Missler v. Anne Arundel County

Digges, J., delivered the opinion of the Court. This equity action was filed in the Circuit Court for Anne Arundel County by Earl B. Missler, the appellant and cross-appellee, naming Anne Arundel County, appellee and cross-appellant, as defendant. Throughout this protracted litigation, the appellant has advanced and subsequently abandoned several varied but interrelated legal theories in pursuit of recovery from the county moneys he was required to deposit with the Anne Arundel County Sanitary Commission in order to obtain the construction of a sewer main. However, since most of these sundry contentions have been forsaken by Missler at one point or another during this litigation, we shall not relate them here but instead proceed to briefly set out the facts involved in the controversy and then synthesize the issues in an effort to bring order to what the parties agree has become procedurally quite confusing.

The events which comprise the background for this suit ⁷² began to unfold in 1960 when appellant, as the owner and developer of a parcel of real estate located on N ursery Road near the Baltimore-Washington Expressway in Anne Arundel County, required a sewer main. In an effort to obtain this service which today is in short supply in' many parts of this .State, Missler began negotiations with the sanitary commission to obtain an extension of one of the pre-existing lines located some 2,000 feet away. When it appeared from an evaluation of the potentially assessable properties to be served by the proposed main that this would not be a self-sustaining project for at least a number of years, the county and appellant entered into the deficit financing agreement which was to become the epicenter for this dispute. Because of its obvious importance we set forth that agreement except for the execution portion: DEFICIT DEPOSIT AGREEMENT ANNE ARUNDEL COUNTY SANITARY COMMISSION THIS AGREEMENT, made this 14th day of December, 1960 by and between Earl B. Missler hereinafter called the Petitioner, of the first part, and the Anne Arundel County Sanitary Commission, a municipal corporation, hereinafter called the Commission, of the second part.

WHEREAS, the Petitioner has requested the Commission to construct and install sewer pipes in Nursery Road, Overlook as per Plat on Project No. 60-5-45-S attached hereto; and WHEREAS, the Commission is willing to install said pipes, subject, however, to the terms and conditions hereinafter set forth. NOW, THEREFORE, THIS AGREEMENT WITNESSETH, That in consideration of the premises and of the mutual promises hereinafter contained, the parties hereto do promise and agree as L Hows: 1. The project herein referred to shall be designed and constructed under the supervision of ⁷³ the Chief Engineer of the Anne Arundel County Sanitary Commission. 2. Before the work of constructing the said project will be authorized by the Commission, the Petitioner must deposit with the Commission and in favor of the Sanitary District the sum of Sixty-four Thousand One Hundred Forty-eight and 24/100 Dollars, which sum represents that part of the construction cost of said project which will not, within a reasonable time after completion thereof, be supported by income from front foot benefit assessments considered at the time of the proposed construction to be subject to levy, plus a 15% charge for administering this Agreement, all as estimated by the Treasurer of the Anne Arundel County Sanitary Commission. 3.

After completion of the work of constructing the said project, there shall be an adjustment of funds so as to provide that the amount of the deposit shall equal the actual deficit, plus 15%, as determined from actual costs insofar as they can be ascertained, including Engineering and Administrative overhead expense incurred by the Anne Arundel County Sanitary Commission. 4. This Agreement shall remain in effect for a period of six years from the date hereof, unless terminated prior thereto by mutual agreement of the parties hereto, in which case a Release from the Petitioner to the Commission will be required of the Petitioner. 5. This Agreement will be reviewed every two years for the purpose of making refunds to the Petitioner from the amount deposited hereunder and, if it then appears that lots or portions of the locality which were not considered to be assessable for benefits at the time of construction are connected to the said project, resulting in additional benefit assessments not previously considered, the aforementioned deposit may be reduced by a refund ⁷⁴ to the Petitioner in a proportion to be determined on the basis of the capitalized income from the front foot benefit assessments; provided, however, that the total assessable frontage as finally determined must produce sufficient income to finance the installation herein described. If such income be insufficient to finance the cost of installation, the Petitioner shall not be entitled to a full refund of the deposit, but the Commission will be entitled to deduct the deficiency so calculated before making the final refund. 6.

