Brendsel v. Winchester

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In the Circu it Court for Q ueen A nne s Co unty Case No. CV-9858 IN THE COURT OF APPEALS OF MARYLAND No. 66 September Term, 2005 ______________________________________ LELAND BRENDSEL, ET AL. v. WINCHESTER CONSTRUCTION COMPANY, INC. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell, C.J., dissen ts ______________________________________ Filed: May 10, 2006 We shall resolve here the dilemma faced by a contractor who (1) is operating under a construction contract that requires disputes arising out of or relating to the contract to be submitted to binding arbitration, but (2) also may be entitled to a mechanics lien, pursuant to Maryland C ode, title 9, subtitle 1 of the Real Property Article (RP), for work done or materials furnished under the contract. Can the contractor seek to assure the prospect of ultimate payment by obtaining a provisional interlocutory lien on the property without giving up its contractual right to have the merits of its claim determined through arbitration? We shall conclude that the contractor does not waive its right to compel arbitration of an arbitrab le dispu te mere ly by seekin g and o btaining an interl ocutor y mecha nics lien . BACKGROUND In Nove mber, 1 999, respondent Winchester Construction Company and petitioner Diane Brendsel entered into a contract for the renovation of Wye Hall, a historic plantation house in Queen Anne s County owned by Ms. Brendsel and her husband Leland.1 The contract was a cost of the work plus a fee contract; it called for Winchester to be reimburse d for the co sts necessarily incurred in the proper perform ance of th e work a nd to receive a contractor s fee of 10% of that cost for o verhead a nd an add itional 10% for profit. The contract was a standard Abbreviated Form of Agreement Between Owner and Contractor, coupled with attached General Conditions, drafted by the American Institute of 1 Leland did not sign the contract, although Winchester later claimed that he ratified it. That is n ot an issue in this appeal. Architects (AIA Document A117 (1987 Ed.)). Among other things, the contract specified those costs which would be reimbursed and those which would not, required Winche ster to keep detailed accounting reco rds, and provided fo r progress paymen ts and f inal paym ent. Article 15 of the General Conditions dealt with administration of the contract. It authorized the architect, as the own er s represen tative, to review and certify amounts due to the contractor, interpret and decide matters concerning performance, make initial decisions on all claims, disputes, or other matters in question, re ject work th at did not co nform to the contract documents, and review and take action on submittals by the contractor. Although the contract identified Good A rchitecture as the architect, it appears that, at some point, the Brendse ls also emplo yed Gipe A ssociates, Inc., consulting engineers, as an additional owne r s agen t. Section 15.8 of the General Conditions called for all claims or disputes between the contractor and the owner arising out of or relating to the contract documents or the breach thereof to be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (AAA) currently in effect, unless the parties agreed otherwise, subject to initial presentation of the claim or dispute to the architect. The provision required that notice of a demand for arbitration be filed with the other party and with th e AA A w ithin a re asonab le time a fter the d ispute h as arisen . The renovation work proceeded from September, 1999 through June 3, 2003. On August 1, 2002, Winchester and Ms. Brendsel signed a Memorandum of Understanding -2- (MOU) that made a number of chang es in the con tract. Most o f the MO U dealt w ith procedures respecting applications for payment. In that regard, ¶ 6 provided: Prior to making the final payment under the C ontract, Winche ster will subm it its final accounting of all costs and fee charged to Brends el under the Contract so that Brendsel s accounta nts can review the information. This review will be made in 45 days, and Brendsel will pay either the requested amount or the lesser amount substantiated by the accountants within seven days after the accountants review. If Winchester disagrees with the amount that Brendsel has paid, the matter can be reso lved by n egotiatio n or arb itration. Paragraph 9 deleted ¶¶ 15.1 through 15.7 of the General Conditions, dealing with the duties of the architect, to reflect the fact that the a rchitect had n ot, in fact, been involved in contract administration. That role, apparentl y, had been assumed by Gipe Associates. Paragraph 12 of the M OU pe rmitted Bre ndsel to term inate the con tract at any time for her convenience and without cause but specified that, upon such term ination, Win chester w ould be paid for wo rk don e to the d ate of te rminatio n subje ct to app ropriate offsets . The MOU expressed the intent of the parties to execute a formal amendment to the contract reflecting the terms of the MOU and charged Ms. Brendsel with preparing such an agreement. It does not appear that any such agre ement w as ever pre pared or sig ned. Both sides have treated the M OU as an e ffective agreemen t, however. Disputes continued to surface. On January 28, 2003, an agreement was reached with respect to pendin g claims. Winchester was advised that Gipe had been designated as construction manager and owner s agent on the project. The parties agreed that Winch ester s -3- fee would be reduced from 20% (10% overhead and 10% profit) to 10%, and that the retainage would be reduced from 10% to 5%. On May 23, 2003, Ms. Brendsel terminated the agreement and directed Winchester to remove its personnel and equipment from the jobsite by May 30. Winchester regarded the termination as one for convenience pursuant to ¶ 12 of the MOU. In her brief, Ms. Brendsel notes that the term convenience does not appear in the letter of termination, which is true, but she does not contend that the termination was for any other reason. The letter stated that payment of a final invoice would be made after review of the final accounting, as provided by ¶ 6 of the MOU. Winchester submitted applications for payment in June and July and a final application on August 13, 2003, showing a gross balanc e due o f $815 ,877. Brendsel s initial response was to obtain new counsel who, in September, wrote to counsel for Winchester asking for certain a dditional info rmation an d docum ents and sugg esting a me eting to resolve any matters in dispu te. At that point, it was not clear that there was any dispute; counsel was collecting information and presumably Brendsel s accountants were reviewing the pending applications for payment. In his letter of September 30, 2003, counsel enclosed a Tolling Agreement that tolled and suspended [a]ll deadlines provided in either the Agreement or the MOU, as well as any statutory or common law limitation and commo n law lach es . . . until five (5) b usin ess d ays af ter w ritten notice of eithe r par ty s withdrawal from this Tolling Agreement is delivered to the other party. Through counsel, Winchester signed the Tolling -4- Agreem ent. RP § 9-105 requires that a petition to establish a mechanics lien be filed within 180 days after the work has been finished or the materials furnished. The work was completed, at the latest, by June 3, 2003. D iscussions c ontinued th roughou t the Fall of 2003, without resulting in either an acceptance of Winchester s claim and payment or a rejection of the claim. Concern ed that the statu tory time for filing a petition for mechanics lien was (1) getting close, and (2) might be regarded as jurisdictional or preclusive in nature, rather than as a mere statute of limitations that could b e waived or tolled by agreement of the parties, counsel for Winchester, on November 14, 2003, filed a petition in the Circuit Court for Queen Anne s County to establish a mechanic s lien. The petition alleged that Winchester furnished work, labor, and materials from September, 1999, through June 3, 2003, and that $815,877 remained due and payable. Winchester obviously reg arded the p etition as a protective measure; counsel continued to send both provisional lien releases and additional documents to counsel for Brendsel, and negotiations continu ed. At that poin t, Brendsel w as still seeking additional information and it was as yet unclear whether, or to what extent, the application for