Youmans v. Douron, Inc.

KRAUSER, C.J. While working at the Montgomery County Department of Environmental Protection (“MC-DEP”), Alicia Youmans, appellant, was injured, when a desk upon which she was leaning, collapsed. After filing a workers’ compensation claim, Ms. Youmans brought an action, in the Circuit Court for Montgomery County, against Douron, Inc., the supplier of that piece of furniture, for breach of contract, claiming that she was an intended third-party beneficiary of the furniture pro ²⁷⁷ curement contract under which the desk had been provided by that company to the MC-DEP. Two amended complaints—whose timeliness are the subject of this appeal—followed: The first amended complaint abandoned the breach of contract claim, in favor of a claim for the breach of implied warranties of merchantability and fitness for a particular purpose, 1 while the second added a claim for negligence, rendering it, in final form, a two-count complaint, that is, a suit for breach of warranty and negligence. Ultimately, both of these counts were dismissed by the Montgomery County circuit court as time-barred, terminating her lawsuit.

On appeal, Ms. Youmans contends that the circuit court erred, in both holding that her warranty claim is barred by limitations and that her negligence claim does not relate back to the filing of her initial complaint and, thus, is also time-barred. We agree but only in part. We hold that, as the circuit court found, Youmans’s warranty claim is time-barred but, contrary to what that court ruled, her negligence claim does relate back to her initial complaint and, thus, remains viable. Consequently, we affirm in part, reverse in part, and remand for further proceedings.

Background On December 28, 2005, Douron, Inc., a supplier of office furniture, delivered the desk in question and other office furniture, pursuant to a furniture supply contract it had with the Montgomery County Department of Environmental Protection (“MC-DEP”), to an MC-DEP office in Rockville, ²⁷⁸ Maryland. Upon delivery, employees of Douron, Inc., assembled the desk. Nearly fourteen months later, on February 15, 2007, the desk collapsed when Youmans, an MC-DEP employee at the Rockville office, in her words, “slightly leaned” against it. The collapse caused her to fall and suffer what she described as “severe personal injuries.” Later that year, Ms. Youmans filed a workers’ compensation claim.

Then, precisely three years and one day after the date of her injury, on February 16, 2010, Youmans filed an action against Douron, Inc., in the circuit court, alleging that she was an “intended” third-party beneficiary of the furniture procurement contract between Douron, Inc., and MC-DEP and that, as a result of Douron’s breach of that agreement, she sustained personal injuries. When Douron, Inc., moved to dismiss her complaint for failure to state a claim upon which relief can be granted, Youmans, more than four years after the delivery and installation of the desk, filed her first amended complaint, which abandoned the breach of contract claim, alleging instead that Douron, Inc., had impliedly warranted that the desk it provided was merchantable and fit for a particular purpose, that she was a third-party beneficiary of those implied warranties, and that, as consequence of Dour-on’s breach of warranties, she sustained personal injuries. Then, in response to yet another of Douron’s motions to dismiss, on May 28, 2010, more than three years and three months after the accident, Youmans filed a second amended complaint, adding a count for negligence to her suit. After a hearing, the circuit court granted Douron’s motion to dismiss, holding that the breach of warranty count is barred by the four-year statute of limitations in § 2-725 of the Maryland Uniform Commercial Code (“Maryland UCC”) 2 and that, as the negligence count, in the court’s view, does not relate back to her initial complaint, it too is time-barred.

Since those rulings disposed of all of her claims, the grounds for this appeal were laid. ²⁷⁹ Discussion Because the circuit court, in ruling on Douron’s motion to dismiss, considered matters outside Youmans’s final complaint—specifically, the exhibits attached to the motion requesting dismissal—we construe the ruling below as a grant of summary judgment. Md. Rule 2-322(c) (stating that if, “on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment”). We therefore turn to the rule governing summary judgment, Maryland Rule 2-501. Subsection (f) of that rule provides that, upon a party’s motion for summary judgment, a court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” As there was no dispute below as to any material fact, 3 we proceed to the question of whether Douron, Inc., was “entitled to judgment as a matter of law.” To answer that question, we conduct a review de novo of the legal determinations by the circuit court, which are the subject of this appeal.

