*This is an unreported opinion, and it may not be cited in any paper

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other

document filed in this Court or any other Maryland Court as either precedent within the

rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Circuit Court for Howard County

Case No. 13-C-15-106114

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1222

September Term, 2020

______________________________________

H&H ROCK, LLC, t/a H&H ROCK

COMPANIES, et al.

MORRIS & RITCHIE ASSOCIATES, INC.

______________________________________

Leahy,

Zic,

Sharer, J. Frederick,

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Sharer, J.

______________________________________

Filed: March 1, 2022

‒Unreported Opinion‒

*This is an unreported

This appeal arises out of a contract dispute between appellant, Morris & Ritchie

Associates (“MRA”), and appellees, H&H Rock, LLC t/a H&H Rock Companies (“H&H

Rock”), Rock Realty, Inc. (“Rock Realty”) (collectively, the “Rock Companies”), and

Mark K. Levy, principal of the Rock Companies. Following a remand from this Court and

a bench trial, the circuit court entered judgment in favor of MRA. The Rock Companies

appealed that judgment and MRA filed a cross-appeal.

On appeal, the parties present multiple questions for our review, which we have

rephrased slightly:

1. Did the trial court err in finding that the Rock Companies were precluded,

on remand, from challenging the propriety of the claims in the First and

Second Amended Complaints?

2. Did the trial court err in finding the Rock Companies jointly and severally

liable as to Counts I and II of the Second Amended Complaint?

3. Did the trial court err in finding that Rock Realty was not jointly and

severally liable on Count III of the Second Amended Complaint?

4. Did the trial court err in awarding attorney’s fees to MRA or in the

calculation of that award?

For the reasons set forth below, we affirm, in part, and remand for modification of

the order awarding attorney’s fees.

BACKGROUND

The background facts of this case were set forth in detail in this Court’s previous

unreported opinion, Morris & Ritchie Assocs., Inc. v. H&H Rock, LLC, No. 1824,

September Term 2016 (filed January 30, 2018) (“MRA I”):

MRA performed engineering and other services for appellees

pursuant to three proposals accepted by Mr. Levy, a principle of H&H Rock

‒Unreported Opinion‒

and Rock Realty. The first contract, (Proposal One - # 15129.02), which Mr.

Levy accepted on June 23, 2006, provided that MRA would be paid a lump

sum of $127,000.00, exclusive of any out-of-pocket expenses and “[a]ny

hourly work included in this proposal and extra work, which [MRA was]

requested to perform,” which would be billed at the hourly rates provided in

the proposal.

The second contract, (Proposal Two - # 15129.03), provided for

Surveying, Land Planning and Civil Engineering Services related to a

relocation of model homes for a lump sum fee of $114,100.00. Out-of-

pocket expenses and “[a]ny hourly work included in this proposal and extra

work, which [MRA was] requested to perform” would be billed at the hourly

rates set forth in the proposal.

The third contract, (Proposal Three - #15129.04), submitted on June

28, 2007, for Sketch Plan Services, provided for a lump sum fee of

$68,500.00, exclusive of out-of-pocket expenses. “Any hourly extra work”

that MRA was requested to perform would be billed at the hourly rates

provided.

Each of the proposals provided that billing would occur on a monthly

basis, with payment due 30 days after invoicing. The proposals also

incorporated MRA’s General Provisions, which stated, in pertinent part, as

follows:

8. PAYMENTS

Invoices will be submitted by MRA on a monthly basis as work

proceeds. … Payments will be due and payable in full within thirty

(30) days of the date of invoice, without retainage, and will not be

contingent upon receipt of funds from third parties. In the event that

the Client objects to all or any portion of any invoice, the Client shall

notify MRA of the objection within fifteen (15) days from date of the

invoice, given reasons for the objection, and pay that portion of the

invoice not in dispute. If at any time, an invoice remains unpaid for a

period in excess of thirty (30) days, a service charge of one and one

half percent (1 1/2%) per month from the date of the invoice, an

effective maximum rate of eighteen percent (18%) per annum, will be

charged on past due accounts. If fees are not paid in full within thirty

(30) days of the due date, MRA reserves the right to pursue all

appropriate remedies, including stopping work and retaining all

documents without recourse. In the event a lien or suit is filed or

arbitration is sought to collect overdue payments under the

‒Unreported Opinion‒

Agreement, Client agrees to indemnify and hold harmless MRA from

and against any and all reasonable fees, expenses, and costs incurred

by MRA including but not limited to court costs, arbitrators and

attorney’s fees, and other claim-related expenses. In the event the

Client fails to pay any invoice in full, MRA shall have the right to

institute collection procedures. The Client shall be responsible for all

costs of collection including litigation costs, reasonable attorney’s

fees not to exceed 30% of the amount due, and court costs.

MRA sent invoices to the attention of Mr. Levy at the address

associated with H&H Rock. Each invoice identified the proposal number for

which the invoice was associated.

At the time the complaint was filed, MRA alleged that two invoices

submitted in 2010 for work performed pursuant to Proposal One, in the

amount of $705.68, remained unpaid. Twenty invoices for work performed

pursuant to Proposal Two, billed between 2007 and 2009, in the amount of

$129,058.48, remained unpaid. With respect to Proposal Three, 29 invoices,

billed between 2009 and 2014, in the amount of $208,440.38, remained

unpaid. MRA completed the services associated with the Proposals in 2014.

Id. at 2-4 (footnotes omitted).