final payment would ultimately be rejected. Not until December 10, 2003, did Brendsel, through a letter from counsel, reject in full Winchester s claim. The letter acknowledged a net balance owing under the con tract of $ 604,56 5 but cla imed c redits ag ainst tha t balanc e of $8 71,872 for overcharges and construction defec ts, leaving a net balance due to Brendsel. Rather than -5- initiating an action on behalf of Ms. Brendsel, however, counsel sug gested a m eeting to resolve the matter. Counsel for Winchester responded, questioning some assertions, denying others, and in dicating that h e needed more time to respond in full. In the meanwhile, on December 11, the court filed a memorandum requesting that Winchester supplement its petition with, or explain the absence of, an allegation that the improvement of Brendsel s property represented at least 15% of the value of the property and that it furnish statements of the nature and kind of w ork done or ma terials provided. Where the work inv olves impr ovemen ts to a building (a s opposed to the erection of a new building), RP § 9-102 pe rmits a mec hanics lien o nly if the building is improved to the extent of 15% of its value, and RP § 9-105(a) and Md. Rule 12-302(b) require the petition to allege the kind of work done or the kind and amount of materials furnished. Faced with the court s request and Brendsel s clear rejection of Winchester s claim, Winchester, on January 9, 2004, filed an amended petition to establish and enforce a mechanics lien. The amended petition added the averments requested by the court, and, in addition to requesting the establishment of a lien, asked for a stay of proceedings after an interlocutory lien is established pending the outcome of an arbitration proceeding between the parties hereto. On January 30, the court directed Brend sel to show cause o n or before March 8, why a lien should not be granted. Brendsel responded with an answer denying that any amount was due to Winchester and a two-count counterclaim seeking damages of at least $1,000,000. Tracking the -6- allegations in her December 10 letter, Brendsel claimed both overcharging and defective work on Winche ster s part. Neither the amended complaint nor the counterclaim sufficed to terminate discussions and negotiations between counsel. Letters were exchanged, and, on February 11, 2004, counsel met. On M arch 5, con temporan eously with Brendsel s answer and counterclaim, the parties filed a consent motion to postpone the scheduled hearing on Winchester s request for an interlocutory mechanics lien. The motion noted that, with the ability to conduct some limited discovery, planned to be completed by June 15, 2004, certain issues regarding charges for work done by subcontractors might be resolved. Brendsel agreed not to object to an interlocutory lien being established in the amount of $815,877 d uring the discovery period, and the parties expressly agreed that neither this Consent Motion nor their activities during the Discovery Period, nor the issuance of the interlocutory lien order proposed hereunder, shall prohib it or waive a ny party s right to proceed in arbitration, or to object thereto, to the same extent as if this Motion had not been filed and the actions proposed hereun der had not bee n taken . Upon that consent motion, the court, on M arch 8, 2004, entered an interlocutory mechanics lien in favor of Winchester in the amount of $815,877 and declared that neither the consent motion, discovery conducted du ring the discovery period, nor th at order w ould prohibit or waive the right of any party to proceed in arbitration, or object thereto. The same day, Brendsel filed an amended answer and counterclaim. -7- Winchester answered the counterclaim, asserting among other defenses, that the counterclaim was subject to arbitration. During the discovery period allowed in the consent motion and order, Brendsel took the deposition of two sub contract ors b ut co nducted no other discovery. It does not appear that Winchester conducted any discovery. On June 16 , 2004 the day after the discov ery period ended Brendsel filed a mo tion for partial summary judgment as to liability under her countercla im for over-charging. Winchester responded with a petition to compel arbitration and stay all further judicial proceedings, contending that, through its motion for partial summary judgmen t, Brendsel w as seeing a r uling on the merits of its counterclaim, which was subject to arbitration. On July 6, Brendsel filed an opposition to the petition to compel arbitration, aver ring that W inch ester had waived its rig ht to arbitratio n by seeking a mechanics lien and failing to provide written notice of a demand for arbitration within a reason able tim e after th e dispu te had a risen. Following a hearing two weeks later, the court granted the petition to compel arbitration, ruling that, under the totality of the circumstances, Winchester had not waived its right to arbitration. The order compelled arbitration of all the disputes between [the parties] in connec tion with this M echanics L ien action in cluding th e Counter-Claim filed herein and stayed all proceedings in the matter pending the outcome of the arbitration procee ding. Brendsel noted an appeal, the Court of Special Appeals affirmed the judgment (Brendsel v. Winchester, 162 Md. App. 558, 875 A.2d 789 (2005)), and we granted certiorari -8- to consider the issue noted. We shall affirm. DISCUSSION There is no dispute that ¶ 15.8 of the General Conditions created a valid agreement to submit the claims m ade by both Winchester and Brendsel to arbitration, and that such an agreement is enforceable under both the Federal Arbitration Act (U.S. Code, title 9) and the Maryland Uniform Arbitration Act (Maryland Code, title 3, subtitle 2 of the Cts. & Jud. Proc. Article) (CJP). Because there is no significant difference between the two statutes relevant to this case, we shall, fo r conven ience, apply the State law. CJP, § 3-207 provides that, if a party to an enfo rceable arb itration agreem ent refuses to arbitrate, the other party may file a petition in a circuit court to order arbitratio n. If the opposing party denies the existence of an arbitration ag reement, the court shall proceed expeditiously to determine if the agreement exists, and if the court fin ds that the ag reement does exist, it sh all order arbitratio n. Section 3-209 requires further that a court stay any action or proceeding involving an issue subject to arbitration if a petition or ord er to arbitrate ha s been filed . If the issue su bject to arbitration is severable, the court may order the stay with respect only to that issue. The only defense to Winchester s petition to compel arbitration offered to this Court is that, by seeking an interlocutory mechanics lien and answering Brendsel s counterclaim, Winchester waived its r ight to arbitrate the dispute arising from the contract documents. Brendsel asks us to adopt a per se rule that the m ere seekin g of an interlocutory lien -9- constitutes a waiver o f arbitration w ithout regard to any other fa ct or circumstance and without regard to Winchester s actual intent. Along with most courts that have been so importune d, we sha ll decline that re quest. We have long recognized that, becaus e the right to arbitration pursuant to the Federal or Uniform Arbitration Act arises from contract, it may be waived like most other contractual rights. We have also made clear, however, specifically with respect to waiver of a contractual right to arbitrate disputes, that waive r involves a matter of in tent that ordin arily turns on the factual circumstances of each case and that the intention to waive must be clearly established and will not be inferred from equivocal acts or language. Gold Coast Mall v. Larmar Corp., 298 M d. 96, 109, 4 68 A.2d 91, 98 (19 83); Chas. J. Frank, Inc. v. Assoc. Jewish Ch., 294 M d. 443, 4 49, 450 A.2d 1 304, 13 06-07 (1982 ). See also Questar v. Pillar, 388 Md. 675, 687, 882 A.2d 288, 294-95 (2005); Canaras v. Lift Truck Services, Inc., 272 Md. 337, 360-61, 322 A.2d 866, 878-79 (1974 ); Bargda le Indus. v. R obert Rea lty, 275 Md. 638, 643 -44, 343 A.2d 5 29, 533 (1975). We have not previously dealt directly with the precise issue now before us, although in Frederick Contr. v. Bel Pre Med., 274 Md. 307, 334 A.2d 526 (1975) and Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 73 5 (2005), w e made p ronounc ements tha t clearly lead to our holding here. In Frederick Contr., we