Nicholson Air v. Board of County Commissioners of Allegany County

HOLLANDER, Judge. This case requires us to consider several issues arising from two leasehold agreements for portions of the premises and facilities at a municipal airport. Nicholson Air Services, Inc. (“Nicholson Air”), appellant and lessee, challenges the judgments entered in the Circuit Court for Allegany County in favor of the Board of Commissioners of Allegany County (the “Board”), appellee and assignee of the leases in issue. On appeal, appellant presents four questions for our consideration, which we have reframed: I. Did the circuit court err when it granted summary judgment in favor of appellee as to appellant’s claims for breach of its lease contracts and partial summary judgment as to appellant’s claims alleging wrongful eviction and civil rights violations? ⁵⁴ II.

Did the court commit reversible error by declining to invoke its equity power to bar the forfeiture of appellant’s leases with appellee?

III

Did the court err when it found that the Potomac Highlands Airport Authority, not appellee, evicted appellant from the leasehold premises? TV. Was the court clearly erroneous in finding that appel-lee was not deprived of any rights that would entitle it to damages under 42 U.S.C. § 1983 and State law? For the reasons that follow, we shall affirm.

Factual Background The material facts are undisputed. 1 On September 6, 1983, Nicholson Air and the City of Cumberland (the “City”) entered a seven-year lease (the “Lease”) by which appellant leased portions of the City’s premises and facilities at the Cumberland Municipal Airport (“Airport”), located in Mineral County, West Virginia. The Lease covered: (1) the first floor of an administration building; (2) a maintenance hangar, constructed in 1970; (2) an older maintenance hangar; and (3) surrounding areas consisting of “runways, taxiways, parking areas, access and other roads as may be required for the operation of [the] Airport.” The Lease provided that appellant would be the fixed base operator (“FBO”) of the Airport, which involved, inter alia, selling fuel, providing aircraft maintenance, and renting out aircraft tie-down and hangar spaces. The termination date of the Lease was September 30, 1990, but it contained the following renewal clause: Upon written notice to be provided to Lessor not later than One Hundred Eighty (180) days prior to the expiration date hereof, Lessee shall have the option to renew this Lease for a further period of seven (7) years on the same terms and provisions hereof with the exception of the terms and provisions regarding rental. ⁵⁵ It is specifically agreed that Lessor and Lessee shall meet and confer on the amount of rental to be charged. Upon the failure of Lessor and Lessee to agree to a rental figure on or before ninety (90) days prior to the expiration of this Lease, any option to renew shall be void and Lessor shall have the right to lease the premises to any other party either by public competitive bid or private selection.[ 2 ] Thus, appellant’s written notice of renewal was due by April 3, 1990.

The Lease also obligated appellant to pay monthly rent of approximately $1000.00. Additionally, the Lease contained the following default provision: That if the said Lessee, or its representatives or assigns, do or shall neglect or fail to perform and observe any of the covenants contained in this instrument, which on its or their part are to be performed ... then in said case the City or those having its estate in said premises lawfully, may immediately or at any time thereafter, without further notice or demand, enter into and upon the said premises or any part thereof in the name of the whole and repossess the same as of its former estate and expel the said Lessee and those claiming under it and remove its effects without being taken or deemed guilty of trespass, all and every claim for damages, for or by reason of said reentry, being hereby expressly waived, and without prejudice to any remedies which might otherwise be used for arrears of rent, and that upon reentry as aforesaid, the term shall cease and be ended, all cumulative of the statutory remedies of the Lessor. On October 1,1985, appellant and the City entered a second lease (the “Second Lease”) involving additional property at the Airport, for the period from July 1, 1985 to June 30, 1990. The Second Lease covered an older administration building and provided for appellant to operate a flight school, dormitory facilities, and food service at the Airport.

Although the ⁵⁶ Second Lease did not include a renewal provision, it had a default provision identical to that contained in the Lease. On July 15, 1988, the Lease and the Second Lease (collectively, the “Leases”) were assigned to Allegany County. The County also assumed operational control of the Airport. In addition to serving as the FBO at the Airport, appellant operated a commuter airline called Cumberland Airlines.

