busters versus  here today because we have alleged that just the district court below committed a number of reversible error made a number of decisions first and foremost the first point of error that we ascribed to the district court below was that when it ruled the continuing breach exception applied to a claim of breach of contract appellee alleged in two thousand and six and april two thousand and six that we had breached a contract based on various facts and circumstances constituting a specific breach of a specific lease provision a radius restriction clause after that the parties did nothing except continue to do business for over six plus years appellee continue reservation of rights here it is not our position is that a reservation of rights in your letter saying that you're in breach is not in agreement at all for example the statute of limitations the question of whether or not that acts somehow from an equitable standpoint we also claim to waiver we asked for declaratory judgment that the two thousand and six claim of breach was was barred by either the statute of limitations or a doctrine of waiver i think maryland on the waiver issue i think in maryland wall is pretty  crystal clear on that and i would direct the court's attention to the church cough case which is long been law in the state of maryland and under chertkov as your honour's may recall in that case you had a situation where a landlord claimed cordial landlord that there was a breach except at the reds and wrote i'm not leaving my rights under the acceptance of right that didn't even happen here somebody put we reserve our rights with regard to the breach back in two thousand and six and the maryland will be considered as a waiver of the forfeiture here the court also in the church gough caved to made clear that maryland's universal rules that waiver for for future may occur by acceptance of rent after the lesser is on notice the breach is occurring now remember the lesser here claim that the breach occurred in april of two thousand and six and reasserted after six years of silence reasserted the very same point would your case be stronger if there were some kind of  for a number of years but it's an odd kind of situation where they interview the historic relationship parties the landlord so makes an accommodation here and gives you something that contractually didn't have to give so we back in the situation of no good deed goes unpunished that you know they try to help you out no i am i think that it's also i would say approach that question your honor with two lines one is i think it's a true case of no good deed goes unpunished and what were the reasons and the factual circumstances that is for the factual record to be developed if we're dealing in the context of waiver waiver law it's pretty clear and whether it's no good deed goes unpunished and whether the district court should take that into consideration the factual circumstances surrounding that clear case here remind the court that this is all occurred when discovery was prohibited by the local rule in region could have been a number of reasons but perhaps they concluded that we have a commercial lease between two commercially sophisticated or easily very specific well the lease provision says i believe a party will not waive the non labor of provisions if they don't complain about it and our position is well clearly they're complaining about it so in other words if you look at the language after they write the letter that's the point you know and what not why would they be required to say or of either party to complain of any actor admission no matter how long the same a continuation of the game the waiver i think they should be required to damages here speaking simply to enforce the terms of the league they did not seek damages below but they sought to use in two thousand and twelve when facts and circumstances which changed the old two thousand six claim the exact same claim as a predicate for a claim terminations elite's that's what happened in other words in two thousand and six we have a claim in april that you violated section eleven point three of the radius restriction clause  and operated the david gillian's restaurant around all mills sat on it for six years the business of business changed apparently white flint had other ideas which back wondering  the initial breach right it continued that's right that's exactly right but with the lease continued to walk prudent the breach of the lease to continue breach of the lease constitute continuing violation for purposes of an equitable rimmer and i think it your case becomes a bit stronger if they're seeking damages but they're not effect if your contractual obligations continued in effect why wouldn't your violation of those obligations constitute a continuing breach i mean that right that's what i'm struggling i think i think the way to look at it is one it's not a continuing breach but it could be if there was a claim for damages as your honor indicated it would be continuing damages flowing from an original wrong that you can trace to a single set of circumstances for example the judge the court below lot relied on the callee opulence case and the singer case kelly oculus as we said was a latches case it's pretty clear from the corporate the singer case lays it out and in that case the court found the continuing breach exception applied because the particular issues there were energy out which are differences damages a retrospective in nature and equitable relief as is so here is oriented to the present and future right which would seem to make a continuing breach theory a better fit for a cause you dealing with a pro spect of as as opposed to a retrospective request for relief here and with a contract whose ongoing nature was apparent so i think i'm following your honor and i think it boils down to the following sort of scenario if that were the case and if that were along i