Procedural History: MRA I

On December 18, 2015, MRA filed a complaint against the Rock Companies in the

Circuit Court for Howard County, alleging, inter alia, breach of contract for failure to make

payment on 51 invoices, issued between 2007 and 2014, for civil engineering services

provided pursuant to Contract .02, Contract .03 and Contract .04 (the “Contracts”). MRA

alleged that the Rock Companies had agreed to pay all outstanding charges by December

31, 2010, and that the Rock Companies had defaulted on this agreement. MRA further

‒Unreported Opinion‒

alleged that Mr. Levy subsequently acknowledged the debt to be due and promised

payment “to induce MRA into continuing to provide the [s]ervices[.]”

The court granted partial summary judgment in favor of the Rock Companies,

finding that 46 of the 51 invoices were barred by the statute of limitations. The Rock

Companies then tendered payment for the amount owed on the remaining five invoices and

moved for summary judgment on the ground that MRA’s remaining claims were moot.

Before the circuit court ruled on the second summary judgment motion, MRA filed

a First Amended Complaint, reasserting its breach of contract claims and adding two new

claims of detrimental reliance/promissory estoppel and fraud, and adding Mr. Levy as a

defendant.

That same day, MRA filed its opposition to the motion for summary judgment.

MRA asserted that the Rock Companies “acknowledged and promised to pay all

outstanding debts” and presented affidavits, documents, and deposition testimony in

support.

The Rock Companies moved to strike the First Amended Complaint, arguing that

MRA was precluded from amending its complaint to add new claims in circumvention of

the circuit court’s summary judgment order. The trial court denied the Rock Companies’

In the instant case, Contract .02 was submitted by MRA to Rock Realty, Inc.,

attention Mark L. Levy, who executed the contract as “President” purportedly on behalf of

Rock Realty, Inc. Contract 0.3 was also submitted by MRA to Rock Realty Inc., attention

Mark L. Levy, who executed the contract as “President” purportedly on behalf of Rock

Realty, Inc. Contract .04 was submitted by MRA to H&H Rock Companies, attention

Mark Levy, who executed this contract as “President” purportedly on behalf of H&H Rock

Companies.

‒Unreported Opinion‒

Motion to Strike. Mr. Levy moved to dismiss the First Amended Complaint, or in the

alternative, for summary judgment. After a hearing on the motions for summary judgment,

the court granted summary judgment in favor of the Rock Companies and Mr. Levy on all

counts in the First Amended Complaint. MRA appealed this judgment.

First Appeal

In MRA I, MRA argued that the trial court had erred in entering partial summary

judgment on limitations grounds because its claims did not accrue until the completion of

its services in 2014. MRA I, slip op. at 32. In an unreported opinion, this Court affirmed

the circuit court’s grant of partial summary judgment in the May 4, 2016 order, holding

that the limitations period on MRA’s claims for breach of contract began to run on the date

each invoice was due, not when the services were completed. Id. at 33. We held that the

trial court properly granted partial summary judgment on limitations grounds as to MRA’s

claims for 46 of the 51 invoices because MRA had failed to argue in the initial summary

judgment proceedings that the limitations period was tolled by an acknowledgement of the

debt. Id. at 34-42.

With respect to the circuit court’s full grant of summary judgment on the First

Amended Complaint, we affirmed the circuit court’s ruling as to MRA’s claims for

detrimental reliance and fraud. Id. at 53-56. As to the breach of contract claim in the First

Amended Complaint, we held that the circuit court had erred in granting summary

judgment because “[w]hether there was an acknowledgment(s) that tolled the statute of

limitations on the invoices that have not been paid is a question for the trier of fact.” Id. at

50. In making this determination, we noted:

‒Unreported Opinion‒

The parties do not address on appeal the propriety of realleging, in an

amended complaint, claims on which summary judgment has already been

granted. In the circuit court, however, the [Rock Companies] did move to

strike the amended complaint. They asserted, among other things, that the

court had already ruled in their favor on the claims that accrued prior to

December 18, 2012, and MRA was “not entitled to circumvent the Court’s

adjudication of its claims by filing the First Amended Complaint, in which it

completely disregards the Court’s prior rulings.” The circuit court denied

that motion, and [the Rock Companies] do not challenge that ruling in their

brief. Accordingly, the propriety of the amended complaint realleging claims

that already had been ruled upon is not before us. Rather, the issue presented

is whether the circuit court properly granted summary judgment on the

amended complaint. See Gonzales v. Boas, 162 Md. App. 344, 355

(“[A]mended complaint supercedes the initial complaint,” rendering the

amended complaint the operative pleading in this case), cert. denied, 388,

Md. 405 (2005).

Id. at 48. We further noted that the “procedural posture” of the case when the circuit court

granted summary judgment on the First Amended Complaint was “significantly different.”

Id. We referenced the additional allegations in the First Amended Complaint and,

contrasting the “lack of evidence produced during the initial motion[,]” noted affidavits

and documents regarding whether there was an “acknowledgment of the debt that tolled

the statute of limitations.” Id. at 48-49. Accordingly, we remanded the case “for further

proceedings on Count I of the First Amended Complaint.” Id. at 56.

Proceedings on Remand

After remand, the Rock Companies filed a motion for reconsideration of the motion

to strike and for summary judgment. The circuit court denied both motions, respectively.

On October 26, 2018, MRA filed a Second Amended Complaint, which divided its

breach of contract claim into three counts predicated on the three Contracts. On July 8,

2019, the Rock Companies filed a motion for reconsideration of the motion for summary

‒Unreported Opinion‒

judgment. Following the trial, the court denied the Rock Companies’ motion for

reconsideration.