Although the airline operated out of the Airport, it was not subject to the Leases. In April 1989, Dale B. Nicholson, who was the president of Cumberland Airlines and the Vice-President of Nicholson Air Services, Inc., 3 submitted a “Cumberland Airlines Business Plan” to the “Cumberland Airport Authority.” The plan discussed possible expansion of commuter air service into Dulles International Airport. It also listed five requirements in order to provide service to Dulles, including the following: 4. EXTENSION OF PRESENT FBO LEASE HELD BY NICHOLSON AIR SERVICES, INC., FOR A PERIOD OF SEVEN YEARS WITH AN OPERATOR OPTION OF SEVEN ADDITIONAL YEARS.

ANY ADDITIONAL REVENUES OR ROYALTIES PAID BY THE OPERATOR WOULD BE TIED INTO ECONOMIC GROWTH IN TERMS OF POPULATION AND EMPLOYMENT FIGURES. THIS MUST BE ACCOMPLISHED BY JULY, 1989. No action was ever taken with regard to this proposal. During the course of the two lease agreements, appellant had been late in making rental payments.

In the fall of 1989, appellant’s financial condition had deteriorated, and it was three months in arrears in its rental payments and in payment of electrical billings under the Leases. This prompted a letter from Jerry L. Frantz, Director of Finance for Allegany County, to Nicholson Air, dated December 14, 1989. The letter stated, in part: ⁵⁷ On numerous occasions, this office has sent you letters informing you of lease payments that are in arrears. Once again, we are informing you that you have not paid Allegany County for October, November and December rent totaling $4,500.

In addition, penalties and electrical billings, which total approximately $700, are unpaid. Since this is in violation of your lease agreement, please make prompt payment to this office or legal action will be taken against you. Nevertheless, appellant did not pay the rent or the electric bills. Consequently, on March 27, 1990, appellee sent a letter to appellant invoking its right to terminate the Leases and directing appellant to remove its personal property from the Airport.

On April 11, 1990, appellee filed a complaint in the Circuit Court for Mineral County, West Virginia, alleging a failure by appellant to pay rent and seeking a judgment of $12,444.33. On April 24, 1990, the Mineral County court ordered a prejudgment attachment of all of appellant’s personal property located at the Airport. On April 25, 1990, the day after the order was issued, C. William Armstrong, the Airport manager employed by appellee, wrote a letter, requesting appellant to depart and cease all business activity at the Airport. After the filing of appellee’s complaint in West Virginia, but before the entry of the order of attachment, Stanley Shapiro purchased 80% of appellant’s stock.

On April 27, 1990, he appeared before the Board and offered to pay all of appellant’s back rent, but the Board refused to accept payment. A week later, Shapiro again appeared before the Board, this time offering to pay appellant’s back rent as well as the future rent due under both Leases through September 30, 1990. Again, the Board declined the offer. On May 7, 1990, three days after having been rebuffed a second time by the Board, appellant tendered $12,769.33 to Nelson B. Michael (“Michael”), appellee’s attorney who handled the attachment action in West Virginia.

Michael accept ⁵⁸ ed the payment and gave appellant a handwritten receipt, stating: Received of Nicholson Air Service Inc. the sum of $12,769.33 in payment and satisfaction of the amount due and owing to the Board of County Commissioners of Allega-ny County, Maryland for accrued rent and court costs relating thereto. The parties stipulate and agree that upon payment of the amount of $12,769.33 that the pending action styled Board of County Commissioners of Allegany County, Maryland vs. Nicholson Air Service, Inc., Civil Action No. 90-C-108 shall be dismissed and the prejudgment order of attachment released. Both Michael and appellant’s auditor signed the receipt. On the same day, appellant sent notification to appellee of its intention to renew the Leases, even though the Second Lease did not contain a renewal option.

Obviously, appellee’s intention to renew was not exercised by the renewal deadline of April 3,1990. On May 11; 1990, four days after making payment to appellee’s counsel, the West Virginia court released the attachment of appellant’s assets. Nevertheless, between April 25, 1990 and August 17, 1990, appellee limited appellant’s access to its assets at the Airport. Armstrong, the Airport manager, retained possession of the keys and controlled appellant’s access to the hangar, fuel pumps, and its offices in the terminal building.

There was no evidence, however, that Armstrong ever denied a request by appellant for access to these facilities. Moreover, appellant had difficulties with other creditors. For example, the evidence indicated that the “fuel farm” had been attached by Fidelity Bank as a result of a judgment dated April 5,1990. In June 1990, appellee executed an Intergovernmental Agreement with the State of Maryland, the State of West Virginia, the County Commission of Mineral County, West Virginia, and the Mayor and City Council of Cumberland, Maryland, establishing the Potomac Highlands Airport Au ⁵⁹ thority (“PHAA”), a bi-state authority created to operate the Airport.

