WESTON BUILDERS & DEVELOPERS, INC. v. McBERRY, LLC

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). I. The Threshold Question of Mootness The appellee, McBerry, LLC (“McBerry”), asks us to dismiss this appeal for mootness. The appellant, Weston Builders & Developers, Inc. (“Weston”), has filed a Response in Opposition. The resolution of this threshold issue ironically requires us to address issues as challenging as those raised in the main appeal itself.

On March 7, 2002, Weston and McBerry entered into a contract in which McBerry agreed to sell and Weston agreed to buy forty-six (46) building lots in Charles County. On May 25, 2004, Weston filed an Amended Complaint seeking, inter alia, specific performance of the contract. After a three-day non-jury trial in the Circuit Court for Charles County, the trial judge, on February 2, 2005, granted McBerry’s motion for judgment, and on February 8, judgment was entered in favor of McBerry. Weston filed this appeal on March 4.

During the pendency of the appeal, McBerry, on October 7, 2005, deeded all 46 of the lots to Maryland Homes, PF. McBerry now claims that because the property has been sold to a bona fide third party purchaser, the relief sought by Weston can no longer be granted and that the appeal, therefore, is moot. Weston parries with the Doctrine of Lis Pendens, by virtue of which the purchaser would not have been fully protected. Lis Pendens, Generally Lis pendens is a common law doctrine.

Literally, it is Latin for “lawsuit pending.” It has given rise to the maxim Penden-te lite nihil innovetur (“During the pendency of a litigation, nothing new shall be introduced.”). Inloes v. Harvey, 11 Md. 519, 525 (1857). The obviously related adverbial phrase “pen- ³⁰ dente lite” is etymologically indistinguishable but, legally, enjoys far wider applicability. The two related but distinct purposes of lis pendens are revealed by definitions 2 and 3 of it in Black’s Law Dictionary (7th ed. 1999): 2.

The jurisdiction, power, or control acquired by a court over property while a legal action is pending. 3. A notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pen-dency of the suit are subject to its outcome. 2 J. Pomeroy, A Treatise on Equity Jurisprudence, § 632 (5th ed. S. Symons 1941), pp. 727-28, states the undergirding rationale: [T]he law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. ... [It is upon this principle of public policy, the object of which is to prevent parties from making a conveyance pendente lite of the property or thing which is the subject-matter of the controversy and thus defeat the execution of the court’s decree, that the weight of modern authority bases the doctrine of lis pendens.] (Emphasis supplied).

See also Creative Development Corp. v. Bond, 34 Md.App. 279, 284 , 367 A.2d 566 (1976). In § 633, p. 730, Professor Pomeroy sets forth the general rule of lis pendens: “[T]he general and established rule is,” using the language carefully chosen by Chancellor Kent in a leading case, “that a lis pendens — a pending suit in equity — duly prosecuted, and not collusive, is notice to a purchaser of the property in ³¹ dispute from a party to the litigation, so as to affect, and bind his interest by the decree; and the Us pendens begins from the sendee of the subpoena after the bill is filed.” Wherever, therefore, an equitable suit affecting the title to a particular estate as its subject-matter has been begun by service of process, and is prosecuted in good faith, whether we say that the lis pendens is constructive notice to all the world, or regard the doctrine as necessarily resting upon a basis of expediency, the result is the same; an alienee of the subject-matter from either party during the pendency of the suit takes it subject to the rights of the other party involved in the controversy, and is bound by the decree or judgment finally rendered. (Emphasis supplied). Depending upon the issue before the court in the case of the hour, appellate opinions fluctuate between looking to 1) notice to prospective purchasers and 2) the control of the courts over property while litigation is pending as the undergirding purpose of Us pendens.

Both, of course, are part of the raison d’etre, and the emphasis will shift from one to the other depending on the analytic need of the moment. 5 Herbert T. Tiffany, The Law of Real Property, § 1294 (3rd ed. 1939), offered its take on the generative purpose: The doctrine of lis pendens by which one purchasing land from a party to a pending litigation concerning such land takes subject to the results of such litigation, is properly based, it would seem, not on the theory that such purchaser has notice of the adverse claim, but rather on the principle that, pending the litigation, a party thereto cannot transfer his rights in the land to others, so as to prejudice another party to the litigation, since otherwise the decision might be utterly ineffectual. Maryland is one of a handful of states that recognize Us pendens in its common law form. Janice Gregg Levy, Comment, “Lis Pendens and Procedural Due Process: A Closer Look After Connecticut v. Doehr,” 51 Md. L. Rev. 1054 , 1087 (1992). Albeit without expressly using the phrase “Us pen- ³² dens” (at least in noun form), the Court of Appeals nonetheless applied the doctrine as early as 1823 in Tongue v. Morton, 6 H. & J. 21 , 23-24: And upon principle, it would seem fit that persons who come into the possession of the land pendente lite, claiming title to it under the parties to the bill, ... should stand in the same predicament with those whom they represent in point of interest, on the ground that their condition cannot be better than that of those under whose authority they have obtained the possession.

(Emphasis supplied). The Court of Appeals referred to lis pendens by name in Feigley v. Feigley, 7 Md. 537, 563 (1855), and, as of Inloes v. Harvey, 11 Md. at 524 -25 in 1857, it was quoting fully from 1 Joseph Story, Equity Jurisprudence, § 406. “Ordinarily, it is true, that the decree of a court binds only the parties and their privies in representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title. The litigating parties are exempted from taking notice of the title so acquired; and such purchaser need not be made a party to the suit.

Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy, for otherwise, alienations made during a suit might defeat its whole purpose; and there would be no end to litigation. And hence arises the maxim, pendente lite nihil innovetur; the effect of which is, not to annul the conveyance, but only to render it subservient to the rights of the parties in litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.” (Emphasis supplied).

In the intervening 150 years, the Court of Appeals has routinely recognized and applied the doctrine of lis pendens. Applegarth v. Russell, 25 Md. 317, 320-21 (1866); Hall v. Jack, 32 Md. 253, 264-65 (1870); Stockett v. Goodman, 47 Md. ³³ 54, 60 (1877); Sanders v. McDonald, 63 Md. 503, 509 (1885); Taylor v. Carroll, 89 Md. 32, 36 , 42 A. 920 (1899); Walzl v. King, 113 Md. 550, 556 , 77 A. 1117 (1910); Rupp v. Rogers, 118 Md. 534 , 85 A. 774 (1912); Corey v. Carback, 201 Md. 389, 403-04 , 94 A.2d 629 (1953). See also Price v. McDonald, 1 Md. 403, 412 (1851). In the last 30 years, this Court has also consistently applied the doctrine.