held that an owner did not waive its right to arbitrate a contractor s claim against it by failing to demand arbitration prior to the contractor, under an earlier version of our mechanics lien law, obtaining a provisional -10- mechanics lien. We co ncluded th at the dem and wa s timely and that further judicial proceedings to foreclose the lien were to be stayed pending the arbitration.2 In Walther, second mortgage borrowers filed a class action lawsuit ag ainst their 2 The general issue of whether, and to what degree, participation as a party in a judicial proceeding might constitute a waiver of arbitration arose, obliquely, in Chas. J. Frank, supra, but did not need to be addressed. The case involved a contract between an owner and a contractor and a contract between the contractor and a subcontractor, both of which contained an arbitration clause. The subcontractor sued the contractor to recover for extra w ork on on e discrete asp ect of the w ork, and the contractor f iled a third par ty claim again st the own er, essentially for ind emnity. The o wner ple d to the third p arty claim. No one sought arbitration, and eventually the case was settled. Later, the contractor demanded the balance due under the general contract, and, when the owner refused to pay, claiming faulty construction work that had nothing to do with the work at issue in the earlier action by the subcontractor, the contractor filed a demand for arbitration. Th e owne r then filed an action in co urt to stay the arbitratio n, claiming th at, by participating in the suit by the sub contractor, the contractor h ad waive d its right to arbitration. In a footnote, we observed that some courts had held that the mere filing of a complaint or answer in court constitutes a waiver of arbitration, while others had held that some greater degree of participation in the judicial proceeding is required for waiver. We found it unnecessary to address that issue, however, holding only that, while participation to the end in litigation with the subcontractor would constitute a waiver of arbitration of the issues raise d in that case , such particip ation was not incons istent with an intention to enforce the right to arbitrate other issues arising from the contract and did not constitute a waiver as to them. The principle that participation in litigation to the point of trial on the merits will constitute a waiver of arbitration was confirmed in NSC v. Borders, 317 Md. 394, 56 4 A.2d 408 (1 989). See also RTKL v. Four Villages, 95 Md. App. 135, 620 A.2d 351 (1 993), cert. denied, 331 Md. 87, 626 A.2d 371 (1993) (defendants waived arbitration by filing cross claims , participating in discovery, and waiting fiv e years to demand arbitration); Commonwealth Equity v. Messick, 152 Md. App. 381, 398-99, 831 A.2d 1 144, 11 54 (20 03), cert. denied, 378 M d. 558, 875 A.2d 78 9 (2005) (d efendan ts waived arbitration by filing answers, participating in discovery, and waiting until eve of trial to petition fo r arbitration); Gladwynne Const. v. Baltimore, 147 Md. App. 149, 807 A.2d 1141 (2002); compare Redemptorists v. Coulthard, 145 Md. App. 116, 801 A.2d 1104 (2002) (mere filing of motion to dismiss for lack of jurisdiction not a waiver of arbitration). -11- mortgagor claiming violations of Maryland s Secondary Mortgage Loan Law. The mortgage contained an arbitration clause, and the mortgagor s assignee filed a petition to compel arbitration and to dismiss the class action suit. The defendant averred as well that, in a disclosure agreeme nt, the plaintiffs had waived the ir right to a class action suit and a jury trial. In response, the plaintiffs claimed, among other things, that, by raising the waiver issues, the defen dant had s ought a ruling on the merits and h ad thereby w aived its right to arbitration. The Circ uit Court rejected that defense and entered an order compelling arbitration, which we affirmed. In doing so, we observed: [T]he circuit court s . . . order included no final judgment on any issue that mig ht be su bject to a rbitration . Thus, Sovereign Bank attained no determination on any of the issues in dispute. Sovereign Bank s a ctions did not constitute a repudiation of the Disclosure Agreem ent s arbitration provision b ut, in light of the fact that petitioners seemed intent to avoid arbitration, rather amount to a continued affirmative step in further pursuit of an adjudication by arbitration of the parties dispute. Acc ordingly, the results of Sovereign Bank s petition was neither a waiver of the right to arbitration nor of an y of the issues th at might be subjec t to arbitra tion. Id. at 449, 872 A.2d at 757. We anticipated in Walther one aspect of the issue now bef ore us whether where (1) one party to an agreement containing a valid arbitration clause reserves the right to seek a judicial remedy that only a court can provid e, such as foreclosure or a mecha nics lien, (2) the party opts for that reme dy, (3) a contract defense is asserted by the other party to liability, and (4) that party demands arbitration of the dispute, the court, on motion and pursuant to §§ 3-207 and 3-209 of the Courts and Judicial Proceed ings Article -12- or the counterpart provisions in the Federal Arbitration Act, would be required to stay the judicial procee dings a nd dire ct that dis pute to b e resolv ed in arb itration. Id. at 449-50, n.13, 872 A.2d at 757-58, n.13. We found it unnecessary to resolve that issue in Walther. To impleme nt our gen eral view th at an intention to waive arbitration is not to be inferred from ambiguous conduct, but must be cle ar and un equivoca l, we need to examine the nature and role of mechanics liens and the manner in which they may be obtained. Until our decision in Barry Properties v. Fick Bros., 277 M d. 15, 35 3 A.2d 222 (1 976), a mechanics lien was created and attached to the property automatically, as soon as work was performed or materials were supplied, and it lasted, even w ithout the filing of a claim, u ntil the exp iration o f 180 d ays after th e work was fi nished or the m aterials w ere furn ished. Id. at 19, 353 A .2d at 225-2 6; see also RP (1974) § 9-105(e). To m aintain the lien thereafter, the contractor h ad to file a cla im with the clerk of the Circuit Court, who would then list the claim on a special mechanics lien docket. RP § 9-105(a) and (b). The extended lien would expire one year from the date the c laim was f iled unless, during that period, either the claimant sued to enforce it or the owner or other interested person sued to compel the claimant to prove its validity. RP § 9-106. It was in that proceeding that the court would determine the validity of the claim, if it was contested. That was the legal construct when Frederick Contr. v. Bel Pre Med., supra, was decided. In that case, the contractor filed its claim a nd prom ptly filed a com plaint to enforce it, thereby triggering the adjudicatory proceeding . The owner s demand for arbitration, filed -13- after the complaint to enforce the lien but before any proceeding on that complain t, was held not to be waived because it was not filed prior to the contractor s complaint to enforce its lien. In Barry Properties, based on four then-recent Supreme Court decisions striking down on due process grounds laws that allowed the imposition of a lien against property without an opportunity for a prior hearing, we held that the existing mechanics lien law was unconstitutio nal. We concluded that, because the law allowed prejudgment seizures without notice, a prior hearing, or other sufficient safeguards, it was incompatible with the due process clauses of the Fourteenth Amendment and what is now Art. 24 of the Md. Decla ration o f Righ ts. The Legislature responded immediately by revising the law to provide a bifurcated approach that satisfied the Court s due process concern but did not require full litigation of a contractor s claim in order to obtain a provisional lien. No longer does a lien arise automatica lly from the doing o f the work or provision of materials, without notice or opportun ity for a hearing, but a contractor can obtain an interlocutory lien without having to litigate in full the merits of its claim. To obtain a lien, the contractor must file a petition in the C ircuit Co urt w ithin 180 days after the work was finished or the materials furnished. RP § 9-105. If, from the petition and any exhibits attached to it, the court concludes that there is a reasonable ground for the lien to attach, it en ters an orde r directing the