The Petitioner agrees upon completion of the work of constructing this project to accept and pay the first class rate on each and every lot abutting on the water and/or sewer facilities constructed as per the plats attached hereto. 7. If lots or portions of the locality are connected to the project, front foot benefit assessments will be levied in accordance with the Code of Public Local Laws of Anne Arundel County, Sections 486-537, inclusive, as pertains to the Anne Arundel County Sanitary Commission. The Commission shall exercise their discretion in determining the extent of the frontage applicable to each property connected for the purpose of fixing the amount of the refund to Petitioner from time to time. 8. After the expiration of six years from the date of this Agreement, the amount of the deposit which remains after final review of the Agreement by the Treasurer shall be automatically transferred to the Anne Arundel County Sanitary Commission Capital Fund. 9.

All financial adjustments between the Commission and the Petitioner shall be made during the month of January, based on calculations as of October 1st of the preceding year. 10. It is understood and agreed that this Agreement shall be binding upon the parties ⁷⁵ hereto, their heirs, personal representatives, successors and assigns. Throughout this litigation, the appellant has maintained that all his sewage disposal requirements could have been met by the construction of an eight inch main rather than the twelve inch line which the commission accepted bids for and built. Missler relies on this fact as being strong evidence in support of his contention that the contract provides that he shall receive a refund up to the full amount of his deposit for all but the original lots which were subsequently assessed as a result of being connected to this new line or any extension thereof during the six-year term of the agreement.

Why else, he argues, would he be required to pay for the part of a sewerage system which exceeded his needs but for the fact that it was contemplated that he receive a refund of his deficit deposit from the commission when all who subsequently reaped the benefits of the increased capacity were assessed their fair share? Following payment of the $64,148.24 estimated deficit required to be deposited under the agreement, work on the line was commenced and proceeded without interruption until completion in May of 1961. At that time, the final financial analysis of the project revealed that there had been a substantial cost overrun. Accordingly, relying on paragraph number 3 of the agreement, the commission made a demand upon Missler for an additional $16,367.29.

When this request was not met, the commission filed an action at law in the Superior Court of Baltimore City on September 14, 1962 to recover that amount. The pleadings filed in that case included a motion for summary judgment made by the commission. However, before the court acted upon this motion, the parties were able to compromise their differences with Missler paying $5,540.71 to the sanitary commission and, on June 16, 1963, at the written direction of the plaintiff’s attorney, the clerk of the court entered the suit paid, settled and satisfied. 1 ⁷⁶ This spirit of compromise which had concluded the Baltimore case was shattered in November of 1966 when appellant became acquainted with the county’s 2 intent to use the line, without any refund to him, as an interceptor for sewage to flow from an area a short distance to the south of his project. Aghast at the thought that he would not be reimbursed in accordance with his interpretation of paragraph number 5 of the agreement, appellant initiated this action by filing a “Bill of Complaint to Reform Contract” 3 in an effort to recover all or part of his deficit deposit.

At the trial, Judge E. Mackall Childs first rejected the county’s contention that Missler’s claim was barred by the doctrine of res judicata because of the final judgment entered In the Baltimore City case. Consequently, the judge, having considered all of the evidence, held that although there was no provision in the contract for the funding of this project through future extensions beyond the locality of the Missler development, a final review of the financial status of appellant’s deposit showed that the sum of $1,944.55 was due “computed on the same basis as was the settlement in the Superior Court of Baltimore City.” Accordingly, utilizing the general relief prayer contained in the complaint, Judge Childs signed a decree which awarded the developer damages in that amount. For the reasons which follow, we shall ⁷⁷ remand the case without affirmance or reversal for further proceedings to be conducted in the light of this opinion. Maryland Rule 871 a.

Although, as previously mentioned, throughout this litigation the appellant has created extensive confusion by raising and then subsequently either partially or completely abandoning several theories for recovery, at oral argument in this Court his attorney has made clear what in fact Missler is presently contending. Rather than pursuing his original request for reformation, appellant now urges that a proper construction of the contract as written (in particular