Creative Development Corp. v. Bond, 34 Md.App. 279, 283-85 , 367 A.2d 566 (1976); Amabile v. Winkles, 34 Md.App. 435, 439 , 367 A.2d 58 (1977); Angelos v. Maryland Casualty Co., 38 Md.App. 265, 268 , 380 A.2d 646 (1977); Kirkpatrick v. Gilchrist, 56 Md.App. 242 , 248 n. 2, 467 A.2d 562 (1983); Fiol v. Howard County Board of Appeals, 67 Md.App. 595, 603-04 , 508 A.2d 1005 (1986); Permanent Financial Corp. v. Taro, 71 Md.App. 489, 492-95 , 526 A.2d 611 (1987), cert. granted, 311 Md. 193 , 533 A.2d 670 (1987), appeal dismissed, January 26, 1988; Warfel v. Brady, 95 Md.App. 1, 7-8 , 619 A.2d 171 , cert. denied, 331 Md. 88 , 626 A.2d 371 (1993). The truly definitive analysis of lis pendens in Maryland, however, had to await the opinion by Judge Bell (now Chief Judge Bell) for the Court of Appeals in DeShields v. Broadwater, 338 Md. 422, 432-42 , 659 A.2d 300 (1995). The Court of Appeals discussed, inter alia, two of the key requirements for the attachment of the doctrine, both of which have been indisputably satisfied by Weston in the case before us. The lis pendens doctrine, at least in Maryland, applies exclusively to proceedings involving real property.

Judge Bell explained, 338 Md. at 435 , 659 A.2d 300 . Lis pendens has no applicability ... except to proceedings directly relating to the title to the property transferred or in which the ultimate interest and object is to subject the property in question to the disposal of a decree of the court. See also Corey v. Carback, 201 Md. at 403 , 94 A.2d 629 ; Applegarth v. Russell, 25 Md. at 321 ; Feigley v. Feigley, 7 Md. at 563 ; Warfel v. Brady, 95 Md.App. at 8 , 619 A.2d 171 . ³⁴ Indeed, Maryland Rule 12-102(a), 1 describing the scope of lis pendens in Maryland, expressly restricts that scope to actions affecting real property. (a) Scope.

This Rule applies to an action filed in a circuit court or in the United States District Court for the District of Maryland that affects title to or a leasehold interest in real property located in this State. (Emphasis supplied). Subsection (b) again refers to real property: In an action to which the doctrine of lis pendens applies, the filing of the complaint is constructive notice of the lis pendens as to real property in the county in which the complaint is filed. [2] (Emphasis supplied). See Permanent Financial Corp. v. Taro, 71 Md.App. at 495 , 526 A.2d 611 (“We believe ... that the BD Rules [now Rule 12-102] implicitly acknowledge that the doctrine of lis pendens, as applied in Maryland, will ³⁵ operate against only real or leasehold property ... ”).

(Emphasis supplied). Weston’s demand for specific performance, whereby McBer-ry would be “ordered to transfer the title and possession of the aforesaid property Lots to plaintiff,” was most assuredly litigation affecting real property. Because, moreover, both the locus of the property and the forum for the lawsuit are in Charles County, we look to the first sentence of Maryland Rule 12-102(b), which provides that “the filing of the complaint” itself was all that was required to put all potential alienees of the property on constructive notice of Us pendens. The full subsection reads: (b) Creation — Constructive notice.

In an action to which the doctrine of lis pendens applies, the filing of the complaint is constructive notice of the Us pendens as to real property in the county in which the complaint is filed. In any other county, there is constructive notice only after the party seeking the lis pendens files either a certified copy of the complaint or a notice giving rise to the lis pendens, with the clerk in the other county. (Emphasis supplied). The second key requirement for the attachment of Us pendens described by DeShields v. Broadwater is the initiation of notice.

The filing of the legal action is the trigger. If the filing of the claim precedes the alienation of the property, the alienee (and, indeed, all of Charles County) have been put on notice of Us pendens and, accordingly, the alienee takes the property subject to a cloud on the title. If, on the other hand, the alienation of the property precedes the filing of the claim, Us pendens does not apply. Judge Bell, 338 Md. at 435-36 , 659 A.2d 300 , made the timing of the attachment of the doctrine very clear.

Unless the transfer of the property occurs after the suit which provides Us pendens notice is filed, the doctrine does not apply. Because Us pendens is triggered by the initiation of litigation affecting the title to real property, ordinarily ³⁶ whether the plaintiff in that litigation has knowledge of the transfer of the property is not an issue. Thus, when, after the complaint has been filed, the defendant transfers his or her interest in the property which is the subject of the lawsuit, lis pendens applies to subject that property to the result of the pending litigation whether or not the plaintiff is aware of the transfer.... As we have seen, where the defendant’s interest in the property is transferred prior to the initiation of the action affecting title to that property, lis pendens does not apply.

(Emphasis supplied). See also Angelos v. Maryland Casualty Co., 38 Md.App. at 268 , 380 A.2d 646 (“Angelos’s property interest was acquired through a mortgage obtained prior to the commencement of the litigation upon which Maryland Casualty’s lis pendens claim rests, and therefore is not subject to the operation of the doctrine.”); Hall v. Jack, 32 Md. at 263-64 (“In order to be entitled to intervene in the suit or claim title to the property, it ought to appear affirmatively that his title as assignee, or that of McKenzie under whom he claims, was acquired before the pendency of the suit. If acquired after suit brought, he is affected by the lis pen-dens.”). In this case, the front-end timing was no bar to the attachment of lis pendens.

The claim for specific performance was filed by Weston on May 11, 2004. The 46 lots that were the subject of the suit were sold by McBerry to Maryland Homes, PF on October 7, 2005. The pertinent challenge to the vitality of lis pendens involves not a question of when it became operational, but of how long it remained so. The Continuing Vitality of Lis Pendens Through the Appellate Process Deferring for the moment any consideration of the possible impact of extrinsic factors such as supersedeas bonds or stays of enforcement or execution, we will first examine the natural life span of lis pendens.

