Patriot Construction, LLC v. VK Electrical Services, LLC

No. 942, September Term, 2021

Filed March 2, 2023. Opinion by Friedman, J.

HEADNOTES:

LIMITATIONS OF ACTIONS > COMPUTATION OF LIMITATIONS PERIOD > ACCRUAL OF 

RIGHT OF ACTION OR DEFENSE > CONTRACTS > CONSTRUCTION AND OPERATION >

CONDITIONS PRECEDENT TO PAYMENT

When a contract contains a pay-when-paid clause as a condition precedent to payment, a 

breach of contract action for failure to pay does not accrue until the condition is met. 
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional 

amendment changing the name of the Court of Special Appeals of Maryland to the 

Appellate Court of Maryland. The name change took effect on December 14, 2022.

Circuit Court for Anne Arundel County

Case No. C-02-CV-20-001339

REPORTED

IN THE APPELLATE COURT 

OF MARYLAND*

No. 942

September Term, 2021

______________________________________

PATRIOT CONSTRUCTION, LLC

v.

VK ELECTRICAL SERVICES, LLC

______________________________________

Wells, C.J.,

Friedman,

Eyler, James R.

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Friedman, J.

______________________________________

Filed: March 2, 2023
In June 2020, appellee VK Electrical Services, LLC (“VKES”) filed a breach of 

contract action against Patriot Construction, LLC in the Circuit Court for Anne Arundel 

County, alleging that Patriot had refused to pay VKES for completed subcontract work. 

Patriot moved to dismiss the complaint for failure to state a claim upon which relief could 

be granted. The trial court denied the motion to dismiss but for one count, and the matter 

proceeded to a bench trial. VKES prevailed, and the trial court awarded it a judgment in 

the amount of $64,575.09. 

On appeal, Patriot asks us to consider whether the trial court erred in: (1) failing to

find that VKES did not satisfy a condition precedent contained in the subcontract; 

(2) failing to find that VKES’s claims were barred by the statute of limitations; 

(3) admitting parol evidence regarding pre-contract discussions; (4) failing to sufficiently 

state on the record the reasons for its decisions on the contested issues; and (5) denying 

Patriot’s motion to dismiss. For the reasons that follow, we affirm the trial court’s 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2015, Patriot was working under a contract with the Maryland 

Procurement Office of the National Security Agency (“MPO”) to provide general 

contractor services for an NSA project at Fort Meade. After its original electrical 

subcontractor was unable to complete the work, Patriot entered into a subcontract with 

VKES, in which VKES agreed to perform electrical work for the project for a sum of 

$495,000. 
2

The subcontract between Patriot and VKES explicitly provided that “[n]o alteration, 

addition, omission or change shall be made in the Work or the method or manner of 

performance of the Work except upon the written change order of PATRIOT 

CONSTRUCTION.” In addition, an “Important Notice” was incorporated into the 

subcontract. It detailed that performance of work prior to the full execution of a change 

order would be done with “no expectation of monetary compensation from Patriot 

Construction, LLC for that work.” (emphasis in original). The notice further provided 

that in the event of “a rare emergency instance” that would require work prior to the full 

execution of a change order, “permission to proceed shall only be granted by [John 

Gilmore] or Matthew Timbario.” The contract between Patriot and VKES also included a 

“pay-when-paid provision” which provided that Patriot’s receipt of payment from the MPO 

was a condition precedent to Patriot’s payment obligations to its subcontractors. The 

subcontract was signed by Craig Mills, Director of Operations, on behalf of Patriot and by 

Vincent Krakat, President, on behalf of VKES. 

As work on the project proceeded, Patriot requested that VKES perform fire alarm 

and other work additional to the duties set forth in its subcontract. The additional work 

increased VKES’s invoiced services by $366,428.09. Two of the additional invoices 

submitted to Patriot were related to executed change orders, and the remainder were for

additional “ticket work” that had not been authorized in writing by Patriot. 

VKES completed its work on the project on or about July 20, 2016, and sought 

payment. Due to the pay-when-paid provision, however, VKES had to wait for Patriot to 

be paid by the MPO. Patriot received its full payment from the MPO in October 2019. In 
3

April 2020, a representative from Patriot contacted VKES and informed it that Patriot did 

not submit the additional ticket work to the MPO for approval or payment, and therefore 

Patriot would not pay VKES for those invoices. Patriot ultimately paid VKES a total of 

$796,853 but declined to pay the ticket work invoice in the amount of $64,577.15. 

In June 2020, VKES filed suit against Patriot seeking damages in the amount of 

$64,577.15. Its complaint contained counts of: (1) breach of contract; (2) quantum meruit; 

(3) unjust enrichment; (4) violation of federal prompt payment statute; (5) violation of 

Maryland prompt payment statute; and (6) violation of Maryland trust fund statute.