think we would see if the courts articulate in maryland that statute of limitations whether it's a lease whether it's a restrictive covenant any other sort of contract would not run until the underlying contract has terminated either naturally or through it's own thing so if you have a covenant whether it's in a lease or other at least on the maryland law because even with the least provision on the waiver i thank you kiran odd odd law to me but i think you c that's one of the camaro that being that being the factual situation here i'm having a hard time understanding how it is that you can determine as a matter of law something as occurred here as opposed to there being a jury question from the perspective that you get that's exactly right the court granted summary judgment on the waiver issue as well and without even affording an opportunity for discovery and you're exactly right waiver is an inherently fact specific inquiry as we know you just need  the maryland legislature simply said once you learn of the facts and circumstances and special limitations is to be strictly construed for a number of reasons certainly within the party and so on and so forth with the point is  actually did well here's what and this is an important thing for the court courts to so clearly have its arms around it probably already does we summary judgment was granted in this case at a time when discovery was expressly prohibited the movement in this case white flint cited to nothing in the record there was no claim or defense that was asserted under fifty six and a no record had been formed at this particular point both parties recognize the factual nature of the determination with it with regard to the radius restriction clause not waiver statue limitations although we did say waiver also as a fact of penance of germination and what up factors that you would already available to you well as i raise you below jane on your own right the factual inquiry that was pertinent for this particular analysis it was raised actually my wife went first and are moving papers and we agreed to that whether a significant economic purpose of the clause must be demonstrated for it to be enforceable what i mentioned below during world war a human for the lower court specifically is for example discovery is needed on this issue for example your honor has posited and judge titus went through a number were you within their contractual radius of seconds per second or i believe it was i may have been within the contractual radius the map was not in the record but what i  compete restriction whether it's in the employment context or radius restriction concepts and when they're being examined and they were to review but to answer your point judge wilkinson when you say that how could it not be a significant economic purpose what i raise below is a simple fact  at that day whitefoot was no more if it was to keep certain revenue side yelling something from us that you didn't get the bargain no no not at all we're just trying to have a factual determination really not to let the move know time is coming down here's the issue with the fifty six d affidavit fifty sixty five the title itself says when facts unavailable to the move an item you've got some time for a bottle you can you bring that up on revival i can ok thank you very much analysis thoughtful analysis correctly applied maryland law on the continuous obligation doctrine and continuous breach doctrine in maryland correctly therefore held to limitations was any evidence competent to support a reasonable inference that white flint intended to relinquish its rights else's or to the issue of waiver as i understand their argument th disagree but you're going to under understood our view is they didn't first of all in response to our initial motion he even make the argument that they needed discovery this was an after the fact once they lost on their cross motion for summary judgment then they came back and said we need discovery but when they did they didn't identify anything specific that they would need to pay didn't already know the purpose or at least the primary purpose of discovery is to find out what the other side knows or information the other side has that you don't here all the information was right there with dave and busters to the extent they had any fact any communication with white flint anything that would lend itself to believe or to infer that white flints initial position that we're reserving our rights had changed they could have come forward with and the fact that they didn't i think tells us everything we need to know it doesn't exist and to make this a hollow request we need to discover e and maybe something will come up well this is it's using discovery as a weapon not as a tool in litigation trying to hold white flint the landlord hostage for a period of time while they go through who knows how many depositions document requests all with no hope generated or no hope indicated up front that they would serve any purpose and i understand the court has said that ordinarily summary judgment should await discovery or until there is a full and complete record but that's not an absolute and it certainly doesn't exist when there's nothing to indicate that the record isn't already complete for the court to rule and that discovery wouldn't serve any purpose well i mean the fact of the matter is that you did send a letter and then you waited over six years to do it and even on the maryland law the mere fact that you continue to receive read of course doesn't mean you wait but something was going on here i mean you've got that whole relationship continues over six and a half years and you do not  and it would seem to me that at least from a perspective of a waiver i'm not sure that's something that should be submitted as a as a matter of law though so you don't win but this is a summary judgment state and the question comes up because you can read this both