owner to file an answer showing cause why the lien should not attach, and setting a date for a hearing. -14- That is what the c ourt did in this case. Based on the o wner s response (o r failure to respond), RP § 9-1 06 and M d. Rule 12 -304 give the court thre e options: (1) if the eviden ce before the court sh ows that th ere is no genuine dispute of material fact and that a lien should attach as a matter of law, it shall enter a final order establishing the lien in the amount not in dispute;3 (2) if the evidence shows that there is no genuine dispute of material fact and that the petitioner has failed as a matter of law to establish its right to a lien, it shall enter a final order denying the lien; (3) if the court determines that the lien should not attach (or not attach in the amount claimed) as a matter o f law but th at there is proba ble cause to believe that th e petitioner is entitled to a lien, the co urt shall enter an interlocutory order that (i) establishes th e lien, (ii) describes the boundaries of the land and buildings to which it attaches, (iii) states the amount of the claim for which probable cause is fou nd, (iv) specifies the amount of bond that the owner may file to have the lien released, (v) may require the claiman t to file a bond and, if so, sets the amount, and (vi) assigns a date for trial of all matters at issue in the action. This construct can create the ba sis for a wa iver. If, pursua nt to a contractor s petition and an owner s response, neither side seeking to have the matter resolved by arbitration, the court proceeds to determine as a matter of law either that the contractor is entitled to a final 3 If it appears that there is no genu ine dispute as to a portion of th e claim, the court enters the lien for that portio n and the a ction proce eds on the disputed am ount. -15- lien or that it is not entitled to a lien, both sides would be bound by that determination and could not later complain that there was an arbitrable dispute. Similarly if, in lieu of ruling one way or the other as a matter of law, the court sets the matter for trial and the parties proceed with trial or with significant preparation for trial, they would be deemed to have waived any right to arbitration and would be bound by the ultimate judicial determination. When the parties and the court do not proceed to that point, however, and the contractor makes clear that it is merely seeking an interlocutory lien and desires to have any dispute as to the merits of the claim reserved for resolution through arbitration, it does not, through that limited action alon e, waive its rig ht to arbitration. In that situation, which is the one now before us, the court is n ot being ask ed to resolv e the merits o f the claim. An interlocutory lien is imposed only when there are issues of fact in dispute that cannot and are not resolved at that stage of the proceeding. Viewed in that context, an interlocutory mechanics lien is in the nature of a provisional remedy, not much different than an interlocutory injunction or attachment sought to maintain the status quo so that the arbitration proceeding can have meaning and relevance, and the predominant view throughout the country is that the availability of such remedies by a court is permitted by the Federal and Uniform Arbitration Acts and is not inconsisten t with the right to enfo rce an a rbitration agreem ent. See Salvucci v. Sheehan, 212 N.E.2d 243 (Mass. 1965); Teradyne Inc. v. Mostek Corp., 797 F.2d 43 (1 st Cir. 1986) ; Blumenthal v. Merrill Lynch, 910 F.2d 1049 (2 nd Cir. 1990) ; Merrill Lynch, Pierce, Fenner & Smith v. -16- Bradley, 756 F.2d 104 8 (4 th Cir. 1985); RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227 (5 th Cir. 1988) ; Merrill Lynch, Pierce, Fenner & Smith v. Salvano, 999 F.2d 211 (7 th Cir. 1993); Merrill Lynch, Pierce, Fenner & Smith v. Dutton, 844 F.2d 726 (10th Cir. 198 8). The focus of those cases was on preserving the status quo preven ting one pa rty from taking some action that could effectively frustrate the arbitration proceeding. That is the focus here as w ell.4 Often, the only security that a contractor has for enforcing an arbitral award and collectin g what the arbitrator dec lares is owe d is the mec hanics lien. As the Court of Special Appeals pointed out in Caretti, Inc. v. Colonnade Ltd., 104 Md. App. 131, 137, 655 A .2d 64, 6 7 (199 5), cert. denied, 339 Md. 641, 664 A.2d 885 (1995), to defer consideration of even an interlocutory order establishing a lien could . . . leave the claimant unprotected for a cons iderable pe riod of time . Other cre ditors can ea sily jump in w ith judgmen ts or other liens that would achieve priority over any lien that the claimant may ultimately obtain and leave the claimant out in the cold.5 For a cl assic ex ample of that, see 4 The balance of considerations is even more delicate when a temporary restraining order or interlocutory injunction is sought, because the court, in order to grant such relief, must ordinarily find a likelihood of success on the merits, which does require some tentative ruling o n the ulti mate iss ues. See Lejune v. Coin Acceptors, Inc., 381 Md. 288, 300-01, 8 49 A.2d 451, 458 -59 (2004 ); Fogle v. H&G Restaurant, Inc., 337 Md. 441, 45556, 654 A.2d 449, 456 (1995). That has not served to preclude such interim and provisional relief, however. In imposing an interlocutory mechanics lien, the court does not have to go quite that far, but only to determine that the issue cannot be resolved, one way or the other, as a matter of law and that there is probable cause to believe that the petitioner is entitled to a lien. Probable cause is a lesser standard than likelihood of success. 5 The dilemma presented by Brendsel s ap proach goes beyond the mere (contin ued...) -17- Residential Indus. Loan Co. v. Weinberg, 279 Md. 48 3, 369 A.2d 56 3 (1977). The Caretti court found no impediment to the court s procee ding un der Re al Prop . art., § 9-106(b)(3) to hold a probable cause hearing, upon a finding of probable cause which is far less than adjudicating the merits of the dispute from establishing an interlocutory lien, and then staying trial on the merits in favor of arbitration. Id. at 138, 655 A.2d at 67. That appears to be the general view, and, indeed, a contrary view would be inconsistent with the legislative direction in RP § 9-112 that the me chanics lien law is remedial and shall be construed to give effect to its purpose. In Newman v. Valleywood Associates, Inc., 874 A.2d 1286 (R.I. 2005), the Rhode Island court, citing Caretti in its discussion, held flatly that a party does not waive its right to arbitrate a contractual dispute, as a matter of law, by filing a notice of intention to claim a m echanic s lie n and tha t a party may proceed to arbitration after first encumbering the subject real e state with a mechan ic s lien. Id. at 1290. The court pointed out that in Rhode Island, as in Maryland, waiver of 5 (...continued) happens tance of o ther creditors f ortuitously obtain ing priority. If a con tractor is unab le even to file a petition for m echanics lie n withou t losing its agree d-upon rig ht to arbitrate the dispute and is left solely to filing a demand with an arbitration organization or other chosen arbitrator, that non-judicial demand may not serve as lis pendens or otherwise give constructive notice of the dispute, and thus would permit the owner to alienate the property or deliberately place all sorts of encumbrances on it in order to render the contractor s claim worthless. That would hardly be consistent with the long-held view of this and nearly ev ery other c ourt tha t arbitratio n is a fa vored form o f dispu te resolu tion. Questar v. Pillar, supra, 388 M d. at 684 , 882 A .2d at 29 3, and c ases cite d there. Contracto rs would lik ely be reluctant, ind eed, to opt fo r arbitration a n especially favored re medy in the c onstruction industry if they kn ew that, by do ing so, they w ould be relinquishing their right to seek a mechanics lien. -18- arbitration is to be determined by the facts of the case, and, to hold that the mere filing of a claim for mech anics lien co nstitutes an au tomatic waiver would be inconsistent with that approach. See also LaHood v. Central Illinois Const. Co., 781 N.E.2d 585 (Ill. App. 2002); H.R.H. Prince, LTC v. Batson-Cook Co., 291 S.E.2 d 249 (G a. App. 19 82); EFC Develop. Corp. v. F.F. B augh Plumbing & H., Inc., 540 P.2d 185 (Ariz . App. 197 5). In one S tate where the court reached a different conclusion, the