Unaffected by outside procedural events, will it, in the ordinary course of events, expire with the rendering of a nisi prius judgment in the suit that gave birth to it? Or will it retain its vitality through the continuation of ³⁷ the entire litigation, to wit, through the end of the appellate process? It is clear that lis pendens does not die a natural death as the curtain falls on the nisi prius proceedings. Indeed, there are resonances of Newton’s First Law of Motion in the legal principle that lis pendens, once in motion, will continue in motion in the same direction and with the same operational effect unless acted upon by a force.

Pomeroy’s Equity Jurisprudence, § 634b, pp. 739-40, describes generally the continuing efficacy of lis pendens through the end of the appellate process. Even a judgment in favor of the defendant does not necessarily at once terminate the lis pendens. If the unsuccessful party is entitled, to appeal, the constructive notice continues during a, reasonable time for an appeal to be taken. This is on the ground that where the law gives a right of review to an appellate court, all persons are necessarily charged with notice thereof, and Us pendens is adequate to give a litigant protection until he can pursue all the remedies to which he is entitled in the action.

(Emphasis supplied). The standard legal encyclopedias uniformly speak to the same effect. 51 American Jurisprudence 2d 729, “Lis Pen-dens,” § 67, states: The decisions contain numerous examples of situations in which a person who purchases property after the entry of the judgment of the trial court in an action affecting the property, within contemplation of the doctrine of lis pen-dens, and, also after review proceedings have been formally initiated\ is looked on as a, pendente lite purchaser, in the sense that he takes the property subject to the outcome of the review proceedings. Also, it is generally held, that Us pendens continues to be effective after a judgment and pending appeal. (Emphasis supplied). 54 Corpus Juris Secundum 518-19, “Lis Pendens,” § 30, similarly confirms the continuing vitality of the doctrine through the appeals process. ³⁸ Lis pendens operates until the time to ask for or seek an appeal has expired.

Thus a valid notice of lis pendens remains effective as constructive notice of the action referred to therein only until the time for appeal therefrom has ended. Additionally, once appeal has been requested, lis pendens continues to be effective after judgment and pending appeal. (Emphasis supplied). In Annotation, “Lis Pendens: Grounds for Cancellation Prior to Termination of Underlying Action, Absent Claim of Delay,” 49 A.L.R.4th 242 , 247, it is observed: As a general rule, once the doctrine of lis pendens comes into operation with respect to particular litigation, it remains in operation until the rendition of a final decision that puts a definite end to the litigation.

(Emphasis supplied). The caselaw confirming the continuing vitality of lis pen-dens through the appeal process, albeit scant, is unwavering. The Supreme Court of Michigan described that vitality in Maedel v. Wies, 309 Mich. 424, 429 , 15 N.W.2d 692, 694 (1944): The effect of the suit, and the filing of the requisite notice under the statute upon purchaser or mortgagors pendente lite, continues through the entire time of its pendency, and ends when the suit is actually ended by a final decree. The notice of Us pendens, once filed, continues in effect during the time allowed for appeal and during consideration by this court of such appeal, and can only be terminated by a final decree.

(Emphasis supplied). The Supreme Court of Kansas wrote to the same effect in Kremer v. Schutz, 82 Kan. 175 , 107 P. 780, 781 (1910). When the divorce proceeding was begun in which Mrs. Kremer made a distinct claim to the land as her separate property, it was lis pendens as to one who leased or ³⁹ otherwise acquired a right in the land during the litigation. While the judgment of the district court awarding the land to John L. Kremer was what is termed a final judgment, it was subject to appeal, and an appeal was, in fact, taken from the judgment before the lease was executed.

In contracting for the use of the land on the basis of that judgment, Schütz was bound to know that it was subject to appeal, and that an appeal had been taken. The litigation had not ended in the rendition of the judgment, and; although it may have seemed to Schütz that Mr. Kremer might ultimately win, he still took the risk of a reversal and of the final outcome of the litigation. (Emphasis supplied). See also Pachner v. Hoppas, 119 Kan. 415 , 239 P. 967 (1925).

As early as 1900, the Supreme Court of Iowa had relied on that same continuing vitality in Olson v. Leibpke, 110 Iowa 594 , 81 N.W. 801, 802 . The primary object of the rule of lis pendens is to keep the property within the power of the court until final judgment or decree shall be entered.... The rule under the common law, and the rule which has been generally followed by the courts where there is no statute affecting the question, is that lis pendens continues until the suit is determined by final decree, or until it is suspended by failure to make what is called a “full prosecution.” It is also held that an appeal from a final judgment of an inferior court continues the lis pendens during the pendency of the appeal. (Emphasis supplied).

The Supreme Court of Indiana, in Dunnington v. Elston, 101 Ind. 373 (1885), held squarely that lis pendens notice continues unabated through the appellate phase of a litigation. The plaintiff in that case brought a suit in ejectment but lost at the trial court level. Following that judgment in the trial court, the successful defendant sold the real property in question to a third party. The plaintiff subsequently filed a timely appeal, and the Indiana Supreme Court reversed the judgment of the trial court.

In the subsequent battle between ⁴⁰ the original plaintiff and the third-party purchaser, the Supreme Court held that the lis pendens notice continued in full force through the appeals process and that the purchaser took the property subject to the full risk that the trial court’s judgment might be reversed on appeal. [The purchaser] took his title within the time in which by - law [the plaintiff] had the right to appeal, and thereby he took the hazard of the appeal and the reversal of the judgment, and now that the appeal was taken, and the judgment under which he claims is reversed, he can not say he was a purchaser in good faith and invoke the aid of the statute. A construction of the statute such as the appellant contends for would practically destroy the right of appeal in cases where the title to land is involved, by putting it within the power of the prevailing party below to render an appeal unavailing by a transfer of the title. (Emphasis supplied). We are guilty, however, of gilding the lily.

To support the conclusion that lis pendens in Maryland is not automatically terminated by a judgment in the circuit court, one need look no further than Maryland Rule 12-102 itself. Subsection (c) deals in detail with when and how such a termination may be effected. Significantly, subsections (1) and (2) treat differently two distinct stages of the litigation. (1) While action is pending.

(2) Upon conclusion of action. Our concern in this case is with sub-subsection (2). It does not provide that lis pendens is automatically terminated “upon conclusion of action” at the nisi prius level. It does not provide that lis pendens ever terminates automatically.