During the two-day bench trial, MRA presented evidence largely unrebutted by the

Rock Companies concerning the outstanding invoices, whether Mr. Levy acted on behalf

of Rock Realty and H&H Rock, and the relationship between the Rock Companies. MRA

presented evidence demonstrating that Mr. Levy had multiple discussions and exchanged

various correspondence with MRA relating to the debt under the three Contracts.

Specifically, between 2010 and 2013, Mr. Levy made various promises to pay the

outstanding invoices, including a February 24, 2010 letter agreement, directed to H&H

Rock Companies, which identified the three Contracts. The letter agreement provided that

Mr. Levy “acknowledge[d] and agree[d] that the outstanding invoices and charges included

in the … statement of account are fair and reasonable charges for the services

satisfactor[ily] performed by MRA and … that H&H Rock owes all amounts as shown

therein.” Likewise, on April 18, 2013 and in May 2013, Mr. Levy and Frank Hertsch,

MRA’s president, discussed the outstanding invoices, first at a scheduled meeting and then

at a chance encounter at an industry meeting in Las Vegas. In both instances, according to

the trial testimony of MRA’s witnesses, Mr. Levy assured Mr. Hertsch that MRA would

be paid.

At the conclusion of MRA’s case-in-chief, the Rock Companies moved for

judgment. Specific to this appeal, the Rock Companies contended that judgment was

appropriate because MRA could not circumvent the May 4, 2016 partial summary

‒Unreported Opinion‒

judgment order by filing an amended complaint, and that the complaint identified the

wrong entities. In its ruling from the bench, the court determined, in pertinent part:

The [c]ourt is persuaded that the balance tips in favor of the law of the

case precluding the [Rock Companies] from relying on the earlier summary

judgment ruling and I point specifically to that quote from the Court of

Special Appeals with respect to the propriety of challenging the amended

complaint. I think that is preclusive here. . . . I think what happened was the

[Rock Companies] essentially waived that argument by failing to raise it on

- - on the appeal . . . . And failure to do so under the law of the case doctrine,

I believe, rules that argument out at this time.

After this ruling, Thomas Gessner, the chief financial officer for H&H Rock and the only

witness for the Rock Companies, testified to the relationship between H&H Rock and Rock

Realty. According to Mr. Gessner, H&H Rock and Rock Realty were separate companies,

sharing a common owner, Mr. Levy. The Rock Companies then rested.

Following requested post-trial briefing, the court issued a memorandum decision

and order. In “[a]ddressing the primary issue[] raised by remand,” the court found “that

MRA indeed proved that [the Rock Companies]’ acknowledgment of their debts was

unqualified, clear and distinct, satisfying the requisite legal standard.” The court

referenced the 2010 letter agreement, the April 2013 meeting, and May 2013 encounter in

Las Vegas to find that “Mr. Levy fended off MRA collecting payment by repeatedly

acknowledging the debts, promising to pay what was owed.” Regarding the relationship

between the Rock Companies, the court found:

H&H Rock and Rock Realty were not materially different entities, at least as

conveyed to MRA by H&H Rock and Mr. Levy. [MRA] operated under the

reasonable assumption that the two were essentially interchangeable, as one

executive, Mr. Levy, represented both, and a 2007 letter announced that the

companies had merged. Each of the invoices admitted in evidence was

directed to H&H Rock Companies. No evidence indicates that Mr. Levy or

‒Unreported Opinion‒

his companies ever suggested these bills were misdirected. To the contrary,

H&H Rock Companies proclaimed that Rock Realty and H&H Rock had

been folded into H&H Rock Companies. When Mr. Levy executed the 2010

letter agreement, he did so on behalf of Rock Realty and H&H Rock

Companies. And Mr. Levy continued to act on behalf of each of these entities

in his dealings with MRA. Certainly, [the Rock Companies] did nothing to

disabuse MRA of the notion that Mr. Levy acted on their behalf.

Mr. Levy acted as an agent on behalf of Rock Realty and H&H Rock.

With respect to the first two contracts, he, along with the 2007 letter,

conveyed apparent authority that H&H Rock assumed the obligations of

Rock Realty. As to the third contract, however, evidence did not establish

that Rock Realty assumed the obligations and duties of H&H Rock. Rock

Realty therefore cannot be held jointly and severally liable on the third

contract.

The court entered judgment in favor of MRA in the amount of $1,283.43 on Count I

(Contract .02); $153,463.81 on Count II (Contract .03); and $243,757.37 on Count III

(Contract .04), plus pre-judgment interest, post-judgment interest, costs, and reasonable

attorney’s fees. MRA sought an application for attorney’s fees, and the court granted

attorney’s fees at 30% of the judgment as to each count, and additional fees at the per diem

rate of $0.11 on each count from July 16, 2020 through December 4, 2020. After the Rock

Companies noted an appeal, MRA noted a cross-appeal.