Legislature promptly overruled the decision by statute. See Young v. Crescent Development Co., 148 N.E. 510 (N.Y. 1925) and Askovitz v. Gabay, 241 N.Y.S. 394 (A.D. 1930). The general rule is well-stated in Mau rice T. B runner , Filing of Mechanic s Lien or Proceeding for its Enforcement as Affecting Right to Arbitration, 73 A.L.R. 3d 10 66 (1976). The annotator points out that, while acts inconsistent w ith an agree ment to sub mit a controversy to arbitration may constitute a repudiation, a breac h, or waiver o f the right to arbitrate, waiver is usua lly a question of fact depen dent upon the intention o f the party claimed to have w aived his right. Id. at 1068. That is the established Maryland view. Thus, he continues, [i]t has been held that the mere filing of a mec hanic s lien d oes not in itself constitute a waiver or abandonment of rights under an arbitration clause in a construction contract unless the lienor manifests an intent to waive or abandon his rights, and the existence of such an intent depends upon the particular facts of a given case. Id. The record in this case not only supports the Circuit Court s conclusion that there was no intent to waive arbitration on W inchester s part but comes close to making any contrary -19- finding one that would be clearly erroneous. Winchester filed its initial petition out of concern that failure to d o so within the statutory time re quirement might be regarded as preclusive, notwithstanding the T olling Agreemen t. This Court has not ruled on that issue, but there is language in som e of our older cases, con struing the earlier version of the mechanics lien law, that cou ld justify that conc ern. Winc hester mad e no effo rt to have the merits of its claim resolved by the court, but instead continued to negotiate w ith Brends el in an effort to resolve any as-yet-undeclared disputes amicably. As noted, Brendsel never responded to the initial petition, which remained dormant. When the court insisted on a supplement to the petition, contemporaneously with Brendsel finally rejecting Winchester s applications for p ayme nt an d the reby creating for the first time a dispute ripe for adjudication, Winchester amended its petition to make clear that it wanted only an interlocutory lien and to ask specifically that the court stay any further proceedings on the claim in favor of arbitration. It iterated its demand for arbitration in response to B rendsel s motion fo r summa ry judgment. Nothing in this record indicates an intent on Winchester s part to waive arbitration. All of its actio ns sh ow the co ntrary. The arbitration clause, § 15.8 of the General Conditions, requires that the arbitration be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, Rule 49(a) of which provides that [n]o judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed -20- a waiver o f the party s right to arbitrate. 6 The consent motion itself, signed after the amended petition wa s filed, mak es clear that the delay and the limited discovery insisted upon by Brendsel were not intended to waive W inchester s rig ht to have th e dispute submitted to arbitration. Filing an answer to B rendsel s countercla im in order to forestall the prospect of an order of default being entered o n it hardly suffices to overcome Winchester s consiste nt dem and tha t the disp ute be a rbitrated in conf orman ce with the con tract. The simple fac t is that there is nothing inconsistent between the mere seeking of the protection of an interlocutory mechanics lien or takin g routine an d approp riate action to preclude an order of defau lt and an intent on W inchester s part to require that any dispute over the comp eting claims be subm itted to arbitration. It is not an either/or situation. The granting of the in terlocut ory lien, without opposition by Brendsel, did not resolve the dispute. Adjudication of the merits of Winchester s claim through arbitration was in no way compromised by the interlocutory lien. The parties agreed in their contract that all disputes arising from the contract doc uments were to be adjudicated by an arbitrator. That is what Winchester demand ed, and tha t is what the c ourt was o bliged by both Federal and State law to implement and enforce. 6 Brendsel contends that Rule 49 does not apply to judicial proceedings instituted prior to the commencement of arbitration. The Rule is not at all clear in that regard, and, whether or not an arbitrator might construe it as Brendsel suggests, it would not be unreasonable for Winchester to construe it otherwise and therefore assume that the arbitration clause itself permits a protective petition seek ing an interlocutory mechanic s lien. That w ould certain ly be relevant on the issue of its actual intent. -21- JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -22- IN THE COURT OF APPEALS OF MARYLAND No. 66 September Term, 2005 ______________________________________ LELAND BRENDSEL, ET AL. v. WINCHESTER CONSTRUCTION COMPANY, INC. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C.J. ______________________________________ Filed: May 10, 2006 I disagree with the majority. The appellants, Leland C. Brendsel and his wife , B. Diane Brendsel, entered into a contract with the app ellee , Win ches ter C onst ruction C omp any, Inc., pursua nt to wh ich the a ppellee , as Co ntractor , undertook the renovation of an histor ic plantation house, which the appellants owned. In that contract, the parties agreed how, and in what forum, disputes between them with respect to the contract would be handled. Pertinent in th at regard, Se ction 15.8 o f the Gen eral Cond itions of the c ontract prov ides: All claims or disputes between the Contractor and the Owner arising out of or relating to the Contract documents, or the breach thereof, shall be decided by arbitration in accordance w ith the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise and subject to an initial presentation of the claim or dispute to the Architect as required under paragraph 15.5. As that provision evidences, the parties agreed that the preferred, and indeed, exclusive, dispute resolutio n meth od wa s arbitrati on. See Crown Oil and Wax Co. of Delaware, Inc. v. Glen Const. Co. of Virginia, Inc., 320 Md. 546, 578 A.2d 1184 (1990) (holding that the intention of the parties controls on whether there is an agreement to arbitrate, but, where the parties use a broad, all encompassing clause, it is presumed that they intende d all matters to be arbitrated). The contract makes no exceptions to this preference, not even for provisional or ancillary remedies, the purpose of which, ostensibly, are to preserve the status quo in order to avoid the underm ining of the parties prefe rence, to insu re, in short, that arbitration w ill be ab le to b e use d me anin gfully. 7 7 In this respect, therefore, this case differs drastically from Walther v. Sovereign Bank, 386 M d. 412, 8 72 A.2 d 735 ( 2005) , on wh ich, as w e shall se e, infra, the majority (contin ued...) Subject to the execution of the contract, a dispute developed regarding the proper amount of fees and overhead costs to be paid to Winchester. Rather than pursuing arbitration, as the contract required, Winchester filed an action in the Circuit Court for Queen Anne s County to es tablish a me chanic s lien . It did so, we a re told, in the words of the majority opinion, __ Md. __, __ A.2d __ (2006) [slip op. at 5], because Winchester was [c]oncerned that the statutory time for filing a petition for mechanics lien was (1) getting close, and (2) might be reg arded as jurisdictional or preclusive in n ature, rather than as a 7 (...continued) relies. __ Md. __, __, __ A. 2d __, __ (2006) [slip op. at 10-13]. In that case, recogn izing tha t certain r emed ies, i.e. injunctions, lien s, receivorsh ips, etc., are availa ble only in a court p roceeding and that the y may be usefu l, and therefo re resort to them is desirable, in ce rtain circum stances, the B ank quite d eliberately, and ex pressly, hedge d its bet with res pect to the d ispute resolu tion choice , opting to ex cept, in additio n to foreclosu res and self -help reme dies, provis ional or anc illary remedies w ith regard to such secu rities, including w ithout limitation , injunctive relief , sequestration , attachmen t, garnishment, or the appointment of a receiver from a Court having competent jurisdiction before, during or after the p endency of any arbitration. The ag reement was clea r: The pursuit of any such remedy shall not constitute a waiver