It sets out, rather, three precise sets of circumstances under which lis pendens may be terminated, if (but only if) certain further procedural steps are taken. Necessarily implicit in subsection (c) is that if none of those three sets of circumstances is present, the lis pendens will continue in full force. The three sets of circumstances are: ⁴¹ (A) the action is dismissed, or (B) judgment is entered in favor of the defendant and [1] a timely appeal is not taken, or [2] the judgment is affirmed on appeal, or (C) judgment in favor of the plaintiff is reversed on appeal, vacated, or satisfied.... Even if one of those sets of circumstances obtains, moreover, subsection (c) goes on to provide two alternative procedural modalities by which the lis pendens may then be formally terminated: [1] [T]he plaintiff shall file a certified copy of the appropriate docket entry with the clerk in each county in which a certified copy of the complaint or notice was filed pursuant to section (b) of this Rule. [2] If the plaintiff fails to com,ply with this subsection, the court with jurisdiction over the action, on motion of any person in interest and upon such notice as the court deems appropriate in the circumstances, may enter an order terminating the Us pendens.

(Emphasis supplied). What is now Rule 12-102(c) replaced former Rule BD3 on January 1, 1997. The new rule distinguished for the first time between 1) terminating Us pendens “while action is pending” and 2) terminating Us pendens “upon conclusion of action.” In the latter situation, the new rule for the first time also specified those circumstances under which Us pendens could be terminated at the conclusion of the action. In the 132nd Report of the Rules Committee to the Court of Appeals, dated November 6, 1995, the Reporter’s Note commented on the new provisions controlling termination.

In subsection (c)(1) the Committee has provided a motion procedure for seeking termination of the lis pendens during the pendency of the action. The motion must be filed in the court in which the action is pending, even when the movant is seeking termination of the lis pendens in another county. Subsection (c)(2) prescribes the procedure for terminating the Us pendens after conclusion of the action by one of the specified events. The burden of notifying other counties in ⁴² which constructive notice of the lis pendens has been established pursuant to section (b) of the rule is imposed on the plaintiff.

The motion procedure applicable in the event the plaintiff fails to comply with the subsection essentially tracks the procedure set forth in Rule 2-626 (Satisfaction of Judgment). It also is similar to the procedures currently prescribed by the Codes of New Jersey and New York. (Emphasis supplied). In this case, the purchaser of the 46 lots on October 7, 2005, is twice bereft in terms of still being on notice of the potential cloud on the title.

None of the three sets of circumstances listed in Rule 12-102(c)(2) came to pass. Under sub-subsection (B), judgment had been entered in the circuit court in favor of the defendant, McBerry, but 1) an appeal by Weston had been taken and 2) the circuit court’s judgment has not been affirmed on appeal. The only remotely pertinent precondition for a termination of lis pendens thus did not apply. Even if, however, the analysis could go on, arguendo, to the required procedural perfecting of a termination, the trial judge did not “enter an order terminating the lis pendens.” Indeed, the trial judge expressly declined to do so.

The circuit court order entering judgment in favor of the defendant, McBerry, had been entered on February 8, 2005. On March 31, McBerry moved to have the court terminate lis pendens, pursuant to Rule 12-102(c). It expressly asked for a further order stating that “McBerry, LLC shall have the authority to convey any or all of lots numbered one (1) through forty-six (46) ... to any subsequent party free and clear of any claim by Weston.” Following a hearing on June 16, the court denied the Motion to Terminate Lis Pendens. 3 The lis pendens that attached on May 25, 2004, with the filing of Weston’s Amended Complaint did not languish and die of its own accord following the circuit court judgment against Weston on February 8, 2005. Nor did it die by action ⁴³ of law, for a Motion to Terminate it was never granted.

If a lis pendens is to be terminated, it can only be done pursuant to Rule 12-102(c). It was not. How then does McBerry argue that lis pendens was not alive and well on October 7, 2005? Does the Continuation of Lis Pendens Through Appeal Depend upon a Stay of Enforcement or Execution?

With apology to Sir Isaac Newton, we earlier observed that a lis pendens, once in motion, will continue in motion unless acted upon by a force. We turn finally, on this threshold issue, to whether the motion of the lis pendens in this case was acted upon, and thereby terminated, by such a force. The thrust of McBerry’s contention is that the legal necessity for Weston to have filed a supersedeas bond and to have obtained a stay of enforcement represents such a terminating force. McBerry totally ignores Rule 12-102(c) and travels down a completely unrelated procedural road.

McBerry’s argument, in a nutshell, is as follows: If a plaintiff' making a claim affecting real property, and enjoying the benefit of lis pendens during the trial stage of the suit, loses at the trial stage and takes an appeal, lis pendens will be automatically terminated unless the plaintiff obtains a stay of enforcement, generally supported by a supersedeas bond. Rule 12-102(c), of course, says no such thing. In its Motion to Dismiss the Appeal, McBerry argues: The posting of the supersedeas bond as required under Maryland Rules 8-422 and 8-423 could have stayed the effect of the final judgment [4] entered by the trial court on February 8, 2005 and prevented McBerry from selling the subject property. Weston, however, either neglected or declined to file the bond; McBerry, therefore, was entitled ⁴⁴ to move forward on the judgment entered by the trial court, and sold the property.

It is difficult to get a film grip on McBerry’s argument for many reasons. One of them is that the language is perplexingly slippery. To begin with, a supersedeas bond and a stay of enforcement or execution are not identical terms, although the two are frequently and casually used interchangeably. Obtaining a supersedeas bond is generally a precondition for getting a stay of execution, but not invariably so.

Rule 8-422(a), for instance, provides that “an appellant may stay the enforcement of [a] civil judgment from which an appeal is taken by filing with the clerk ... [1] a supersedeas bond under Rule 8-423, [2] alternative security as prescribed by Rule l-402(e), or [3] other security as provided in Rule 8-424.” Our point is simply that although 1) “supersedeas bond” and 2) “stay of enforcement of judgment” are closely related terms, they are by no means identical or interchangeable. 5 It is a “stay of enforcement of a judgment” that we should be focusing on. A supersedeas bond is simply a frequent precondition for obtaining such a stay. The bigger linguistic snare is the insouciantly casual use of the word “stay.” Cut loose from its limiting context, it can mean almost anything. As a term of art, “stay,” either as a noun or as a verb, should be tied to a precise predicate, but McBerry allows it to float free.