ways i mean there's on the one hand you can say well you gave them a benefit because you allowed them to continue to work on it but there's also the other side of the story that things changed economically and when it becomes a good reason for you to come out of the contract maybe that's why you decided you would have to sixty's it could have been fifteen years could have been twenty years and i don't know what that means but that seems to me to be a factual question and i mean isn't that important i mean the time period we're dealing with here because if we're talking six months as opposed to twenty years and you sit and wait for twenty years for something to happen because six is no different twenty i would think in terms of time is not the issue here then if it's a so it's not a jury but in terms of is it is it appropriate for a summary judgment is the question and i would submit respectfully there's no factual dispute there's nothing for any fact finder cheerier court to say i can believe fact day or i can believe fact big can believe it took it six and a half years and you did absolutely nothing in that time period because legally we had no obligation to do anything we had what we in our  is how long is it twenty or thirty years can you do this it's it doesn't ever become a jury question as to whether this waiver means anything in this context in this context with this record no it does not because we have police provision that says you have this obligation and it's continuing and we don't have to do anything about it until we're ready when we're ready what we can do is they were was nobody was pulling anybody nobody was pulling the wool over anyone's eyes that they understood what not named big us normally when we go to trial we do so because the contractual provision is ambiguous or the course of dealings between the parties was ambiguous but here reservation of rights was clear the contractual provision a grandmother being taken advantage of by a big powerful company they parties know the deal they know the game they know what their legal obligations are the legal obligations are not ambiguous they are clear and one assumes that any businessman would assume we can go ahead but nothing is guaranteed here actions even though in a sophisticated world you simply found a breach and just take your time and just wait until it's economically to your advantage and then enforce ten twenty years from now because you say that was a breach ten years ago i did i don't know what the big answer is under maryland law we have in terms of limitations we have the absolute right to choose when we seek to enforce our contractual rights we don't have to do it within three years of the initial onset this is a breach that they're doing every day now i would grant your honor if they stopped if they suddenly said we're getting rid of that rundell mill store because we don't want to be violating our agreed upon covenant then at that point we have three years but that's not our facts here they continued and continue on the record you have to for you to this day to intentionally for their own economic benefit violate this company and it seems to me to turn that into their request that ignore all that and because we didn't take action promptly when we first knew about it they are free for the next nineteen years in their view to continue to violate a very important covenant and a very substantial lease which as your owners have said was negotiated by probably some extremely sophisticated lawyers and business lots of issues that are questions of fact but when you don't have disputes of the fact it is a matter of law i grant you cases say it's ordinarily a factual issue but that's because in ordinary cases there's competing facts as to whether there's waiver or not there isn't here i mean there can be no doubt as to white flints intention to preserve all it rights the question of waiver i i would turn it into this they're using the waiver to equate to an agreed upon modification of the lease and is by intentionally waiving your right to ever enforce this provision you're now agreeing that they can do this a violation in perpetuity no discussion no evidence whatsoever that that subject was even posing council also says that if you can't decide between these two competing theories sort of to the maryland world what's your reaction i think that the maryland law in singer and cali opulence is perfectly clear here i don't think this court needs to ask the maryland court of appeals to decide something that it's already decided your honor has or your honors have the law set forth in sr and kelly octopus what they what dave and busters i think is to disregard that law and do not apply a continuous breach analysis and treat this as if it's a single breach a single breach might be the case if the covenant was not to purchase some restaurant then you could say it's a one time preach and there may be future damages but the covenant here and the key is what's the language of the company we agree not to operate during the entire time that this lease is in effect that's an ongoing promise that they're going to refrain from operating and every day they open their continuous that if you just continue to do something that you've been doing the whole while we should interpret the operation of a business as been a different breach every day and not just continuous d that's my point your honor whether it's a close at midnight open at eight am or it's all going there's no material difference under maryland law it's a continuous obligation that's bringing preached continuously and because it's being preached continuously a cause of action fresh cause of action accrues on a daily basis and that is the well it is it's not a matter of law so much as it is a matter of business decision you can they had a lecture of dramatic after the reservation of rights letter they could have continued as they decided to do it or they could