of the right of any party to have all other claims or disputes resolved by arbitration. Walther v. Sovereign Bank, 386 Md. 412 , 419, 872 A.2d 7 35, 739 (2005). -2- mere statute of limitations that could be waived or tolled by agreement of the parti es. 8 Id. Brendsel eventu ally, through a letter from counsel, rejected in full Winchester s claim for fees and overhead costs. As the majority notes, [t]he letter acknowledged a net balance owing under the contract of $604,565 but claimed credits against that balance of $871,872 for overcharges and construction defects, leaving a new balance to Brendsel. __ Md. at __, __ A.2 d at __ [ slip op. a t 5]. On January 9, 2004, Winchester, in an amended petition, filed to enforce the mechanic s lien, and asked for a stay of pro ceedings after an interlocutory lien is established pending the outcome of an arbitration proceeding between the parties hereto. __ Md. at __, __ A.2d at __ [slip op. at 6]. On March 5, 2004, a consent motion was filed by both parties, agreeing that w ith lim ited d iscovery, some issues could be resolved. __ Md. at __, __ A.2d at __ [slip op. at 7]. On March 8, 2004, an interlocutory lien was entered in favor of 8 The re is a temp oral elem ent to the M arylan d me chan ic s lien statut e; ordina rily, the right to a mechanic s lien is lost, if not pursued. Maryland Code (1974, 2003 Replace ment Vo lume) § 9- 105 of th e Real Pro perty Article pro vides, as relev ant: (a) In order to establish a lien under this subtitle, a person entitled to a lien shall file proceedings in the circuit court for the county where the land or any part of the land is located within 180 days after the work has been finishe d or the materia ls furnis hed. . . . -3- Winchester, declaring that neither the consent motion nor anything that was conducted during the discovery period would waive the right to arbitration. __ Md. at __, __ A .2d at __ [slip op. at 7]. Brendsel filed an answer and counterclaim. __ Md. at __, __ A.2d at __ [slip op. at 7]. Winchester claimed that the counterclaim was also subject to arbitration. __ Md. at __, __ A.2d at __ [slip op. at 7-8]. After the discove ry period ended, Brendsel filed a motion for partial summary judgment. __ Md. at __, __ A.2d at __ [slip op. at 8]. Again, Winchester filed a petition to compel arbitration and to stay all further judicial proceedings, contending that through its motion for p artial summary judgment, Brendsel was seeking a ruling on the merits of its counterclaim, which was subject to arbitration. __ Md. at __, __ A.2d at __ [slip op . at 8]. On Ju ly 6, 2004, Bre ndsel filed a n opposition to the petition to compel arbitration, usin g argum ents similar to those argued sub judice. __ Md. at __, __ A.2d at __ [slip op. at 8]. The appellants sub judice, in challenging the stay, contend that Winchester, in seeking a n interlocuto ry mechanic s lien, waived its right to arbitrate any disputes arising from the contract. The Majority, like the trial court, rejects the appellants argumen t, concludin g instead tha t, by filing a court a ction to estab lish an interlocutory mechanic s lien and obtaining one, Winchester did not waive its right to compel arbitration of an arbitrable dispute. __ M d. at __, __ A.2d at __ [slip op. at 1]. I do not understand how the seeking of a mechanic s lien, under these factual circumstances, is not a wa iver of the rig ht to arbitratio n. As I see it, the issue really is one of contract interpretation, to which, as we have so often pointed out, the usual canons of -4- statutory interpretation a pply. See Tomran v. Passano, 391 Md. 1, 891 A.2d 336 (2006) ( The cardinal rule of contract interpretation is to give eff ect to the parties' intentions ). We have to determ ine the in tent of th e parties to the co ntract. Myers v. Kayhoe, 391 Md. 188, 198, 892 A.2d 520, 526 (2006). In seeking that intent, we start with the words of the contract, giving them their usual and ord inary mean ing. Myers, 391 Md. at 198, 892 A.2d at 526. If the words used are clear and unambiguous, we give effect to them, as written, Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 251, 768 A.2d 620, 630 (2001), and we will look no f urther for the parties intent, nor will we add or delete words to achieve a meaning not otherw ise evident f rom a fair reading of the language used. 363 Md. at 251, 768 A.2d at 630. In that situation, it is irrelevant that th e parties, or, as in this case, one of the parties, interpreted the contrac t differe ntly or thou ght it me ant som ething e lse. Dennis v. Fire & Police Employees Ret. Sys., 390 Md. 639, 656-57, 890 A.2d 73 7, 747 (2006) ( [T]he clear and unam biguous la nguage o f an agree ment will not give away to what the parties thought that the a greem ent me ant or in tended it to mea n ). This is the objective law of contract interpre tation an d cons truction , Owens-Illinois, Inc. v. Cook, 386 Md. 468, 496-497, 872 A.2d 969, 985 (2005); General Motors Acceptance Corp. v. Daniels , 303 Md. 254, 261 , 492 A.2d 1306, 13 10 (1985 ); Aetna C asualty & Sure ty Co. v. Insurance Commissioner, 293 Md. 40 9, 420, 445 A.2d 14, 19 (1982), which we have explained, as follows: A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the -5- parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unam biguous la nguage o f an agree ment will not give away [sic] to what the parties thoug ht that the agre ement m eant or intended it to mean. Con sequ ently, the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean.... As a result, when the contractual language is clear and unambiguous, and in the absence of fraud, duress, or mistake, parol evidence is not admissible to show the intention of the parties or to vary, alter, or contrad ict the term s of tha t contrac t. Owens-Illinois, Inc. v. Cook, 386 Md. at 496-497, 872 A.2d at 985, quoting General M otors Acceptance Corp. v. D aniels, 303 Md. at 261, 492 A.2d at 1310. Only when the language of the contract is ambiguous will we look to extraneous sources for the contract s meaning. In that event, the intention of the parties must be established through relevant parol evidence or by strictly construing the clause against its autho r. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 25 4, 267, 686 A.2d 298, 304 (1996 ). It also is relevant, instructive, even, that the mec hanic s lien sta tute is itself clear and unambiguous with respe ct, not only to the time requirements that must be met as a condition to obtaining the lien, but, as well, with respect to the property to which it has applicab ility. Maryland Code (1974 , 2003 Replacem ent Volume) § 9-102 (a) of the R eal Property A rticle is relevant to th is case. It provid es: (a) Every buildin g erected a nd every bu ilding repaire d, rebuilt, or improved to the extent of 15 percent of its value is sub ject to establishm ent of a lien in accordance with this sub title for the payment of all debts, without regard to the -6- amount, contracted for work done for or about the b uilding and for materia ls furnished for or about the building, including the drilling and installation of wells to supply water, the construction or installation of any swimming pool or fencing, the sodding, seeding or planting in or about the premises of any shrubs, trees, plants, flow ers or nurse ry products, the g rading, filling, landscaping, and paving of the premises, and the leasing of equipment, with or with out an o perator , for use for or a bout th e buildin g or pre mises. So, too, is the fact, undenied by Winchester, that it is an experienced contractor. Therefore, we are justified in assuming that it was either well aware, or chargeable with knowledge, of the mec hanic s lien statut e, its a pplicabi lity and, more im portantly, the time constraints to which it w as subject. As we have seen, this is a contract for the renovation of an historic plantation. We must presume, there being no contention to the contrary, that it was an arm s length one, entered into voluntarily and that the terms w ere negotiated, or, at least, not dictated by one party to the oth er one. Moreover, it involv ed exte nsive w ork to b e done by Winc hester. Con sequ ently, and this is not disputed, the property that was the subject of the contract was subject to the establishment of a m echanic s lien. Indeed, Winchester s seeking to establish one on the property confirms that this is so. We have also seen that the contract clearly and unambig uously provided for the use of arbitration as the pre ferred and