The procedure we are dealing with - is a “stay of enforcement of judgment,” sometimes referred to as a “stay of execution.” We are not dealing with a plenary stay of anything or everything. The Maryland Rules invoked by McBerry are concerned only with staying the enforcement of a judgment. Most emphatically for present purposes, a “stay” does not trigger a universal freeze of the status quo. 6 ⁴⁵ A judgment, the enforcement of which may be subjected to a stay, is a court decision in favor of a party, generally the plaintiff, entitling that party to a very particular form of relief, such as a money judgment, the foreclosure of a mortgage, the appointment of a trustee to make a judicial sale. The prevailing party, in order to enjoy the benefit of that judgment, sometimes requires some further order of the court, by way of directing a clerk or a trustee or a sheriff to enforce or execute on the judgment.

Such officially ordered actions are the subject matter of stays of enforcement of or execution upon a judgment. We can better appreciate the coverage of a particular rule if we take a long view of the larger body of rules of which it is a part. As part of Title 2 of the Rules, dealing with “Civil Procedure — Circuit Court,” Chapter 600 deals with “Judgment.” Rules 2-633, 2-647, 2-648, 2-651, and 2-652 deal with various modalities of enforcing a judgment, not here pertinent. Rules 2-641 and 2-642 deal with writs of execution directed to the sheriff to assist a party in enforcing a judgment in its favor.

Rule 2-631 deals generally with “Enforcement procedures available” and limits the meaning of enforceable judgments. Judgments may be enforced only as authorized by these rules or by statute. It is Rule 2-632 that deals with the subject of “Stay of enforcement.” Subsection (e) provides that “a stay pending appeal is governed by Rules 8-422 through 8-424.” Rule 8-422, in turn, deals with, during the pendency of an appeal, a “Stay of enforcement of judgment.” It is clear that the ⁴⁶ modalities of enforcement that may be stayed pursuant to Rule 8-422 are those modalities specifically spelled out by Chapter 600 dealing with “Judgment.” It is generally a successful plaintiff who invokes official help to enforce a judgment and a beleaguered defendant who seeks to forestall such enforcement by obtaining a stay. If, by way of contrast, the judgment in the circuit court were, as in this case, for a defendant, denying a plaintiffs request for a particular relief, such a judgment would be self-executing.

There would be nothing to be enforced. There could be, by definition, no enforcement to be stayed. In such a procedural scenario, the very notion of a stay of enforcement is meaningless. McBerry’s position, nonetheless, is that Weston was somehow obligated, lest the lis pendens automatically terminate, to obtain an order freezing the status quo.

There is no such cognizable order, and McBerry points us to no statutory or common law source for such an order. What, moreover, should such a stay forbid, the better to preserve the status quo? Would it only forbid McBerry to sell the land? Or would it also forbid McBerry to lease the land, to mortgage the land, to encumber the land with easements, to permit others to mine ore from beneath its surface or to harvest timber or crops from its surface?

On the basis of which of such countless possibilities should the cost of a supersedeas bond be computed? The Earth will not stand still because one stays the enforcement of a judgment. Would such alterations to the status quo by a private litigant, moreover, constitute the enforcement of a judgment within the contemplation of the rules permitting such enforcement to be stayed? If the judgment was not a court order that the land should be sold (it was not), how would staying the sale of the land be a stay of the enforcement of the judgment?

All of these and incalculable other potential disruptions of the status quo are not, we hold, actions within the coverage of Chapter 600 of Title 2 of the Maryland Rules ⁴⁷ authorizing a stay of the enforcement of a judgment, and that is the only “stay” that we recognize. 7 The Supreme Court of Utah in Hidden Meadows Development Co. v. Mills, 590 P.2d 1244 (1979), had before it a situation very similar to that now before us. The plaintiff, as here, had sought specific performance of a contract for the purchase of realty. The trial court, as here, dismissed the action, and the plaintiff, as here, appealed. Following the dismissal by the trial court, the defendant, as here, conveyed the property to a third-party purchaser.

In an ultimate suit between the plaintiff and the purchaser, the defendants claimed that lis pendens had not survived the verdict in the trial court. The Utah Supreme Court did not agree. First addressing the Lis Pendens issue, we note that appellants simply urge that Lis Pendens has no effect or duration after judgment and pending appeal A review of the basic doctrine of Lis Pendens, our statutory enactment pertaining thereto, and the prior pronouncements of this Court, fail to sustain their contentions. 590 P.2d at 1247 (emphasis supplied). The defendants there made the same argument that McBer-ry makes before us.

The Supreme Court of Utah rejected it for the very reasons we have been discussing. Appellants further contend that since plaintiff failed to furnish a supersedeas bond it was not entitled to a stay of ⁴⁸ proceedings and that such failure in some way rendered the notice given by the recorded lis pendens ineffectual. ... [Pjlaintiff was not bound to furnish supersedeas. Such was merely available to him. The fact that none was furnished is of no consequence in this case.

This is found to be so when it is observed that the purpose and effect of supersedeas is to restrain the successful party and the lower court from taking affirmative action to enforce a judgment or decree. The judgment involved here was one of dismissal and, as such, was self-executing. Hence, it was not the subject of any enforcement and the failure to perfect supersedeas could in no way affect it. 590 P.2d at 1248 (emphasis supplied). The case of Gumberts v. East Oak Street Hotel Co., 404 Ill. 386 , 88 N.E.2d 883 (1949), is also very much on point.

The trial court there dismissed the plaintiffs action, and the plaintiff appealed. The Supreme Court of Illinois pointed out that a supersedeas bond operates only against an affirmative court-ordered enforcement of a judgment and not against a self-executing dismissal of a suit. [A] supersedeas operating only against the enforcement of a judgment and not against the judgment itself, the rule is that a self-executing judgment is not affected by a superse-deas. 88 N.E.2d at 885 (emphasis supplied). The defendant, which was the beneficiary of the dismissal of the complaint, had incidentally also been awarded court costs. The Supreme Court distinguished the affirmative award of costs, which could be stayed by a supersedeas bond, from the dismissal of the action, which was self-executing and not subject to being stayed.

Applying the foregoing principles to the present case, it is apparent that the decree in the Stein case dismissing the complaint for the want of equity was self-executing, except in so far as the cause was dismissed at plaintiffs costs. The supersedeas, when it became effective, operated only against the enforcement of the decree and not against the ⁴⁹ decree itself. The decree itself dismissed the complaint and thus required no enforcement. There were no further proceedings to be stayed by tibe supersedeas and no process was necessary, except, possibly, an execution against Stein and the other plaintiffs for the costs of the action....

The only purpose performed by the supersedeas was to stay the enforcement of so much of the decree as allowed the defendant corporation and its officers their costs in the trial court. Being self-executing, the decree in the Stein case was unaffected by the supersedeas. Id. (emphasis supplied).