Patriot moved to dismiss the complaint with prejudice, asserting that VKES had 

failed to meet the condition precedent in the subcontract to obtain written authorization for 

the additional work before proceeding. Patriot further argued that the action was barred by 

the statute of limitations because VKES had submitted the unpaid invoice to Patriot more 

than three years prior to the filing of its complaint. 

VKES responded to Patriot’s motion to dismiss, arguing that its claims should not 

be dismissed because Patriot “ordered, acknowledged, accepted and benefited from the 

electrical services VK[ES] performed at the project” and “acquiesced to and waived the 

subcontract written modification requirement.” VKES further argued that, due to the 

subcontract’s pay-when-paid provision, the statute of limitations did not begin to run until 

October 2019, when Patriot was paid by the MPO and declined to pay VKES. VKES 

referenced August 2017 email correspondence between it and Patriot, in which Patriot 

assured VKES that the MPO had approved the invoice, that, while it was “not custom to 
4

pay[ ] prior to receiving funds ... Patriot will honor all work completed on the project,” and 

that the funds would be forthcoming in the upcoming weeks. 

The trial court held a hearing on Patriot’s motion to dismiss on December 7, 2020. 

At the hearing, Patriot argued that because there was no factual dispute that VKES did not 

have written approval for the additional ticket work as required by the express terms of the

subcontract, VKES had not met the condition precedent to being paid for that work. Patriot 

also asserted that it had not submitted the invoices for the unpaid $64,577.15 to the MPO 

and thus Patriot had not been paid for the work, which, under the pay-when-paid provision, 

would mean it had no duty to pay VKES for the outstanding invoices. In the alternative, 

Patriot argued that because the ticket work was outside the original subcontract, the paywhen-paid provisions of the subcontract should not apply to extend the statute of 

limitations. Finally, Patriot argued that because VKES had failed to support its complaint 

with affidavits relating to any facts outside the record, the court should not consider the 

exhibits VKES had submitted in support of its claim that Patriot had approved and agreed 

to pay for the extra work.

In response, VKES argued that the written authorization provision could be waived 

when, as here, “the parties have a course of conduct throughout the ... project” that 

evidenced a less formal authorization process. VKES further argued that the complaint 

sufficiently pleaded facts showing that Patriot had directed VKES to perform additional 

work outside the contract and noted that the motion to dismiss was the first time Patriot 

had suggested that VKES had not fulfilled a contractual requirement. VKES argued that

the upcoming discovery would disclose “a boat load of emails” showing that the extra fire 
5

alarm work was done at Patriot’s direction and that at no time did Patriot suggest a written 

change order was required or that VKES would not be paid for the work. Finally, VKES 

asserted that the statute of limitations did not begin to run until VKES was on notice that 

Patriot would not pay according to the terms of the contract, or once Patriot was paid by 

the owner. 

During the hearing, the trial court noted that, because discovery could reveal a 

pattern of conduct suggesting the written authorization requirement was waived, the 

motion to dismiss was premature. The court also noted that determining the start date for 

the statute of limitations would depend on findings to be made later by a judge or jury. At 

the close of argument, the trial court denied Patriot’s motion to dismiss on all counts except 

for the violation of federal prompt payment statute. VKES later dismissed without 

prejudice the counts in its complaint alleging breach of Maryland prompt payment statute 

and breach of Maryland trust fund statute. 

The matter proceeded to a bench trial on the remaining counts. Vincent Krakat, 

owner of VKES, testified that he became involved in the project partway through because 

the first electrical subcontractor was unable to continue the work. Krakat testified that he 

was contacted by Dwayne Spriggs, Patriot’s then-project manager, who asked VKES to 

submit a bid. Krakat negotiated the price of the job with Spriggs and testified that Spriggs 

was “the only person [he] talked to” regarding the project, and he believed Spriggs was 

authorized to bind Patriot to construction decisions.

Due to security issues, Krakat was unable to tour the site prior to submitting VKES’s 

bid, so he based the bid on drawings and information from Patriot. Upon beginning the 
6

actual project, however, VKES learned that additional work would be required because a 

breaker that was supposed to have been installed already was not on site. As a result, two

change orders were executed, one in the amount of $102,000 and another in the amount of 

$200,000. VKES negotiated the change orders with Spriggs and they were approved and 

signed by Ron White, Patriot’s director of operations. The orders were then submitted to 

the MPO on or about April 28, 2016. 