DISCUSSION

The Rock Companies’ Challenge to the First and Second Amended Complaints

A. Parties’ Contentions

The Rock Companies contend that the “trial court erred in failing to hold that [MRA]

was precluded from circumventing the May 4, 2016 Order by filing the First and Second

Amended Complaints” in two respects. First, the Rock Companies contend that the “trial

‒Unreported Opinion‒

court erred in holding that the law of the case doctrine precluded [the Rock Companies]

from challenging the propriety of [MRA]’s attempt[] to circumvent the May 4, 2016 Order

by filing the First and Second Amended Complaints.” According to the Rock Companies,

“Maryland appellate courts have not expressly addressed the application of the Waiver

Rule when an appellee declines to raise an issue on appeal.” Relying on federal case law,

the Rock Companies assert:

Imposing an obligation to raise every conceivable alternative ground for

affirmance places an appellee at a procedural disadvantage since the appellee

will not have an opportunity to reply to any response set forth by the

appellant. Moreover, requiring an appellee to raise every basis for

affirmance defeats the purpose of the law of the case doctrine. Rather than

facilitate judicial efficiency, addressing every possible contingency would

overburden appellate courts with numerous tangential issues. As the Court

held in Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C. Cir. 1995), a

degree of leniency should be used in applying the Waiver Rule to appellees.

Further, the Rock Companies assert that the law of the case doctrine is “inapplicable to

issues that arise after a case is remanded by the appellate court.” After the filing of the

Second Amended Complaint, “the law of the case doctrine no longer precluded [the Rock

Companies] from challenging the propriety of [MRA]’s attempt to circumvent this Court’s

prior Order.”

Second, the Rock Companies contend that MRA was “not entitled to ignore a

court’s ruling and force another party to re-litigate claims by filing an amended complaint.”

According to the Rock Companies, the “trial court erred in permitting the trial to proceed

and failing to grant [the Rock Companies]’s Motion for Judgment since [MRA]’s claims

were moot as a result of the May 4, 2016 Order.”

‒Unreported Opinion‒

In opposition, MRA asserts that the “circuit court acted within its discretion in

denying [the Rock Companies] many requests for reconsideration of its ruling on the

motion to strike.” According to MRA, the Rock Companies must not only establish that

the court erred in applying the law of the case doctrine but also “show that it was not

harmless[.]”

To MRA, the “circuit court acted well within its discretion in denying all of the

[Rock Companies]’ post-remand motions because, inter alia, the law of the case doctrine

prevented it from reconsidering its ruling on the original Motion to Strike.” Relying on

Fidelity-Baltimore Nat.’l Bank & Tr. Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367,

372 (1958), MRA asserts that “questions that were decided, as well as those that ‘could

have been raised and decided,’ are ‘not available to be raised in a subsequent appeal.’”

Because the Rock Companies could have raised this issue without filing a cross-appeal and

could have moved for a motion to reconsider or petitioned for further review before the

Court of Appeals, “the law of the case . . . foreclosed [the Rock Companies]’ right to further

challenge the circuit court’s denial of their Motion to Strike.” MRA argues that a straight-

forward application of Maryland law “requires” affirmance of the judgment and asserts

that there is a “noticeable difference” in Maryland’s law of the case doctrine and its federal

counterpart.

Alternatively, MRA avers that the Rock Companies “cannot prevail in this appeal

because they cannot demonstrate that the circuit court abused its discretion in denying the

Motion to Strike or any of the various motions for reconsideration of the same.” To MRA,

reconsideration of the court’s summary judgment order was “well within the circuit court’s

‒Unreported Opinion‒

discretion, but it was also consistent with Maryland law, which favors allowing

amendments that result in resolution of claims on their merits, rather than on procedural

technicalities.”

Finally, in response to the Rock Companies’ argument that the Second Amended

Complaint revived their objection, MRA argues that the law of the case doctrine bars

consideration of issues, not simply pleadings or motions.

B. Law of the Case

“Whether the law of the case doctrine should be applied in particular circumstances

is a legal question; accordingly, we review a lower court’s invocation of that doctrine

without any special deference.” Baltimore Cnty. v. Fraternal Ord. of Police, Baltimore

Cnty. Lodge No. 4, 449 Md. 713, 731 (2016).

The Court of Appeals has explained that the law of the case doctrine is one of

appellate procedure, and that, “[u]nder the doctrine, once an appellate court rules upon a

question presented on appeal, litigants and lower courts become bound by the ruling, which

is considered to be the law of the case.” Scott v. State, 379 Md. 170, 183 (2004). “Not

only are lower courts bound by the law of the case, but ‘[d]ecisions rendered by a prior

appellate panel will generally govern the second appeal’ at the same appellate level as well,

unless the previous decision is incorrect because it is out of keeping with controlling

principles announced by a higher court and following the decision would result in manifest

injustice.” Id. at 184 (quoting Hawes v. Liberty Homes, 100 Md. App. 222, 231 (1994)).

In Maryland, the law of the case doctrine “applies to both questions that were

decided and questions that could have been raised and decided.” Holloway v. State, 232

‒Unreported Opinion‒

Md. App. 272, 282 (2017). In the leading case of Fidelity-Baltimore National Bank &

Trust Co. v. John Hancock Mutual Life Insurance Co., the Court instructed:

It is the well-established law of this state that litigants cannot try their

cases piecemeal. They cannot prosecute successive appeals in a case that

raises the same questions that have been previously decided by this Court in

a former appeal of that same case; and, furthermore, they cannot, on the

subsequent appeal of the same case raise any question that could have been

presented in the previous appeal on the then state of the record, as it existed

in the court of original jurisdiction. If this were not so, any party to a suit

could institute as many successive appeals as the fiction of his imagination

could produce new reasons to assign as to why his side of the case should

prevail, and the litigation would never terminate. Once this Court has ruled

upon a question properly presented on an appeal, or, if the ruling be contrary

to a question that could have been raised and argued in that appeal on the

then state of the record, as aforesaid, such a ruling becomes the ‘law of the

case’ and is binding on the litigants and courts alike, unless changed or

modified after reargument, and neither the questions decided nor the ones

that could have been raised and decided are available to be raised in a

subsequent appeal.