In Martin v. Abbott, 72 Neb. 89 , 100 N.W. 142 (1904), the plaintiff 1) sued to recover dower in certain real estate, 2) lost the suit at the trial level, and 3) appealed to the Supreme Court of Nebraska, which reversed the decision of the trial court. While the appeal was pending, the property was sold. The purchaser attempted to fend off the adverse effect of either lis pendens or actual notice by pointing out that the plaintiff had not, for the pendency of the appeal, obtained a supersedeas bond. The plaintiff, on the other hand, maintained that because the relief she sought had been denied by the trial court, no supersedeas bond for the appeal was required or, indeed, even provided for.

Love insists that the judgment of the district court ... was a final judgment upon which he had a right to rely; that no supersedeas bond having been executed by her, any subsequent proceedings in the Supreme Court by which the decree might be reversed, modified, or vacated could not interfere with the rights which he had obtained by reason of his purchase, while the decree was in full force. On the other hand, Mrs. Martin takes the position that no superse-deas bond was required or provided for by the statute, that it was unnecessary for her to give such a bond, and that consequently a purchaser from Abbott with actual notice of the pendency of her appeal was in no better position than Abbott himself, and took the title subject to all the contin ⁵⁰ gencies which might befall him as to the vacation, modification, or reversal of the decree. 100 N.W. at 142 . The Supreme Court of Nebraska agreed with the plaintiff that the statute did not even provide for a supersedeas bond in such a case. The statute makes no provision for a supersedeas bond in a case like the one at bar.

And therefore we think the failure to file such a bond is no protection to one who purchases the property from a litigant with actual notice of the pendency of the suit in which the title thereto is in question. 100 N.W. at 143 (emphasis supplied). Comparing Apples and Oranges In a last gasp, McBerry invokes three decisions by this Court as ostensible authority for the proposition that Weston’s failure to obtain a supersedeas bond “did not stay the effect of the Trial Court’s judgment.” The Maryland Court of Special Appeals, in at least three cases involving a Trial Court’s Order affecting the disposition of real property, has ruled that the failure of the appealing party to file a supersedeas bond did not stay the effect of the Trial Court’s judgment and that the intervening sale during the appeal process made the appeal moot. Creative Development Corp. v. Bond, 34 Md.App. 279 , 367 A.2d 566 (1976); Washington Homes, Inc. v. Baggett, 23 Md.App. 167 , 326 A.2d 206 (1974); Onderdonk v. Onder-donk, 21 Md.App. 621 , 320 A.2d 585 (1974). (Emphasis supplied).

The trial court’s judgment, of course, was not an order that McBerry sell the property. It was simply a denial of Weston’s suit for specific performance. To enjoy its victory, McBerry did not need to do anything. To compare enforceable judgments in favor of a plaintiff, ordering the sale of land, with judgments in favor of a defendant, which simply leave the status quo undisturbed, is to compare apples with oranges. ⁵¹ The cases cited by McBerry have no applicability.

They do not establish plenary protection for third-party purchasers of property during the pendency of an appeal from the possible adverse effect of the appeal. They represent a very special circumstance that is just not present in this case. In those cases in which the lower court has ordered a judicial sale of the property, the purchaser at such a sale is protected from lis pendens and from the adverse effect of the appeal unless the appellant has obtained a stay of enforcement of the court-ordered disposition. This is a special circumstance that will, in effect, trump Us pendens.

The cases do not hold that this set of circumstances will operate to terminate lis pendens. The question of lis pendens notice is immaterial. The law declares, as a matter of overriding policy, that a purchaser at a judicial sale will be deemed to be a bona fide purchaser regardless of whether he had notice of an appellate challenge or not. It is a deliberate policy decision that was explained by Judge Digges in Leisure Campground & Country Club v. Leisure Estates, 280 Md. 220, 223 , 372 A.2d 595 (1977): The general rule is that the 'right of a purchaser to receive property acquired at a judicial sale cannot be affected by the reversal of an order ratifying the sale where a bond has not been filed, even though the purchaser may know that a claim, is being asserted against ratification.

The policy underlying this rule is to encourage nonparty individiuals to bid at such sales. (Emphasis supplied). All of the cases cited by McBerry deal with such judicial sales. Such court-ordered actions are grist for the mill of Maryland Rules 8-422 through 8-424 because they are modalities for enforcing judgments.

In Creative Development Corp. v. Bond, 34 Md.App. at 281, 367 A.2d 566 , there was a foreclosure sale and the trial judge passed a decree commanding “that the property subject to the Deed of Trust ... be sold.” In Washington Homes v. Baggett, the trial court decreed the specific performance of building contracts. 23 ⁵² Md.App. at 169-70, 326 A.2d 206 . In Onderdonk v. Onderdonk, the trial court appointed trustees to sell the property. 21 Md.App. at 623-24 , 320 A.2d 585 (“[I]t is well established that the rights of a bona fide purchaser of property through a judicial sale cannot be affected by a reversal on appeal of the order ratifying the sale in the absence of the filing of a supersedeas bond.”) (Emphasis supplied). The Onderdonk opinion went on: Since ratification of the sale by the chancellor could not be stayed in the absence of the filing of a supersedeas bond by the appellants, the trustees were not only within their rights but were obligated to convey the property to the bona fide purchaser. 21 Md.App. at 624 , 320 A.2d 585 . ■ In turn, every one of the cases relied on by those three cases also deals exclusively with the favored status of a purchaser at a judicial sale. See, e.g., Cook v. Boehl, 188 Md. 581, 592 , 53 A.2d 555 (1947) (“Thus an appeal from a decree of a court of equity directing the sale of property does not stay the proceedings unless an appeal bond is filed or a stay is procured from the lower court.”) (Emphasis supplied); Sawyer v. Novak, 206 Md. 80, 88 , 110 A.2d 517 (1955) (“[T]he rights of a bona fide purchaser of mortgaged property would not be affected by a reversal of the order of ratification, unless a bond is given to stay proceedings.”); Parker v. Columbia Bank, 91 Md.App. 346, 374 , 604 A.2d 521 (1992) (“The right of a purchaser to receive property acquired at judicial sale cannot be affected by the reversal of an order ratifying the sale where a bond has not been filed.”) (Emphasis supplied).