Each of the signatories to the Intergovernmental Agreement appointed members to the PHAA. One month later, the PHAA began to meet. On August 17, 1990, a notice was posted on the Airport premises and distributed to appellant’s employees, directing them to vacate the Airport. The notice was addressed to “All Officers, Directors, Employees and Agents of Nicholson Air Service, Inc. and KPT Aviation,[ 4 ] trading and doing business as Cumberland Airlines, or otherwise”; it was signed by Michael as the attorney and agent for the PHAA.

The notice stated, in full: You, and each of you, are hereby notified to immediately remove yourselves from the premises known as the Cumberland Municipal Airport located at Wiley Ford, Mineral County, West Virginia, and to remain off of such premises unless you are specifically authorized or invited thereon by the Potomac Highlands Airport Authority. In the event that you fail to abide by this notice, you will be subject to prosecution for criminal trespass. Armstrong, the Airport manager, was then being paid by appellee. He assisted Michael, the West Virginia attorney who had represented appellee in the Mineral County action, in posting and distributing the notice, with which appellant’s employees complied.

There was no evidence, however, that Michael was being paid by appellee on August 17, 1990. In the meantime, on May 81,1990, soon after appellant paid the back rent due under the Leases, appellant filed the suit at issue here, seeking a declaratory judgment establishing its contractual rights with appellee. Appellee timely answered appellant’s complaint. There was no further activity in the case until January 10, 1992, however, when the clerk for the Circuit Court for Allegany County sent a notice to the parties, stating that the case would be dismissed for lack of prosecu ⁶⁰ tion unless a written motion was filed within 30 days.

No motion was filed, and the docket indicates that the case was dismissed on February 13,1992. Nevertheless, appellant filed an amended complaint on January 26, 1993, which appellee timely answered. On March 17, 1993, the court (Sharer, J.) wrote a letter to both parties indicating that the case remained on active status. The court stated: “Although a notice of contemplated dismissal was filed in these proceedings, the matter did not proceed to actual dismissal.” A second amended complaint was filed on August 29, 1994.

The five-count complaint sought a declaratory judgment establishing the rights and obligations of the parties to the Leases (Count I) and included claims for breach of contract (Count II), breach of implied covenant of good faith and fair dealing (Count III), wrongful eviction (Count IV), and deprivation of civil rights under 42 U.S.C. § 1983 (Count V). Appellee answered and sought summary judgment on all counts. Appellant filed a cross-motion for summary judgment. The court (Thayer, J.) conducted a hearing on the motions and, on April 14,1995, granted summary judgment in favor of appellee as to the breach of contract and breach of implied covenant counts.

The court also granted summary judgment in favor of appellee as to the wrongful eviction and § 1983 claims involving activities that occurred after September 30, 1990 — the date on which the Lease was scheduled to expire. But the court concluded that “the default occasioned by non-payment of rent and the alleged conduct of the parties thereafter are not the subject of undisputed fact or inference and whether equitable intervention is appropriate must be ascertained at trial.” Consequently, a bench trial was held on the remaining counts, in which the court bifurcated the issue of damages. After the trial, the court entered judgment for appellee in all respects. As to the wrongful eviction count, the court concluded that appellant was wrongfully evicted because the notice to vacate stated that appellant’s employees would be subject to criminal trespass if they did not leave the Airport.

Nevertheless, the court found that the eviction was not caused by appellee, but instead was caused by the PHAA, which was ⁶¹ not a party to the case. As to the § 1983 count, the court concluded that, although appellee had attempted to restrict appellant’s Ml use of the Airport before June 1990 — when the Airport was placed under the authority of the PHAA — it was undisputed that [appellant] continued to occupy the premises until eviction by PHAA on August 17. For a portion of that time [appellant’s] equipment ... had been removed by attachment pursuant to the West Virginia litigation. How much, if any, of [appellant’s] then faltering business was inhibited solely by defendant’s attempts at restriction is not clear from the evidence before the Court.