Fidelity-Baltimore Nat. Bank & Tr. Co., 217 Md. at 371-72.

The Rock Companies’ assertion that “Maryland courts have not expressly addressed

the application of the Waiver Rule when an appellee declines to raise an issue on appeal[,]”

lacks merit, as John Hancock is directly on point on this issue. There, an employee of John

Hancock presented false insurance claims to the company on behalf of fictitious payees.

Id. at 370. John Hancock issued checks for these claims, which were forwarded to the

employee, who then forged the endorsements of the fictitious claimants on the back of each

check, deposited the checks in several banks, and thereafter withdrew the money. Id. John

Hancock learned of the fraud and eventually brought suit against the collecting banks for

honoring the forged checks. Id. The trial court dismissed the complaint on the pleadings.

On appeal, the Court of Appeals reversed, and held that the stipulation of facts by the

‒Unreported Opinion‒

parties entitled John Hancock to summary judgment. Id. at 371. On remand, the trial court

entered summary judgment in favor of John Hancock Mutual. Id.

On a second appeal, the collecting banks raised two questions: first, whether a

collecting bank is liable to the drawer of a check issued to a fictitious payee if the drawer

is unaware of the fictitious payee and the check bears a fraudulent endorsement; and

second, whether the “imposter rule” barred John Hancock Mutual from recovery. Id. As

to the first question, the Court of Appeals explained this question was raised in the first

appeal and was specifically answered. As to the “imposter rule” defense, the court

explained that although this issue was not raised in the previous appeal, there was “no doubt

that it was available in that proceeding as a ground to sustain the demurrers, if it be

available here to defeat the judgments obtained by the appellee.” Id. As a result, the Court

held that both issues had already been settled in John Hancock, the first appeal, under the

law of the case doctrine. Id. at 372.

We have further clarified that “under the law of the case doctrine, litigants cannot

raise new defenses once an appellate court has finally decided a case if these new defenses

could have been raised based on the facts as they existed prior to the first appeal.” Schisler

v. State, 177 Md. App. 731, 745 (2007); see also Davis Sand & Gravel Corp. v.

Buckler, 231 Md. 370, 373-74 (1963) (holding defendant that won at trial on issue of

whether it had right to use easement, but then lost on appeal, could not on remand raise the

issue of whether damages were proved at trial when this question could have been raised

on a motion for reargument).

‒Unreported Opinion‒

While the Rock Companies purport to rely on federal cases interpreting the law of

the case doctrine, we have recently recognized the “noticeable difference” between our

doctrine and the federal counterpart. Holloway, 232 Md. App. at 282. “In Maryland, the

law of the case doctrine applies to both questions that were decided and questions that

could have been raised and decided[,]” while “[u]nder federal law, the law-of-the-case

doctrine only applies to issues the court actually decided.” Id. (citation and internal

quotation marks omitted).

Further, there was nothing precluding the Rock Companies from presenting the

denial of their motion to strike as an alternative basis to affirm the court’s judgment. We

also recognize that “[w]here a party has an issue resolved adversely in the trial court, but

… receives a wholly favorable judgment on another ground, that party may, as an appellee

and without taking a cross-appeal, argue as a ground for affirmance the matter that was

resolved against it at trial. This is merely an aspect of the principle that an appellate court

may affirm a trial court’s decision on any ground adequately shown by the record.” Offutt

v. Montgomery Cnty. Bd. of Educ., 285 Md. 557, 564 n.4 (1979) (citations omitted).

We perceive no error in the circuit court’s determination that the law of the case

doctrine precluded the Rock Companies from relying on the May 4, 2016 order to challenge

the propriety of the First and Second Amended Complaints. Contrary to the Rock

Companies’ suggestion, the May 4, 2016 partial summary judgment order was not the

controlling or dispositive order in the case, as that order and the full summary judgment

order, were reviewed in MRA I. This Court’s decision that the Rock Companies had waived

their challenge to the propriety of the First Amended Complaint by failing to raise that

‒Unreported Opinion‒

issue on appeal constituted the law of the case. “Once an appellate court has answered a

question of law in a given case, the issue is settled for all future proceedings.” Stokes v.

Am. Airlines, Inc., 142 Md. App. 440, 446 (2002). The law of the case doctrine “prevents

trial courts from dismissing appellate judgment and re-litigating matters already resolved

by the appellate court” in a case involving the same parties and the same claims. Id. The

law of the case doctrine precludes us from considering in this appeal the propriety of

MRA’s amendment of claims following entry of the May 4, 2016 order, as the Rock

Companies could have, and should have, raised that issue in MRA I.

C. Mootness

The Rock Companies further assert that MRA’s claims were moot because “[t]he

May 4, 2016 Order remained the controlling dispositive ruling on [MRA]’s claims” and

neither this Court nor the trial court were bound by this Court’s opinion “without

considering the propriety of the attempt[] to circumvent an order by filing an amended

complaint.”

A case is considered moot when “‘past facts and occurrences have produced a

situation in which, without any future action, any judgment or decree the court might enter

would be without effect.’” La Valle v. La Valle, 432 Md. 343, 351 (2013) (quoting Hayman

v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 (1962)). “The test for

mootness is ‘whether, when it is before the court, a case presents a controversy between

the parties for which, by way of resolution, the court can fashion an effective remedy[.]’”

Hamot v. Telos Corp., 185 Md. App. 352, 360 (2009) (quoting Adkins v. State, 324 Md.