exclusive d ispute resolution method; it requires that all covered claims or disputes be decided by arbitratio n. Yet the contract into which Winche ster voluntarily entered, the contract that provided that arbitration is the exclusive remedy, makes absolutely no reference to the mechanic s lien statute or the appellee s e ntitlement to u tilize it in supplementation of that -7- exclusive remedy. Th us, it is clear beyond cavil that no exception to the exclusive remedy of arbitration was made for mechanic s lien proceedings. That the parties agreed that arbitration would be their exclusive remedy - the only method available for the resolution of claims and disputes arising under or relating to the contract - and did not, as certainly they cou ld have done, see Walther v. Sovereign Bank, 386 Md. 412, 418-419, 872 A.2d 735, 739 (2005), preserve their right to resort to supplemental or ancillary relief, statutory or otherwise, leads inexorably to the conclusion that the parties intended that only arbitration would be available and must be used; all other relief, remedies, or dispute resolution methods were excluded. In my view, it is not even arguable that the parties contemp lated the hybrid p roceeding s the majority endorses. It is clear, in any eve nt, that the contract does not support such an approach. The claim that Winchester has against the appellants arises out of, or relates to, the contract docum ents or th e breac h of the contrac t. It also is the basis for the mechanic s lien that Winchester seeks. Thus, the claim tha t Winche ster would pursue in a rbitration is the same claim that underlies its mechanic s lien proceedings and, of course, the property on which the lien would be placed is tha t out of w hich the claim itself arises or relates. Because the contract did not except the mechanic's lien proceedings from its coverage, from the claims and disputes to which arbitration must be utilized for resolution, or expressly permit such proceedings as a place-holder, a provision that could have been include d if agreed to by the appellants, it follows that W inches ter was not auth orized to resort to the cou rt. -8- Rather, it was required to initiate and pursue arbitration. By resorting to court in the first instance, even if it was intende d to be only for a short time, an d in aid of arbitration, when its contract did not authoriz e it, eschew ing, in the process, as an initial matter, the arbitration remedy, Winche ster waived its right to arbitratio n. See NSC Contractors, Inc. v. Borders, 317 Md. 394, 564 A.2d 408 (1989) (holding that by filing a claim for monetary damages seeking final judgment order against architect, contractor of project waived arbitration, provided by contract, of dispute as to proper amount of money withheld); Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304 (1982) (holding that a party wa ives right to arb itrate an issue by participation in a judicial proceeding, the waive r is limited to those issues raised and/or decided in the judicial proceeding and, absent additional evidence of intent, the waiver does not extend to any unrelated issues arising under the contract); RTKL Assoc., Inc. v. Four Villages Ltd. Partnership , 95 Md. App. 135, 144, 620 A.2d 351, 355 (1993) (ho lding that a p arty s pursuit of litigation before seeking to compe l arbitration, as previously agreed upon, resulted in a waiver of the right to arbitration). The majority, like the appellee, relies on Frederick Contractors, Inc. v. Bel Pre Med. Ctr., Inc., 274 Md. 307, 334 A.2d 526 (1975), and Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 7 35 (20 05). Th e majo rity ackno wledg es, and I agree, that these cases do not address the precise iss ue this case p resents. I go f urther; these c ases are co mpletely inappo site, altho ugh, in o ne partic ular, Walther actually supports my position. -9- In Bel Pre Med. Ctr., Inc., as in this case, the parties entered into a contract, pursuant to which Frederick Contractors, Inc. undertook to build an addition to Bel Pre s nursing home and in which they agreed, with exceptions not here relevant, that [a]ll claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof ... shall be decided by arbitration in accordance w ith the Construction Industry Arbitration Rules of the Am erican Arb itration Asso ciation then o btaining un less the parties m utually agree otherwise. 274 Md. at 310-311, 334 A.2d at 52 8. When Frederick d id not receiv e all of the compensation it felt it had earned, it reco rded a me chanics lien in the Circu it Court for Montgomery County, and more than thirty (30) days later, filed in that court a bill of complaint to foreclose the lien. 274 Md. at 309, 334 A.2d at 527-528. Thereafter, almost another thirty (30) days later, Bel Pre moved to strike the mechanic s lien, arguing both that its contract w ith Frederick required the arbitration of any disputes arising out of the contract and that it had demanded that dispute resolution method. 274 Md. at 309, 334 A.2d at 528. Despite the denial o f its motion to strike, Bel Pre persisted in its answer to the Bill to insist that the contract required arbitration, prompting Frederick to seek injunctive relief on the ground that Bel Pre had not tim ely demanded that the dispute be arbitrated. 274 Md. at 309, 334 A.2d at 528. The trial court granted the relief, permanently enjoining Bel Pre and Frederick from proceeding to arbitration. 274 Md. at 309, 334 A.2d at 528. The Court of Special Appeals vacated the permanent injunction and remanded for the entry of an order compelling arbitration and staying fu rther pro ceedin gs in the Circuit C ourt. Bel Pre Med. -10- Ctr., Inc. v. Frederick Contractors, Inc., 21 Md. Ap p. 307, 330, 320 A .2d 558, 572 (197 4). Although the intermed iate appellate court acknowledged what I contend sub judice, that [W]he n the parties h ave agree d to subm it any and all con troversies arisin g out of the contract to an arbitrator, all issues other than those expressly and specifically excluded must be submitted to arbitration, 21 Md. App. at 327, 320 A.2d at 569-70, because the refusal to arbitrate was based not on a contention that the substantive issues were not arbitrable, but on the contentio n that arb itration h ad not tim ely been m ade, id. at 322, 320 A.2d at 567, i t perceived that the questio n of su bstantiv e arbitra bility [wa s] not be fore [it] , even though the contractor filed the mechanics lien proceedings without first resorting to arbitra tion. Id. at 322-2 3, 320 A .2d at 56 7. Missing from that analysis is any focus on the obligation of the contractor, clea rly a party to the arbitratio n contract, to itse lf initiate arbitration proceedings, especially given Bel Pre s motion to strike. Also worth noticing is the inconsistency of the approach with th e parties contra ctual un dertakin gs, holding one party to the term s of its contract, while, presu mably precise ly because of that fact, 9 excusing the other. At the very 9 I assume this to be the case because, having acknowledged that the parties agreed to arbitration and noting the contractor s failure to initiate such proceedings, the focus shifted immediately to the owner s demand for arbitration of the issues concerning the amount of money ... due and owing, the timeliness as to which there was some dispute . Bel Pre Med. Ctr., Inc. v. Frederick Contractors, Inc., 21 Md. App. 307, 322, (contin ued...) -11- least, therefore, the issue the case sub judice presents was not before the Court of Special Appeals in Bel Pre Me d. Ctr. for decision , and it certainly did n ot decide it. The Court of Appeals focused on the effect of the filing of a demand to arbitrate on earlier filed proceedings to foreclose a mechanics lien, rather than on the right of Frederick to have filed the mechanics lien proceedings in the first instance, which was the thrust of Bel Pre s motion to strike. Concluding that the timeliness of a demand for arbitration is a threshold question , for the court, 274 Md. at 315, 334 A.2d at 531, it perceived the critical question [to be] what effect the demand for arbitration had upon the pending action. Id. Thus, the Court s aw its task as harmonizing the Maryland Arbitration Act with the concept of the mechanics lien law. 274 Md. at 315, 334 A.2d at 531. It was in this context that the Court stated that F rederick too k timely action to assert its lien, id., and that an attachment would lie to enforce any award which might be made by arbitrators to whom the controversy was to be submitted for determination after the action had been instituted. Id. at 315, 334 A.2d at 531, citing Shriver v. State ex rel. Devilbiss, 9 G. & J. 1, 9 (M d. 1837 ). Shriver, however, was decided on the basis of two statutes addressing the submission of pending 9 (...continued) 320 A.2d 558, 567 (1974). Indeed, the court characterized the issue as whether a broad arbitration agreement, as in that case, precluded a court from determining the amount of money due for labor and materials supplied by a contractor to an owner. 