Frazier v. Castle Ford, Ltd., 200 Md.App. 285, 294 , 27 A.3d 583 (2011). ²⁸⁰ I. Breach of Warranty Section 2-725 of the Maryland UCC imposes a four-year statute of limitations upon an action for breach of any contract for the sale of goods. Although Ms. Youmans’s amended complaints allege a breach of implied warranty and thus are subject, under that section of the Maryland UCC, to its four-year statute of limitations, Ms. Youmans claims that, because she filed a workers’ compensation claim for work-related injuries, she had an additional two months in which to file her breach of warranty claim under § 9-902 of the Labor & Employment Article (“LE”), 4 a provision of the Maryland Workers’ Compensation Act. 5 When two months are added to the time in which she had to file her breach of warranty claim, she had until February 28, 2010, Youmans points out, to file her breach of warranty action, as the desk was delivered and installed on December 28, 2005. Although she did not meet that deadline, Youmans maintains that, because she did file her initial complaint twelve days before that date and because her final complaint purportedly relates back to her initial complaint, her breach of warranty claim was timely filed. Douron, Inc., responds that, because LE § 9-902 of the Maryland Workers’ Compensation Act applies to tort and not contract claims, it does not and cannot extend, by two months, the period for filing a breach of warranty claim.

Youmans counters, however, that, even if Douron, Inc., is correct in its claim that LE § 9-902 extends to only tort claims, the “line between contract and tort” is so “blurred in ... Maryland” that an action alleging a breach of an implied warranty, in effect, so “closely resembles an action in strict liability, a tort,” that no rational distinction can be drawn between implied ²⁸¹ warranty and strict tort liability for purposes of LE § 9-902 and its two-month tolling period. Then, citing cases from other jurisdictions, she suggests that there is no essential distinction between an action for breach of an implied warranty and a tort action based on strict liability. In fact, she goes so far as to maintain that the damages she sought for her personal injuries were actually “tort based,” though couched in terms of a breach of warranty in her pleadings.

But her argument does not end here. Ms. Youmans further contends that the abolition of the privity requirement by the Court of Appeals in breach of warranty actions, when personal injury is alleged, see Frericks v. General Motors Corp., 278 Md. 304 , 363 A.2d 460 (1976), confirms their tort-like nature. And thus, her warranty action, she reasons, was not a contract claim but, a tort claim or, “at an absolute minimum,” a “hybrid tort-contract action.” That being so, the applicable statute of limitations for her warranty claim, she claims, is set forth in § 5-101 of the Courts & Judicial Proceedings Article (“CJ”), 6 the general three-year statute of limitations for civil actions. That statute, although shorter by a year than the four-year statute of limitations of § 2-725 of the Maryland UCC, would, if applicable, have given her an additional fourteen months in which to file her suit, because the three-year limitations period for her “tort” claim would have begun to run from the date of injury, February 15, 2007, and not from the date of delivery of the office furniture, December 28, 2005, as Maryland UCC § 2-725 provides.

Finally, she maintains, because her self-described “tort” claim was subject to the tolling provision in LE § 9-902, she had three years and two months from the date of injury, February 15, 2007, to file her claim or, to be more specific, she had until April 15, 2010, to do so. Since her initial complaint ²⁸² was filed two months earlier, on February 16, 2010, and her amended complaints, purportedly, relate back to the initial complaint, Youmans claims that her breach of warranty claim was timely. We begin our review of Youmans’s claims by first considering the extent to which LE § 9-902, which extends the limitations period for an additional two months, is applicable to her claims. For reasons we shall explain, that section applies only to tort, not to contract claims.

Consequently, we find no merit to Ms. Youmans’s first claim, that she had four years and two months from the date of delivery, December 28, 2005, to bring her breach of warranty action. Nor do we find any merit to her contention that a breach of warranty is so “tort-like” that it should be governed by the general three-year statute of limitations for civil actions, CJ § 5-101, under which limitations would have run from the date of injury, February 15, 2007, and, when augmented by the two-month tolling provision of LE § 9-902 for tort claims, would have had the effect of rendering her breach of warranty claim timely. A. LE § 9-902, which is part of the Maryland Workers’ Compensation Act, provides, among other things, that, if a claim is filed and “compensation is awarded or paid,” then “a self-insured employer, an insurer, the Subsequent Injury Fund, or the Uninsured Employers’ Fund,” but not a “covered employee,” 7 “may bring an action for damages against the third party who is liable for the injury.” Id. § 9-902(a). But if any of these entities “does not bring an action against the third party within 2 months after the [Workers’ Compensation] Commission makes an award,” based on a previously filed workers’ compensation claim by a covered employee, then ²⁸³ the covered employee may “bring an action for damages against the third party.” Id. § 9-902(c).