have said we don't want to leave live with the business on certainty because it's some future point wife lana could invoke its right under the lease and it might be very inconvenient at that time for us to have to move  r leave the leave the premises and is just as a matter of business practice we think it's not worth it to continue operating with this kind of  financial uncertainty over our heads but this isn't a matter of law it's a matter of business decisions that businesses confront every day which is  faced a business decision and they made a certain business decision and that's passed they've got the benefits of it they live with the consequences of it and s but it's this is you know rumble tumble business as it plays out in marketplaces and corporate planning every day i would point out a couple other things while i'm one on my own i still have some time while you're on i'm out to discuss also why i would not be that decision not to force  the decision not to enforce yes as much as it is a decision for it's we have the right under the contract if these parties entered into to terminate when we see fit and we had that right to do that we shouldn't be penalized and the intentional wrong do rewarded for giving them a grace period i would also note there is a they had the opportunity to cure and they chose not to obviously for economic reasons themselves they companies do that all the time this is a question of two entities making business decisions in the light of the legal framework they set forth for themselves and each of them has the right to make a business decision in a way that they hope corporate board believes benefits itself and that doesn't constitute a waiver and the limitations is not a bar here  business transaction they made their decision we enforced our rights under the contract as we were entitled to do all right thank you very much ron just one more picture correct me if i'm wrong but as i understand it least from the breed's there was a period of time when the parties were negotiating over what to do with second they've been busters for whatever reason they did so couple of quick points with regard to the multiple breach scenario that was just discussed about the new breach occurring every day so on and so forth i just like to put out what if this was a twenty four open twenty four hours establishment do you have a reach still occurring because you're nobody's opening the door or did the cause of action the crew under maryland law at the time a party knew with facts and circumstances of the breach i also heard for example your honor judge wilkinson said you know they knew the risk they knew the risk they continue to operate anyway it may have been a business decision so on and so forth can you just hang it over their head and bring it out six seven years later i would submit to this court that's the very purpose of the statute of limitations when you make business decisions we don't know whether dave and busters knew that there was a risk because the parties continue to operate there's no problem everything simpatico you know by implication which waiver can be found putting away the limitations issue a waiver can be found by implication twenty eight expressly said listen the contract we're dealing with here is a specialty so we don't even need to look at the limitations issue therefore we're going to go in equity and look at lachine and you seek to get the terms of a contract change  that the two parties were operating under contract they were paying rent under contract they were paying the percentage that was due to wife let's say the same under the contract there vic the point is the contract just cut off at some past point in time to the parties every day business relationships were governed on an ongoing basis right by the contract it is a you say was is the statute of limitation is but this is a lot of go ing it's a living and breathing document yes that you are operating under and it seems to say you know to send in both this statute of limitations to this a living breathing document that is governing the terms of the relationship between the parties on an ongoing basis you know i don't get it here's how maryland law i think addresses that particular issue we haven't changed the terms of the contract for example  the radius restriction clause as well concern still exists if we open store number two and they had a problem with that they can still in force radius restriction clause what would maryland law says is with regard to this particular breach this particular location you were aware of the facts and circumstances in two thousand and six therefore if you've got a problem with it you know you've got to you've got to bring a cause of action in three years and when you talk about us knowing of the risk how do we know that somebody had at that white flip and didn't give the nod nod wink wink we just had lunch with them it's ok don't worry about that we you know we sent you the letter to two years ago or four years ago and then somebody at dave and busters business people do say you know what we understand that they're not going to enforce that and don't worry about it because if they would have if it's such an important or make whole relief of something but that's the problem is that's not what we have that's not that's not what right what the undisputed record what we have is i'll leave the breach issue at this is that there is no dispute that the claim accrues in the maryland law when you know the facts and circumstances of a breach there's no dispute that they knew about it in two thousand and six there's no dispute that they kept it in their back  there was an you know advantageous circumstance that came came their way somebody probably looked in a file and said ah ha we're we want to get some tenants out of here and look what we have here you know and we'll just go ahead and use this and the statue of limitations is to prevent that very