For these reasons, the Court finds that judgment for [appellee] and against [appellant] on [the § 1983 claim] is appropriate. We will include additional facts in our discussion. Discussion I. Summary Judgment Appellant’s claims for breach of contract and breach of the covenant of good faith and fair dealing concern appellee’s refusal to accept appellant’s option to renew the Lease and appellee’s refusal to renegotiate the Leases. Appellant argues that the trial court erred in granting summary judgment in favor of appellee because a genuine dispute of material fact existed regarding appellant’s exercise of its option to renew the 'Lease.

Specifically, appellant contends that it validly exercised the renewal option when it submitted the Cumberland Airlines Business Plan to appellee on April 26, 1989. Maryland Rule 2-501 establishes a two-part test for summary judgment. “In deciding a motion for summary judgment ... the trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law.” Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see also Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. ⁶² 557, 580-81, 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992).

On review, like the trial court, we must determine whether there are any genuine disputes of material fact. Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 206 , 680 A.2d 1067 (1996); Hartford Ins. Co. v. Manor Inn ofBethesda, Inc., 335 Md. 135, 144 , 642 A.2d 219 (1994). A material fact is one that “will alter the outcome of the case depending upon how the factfinder resolves the dispute over it.” Bagwell, 106 Md.App. at 489 , 665 A.2d 297 ; see also King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985).

In this regard, all factual disputes are resolved in favor of the non-moving party. Moreover, all inferences reasonably drawn from the facts must be resolved in favor of the non-moving party. Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 387 , 693 A.2d 370 (1997); see also Berkey v. Delia, 287 Md. 302, 304-05 , 413 A.2d 170 (1980); Maloney v. Carling Nat’l Breweries, Inc., 52 Md.App. 556, 560-61 , 451 A.2d 343 (1982). To defeat the motion for summary judgment, the party opposing the motion must produce evidence demonstrating that the parties genuinely dispute a material fact.

Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994); Fearnow v. Chesapeake & Potomac Tel. Co., 104 Md.App. 1, 49 , 655 A.2d 1 (1995), aff'd. in part and rev’d in part, 342 Md. 363 , 676 A.2d 65 (1996). “[Mjere general allegations which do not show facts in detail and with precision” are not sufficient to demonstrate a factual dispute that will defeat the motion. Beatty, 330 Md. at 738 , 625 A.2d 1005 . If there are no disputes of material fact, the trial court resolves the case as a matter of law.

Fearnow, 104 Md.App. at 48 , 655 A.2d 1 . We then review the trial court’s decision to determine whether the court reached the correct legal result. Beatty, 330 Md. at 737 , 625 A.2d 1005 . Appellate courts generally review a grant of summary judgment based “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see also Gross v. ⁶³ Sussex, 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993); Hoffman v. United Iron and Metal Co., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996).

Because this case involves a lease contract, it requires an interpretation of the relevant terms. In the first instance, absent any ambiguity, this involves a question of law for the court to resolve. See JBG/Twinbrook Metro Ltd. Partnership v. Wheeler, 346 Md. 601, 625 , 697 A.2d 898 (1997); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs.

Ltd. Partnership, 109 Md.App. 217, 290-91 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997); Shapiro v. Massengill, 105 Md.App. 743, 754 , 661 A.2d 202 cert. denied, 341 Md. 28 , 668 A.2d 36 (1995); McIntyre v. Guild, Inc., 105 Md.App. 332, 355 , 659 A.2d 398 (1995). When the language of the contract is ambiguous, however, the ambiguity must be resolved by the trier of fact. Shapiro, 105 Md.App. at 754-55 , 661 A.2d 202 . The principal rule in the interpretation of contracts is to effect the intentions of the parties.

Kasten Constr. Co. v. Rod Enters., Inc., 268 Md. 318, 328 , 301 A.2d 12 (1973); McIntyre, 105 Md.App. at 355 , 659 A.2d 398 ; Taylor v. Feissner, 103 Md.App. 356, 373 , 653 A.2d 947 , cert. denied, 339 Md. 355 , 663 A.2d 73 (1995). “The primary source for determining the intention of the parties is the language of the contract itself.” Scarlett Harbor, 109 Md.App. at 291 , 674 A.2d 106 . When the language of the contract is clear, the court will presume that the parties intended what they expressed, even if the expression differs from the parties’ intentions at the time they created the contract. Roged, Inc. v. Paglee, 280 Md. 248, 254 , 372 A.2d 1059 (1977); Scarlett Harbor, 109 Md.App. at 291 , 674 A.2d 106 ; McIntyre, 105 Md.App. at 355 , 659 A.2d 398 ; Shapiro, 105 Md.App. at 754 , 661 A.2d 202 ; Bernstein v. Kapneck, 46 Md.App. 231, 244 , 417 A.2d 456 (1980), aff'd, 290 Md. 452 , 430 A.2d 602 (1981).