If, after the expiration of that two-month period, during which a covered employee is barred from initiating a third-party action, that employee then brings an action pursuant to LE § 9-902(c), the limitations provision of LE § 9-9Q2(d) applies. It states: The period of limitations for the right of action of a covered employee or the dependents of the covered employee against the third party does not begin to run until 2 months after the first award of compensation made to the covered employee or the dependents under this title. A literal reading of this provision suggests that the period of limitations begins to run two months after the date that a covered employee receives his or her first award of compensation. Such a reading, however, would be in error, as the Court of Appeals explained in Smith v. Bethlehem Steel Corp., 303 Md. 213 , 492 A.2d 1286 (1985).

In that case, the Court was asked to construe similar language, in the statutory antecedent of LE § 9-902(d), former Article 101, § 58, ¶ 2. 8 That paragraph of Article 101, § 58 stated: When any employee has a right of action under this section against a third party, the period of limitations for such action, as to such employee, shall not begin to run until two months after the first award of compensation made to such employee under this article, and this section shall apply to past and future rights of action under this section. Md.Code (1957, 1979 Repl.Vol., 1984 Cum.Supp.), Art. 101, § 58, ¶ 2. The Smith Court held that “this paragraph,” that is, as noted, paragraph “2,” “tolls the running of unexpired limitations,” Smith, 303 Md. at 216 , 492 A.2d 1286 , during the ²⁸⁴ “two months after award when the employee is excluded from instituting a third-party action.” Id. at 229 , 492 A.2d 1286 . As we later observed, in Hayes v. Wang, 107 Md.App. 598 , 600 n. 1, 669 A.2d 771 (1996), there is no “substantive” difference between former Article 101, § 58, ¶ 2, and LE § 9-902(d), and we therefore conclude that the latter, like its legislative antecedent, tolls the applicable statute of limitations during the “two months after award when the employee is excluded from instituting a third-party action.” Smith, 303 Md. at 229 , 492 A.2d 1286 .

To determine the kinds of actions to which the two-month tolling provision of LE § 9-902 applies, we look to the preceding section of the Maryland Workers’ Compensation Act, that is, LE § 9-901, which recognizes a covered employee’s right to proceed against a third party. It suggests that, -with respect to a claim against a third party for injuries sustained at work, the two-month tolling provision applies only to tort actions, stating: When a person other than an employer is liable for the injury or death of a covered employee for which compensation is payable under this title, the covered employee or, in case of death, the personal representative or dependents of the covered employee may: (1) file a claim for compensation against the employer under this title; or (2) bring an action for damages against the person liable for the injury or death or, in case of joint tort feasors, against each joint tortfeasor. LE § 9-901 (emphasis added). Because LE § 9-901 expressly states that it applies to “an action for damages against the person liable for the injury or death or, in case of joint tort feasors, against each joint tort feasor,” we observe that this section of the Maryland Workers’ Compensation Act, by its own terms, applies to tort and not contract actions.

In addition to the very words of LE § 9-901, the Court of Appeals has said as much in Erie Insurance Co. v. Curtis, 330 Md. 160 , 623 A.2d 184 (1993). There, an ²⁸⁵ employee named Curtis was injured, during the course of his employment, in an automobile accident with another driver. The driver of that other vehicle was uninsured. After his employer’s workers’ compensation carrier, Erie Insurance Company, paid his workers’ compensation claim, Curtis brought a breach of contract action against his employer’s automobile insurance carrier, Nationwide Mutual Insurance Company, seeking to collect payment under the uninsured motorist provision of his employer’s policy.

In that action, Erie intervened as a plaintiff, to advance its claim of a lien, under former Article 101, § 58 (which, as noted earlier, is the statutory predecessor of LE §§ 9-901 through 9-903) on any amount awarded to Curtis under his employer’s uninsured motorist insurance. But, upon Curtis’s motion, the circuit court rejected Erie’s claim and dismissed Erie Insurance as a party to the suit. The Court of Appeals affirmed, holding that “Erie, as a workers’ compensation carrier, ha[d] no claim against the proceeds of Curtis’s contract action against Nationwide.” 330 Md. at 169 , 623 A.2d 184 . It reasoned that Article 101, § 58, “refers solely to an action against a third party tort-feasor” and not to contract actions by “ ‘persons covered under insurance policies, against their insurers, for benefits under so-called first party coverages such as PIP or uninsured motorist.’ ” Id.

