ” (quoting Safeway Stores, Inc. v. Altman, 296 Md. 486, 489 , 463 A.2d 829 (1983)) (other citations omitted). A contract may be oral or written. Whether oral or written, a contract is not enforceable unless it expresses with definiteness and certainty the nature and extent of the parties’ obligations and the essential terms of the agreement.

Mogavero v. Silverstein, 142 Md.App. 259, 272 , 790 A.2d 43 ³²² (2002), cert. denied, 369 Md. 181 , 798 A.2d 553 (2002); Canaras v. Lift Truck Services, 272 Md. 337, 346 , 322 A.2d 866 (1974); Meyers v. Josselyn, 212 Md. 266, 271 , 129 A.2d 158 (1957); Robinson v. Gardiner, 196 Md. 213, 217 , 76 A.2d 354 (1950). In other words, an agreement that omits an important term, or is otherwise too vague or indefinite with respect to essential terms, is not enforceable. Mogavero, 142 Md.App. at 272 , 790 A.2d 43 ; L & L Corp. v. Ammendale, 248 Md. 380, 385 , 236 A.2d 734 (1968); Schloss v. Davis, 213 Md. 119, 123 , 131 A.2d 287 (1957) (a “contract may be so vague and uncertain as to price or amount as to be unenforceable.”). A contract may