In this case, the Lease’s renewal clause provided that, in order to effectuate the option, appellant had to provide “written notice ... to [appellee]” not later than 180 days prior ⁶⁴ to expiration of the Lease. (Emphasis added). This provision is unambiguous, and appellant does not deny that notice of renewal had to be made in writing. Nevertheless, appellant contends that a genuine dispute of material fact exists as to whether a provision in the Cumberland Airlines Business Plan constituted notice to renew the Lease.

The plan was a four-page document submitted to the “Cumberland Airport Authority” on April 26, 1989, approximately one year prior to the latest possible renewal date. As noted, it focused on potential expansion of service into Dulles International Airport by Cumberland Airlines. As part of the expansion proposal, the plan provided: “EXTENSION OF PRESENT FBO LEASE HELD BY NICHOLSON AIR SERVICES, INC., FOR A PERIOD OF SEVEN YEARS WITH AN OPERATOR OPTION OF SEVEN ADDITIONAL YEARS.” It is this clause that appellant asserts constituted notice to renew its Lease. The trial court rejected appellant’s contention, stating: This language was simply not a written notice of plaintiffs intention to renew the primary lease for a term of seven years, but is merely one of five conditions proposed as necessary to accomplish improved and additional air service.

It does not even lend itself inferentially to an exercise of the right of renewal without an impermissible flight of fancy. We completely agree with the trial court. Appellant cites Katz v. Pratt Street Realty, Co., 257 Md. 103 , 262 A.2d 540 (1970), for the proposition that “[a] proper notice of acceptance is not made inoperative by the fact that it is accompanied by a proposal for some other substitute arrangement subject to the other party’s consent.” Id. at 118 , 262 A.2d 540 (quoting 1A Corbin on Contracts § 264 (1963)). Appellant ignores the preceding sentence in that case, however: “It is well settled that to be valid, the exercise of an option must be unequivocal and in accordance with the terms of the option.” Id.

(emphasis added). The cited provision in the Cumberland Airlines Business Plan is not the least bit unequivocal. Moreover, it was submitted by the air carrier ⁶⁵ component of appellant’s business, which, as appellant insists elsewhere in its brief, was not covered by either lease. Further, appellant relies on Reis v. Sparks, 402 F.Supp. 1393 (D.Md.1975), aff'd, 547 F.2d 236 (4th Cir.1976), for the proposition that the court should have looked at extrinsic evidence to consider the parties’ intent.

Specifically, appellant points to the affidavits of two of its officers who stated that, almost one year after the Cumberland Airlines Business Plan was submitted, they had orally informed appellee of the company’s intention to exercise the Lease renewal option. Appellant’s reliance on Reis is misplaced. There, the court held that a letter from the appellee was sufficient to exercise an option to purchase appellant’s land. The letter, sent directly from appellee to appellant, included the following sentence: “Pursuant to the contract of sale agreement entered into between yourselves as sellers and my wife and me as buyers of your farm property located in Frederick County ..., please be advised that it is our intention to exercise the option, included as part of said contract, to purchase the balance of the land.... ” Id. at 1398 .

The court concluded that use of “an element of the future tense does not preclude an interpretation of an immediately operative acceptance.” Id. (quotation omitted). In contrast, as we have indicated, the language of the Cumberland Airlines Business Plan was not an unequivocal acceptance, nor did it express an intention to renew the Lease between Nicholson Air and appellee. Moreover, because the contract required a written renewal, any oral statements of appellant’s employees were ineffective and thus did not create any genuine issues of material fact.

Appellant also argues that its failure to tender renewal was excused because appellee repudiated the Lease. Appellant cites no case law for this argument; instead it relies on 77 Am.Jur.2d § 54 (1997). We read that section of the treatise to stand for the proposition that tender may be excused in some instances when the optioner repudiates the contract, but the optionee must nonetheless indicate a definite acceptance and ⁶⁶ willingness to proceed with the contemplated transaction. Even if we were to adopt this proposition, there is no evidence here to indicate that appellant, as optionee, conveyed a definite acceptance and willingness to proceed with the Lease renewal until after the period for doing so had expired.