(quoting Ward v. Nationwide Mut. Auto. Ins. Co., 328 Md. 240, 246 , 614 A.2d 85 (1992)).

Given that LE §§ 9-901 through 9-903 are a re-codification of former Article 101, § 58; that, furthermore, § 58 of the original Maryland Workers’ Compensation Act, Article 101, and its statutory successor are, for the most part, substantively identical; and finally, that the re-codification of a statute “is presumed to be for the purpose of clarity rather than change of meaning,” Allen v. State, 402 Md. 59, 71 , 935 A.2d 421 (2007); we conclude that LE § 9-902, like former Article 101, § 58, applies only to tort claims and thereby dispose of Youmans’s first claim that LE § 9-902 of the Maryland Work ²⁸⁶ ers’ Compensation Act applies to contract as well as tort actions. B. We next consider Ms. Youmans’s contention that her warranty claim is, in essence, a tort claim and not one of contract. If her contention were true, the applicable statute of limitations for that claim would be the general three-year statute of limitations for civil actions, CJ § 5-101, and not the four-year statute of limitations, § 2-725 of the Maryland UCC. But Ms. Youmans would, paradoxically, benefit from the shorter statute of limitations because her claim would not have accrued until the date of her injury, which, as we shall explain, is nearly fourteen months later than when it would have accrued under § 2-725 of the Maryland UCC.

Moreover, if her contention were true, the two-month tolling period of LE § 9-902 of the Maryland Workers’ Compensation Act, which has just endured our explication, would apply to that claim. That would render count I of her second amended and ultimate complaint, which alleges a breach of the implied warranties of merchantability and fitness for a particular purpose, timely. In support of this contention, Youmans relies primarily on extraterritorial decisions, voicing the view that an action for breach of implied warranty is essentially indistinguishable from an action based on strict liability in tort and therefore, both actions should be treated the same for limitations purposes. See, e.g., La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984) (“[I]mplied warranties are created by operation of law and are grounded more in tort than in contract.”); Cottom v. McGuire Funeral Serv., Inc., 262 A.2d 807, 808 (D.C.1970) (“The differences between strict liability in tort and implied warranty, if any, are conceptual.”); Wallace v. Parks Corp., 212 A.D.2d 132, 138 , 629 N.Y.S.2d 570 (N.Y.App.Div.1995) (“It should also be noted that, since the elimination of privity to support an action for breach of implied warranty, there is little, if any, difference at ²⁸⁷ present between an action for strict products liability and one for breach of implied warranty.”) (citations omitted).

But none of those decisions actually address the issue before us, namely, whether the same statute of limitations does, or at least should, apply to both a claim for a breach of warranty and a claim for strict liability in tort because of some similarities the two claims share. In fact, not only are those cases not on point, but, even if they did address this issue, Youmans’s expansive interpretation of those decisions brings them into direct conflict with a body of Maryland decisional law, declaring, unequivocally, that breach of implied warranty and strict liability in tort are two separate and distinct claims in Maryland. See, e.g., A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 246 , 634 A.2d 1330 (1994) (observing that, as to actions alleging breach of warranty under the UCC, “there [are] other limitations imposed by contract law which [do] not exist under tort law”); Phipps v. General Motors Corp., 278 Md. 337, 349 , 363 A.2d 955 (1976) (commenting that “there still remain various other requirements and limitations imposed by contract law which may be encountered when pursuing an action for breach of warranty but not when seeking damages for injury caused by a defective product under the theory of strict liability in tort”).

The application of this principle in Phipps v. General Motors Corp. provides a template for our analysis. In Phipps , a products liability case, the Court of Appeals adopted the strict liability formula articulated in Restatement (Second) of Torts § 402A, notwithstanding General Motors’ insistence, among other things, that because “the warranty provisions of the Maryland Uniform Commercial Code and the doctrine of strict liability in tort are substantially the same in protecting the interests of both consumers and sellers,” there was “no need to adopt the theory of strict liability.” Id. at 348, 363 A.2d 955 . In rejecting that argument, the Court of Appeals drew a number of distinctions between these two legal theories of recovery. It contrasted, among other things: the ability of a seller, under the Maryland UCC, to limit or disclaim warranties where the goods sold are not consumer goods, with the ²⁸⁸ ineffectiveness of any such limitation or disclaimer in a tort case, under Restatement (Second) of Torts § 402A, comment m, see Phipps, 278 Md. at 349 , 363 A.2d 955 ; the requirement that the buyer, in a breach of warranty case, must give the seller notice of the breach, as a condition precedent for maintaining a breach of warranty action, with the absence of such a requirement in a tort action based on strict liability, id. at 349-50 , 363 A.2d 955 ; and, of particular relevance to the case before us, the four-year period of limitations for breach of warranty with the three-year limitations period for strict liability in tort: [A]n action for breach of warranty is governed by the limitations period contained in § 2-725 of the Uniform Commercial Code, which provides that an action must be brought within four years of the time it accrues....