641, 646 (1991)).

‒Unreported Opinion‒

While the Rock Companies argue that MRA’s claims were moot due to the May 4,

2016 Order, the evidence submitted in opposition to summary judgment and at trial

supports that the limitations period was tolled and would restart anew with each

acknowledgment of the debt. The Court of Appeals has explained this principal on multiple

occasions:

The statute of limitations does not extinguish the debt; it bars the

remedy only. Thus, Maryland law has long recognized that

acknowledgement of a debt barred by limitations removes the bar to pursuing

the remedy. An acknowledgement, sufficient to remove the bar of

limitations, need not expressly admit the debt, it need only be consistent with

the existence of the debt. Nor must it be an express promise to pay a debt;

just as an express promise to pay a debt barred by limitations revives the

remedy, “a mere acknowledgement of such a debt will remove the bar of the

statute, because if the debtor acknowledges the debt it is implied that he

promises to pay.” An acknowledgement of a debt can occur prior to the

running of limitations, in which event, rather than removing the bar of

limitations, it both tolls the running of limitations and establishes the date of

the acknowledgment as the date from which the statute will now run.

Jenkins v. Karlton, 329 Md. 510, 531 (1993) (citations omitted). Thus, the May 4, 2016

Order did not extinguish MRA’s claims for the first 46 invoices; it simply operated to bar

MRA’s remedy for those claims. Once MRA established Mr. Levy’s acknowledgement of

the debt, the bar to MRA’s remedy for its claims was removed. Accordingly, MRA’s

claims were not mooted by the May 4, 2016 Order.

II.

Joint and Several Liability

The Rock Companies challenge that they were joint and severally liable for Counts

I and II, and MRA challenges the court’s finding that Rock Realty was not liable on Count

III.

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The circuit court concluded that the 2010 Agreement constituted a modification of

the interest rate as to Contracts .02 and .03 in exchange for assurances of payment. The

court determined that the Rock Companies had failed to provide evidence showing that the

parties had agreed to form a new contract with the intent to replace the existing one,

sufficient to establish a novation.

With respect to Contracts .02 and .03, the court found that Mr. Levy had conveyed

apparent authority that H&H Rock had assumed the obligations of Rock Realty. As to

Contract .04, however, the court found that the evidence did not establish that Rock Realty

had assumed the obligations and duties of H&H Rock, and therefore, Rock Realty was not

jointly and severally liable on the third contract.

A. Parties’ Contentions

The Rock Companies aver that the circuit court erred in holding that the Rock

Companies were jointly and severally liable for Contracts .02 and .03. According to the

Rock Companies, the “most reasonable interpretation of [the] 2010 Agreement that would

allow the court to find a clear and unequivocal acknowledgment of the debt is that such

Agreement constituted a novation.” However, the Rock Companies argue that the 2010

Agreement did not meet the requirements for a novation. Further, the Rock Companies

assert that the 2010 Agreement could not constitute an amendment because “Rock Realty

did not execute the 2010 Agreement.”

In response, MRA asserts that the Rock Companies are “jointly and severally liable

under all three contracts.” According to MRA, “due to Levy’s own promises and actions,

MRA reasonably believed that Levy was authorized to act and was acting on behalf of

‒Unreported Opinion‒

Rock Realty when conducting business under the H&H Rock Companies trade name

registered to H&H.” In light of this conclusion, MRA argues that the court erred in

“concluding Rock Realty was not liable on Count III.” Finally, MRA surmises that the

Rock Companies “have not demonstrated how the circuit court committed reversible error

in deeming the 2010 Agreement an amendment” and, in any event, there is “ample evidence

supporting the circuit court’s conclusion — not challenged on appeal — that Mr. Levy

acted on behalf of both H&H and Rock Realty in executing the 2010 Agreement and

acknowledging [the Rock Companies]’ liability for the Outstanding Invoices in 2013.”

B. Analysis

The Court of Appeals summarized the characteristics of a novation in I. W. Berman

Properties v. Porter Brothers:

A ‘novation’ is a new contractual relation made with intent to

extinguish a contract already in existence. It contains four essential

requisites: (1) A previous valid obligation; (2) the agreement of all the parties

to the new contract; (3) the validity of such new contract, and (4) the

extinguishment of the old contract, by the substitution of the new one.

For a novation to exist there must be (evidence of) an agreement

among the parties to extinguish the old obligation(s) and substitute a new one

for it.

A novation is never presumed; the party asserting it must establish

clearly and satisfactorily that there was an intention, concurred in by all the

parties, that the existing obligation be discharged by the new obligation. . . .

The intention to substitute a new agreement for a previous contract

need not be expressed however, since facts and circumstances surrounding

the transaction, as well as the subsequent conduct by the parties, may show

such an acceptance as clearly as an express agreement; but such facts and

circumstances, when shown, must be such to establish that the intention to

work a novation is clearly implied.

276 Md. 1, 7-8 (1975) (cleaned up).

‒Unreported Opinion‒

Unlike a novation, a contract modification occurs when the parties mutually consent

to modifying certain terms of a contract. See L & L Corp. v. Ammendale Normal Inst., 248

Md. 380, 384 (1968). For example, parties may agree to change the terms of a contract “as

a compromise of their differences.” Freeman v. Stanbern Const. Co., 205 Md. 71, 78

(1954). In a case where “such differences arise out of a contract, a compromise of their

differences and the mutual agreement of the parties to vary the terms of the contract and to

enter into a new agreement embodying the compromise constitute sufficient consideration

to support the new agreement.” Id. (citing Hercules Powder Co. v. Harry T. Campbell

Sons Co., 156 Md. 346, 362 (1929)).