Therefore, we hold that the trial court correctly concluded that there was no genuine dispute of material fact and that appellant did not timely effectuate a renewal of the Lease in accordance with the parties’ agreement. Thus, we shall affirm the entry of summary judgment with regard to counts II and III. Moreover, because the Lease was not renewed, and thus not extended beyond the express expiration date of September 30, 1990, the court correctly granted partial summary judgment in favor of appellee as to counts IV and V for any events occurring after September 30,1990.

II

Trial The remaining issues arise from the bench trial. Rule 8-131(c) establishes our standard of review: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. See In re Joshua David C., 116 Md.App. 580, 592 , 698 A.2d 1155 (1997) (“Indeed, we accept the facts as found by the hearing judge, unless clearly erroneous.”); State v. Johnson, 108 Md.App. 54, 70-71 , 670 A.2d 1012 (1996).

If the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous. Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834 (1975); Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners, 115 Md.App. 5, 31 , 691 A.2d 750 , cert. dismissed, 347 Md. 622 , 702 A.2d 260 (1997). “Therefore, if ‘competent material evidence’ supports the trial court’s findings, we must uphold them and cannot set them ⁶⁷ aside as ‘clearly erroneous.’ ” Johnson, 108 Md.App. at 71 , 670 A.2d 1012 . It is not our function to substitute our judgment for that of the fact finder, even if we might have reached a different result.

Instead, we must “decide only whether there was sufficient evidence to support the trial court’s findings. In making this decision, we must assume the truth of all the evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusions of the lower court.” Mercedes-Benz v. Garten, 94 Md.App. 547, 556 , 618 A.2d 233 (1993); see also Johnson, 108 Md.App. at 71 , 670 A.2d 1012 . We review the lower court’s application of law to the facts based on an abuse of discretion standard. Pierce v. Montgomery County, 116 Md.App. 522, 529 , 698 A.2d 1127 (1997). a.

Waiver of Forfeiture and Denial of Equitable Relief There is no dispute that appellant breached its Leases by failure to pay rent. Nor is there any dispute that appellee sent notice to appellant terminating the Leases as a result of appellant’s breach. Instead, we consider whether appellee waived forfeiture of the Leases or if equity should intervene to prevent forfeiture. In its brief, appellant appears to conflate waiver of forfeiture with denial of equitable intervention.

Nevertheless, we will consider the issues individually, as the resolution of the waiver issue is important to our discussion of equitable intervention. See, e.g., Rose and Crown, Ltd. v. Shaw Enters., Inc., 28 Md.App. 548 , 346 A.2d 459 (1975) (considering waiver and equitable relief separately). i. Waiver ‘Waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such a right.” Chertkof v. Southland Corp., 280 Md. 1, 5 , 371 A.2d 124 (1977); see also Food Fair Stores, Inc. v. Blumberg, 234 Md. 521, 531 , 200 A.2d 166 (1964); Gould v. Transamerican Assocs., 224 Md. 285, 294 , 167 A.2d 905 (1961). The “universal” rule in Maryland is that “waiver ⁶⁸ of forfeiture may occur by an acceptance of rent which accrues after the lessor is on notice that a breach has been committed by the lessee.” Chertkof, 280 Md. at 6 , 371 A.2d 124 .

The issue is one of intent, which turns on the factual circumstances of the case. Id. Appellant contends that the combination of the following actions waived forfeiture of the lease: 1. Appellee accepted $12,769.33 in arrears on May 7, 1990. 2.

Appellee failed to object to the renewal letter of May 7, 1990. 3. Appellee provided limited access to the airport between March 27,1990 and August 17,1990. 4. Appellee failed to take any possessory action in court. According to appellant, the facts in Chertkof are so similar to those in this case that it should “control the outcome.” The facts of the cases, however, are easily distinguishable.

In Chertkof , notwithstanding a covenant in the lease barring assignment of the premises without the lessor’s written consent, the lessee assigned the lease without the lessor’s written approval. When the lessor learned of the assignment, the lessor wrote a letter to its lessee canceling the lease and declaring it null and void. The letter also stated that the acceptance of checks from the subtenants as payment of rent would not be construed as an approval of the assignment. Thereafter, the lessor accepted rental payments from the subtenants for over two years.