An action under the theory of strict liability in tort, however, would be governed by the general tort limitations period, Maryland Code (1974), § 5-101 of the Courts and Judicial Proceedings Article, which is three years but may begin to run at a later time. Id. at 350, 363 A.2d 955 . Count I of Youmans’s final complaint alleges a breach of implied warranties of merchantability and fitness for a particular purpose, claims which, under Maryland law, sound in contract, not in tort. Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 461 n. 22, 601 A.2d 633 (1992).

Moreover, as the purpose of the furniture procurement contract at issue (from which those implied warranties arose) was the sale of goods, specifically the sale of the office furniture by Douron, Inc. to MC-DEP, and the assembly of that furniture was only “incidental ]” to its sale, the contract and any warranties it creates are governed by the Maryland UCC. See Burton v. Artery Co., 279 Md. 94,114-15 , 367 A.2d 935 (1977) (holding that “hybrid” contract involving both labor and sale of goods is governed by Maryland UCC where “the predominant factor ..., the thrust, the purpose, reasonably stated, is a transaction of sale with labor incidentally involved”). ²⁸⁹ As a consequence, count I, the breach of warranty count, is governed by the four-year period of limitations set forth in § 2-725 of the Uniform Commercial Code, Phipps, 278 Md. at 350 , 363 A.2d 955 ; accord Frericks, supra, 278 Md. at 316, 363 A.2d 460 (“The four year period of limitations in § 2-725 is fully applicable to actions by injured third party beneficiaries” in breach of warranty actions.), which states that an “action for breach of any contract for sale must be commenced within four years after the cause of action has accrued,” Md. UCC § 2-725(1); and under the succeeding subsection of the Maryland UCC, § 2-725(2), such an action accrues “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach”; and, finally, a breach occurs “when tender of delivery is made.” Id. § 2-725(2). It is undisputed that the furniture was delivered as well as installed on December 28, 2005. Because Youmans’s final complaint was filed on May 28, 2010, more than four years after Youmans’s action for breach of warranty accrued, that complaint’s breach of warranty count (count I) was untimely, unless, of course, it relates back to an earlier complaint, filed within four years of accrual.

Unfortunately for Ms. Youmans, the complaint to which it relates back (her initial complaint) was docketed on February 16, 2010, more than four years after the action for breach of warranty had accrued. Thus, count I was barred by the applicable statute of limitations, that is, § 2-725 of the Maryland UCC, as the court below held.

II

Negligence Ms. Youmans contends that her negligence claim accrued on February 15, 2007, the date of her injury, and that, under the three-year statute of limitations of CJ § 5-101, plus the two-month tolling provision of LE § 9-902, she was required to file a complaint by no later than April 15, 2010. Although that did not occur, she nonetheless insists that her negligence claim ²⁹⁰ was timely, asserting that, even though her negligence claim was first alleged in count II of her final complaint, filed on May 28, 2010, that claim was timely, as it relates back to her initial complaint, filed on February 16, 2010. To be more precise, because there is no dispute between the parties regarding when Youmans’s negligence claim accrued, the statute of limitations that applied, or the effect of LE § 9-902, the only issue before us is whether the negligence claim in her final complaint relates back to her initial complaint, as Youmans’s initial complaint was the only one of the three that she filed that was docketed before the expiration of the relevant period of limitations on April 15, 2010. Before addressing this issue, however, it is incumbent upon us to first specify the test to be used in determining whether an amendment relates back to an earlier pleading.

