United States District Court, D. Maryland
BYRON W. MARTZ
DAY DEVELOPMENT CO., et al.
Catherine C. Blake United States District Judge
an action brought by Byron W. Martz against Day Development
Company, L.C. and Southlawn Lane Properties,
L.L.C. Discovery on the merits has been
completed. Defendants have filed a motion for summary
judgment and plaintiffs have filed a motion for partial
summary judgment. For the reasons set forth below,
defendants' motion will be denied and plaintiff's
motion will be granted as to Counts I and II.
case involves construction of two contracts between the
parties. Maryland law holds “where a contract is plain
and unambiguous, there is no room for construction, and it
must be presumed that the parties meant what they
expressed.” Kasten Constr. Co., Inc. v. Rod
Enters., Inc., 301 A.2d 12, 18 (Md. 1973). A contract is
ambiguous only if it is “subject to more than one
interpretation when read by a reasonably prudent
person.” John L. Mattingly Const. Co., Inc. v.
Harford Underwriters Ins. Co., 999 A.2d 1066, 1074 (Md.
2010). The parties are agreed that it is in the province of
the court to determine the meaning of the contracts between
them. Further, a contract “need not be evidenced by a
single instrument.” Rocks v. Brosius, 217 A.2d
531, 637 (Md. 1966). “This is true even though the
instruments were executed at different times and did not in
terms refer to each other.” Id.; See
generally Sy-Lene of Washington, Inc. v. Starward Urban
Retail II, LLC, 829 A.2d 540 (Md. 2003).
question presented is whether plaintiff is entitled to
compensation under the contracts between the parties. The
Consulting Services Agreement provides that “[i]n the
event [the plaintiff] obtains the Approvals for the Proposed
Use as referenced in this Agreement, compensation due from
DDC to Martz as described herein shall be due and payable by
DDC to Martz upon the earlier to occur of the following: (i)
[a] sale of the Domiciliary Care Parcel, or a portion
thereof; (ii) [o]btaining by DDC or other builder, in the
event of an assignment, a building permit for the
construction of any units on the Domiciliary Care Parcel . .
. (iii) January 1, 2015. (ECF No. 44, Ex. 1 ¶ 4(c)). The
defendants read this provision as establishing that sale or
building are conditions precedent for DDC to compensate
plaintiff. Under the plain language of these provisions,
however, the only condition precedent is that Martz obtain
the approval for the Proposed Use, and he unquestionably did
addition to the plain language, defendants' construction
of the January 1, 2015, date as a deadline excusing its
obligation to compensate the plaintiff provides no guarantee
of benefit to Martz. No reasonably prudent person would have
entered into such an agreement.
1, 2015, has come and passed. Martz is owed appropriate
compensation, which remains to be determined. A separate
 Defendants, which are residents of
Maryland, removed this action in violation of 28 U.S.C.
§1441(a)(2). However, plaintiff did not file a motion to
remand. I will join the vast majority of circuits, and two
district courts within the Fourth Circuit, that have held
that the issue is procedural, not jurisdictional. See,
e.g., Lively v. Wild Oats Markets, Inc., 456
F.3d 933, 942 (9th Cir. 2006); Medish v. Johns Hopkins
Health Sys. Corp., 272 F.Supp.3d 719, 724 (D. Md. 2017);
Councell v. Homer Laughlin China Co., 823 F.Supp.2d
370, 378-79 (N.D. W.Va. 2011).
 Also pending is defendants' motion
to strike plaintiff's expert revised appraisal report and
Rule 26(e)(2) disclosure. That motion will be denied. No
trial has been scheduled, and any discovery that is required
by plaintiff's late-filed expert revised appraisal report
and Rule 26(e)(2) disclosure can be expeditiously
 Counts I and II allege breach of
contract and Count III seeks declaratory judgment on various
issues. The motion for judgment on Count III will be denied
without prejudice at this time.
 The Amendment to the Consulting
Services Agreement describing the parties' obligations as
to the Commercial Parcel mirrors the Consulting Services
Agreement, except that it does not require the plaintiff to
receive approval for a proposed use. (ECF No. 44, Ex. 2 at
¶ 6(c)). Thus, the analysis in this section applies with
equal force to the parties' obligations as to the
 In his deposition testimony, Francis
O. Day III asserted that the deal was terminated on January
1, 2015. (ECF No. 44, Ex. 14 at 57).
 By contrast, the CSA provided that if
Martz did not obtain the approvals by January 1, 2008,
“this Agreement shall thereupon terminate, and neither
party shall have any obligation to the other
hereunder.” (ECF No. 44, Ex. 1 ¶ 3). There is no
similar provision terminating the ...