The lessor and assignee also unsuccessfully engaged in negotiations for a new lease. Subsequently, the lessor sued the lessee for ejectment and damages. The trial court found that the lessee had breached, but concluded that the lessor waived the breach by its subsequent acceptance of accrued rent from the assignee after learning of the breach, notwithstanding the lessor’s reservation to the contrary in the letter to its lessee. The Court of Appeals affirmed the trial court, concluding that its findings were not clearly erroneous.

The Court emphasized, however, that the trial court’s finding of waiver ⁶⁹ was based not only on the lessor’s acceptance of the subsequently accrued rent from the assignee, but also on the lessor’s negotiations for a new lease with the subtenant, which continued over a period of months before the lessor sued for ejectment and damages. “From all this, the [trial] court found that the true intention of the lessor, rather than to enforce the lease, was to negotiate a more lucrative lease.” Chertkof, 280 Md. at 9 , 371 A.2d 124 . In the case sub judice, appellee sued for past rent due and for rent for April 1990, when Nicholson Air remained at the Airport after appellee had terminated the Lease. The court found that appellee’s subsequent acceptance on May 7, 1990, of $12,769.33 in rent “effect[ed] a release of [appellant’s] airplanes[ 5 ] and equipment in May. No payment of rent was thereafter made or even tendered although [appellant] continued to occupy the premises until the final notice to quit was delivered August 17.” The court’s finding was supported by substantial evidence, including, inter alia: (1) evidence that the Board had refused to accept appellant’s tender of payment for future rent; (2) the receipt from appellee’s counsel stating that the payment was “in payment and satisfaction of the amount due and owing” to appellee; (3) additional language in the receipt that “upon payment of the amount of $12,769.33 that the pending action [for attachment] shall be dismissed and the prejudgment order of attachment released”; and (4) evidence that appellant tendered no other payments to appellee, even though appellant continued to occupy the Airport. ⁷⁰ The factual circumstances of the case sub judice and Chert-kof are strikingly different.

There, when the lessor accepted rental payments for more than two years after stating that it was terminating the lease, the court determined that the lessor’s “true intention” was to renegotiate a new lease. Unlike in Chertkof , the facts of this case demonstrate appellee’s unwavering intention not to forgive appellant’s failure to pay rent. It is undisputed that, on two occasions, appellee refused to accept appellant’s tender of rent. It was only after these two unequivocal rejections that appellant traveled to West Virginia, where appellee’s counsel accepted a check for $12,-769.33 in payment for accrued rent and court costs relating to the suit appellee filed in Mineral County.

Moreover, appellant concedes, as it must, that this payment did not include any future rent. Nor was there any evidence that appellee engaged in negotiations with appellant for a new lease. Therefore, we conclude that the trial court was not clearly erroneous in finding that appellee did not waive forfeiture. ii. Equitable Relief from Forfeiture Equitable relief from forfeiture is a cousin of the legal doctrine of waiver.

It is “an offshoot of the disfavor with which the courts will view a forfeiture.” Rose and Crown, 28 Md.App. at 557 , 346 A.2d 459 . As the Court observed in that case, ⁷¹ Id. at 558 , 346 A.2d 459 (quoting Wylie v. Kirby, 115 Md. 282, 287 , 80 A. 962 (1911)) (emphasis and internal quotation omitted). ⁷⁰ “Courts of equity are only closed against the tenant where the forfeiture is incurred by his wilful and culpable neglect to fulfill the terms of his covenant and not in cases where the omission has been occasioned by an inevitable accident. And the general rule to be applied to all such cases seems to be that Courts of equity will relieve where the omission and subsequent forfeiture are the result of mistake or accident and the injury and inconvenience arising from it are capable of compensation; but where the transaction is wilful, or the compensation impracticable, they invariably refuse to interfere.” ⁷¹ Appellant argues that Evergreen Amusement Corp. v. Pacheo, 218 Md. 230, 233 , 145 A.2d 774 (1958), dictates that equity should relieve its forfeiture. In that case, the issue on appeal was whether equity should have granted relief from forfeiture of a lease, because the tenant had tendered all of the past-due rent.

The Court upheld the trial court’s decision that the lease had been forfeited. The Court observed that, because the tenant was insolvent, the landlord was entitled to possession of the property because there was a likelihood that the tenant could not meet future rent obligations. Id. at 235 , 145 A.2d 774 . In this case, however, appellant argues that its offer to pay the past rent and all future rent in advance eliminated any possible harm to appellee.

Thus, appellant asserts,