The extent to which an entity may be jointly or severally liable to a third party often

depends upon the actions of the entity’s agent. Agency principles have been summarized

on many occasions by our appellate Courts:

In an agency relationship, one person, the principal, can be legally bound by

actions taken by another person, the agent. An agency relationship is created

when the principal confers actual authority on the agent. Actual authority to

do an act can be created by written or spoken words or other conduct of the

principal which, reasonably interpreted, causes the agent to believe that the

principal desires him so to act on the principal’s account. Actual authority

may be inferred from conduct, including acquiescence. In the absence of

actual authority, a principal can be bound by the acts of a purported agent

when that person has apparent authority to act on behalf of the principal.

Apparent authority results from certain acts or manifestations by the alleged

principal to a third party leading the third party to believe that an agent had

authority to act. We have explained, however, that it is nearly axiomatic that

one dealing with an agent must use reasonable diligence and prudence to

ascertain whether the agent acts within the scope of his powers.

Dickerson v. Longoria, 414 Md. 419, 441-42 (2010) (cleaned up). In addition, an agency

by estoppel may arise “where the principal, through words or conduct, represents that the

‒Unreported Opinion‒

agent has authority to act and the third party reasonably relies on those representations.”

Johns Hopkins Univ. v. Ritter, 114 Md. App. 77, 96 (1996).

Here, the evidence supported the circuit court’s findings regarding joint and several

liability. First, there was ample support in the record for the circuit court’s conclusion that

Mr. Levy was conducting business with MRA on H&H’s behalf. This evidence included

the 2007 letter announcing the purported merger, the invoices directed to H&H Rock

Companies, and Mr. Levy’s execution of the 2010 letter agreement on behalf of H&H

Rock.

Second, Mr. Levy acted as an agent on behalf of Rock Realty and H&H. As the

court correctly concluded, the 2007 letter conveyed that H&H had assumed the obligations

of Rock Realty. Whether, in fact, this statement was accurate was not dispositive for

establishing H&H’s liability. An agent need not have actual authority to bind an entity if

the evidence shows that the agent had apparent authority and the third party had a basis for

reasonably relying on the actions of the agent. See Atl. Richfield Co. v. Sybert, 51 Md.

App. 74, 84 (1982) (explaining that apparent authority arises where a third party can prove

that the agent’s actions in entering an agreement gave rise to apparent authority to act on

behalf of the principal and the third party’s reliance on such actions was reasonable).

It also appears that Mr. Levy’s actions, summarized above, evidenced an intent to

affirm the Contracts and the obligations on behalf of H&H Rock. See Smith v. Merritt

Savings and Loan, Inc., 266 Md. 526, 536-40 (1972) (summarizing requirements for

ratification of a contract). Although H&H Rock was not an original signatory to Contract

.04, the evidence supported the circuit court’s conclusion that the 2010 Letter Agreement

‒Unreported Opinion‒

constituted a modification of the existing Contracts rather than a novation. As the circuit

court noted, the 2010 Letter Agreement modified the terms of the Contracts because it

“acknowledged the debt and gave H&H Rock Companies additional time to pay the

outstanding invoices. It also reduced the interest rate charged under the invoices to eight

percent on outstanding amounts due from the date of the letter.”

Based upon our review of the record, we agree with the circuit court’s determination

that there was no “credible evidence” to support the Rock Companies’ contention “that the

2010 letter agreement extinguished the prior existing agreements for all three contracts in

their entirety and created a completely new and distinct obligation.” The evidence

supported the circuit court’s conclusion that Mr. Levy, acting as an agent on behalf of H&H

Rock, conveyed that H&H Rock had assumed the obligations of Rock Realty, including

liability for Contracts .02 and .03. While Rock Realty remained liable as a signatory under

Contracts .02 and .03, MRA presented no evidence demonstrating that Rock Realty had

assumed the obligations of H&H Rock. Accordingly, we perceive no error in the circuit

court’s determination that Rock Realty remained liable as to Contracts .02 and .03, but that

Rock Realty had not assumed joint and several liability for H&H Rock’s obligations on

Contract .04.

III.

Attorney’s Fees

A. Parties’ Contentions

The Rock Companies contend that “[t]he trial court also erred by awarding total

attorney’s fees in the amount of $127,690.17” for two primary reasons. “First, neither the

‒Unreported Opinion‒

subject Contracts nor the General Provisions attached thereto provide that the ‘amount due’

included interest.” According to the Rock Companies, “[l]ogic dictates the ‘amount due’

denotes the principal amount due.” Otherwise, if daily interest were included, “such

position would permit a greater award of attorney’s fees predicated upon the mere passage

of time, as opposed to the value of goods or service in dispute in the litigation or the work

reasonably required by an attorney.” Second, the Rock Parties contend that MRA’s

calculation is flawed because the parties’ “course of performance establishes that [MRA]

did not conceive of the ‘amount due’ as the aggregate of the principal amount due and

accrued interest.” According to the Rock Companies, with the exception of a statement

prepared by MRA’s counsel for trial, “the record is devoid of any evidence indicating that

[the] parties conceived of ‘amount due’ as the aggregate of the principal amount due and

accrued interest.”