A. The Maryland Rules of Civil Procedure, unlike the Federal Rules, lack an express provision, governing the “relation back” of amendments to prior pleadings. See Md. Rule 2-341 (governing amendments to pleadings). But Maryland courts do, nonetheless, recognize and apply such a precept, see, e.g., Crowe v. Houseworth, 272 Md. 481, 485-86 , 325 A.2d 592 (1974), though it is narrower in scope than its federal counterpart. 9 To be more specific, Federal Rule of Civil Procedure 15(c) states that an amendment relates back, for limitations purposes, if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out— or attempted to be set out—in the original pleading,” Fed. R.Civ.P. 15(c)(1)(B), while Maryland caselaw suggests that an ²⁹¹ amendment relates back to a prior pleading, “so long as the operative factual situation,” stated in the amended pleading, “remains essentially the same” as that alleged in the prior pleading. Crowe, 272 Md. at 485-86 , 325 A.2d 592 .

In other words, “so long as the operative factual situation” remains “essentially the same,” a “new cause of action” is not introduced by an amendment which merely sets forth “a new theory” or invokes “different legal principles.” Id. Unfortunately, that does not end our discussion as to the nature and scope of Maryland’s “relation back” test, as there is a line of Maryland decisions that employ a “relation back” test based on the doctrine of res judicata. Illustrative of that string of cases is Cline v. Fountain Rock Lime & Brick Co., a case which sparked two successive appeals, 210 Md. 78 , 122 A.2d 449 (1956) (Cline I), and 214 Md. 251 , 134 A.2d 304 (1957) (Cline II), before it finally concluded. Fountain Rock Lime and Brick Company, the owner of a limestone quarry in Frederick County, wanted to participate in “an extensive road building program,” which was “about to get under way” there.

Because Fountain Rock lacked the necessary equipment and capital to bid on any of the road building projects, its majority owner, John W. Quynn, sought the assistance of Earl H. Cline, a local general contractor, who “was in a position to get such business.” Cline II, 214 Md. at 253-54 , 134 A.2d 304 . The two men then made “some arrangement relating to the use by Cline of stone from the Fountain Rock quarry” in one or more of the road building projects. Id. at 254 , 134 A.2d 304 . They later disagreed, however, about the scope of that “arrangement.” Cline I, 210 Md. at 83 , 122 A.2d 449 .

According to Fountain Rock, the two men (with Quynn acting on behalf of Fountain Rock) had orally agreed to a lease of Fountain Rock’s land and equipment, as well as to form a joint venture, under which the two would “go ahead in the stone business” and share equally in the profits Cline earned in performing work as a subcontractor for the Conduit Company, which had a road construction contract with the State Roads ²⁹² Commission. Cline II, 214 Md. at 255 , 134 A.2d 304 . “The precise terms of the joint [ jventure agreement [were] not shown,” however, and “[a]ctual practice” seemed to have been “that Cline paid for all stone which he took from Fountain Rock for other jobs.” Cline I, 210 Md. at 84 , 122 A.2d 449 . In any event, “no stone whatever from Fountain Rock was actually used on the Conduit contract.” Id. at 84-85 , 122 A.2d 449 . Dissatisfied with the amount Cline had paid for the stone, Fountain Rock brought an action against Cline, alleging that Cline and Fountain Rock (Quynn) had “agreed” that he, Cline, would lease Fountain Rock’s “real estate, plant and equipment” and “to pay,” for that rental, “a percentage of profit with guaranteed minimum amount” but that Cline had breached that agreement by failing to make any such payment.

Cline II, 214 Md. at 254 , 134 A.2d 304 . Upon Cline’s demand for a bill of particulars, Fountain Rock provided him with a proposed written lease agreement, which had not been signed by Cline. Id. Under the terms of that unexecuted lease, Cline was to pay Fountain Rock “5% of the selling price of stone” taken from the Fountain Rock facility, but no mention was made, in that proposed agreement, of any profit-sharing arrangement.

Cline I, 210 Md. at 86 , 122 A.2d 449 . Nonetheless, after the parties rested, the trial court instructed the jury that it could consider, as damages, a share of the profits earned by Cline in his role as a subcontractor in the Conduit Company road construction project. Id. at 91 , 122 A.2d 449 . When the jury found in favor of Fountain Rock and awarded it damages, Cline appealed.

The Court of Appeals reversed and remanded for a new trial, principally because the damages awarded were based upon claims not covered by Fountain Rock’s bill of particulars. Id. at 91-93 , 122 A.2d 449 . Upon remand, Fountain Rock amended its original “declaration,” 10 adding, to its claim of an oral lease agreement, a claim ²⁹³ that the parties had entered into an oral