21 Md. App. at 314, 320 A.2d at 562. -12- cases to arbitration, and was decided long before the enactment of the Maryland Arbitration Act, codified at Maryland Code (1 973, 200 2 Replac ement V ol., 2005 Su pp.) title 3, subtitle 2 of the C ourts & Judicia l Proce edings Article. U nder the Mar yland Arbitratio n Act, executory agreeme nts to arbitrate, previously unfavored when Shriver was d ecided , see Eisel v. Howe ll, 220 Md. 584, 587-88, 155 A.2d 50 9, 511 (19 59); Tomlinso n v. Dille, 147 Md. 161, 167, 127 A.2d 746, 748 (1925 ),10 became favored. See Gold Coast Mall, Inc. v. Larmar Corp. 298 Md. 96, 103, 468 A.2d 91, 95 (1983) (noting a legislative policy favoring enforcem ent of exe cutory agreem ents to arbitrate ); see also Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139, 835 A.2d 656 (2003) (explaining arbitration s favored status); Holmes v. Coverall North America, Inc., 336 Md. 534, 649 A.2d 365 (1994) (observing the Marylan d legislative inte nt to favor arb itration); Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 M d. 443, 4 50 A.2 d 1304 (1982) (expressing the legis lative po licy favor ing arb itration). In context, there fore, the statem ent, on which the majority principally relies, [w]hile the parties may have bound themselves by 10 This is contrasted with the attitude toward suits to enforce arbitration awards, which was to view th em as favore d actio ns. See Parr Construction Co. v. Pomer, 217 Md. 53 9, 543, 144 A.2d 69 , 72 (1958 ); Dominion Marble Co. v. Morrow, 130 Md. 255, 260, 100 A. 292, 29 3 (1917); Lewis v. Burgess, 5 Gill. 129, 1 31 (1847 ); Caton v. McTavish, 10 Gill. & J. 192, 216-2 17 (1838). -13- the general conditions of the contract to accept the resolution of disputes by arbitration, they in no way limited themselves in the manner by which payment of an award may be enforced is not su rprising . It is interesting, however, that the authority cited is Maryland Code (1 973, 200 2 Repl. Volume) § 3-202 of the Courts and Judicial Proceedings Article, which provides: An agreeme nt providing for arbitration under the la w of the S tate confers jurisdiction on a court to enforce the agreement and enter judgment on an arbitratio n awa rd. Certainly this provision does not suggest, no t to mention require, that a p arty to an arbitration agreement is free to com e to court, in co ntradiction o f the expre ss terms of th e contract, if that party believes th at the failure to do so would, or potentially could , affect the re covery to which the party is due. That eventuality is a matter that could, and should, have been addressed when the parties contracted for the resolution of potential disputes. In Walther, the arbitration agreement at issue provided: BINDING ARBIT RATION. The parties agree that any claim, dispute or controversy arising from or relating to this agreement or the relationships which result from this agreement, including the validity of this arbitration clause or the entire agreement, shall be resolved by binding arbitration by and under the Code of Procedure of the National Arbitration Forum in effect at the time the claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. Judgment upon the award may be entered in any court ha ving jurisdiction. Nothing in this agreement shall be construed to limit the right of any party to 1) foreclose against real or personal property or other secu rity by an exercised power o f sale unde r a security instrument or applicable law, 2) exerc ise self-help remedies, o r 3) obtain provisional or ancillary remedies with regard to such securities, including without limitation, injunctive relief, sequestration, attachm ent, garnishm ent, -14- or the appointment of a receiver from a Court having competent jurisdiction before, during or after the pen dency of any arbitra tion. The purs uit of any such remedy shall not constitute a waiver of the right of any party to have all other claims or disputes re solved by arb itration. The parties agree that an y dispute subject to arbitration shall not be adjudicated as a class action or consolidated class proceeding. By signing this agreement, the parties acknowledge that they had a right or opportunity to litigate disputes through a court, but that they preferred to resolve any disputes through arbitration. The parties acknowledge that they are waiv ing their right to ju ry trial by consenting to binding arbitratio n. 386 Md. at 418-419, 872 A.2d at 739 (em phasis a dded). Thus, the parties in that case w ere explicit in their agree ment with regard to what was not covered by the arbitration ag reement, exempting those actions or proceedings as to which the court, or another venue, would be appropriate. Cons equen tly, Walther, rather than supporting the majority, provides the answer for how a party with a court remedy that can not be duplicated in arbitration can avoid the dilemma that choosing arbitration and excluding the judicial forum creates. To be sure, the Walther solution may be subjec t to other challen ges, see 386 Md. 412, 450, 872 A.2d 735, 758 (Bell, C.J., dissenting) (critiquing Walther on lack of mutuality grounds), but the availability of the court remedy would not be one of them. Exempting the initiation, if not the completion, of the mechanics lien remedy from an arbitration agreement, which does not provide any exception for it, raises fairness concerns. It gives one of the parties to the agreement an advantage for which, as the agreement reflects , the parti es did n ot barg ain. Because a plain reading of an arbitration agreement like the one at issue in this ca se leads nec essarily to the con clusion that neither party is entitled to pursue any remedy other than arbitration, reading into the contract the -15- exception for court p roceeding s in aid of late r execution really is a rewriting of the con tract, something we are suppo sed no t to do. W orse, however, is that the rewrite is in favor one party to the detriment of the other, sim ply because there is a statutory remedy which the Legisla ture ena cted fo r the ben efit of th at party. To be sure, mechanics liens are available for the protection of materialmen, a nd it also is appropriate that such proceedings be favored. Mechanics liens are not man dato ry, however. A materialman need not use the proceedings; he or she is not required to get a lien or, having filed it, foreclose on it. The materialma n could w aive entitlem ent to its advantages. This could, and does, occur by no t filing the app ropriate pap ers in a timely manner, or by contract, including arbitration contracts, either by expressly so providing or by using terms inconsistent with the mechanics lien remedy. That is true of, and is not inconsistent with, the treatment of other favored and even fundamental protections. See Walther, 386 Md. 412, 872 A.2d 735 (holding that although the right to a jury trial is fundamental under the Maryland Declaration of Rights, parties can contractually waive their right to a jury trial, which ordinarily requires that the waiver be " knowing an d intelligent"), Twining v. National Mortg. Corp., 268 Md. 549, 302 A.2d 604 (1973) (holding that either party to a contract may waive any of the p rovision s made for his b enefit), Lanahan v. Heaver, 77 Md. 605, 26 A. 866 (1893) (holding that a promise to relinquish the constitutional right to a jury trial is a sufficient consideration for an agreement to submit a civil case to the court). See also ST Systems Corp. v. Maryland Nat. Bank, 112 Md. App. 20, 684 A.2d 32 -16- (1996) (holding that even though the right to a jury trial is fundamental, parties can contractua lly waive their righ t to a jury tria l), Meyer v. State Farm Fire and Cas. Co., 85 Md. App. 83, 91, 582 A.2d 275, 278 (1990) ( An agreement to arbitrate either future or existing disputes involves more than just the waiver of a right to ju ry trial, although tha t is certainly implicit in such an agreem ent ). -17-

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