In opposition, MRA asserts that “[i]nterest was part of the amount due under the

Contracts.” According to MRA, the “circuit court confronted two, completely distinct

questions: (a) determining the ‘amount due’ under the Contracts, and (b) determining

whether MRA incurred reasonable fees in excess of that amount.” MRA asserts that the

language of the Contracts is unambiguous and that “[p]ayment of an invoice ‘in full’

requires payment of both the outstanding principal and interest.” Turning to parol

evidence, MRA contends that this Court is unable to consider parol evidence to “vary, alter,

or contradict a contract that is complete and unambiguous,” Maslow v. Vanguri, 168 Md.

App. 298, 319 (2006) (citation and quotation marks omitted), and “even if this Court were

to consider the parties’ course of performance, it is of no help to [the Rock Companies].”

‒Unreported Opinion‒

Finally, MRA asserts that “[t]here is nothing unjust about the fact that, as [the Rock

Companies] failed to pay MRA, the contractual cap on reasonable attorneys’ fees increased

in proportion with the total amount due.”

In reply, the Rock Companies contend that the General Provisions of the Contracts

distinguish between “invoices” and “past due accounts.”

B. Analysis

This Court reviews “a court’s establishment of a ‘reasonable’ fee under an abuse of

discretion standard.” Garcia v. Foulger Pratt Dev., Inc., 155 Md. App. 634, 671 (2003).

It is clear that “[c]ontract clauses that provide for the award of attorney’s fees generally are

valid and enforceable in Maryland, subject to a trial court’s examination of the prevailing

party’s fee request for reasonableness.” Nova Rsch., Inc. v. Penske Truck Leasing Co., 405

Md. 435, 447-48 (2008) (citation omitted). The interpretation of a written contract is

reviewed de novo. Id. at 448.

In resolving the fee provisions in the Contracts, we recognize the oft-stated principal

that “Maryland applies an objective interpretation of contracts”:

If a contract is unambiguous, the court must give effect to its plain meaning

and not contemplate what the parties may have subjectively intended by

certain terms at the time of formation. A contract is ambiguous if, when read

by a reasonably prudent person, it is susceptible of more than one meaning.

In interpreting a contract provision, we look to the entire language of the

agreement, not merely a portion thereof. When interpreting a contract’s

terms, we consider the customary, ordinary and accepted meaning of the

language used.

Id. (internal citations and quotation marks omitted).

Here, Section 8 of the General Provisions of the Contracts provides, in relevant part:

‒Unreported Opinion‒

If at any time, an invoice remains unpaid for a period in excess of thirty (30)

days, a service charge of one and one half percent (1 1/2%) per month from

the date of the invoice, an effective maximum rate of eighteen percent (18%)

per annum, will be charged on past due accounts. If fees are not paid in full

within thirty (30) days of the due date, MRA reserves the right to pursue all

appropriate remedies, including stopping work and retaining all documents

without recourse. In the event a lien or suit is filed or arbitration is sought to

collect overdue payments under the Agreement, Client agrees to indemnify

and hold harmless MRA from and against any and all reasonable fees,

expenses, and costs incurred by MRA including but not limited to court costs,

arbitrators and attorney’s fees, and other claim-related expenses. In the event

the Client fails to pay any invoice in full, MRA shall have the right to institute

collection procedures. The Client shall be responsible for all costs of

collection including litigation costs, reasonable attorney’s fees not to exceed

30% of the amount due, and court costs.

(Emphasis added.)

In this case, the contract was not ambiguous. First, the phrase “amount due” is

unqualified. Customary meaning of the term “amount due” includes applicable interest as

well as the principal. See Eidelman v. Walker & Dunlop, Inc., 265 Md. 538, 545 (1972)

(“Interest is recoverable as of right upon a contract to pay money upon a day certain.”);

I.W. Berman Props., 276 Md. at 16 (same). Second, in the context of the language of

Section 8 of the General Provisions of the Contracts, “amount due” appears after language

regarding overdue invoices and the calculation of interest, suggesting that the amount due

applied to all costs, including interest, incurred as a result MRA’s efforts to collect unpaid

invoices. See, e.g., Weichert Co. of Maryland v. Faust, 191 Md. App. 1, 7 (2010) (“When

we interpret a contract, we must examine the contract as a whole, in order to determine the

intention of the parties.”). The clear language of the Contracts provided that interest

accrued on past due invoices after a period of thirty days. The circuit court’s determination,

‒Unreported Opinion‒

therefore, that the “total amount due” for purposes of calculating reasonable attorney’s fees

included both the principal and interest, was not error.

C. Per Diem Interest

In its cross-appeal, MRA contends that the “circuit court mistakenly calculated the

fee award for Counts II and III based on the lower per diem interest attributable to Count

I.” We agree that the court appears to have made a clerical error in its calculations.

On December 4, 2020, the circuit court granted MRA’s application for an award of

reasonable attorney’s fees. In its order, the court calculated attorney’s fees at a rate of 30

percent of the judgment amount plus pre- and post-judgment interest. The court then

calculated the per diem interest rates applicable to each of the three counts of the Second

Amended Complaint. Because it appears that court erroneously applied the per diem

interest rate for Count I (Contract .02) to its calculation of per diem interest on the

judgments for Count II (Contract .03) and Count III (Contract .04), we will remand the

case to the circuit court to enter a revised order correcting the calculation of the per diem

interest to be entered as to Counts II and III.

JUDGMENT OF THE CIRCUIT COURT

FOR HOWARD COUNTY AFFIRMED.

CASE REMANDED FOR FURTHER

PROCEEDINGS CONSISTENT WITH

THIS OPINION. COSTS TO BE PAID BY

APPELLANTS.