Although we need go no further, we cite two out-of-state cases because they so forcefully articulate the categorical difference between 1) purchasers at judicial sales, who enjoy favored status, and 2) purchasers from litigants, who remain subject to lis pendens. In Kremer v. Schutz, 107 P. at 781 , the Supreme Court of Kansas noted the critical contrast in status: ⁵³ Schütz was not in the attitude of one purchasing at a judicial sale. Such a purchaser may acquire a good title notwithstanding a subsequent reversal of the judgment under which the sale was made. These provisions, however, afford, no protection to one who purchases or leases from a, party to the litigation.

(Emphasis supplied). In Di Nola v. Allison, 143 Cal. 106, 114-15 , 76 P. 976, 979 (1904), the Supreme Court of California similarly noted the difference between categories of purchasers. Neither is the plaintiff herein in a, position to invoke any protection under the provisions of section 957 of the Code of Civil Procedure. By the terms of that section, the court is authorized to make restitution “so far as such restitution is consistent with protection of a purchaser ... at a sale ordered by the judgment, or had under process issued upon the judgment.” The plaintiff herein did not purchase the property “at a, sale ordered by the judgment,” and, the principles under which protection is given to strangers who purchase at judicial sales ham no application.

(Emphasis supplied). The judicial sale cases are in a special category of their own and have nothing to do with this case. The purchase of the 46 lots by Maryland Homes, PF on October 7, 2005 was not made at a judicial sale or pursuant to any other order or decree by the trial court. It was a purchase from a litigant and enjoys no special protection.

We hold that throughout the pendency of this appeal Us pendens has continued with unabated force. The purchaser of October 7, 2005, is vulnerable to any possible adverse decision flowing from this appeal. The appeal, therefore, is not moot.

II

The Appeal Proper Weston is a Maryland corporation engaged in building and developing residential homes. McBerry is a limited liability company engaged in the business of developing real estate. The contract between Weston and McBerry for the purchase ⁵⁴ of the 46 lots, on a tract of a little over 12 acres, was signed on March 7, 2002. The purchase price was to be $2,460,000.

Weston’s Amended Complaint demanding specific performance of the contract was filed on May 25, 2004. At the close of McBerry’s case on January 26, 2005, McBerry moved for judgment, pursuant to Maryland Rule 2-519, on the ground of accord and satisfaction. On February 2, the trial court rendered its oral opinion, granting McBerry’s motion. The court issued its Order for judgment in favor of McBerry on February 8.

Weston’s appeal from that judgment raises two related contentions: 1. The conclusion of the court below that specific performance was barred by accord and satisfaction is erroneous because there was neither offer nor acceptance of a compromise and settlement, but, on the contrary, both parties continued to assert their claims to the fullest extent, undiminished by even the slightest concession as an inducement to settlement. 2. Even if there had been an offer to settle and acceptance, any “settlement” would be ineffective for want of consideration. Accord and Satisfaction, Generally In Jacobs v. Atlantco Limited Partnership, 36 Md.App. 335, 340-41 , 373 A.2d 1255 (1977), this Court quoted with approval 1 C.J.S., Accord and Satisfaction, § 1 (1936 & Supp. 1976), characterizing the passage quoted as “a clear capsule definition” of accord and satisfaction.

Accord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the ‘accord’ being the agreement, and the ‘satisfaction’ its execution or performance. ⁵⁵ (Emphasis supplied). And see Automobile Trade Assoc. v. Harold Folk Enterprises, 301 Md. 642, 665 , 484 A.2d 612 (1984); Wickman v. Kane, 136 Md.App. 554, 561 , 766 A.2d 241 , cert. denied, 364 Md. 462 , 773 A.2d 514 (2001); Kimmel v. Safeco Insurance Co., 116 Md.App. 346, 361 , 696 A.2d 482 (1997); Barry Properties v. Blanton & McCleary, 71 Md.App. 280, 286 , 525 A.2d 248 (1987); Air Power, Inc. v. Omega Equipment Corp., 54 Md.App. 534, 538 , 459 A.2d 1120 (1983), all of which opinions adopt that same definition as Maryland law. Although the phrase “accord and satisfaction,” as a linguistic unit, falls trippingly from the tongue, it is important to remember that it is composed of two distinct elements. It is particularly important for us to remember because in this case our focus will be more on the accord than on the satisfaction.

In Jacobs v. Atlantco, 36 Md.App. at 340 , 373 A.2d 1255 , Judge Powers, referring to the case as “a textbook illustration of the law of accord and satisfaction,” also quoted with approval from 1 Am. Jur. 2d, Accord, and Satisfaction, § 1 (1962 & Supp. 1976): With respect to the terms separately, an accord is an agreement by one party to give or perform and by the other party to accept, in settlement or satisfaction of an existing or matured claim, something other than that which is claimed to be due, and the satisfaction is the execution or performance of the agreement, or the actual giving and taking of some agreed thing. The accord is the agreement and the satisfaction is the execution or performance of such agreement. When an accord is followed by a satisfaction, it is a bar to the assertion of the original claim, but until so followed, it has no effect.

(Emphasis supplied). In Wickman v. Kane, 136 Md.App. 554, 561 , 766 A.2d 241 , cert. denied, 364 Md. 462 , 773 A.2d 514 (2001), Judge Deborah Eyler did not simply list the constituent elements of an accord an satisfaction, but also pointed out that accord and satisfaction is an affirmative defense and that, accordingly, the burden of proof is on the party asserting the defense. ⁵⁶ Accord and satisfaction is an affirmative defense. To prevail, the defendant must prove: 1) that a dispute arose between the parties about the existence or extent of liability; 2) that, after the dispute arose, the parties entered into an agreement to compromise and settle the dispute by the payment by one party of a sum greater than that which he admits he owes and the acceptance by the other party of a sum less than that which he claims is due; and 3) that the parties performed that agreement. (Emphasis supplied).

An Accord and Satisfaction Is Contractual in Nature Although an accord and satisfaction is not a substitute contract or novation, in that it requires not simply a new promise but also the performance of that promise, it is nonetheless contractual in nature. The contractual nature of accord and satisfaction will assist us in determining in a given case whether the various required elements have been adequately established. 1 C.J.S. Accord and Satisfaction § 6 (2005) addresses the contractual nature of the subject. An accord and satisfaction is, generally, contractual in nature. An accord is in essence a contract or agreement, therefore, and accord and satisfaction is itself a contract which is founded and dependent on, and results from, a contract, express or implied, between the parties.

The doctrine of accord and satisfaction is grounded on basic contractual principles, therefore, and the concept thereof is based on the law of contracts. Accordingly, whether a given transaction a,mounts to an accord and satisfaction is governed by the laws or mies of contracts, and once it is established that there is a valid accord and satisfaction it is governed by the same rules as apply to other contracts. (Emphasis supplied). 1 Am. Jur. 2d, Accord and Satisfaction, § 4 (2005) is in complete agreement about the essential character of accord and satisfaction. ⁵⁷ An accord is contractual in nature.

In fact, an accord and satisfaction is a new contract — a contract complete in itself, and as long as the basic requirements to form a contract are present, there is no reason to treat such agreement differently from other contracts which are binding. Generally, a valid accord and satisfaction requires four elements. (1) proper subject matter; (2) competent parties; (3) a meeting of the minds of the parties; and (4) consideration. It has also been held that for there to be an accord and satisfaction, the contract elements of offer, acceptance, and consideration must all be present.

Stated more simply, the essential elements of “accord and satisfaction” are an agreement to settle a dispute and consideration which supports the agreement. (Emphasis supplied). We also find helpful the definition provided by 2 Restatement of Contracts Second (1981), § 281(1): An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty.

(Emphasis supplied). The Court of Appeals, in Automobile Trade Assoc. v. Harold Folk Enterprises, 301 Md. 642, 666 , 484 A.2d 612 (1984), fully agreed as to the “essentially contractual” nature of accord and satisfaction. An accord and satisfaction is essentially contractiml, consideration for which can take monetary or non-monetary forms. (Emphasis supplied).

See also Kimmel v. Safeco, 116 Md. App. at 362 , 696 A.2d 482 . ⁵⁸ In Wickman v. Kane, supra, Judge Eyler emphasized the necessity of a meeting of the minds as she pointed out that one of the elements to be proved is that “the parties entered into an agreement to compromise and settle the dispute.” 136 Md.App. at 561 , 766 A.2d 241 . She also explained the quid pro quo nature of the agreement by pointing out that there must be both 1) “the payment by one party of a sum greater than that which he admits he owes” and 2) “the acceptance by the other party of a sum less than that which he claims is due.” Id. The Settlement That Never Was When the Contract was signed on March 7, 2002, the 46 lots were still raw land. The Contract included what the parties have referred to as a “takedown schedule,” providing for the incremental purchase of the lots.

Pursuant to Paragraph 3 of the Contract, the first five lots were to be settled on “within ten (10) days following recordation” of the plats of subdivision for the Project. Only that first installment of five lots is pertinent to this appeal. The initial plat for the subdivision was not recorded until April 23, 2003. McBerry did not send Weston any formal notice that the plat had been recorded or that the time for settlement on the first five lots had been triggered.

The president of Weston, George W. Stone, Jr., testified that he learned of the recordation on May 21, 2003. 8 Stone spoke by telephone on May 29 with Larry L. Wooster, the managing member and, along with his wife, the owner of McBerry, about arranging settlement on the first five lots. ⁵⁹ Wooster informed Stone, however, that McBerry was not ready to settle. Stone testified: What he said was he wasn’t ready to settle because there wasn’t a tree knocked down at this point, or they were just beginning to knock the trees down and he didn’t want us to get in the way. If we were to put two or three model homes and to start building spec houses he would not have a place to knock the trees down nor have a place to stockpile them so he could haul them out, haul the debris out. (Emphasis supplied).

The trial judge’s understanding of the Contract was that McBerry was to deliver to Weston finished lots, so that Weston could then begin to build, on the first group of lots at least, a group of model homes. McBerry was to finish and deliver finished lots, which I draw the inference [that] what that means is [that] you have your roads in, your gutter[s], you constructed your storm water management and have the water and sewer to lot line so all Weston would have to do is build the house and connect the utilities. (Emphasis supplied). According to Stone, Wooster told him that he would contact him about an appropriate settlement date.

He told me he would let me know when he felt the job was far enough along and would give me a call. We were in contact fairly often. (Emphasis supplied). Even though no settlement on the first five lots was effected within ten days of the plat’s recordation (whether measured from April 13 or May 21), both Weston and McBerry continued to work in close cooperation with each other in developing the property.

The trial judge made the following findings of fact. On June 6th, 2003, a Weston employee obtained street addresses for the lots from the Charles County Department of Emergency Services and sent them to McBerry. ⁶⁰ An employee of Weston prepared applications for water and sewer service for the individual lots which Mr. Wooster signed on behalf of McBerry on June the 23rd, 2003. On July the 7th, 2003, a Weston employee sent information to Washington Gas concerning the service loads that would be necessary to provide that utility to the houses. On July the 23rd, 2003, a Weston employee sent Wooster a marked up copy of the Home Owner’s Association documents.

Previously Mr. McBerry’s attorney had done the first draft. They were sent to Weston and Weston sent them to their attorney who suggested certain changes and they were sent back. In June of 2003, McBerry ran into a major problem with the Army Corps of Engineers over the subject of wetlands, and the entire project shut down until that problem was resolved approximately six months later. Stone recounted the substance of a telephone call he received from Wooster on that occasion.

On June 20th in '03, he called me about a wetland problem and he was very upset at this time saying, Wes, I don’t know what I am going to do, the job is going to be shut down. It wasn’t shut down at that time. Some woman in the back was complaining about wetlands. He said, I’ll give you all your money back, I’ll give you everything you want back.

(Emphasis supplied). With respect to the Army Corps of Engineers, the findings (and the editorial comment) of the trial judge, in his oral opinion of February 2, 2005, are enlightening. Work progressed on the subdivision, however, a major setback occurred with the dreaded Army Corps of Engineers. And having done some real estate practice it is the dreaded Corps of Engineers.

I think there was one notation in the log that the project was stopped because of about 600 square feet of alleged wetlands. Am I correct on that? It was some document I remember reading that and I thought that 8 years ago they passed ⁶¹ if the wetlands was under so many square feet they wouldn’t get involved. That is what I recall.

Anyway they got involved. Maryland, Department of Environment got involved, and hit them with a stop work order and the final approval by the Corps wasn’t forthcoming until December the 15th, 2008. Now, Mr. Wooster in his testimony mentioned this was the first time as an individual he had attempted land development and after his trials and tribulations on this one I don’t know if he will do it again. But anyway once he did get the approval, of course, you have wet weather in the winter, which he testified to, some of the subs wouldn’t come ba,ck when he wanted them to so things kind, of dragged on a, little bit beyond what everyone expected.

(Emphasis supplied). The trial judge elaborated