Months into the project, it became apparent that no one was doing the necessary fire 

alarm work. According to both Krakat and Spriggs, the fire alarm work was not included 

in VKES’s original subcontract, but it was included in Patriot’s general contract with the 

MPO. Spriggs asked VKES to do it and submit a ticket to bill Patriot. Spriggs also 

requested other additional work, with assurances that VKES would be paid after Patriot 

presented the invoices to the MPO. Krakat acknowledged that the tickets were not signed

by Patriot, but said that, typically, a general contractor does not sign the tickets, and if he 

does, “it’s just an acknowledgment that you did the work.” Krakat testified that Spriggs 

did not make any assertion that a lack of signature would impact VKES’s payment for the 

work. The additional work was completed and invoiced in July 2016. 

From 2016 through 2019, there were numerous email communications sent between 

VKES and representatives of Patriot regarding payment for the completed work. 

In February 2017, Krakat emailed Spriggs and White regarding payment for the 

ticket work. There was nothing communicated in response to suggest that VKES would 

not be paid. In August 2017, Spriggs assured VKES that although Patriot was not 

accustomed to paying subcontractors prior to receiving funds, “Patriot will honor all work 
7

completed on the project and is fully aware of the challenges of working with this particular 

client.” Neither Ron White nor Matthew Timbario, who were parties to the email 

communication, disputed that VKES would be paid or suggested that VKES had failed to 

meet a contractual requirement. Krakat testified that he understood that VKES’s payment 

would be due once Patriot received payment from the MPO. In June 2018, Spriggs emailed 

Krakat, explaining that Patriot had to present the invoices to the MPO before payment but 

that it couldn’t do so until another of its vendors finished some outstanding work. In July 

2018, Krakat again emailed White and John Gilmore, a co-owner of Patriot. And in March 

2019, Krakat yet again emailed White requesting payment. Krakat testified that at no point 

was he informed that VKES would not be paid for the ticket work. 

In November 2019, Krakat understood, through an email from White, that Patriot 

was submitting all the change orders to the MPO for approval. Other email exchanges from 

November 2019 established that Patriot had received payment from the MPO in October

but had not submitted VKES’s tickets for payment. 

In April 2020, Paul Bradford, Patriot’s new project manager, contacted Krakat and 

advised him for the first time that Patriot did not intend to pay the remaining amount of 

approximately $65,000 due to VKES. Bradford stated in his email that Patriot believed 

VKES had already been paid for the work under the $200,000 change order and that the 

$200,000 charge was “not accurate” and “inflated,” based on VKES’s original quote.

Bradford did not mention anything about the work not being properly authorized.

Dwayne Spriggs, Patriot’s former project manager, testified on behalf of VKES that 

VKES’s original base subcontract of $495,000 did not include fire alarm work, and that 
8

the approximately $64,000 of ticket work performed by VKES, which included the fire 

alarm work, was necessitated by an “emergency situation.” Specifically, Spriggs testified

that the MPO directed that the work had to be addressed immediately. Because VKES was 

already on-site, Spriggs asked VKES to perform the work even though it was outside the 

scope of their contract. VKES agreed, and Spriggs understood that they would “track it, 

document it, and ... submit the paperwork to MPO, through Patriot, for a change order.” 

According to Spriggs, Ron White reviewed all the pertinent information and was aware 

that Spriggs had directed VKES to perform the additional work. Spriggs described that at 

the time that VKES was being asked to complete the additional work, the project was under 

scrutiny because they were behind schedule and management was involved in the meetings 

and decision-making. Once the problem at the site was identified and the work completed 

by VKES, Spriggs thought it was understood that “all of that would be charged back to the 

client, via a change order from Patriot.” He described that the discussion regarding VKES 

completing and being paid for the work was done onsite, with the MPO project manager 

present. 

At the close of VKES’s case-in-chief, Patriot moved for judgment, arguing 

primarily that the statute of limitations had run. Patriot asserted that the cause of action 

accrued when the services were rendered in 2016 and thus, VKES’s complaint, which was 

filed in 2020, was after the applicable three-year statute of limitations had run. Patriot also

repeated its argument that, under the pay-when-paid clause of the subcontract, because 

Patriot had never been paid for the disputed work it had no corresponding obligation to pay 

VKES. Finally, Patriot repeated its argument that VKES failed to meet the contract 
9

provision to obtain signed authorizations for the additional work. The trial court denied the 

motion. 

In Patriot’s case-in-chief, Patriot owner John Gilmore testified that the requirement 

for written change orders is important because the government does not typically pay for 

work it has not approved. Gilmore stated that regarding emergency situations, “everyone 

in our company knows that you either have to call Matt [Timbario] or myself,” and he had 

received no calls regarding emergencies on the project. In response to a question from the 

court, Gilmore confirmed that Patriot had been “paid completely for this project,” including 

the electrical work performed by VKES. He clarified that Patriot had not been paid

specifically for VKES’s approximately $65,000 ticket work because Patriot had not

submitted those invoices to the government for payment, even though the work was 

completed and was part of the benefit received by the government in the completion of the 

project. 

At the close of all the evidence, Patriot renewed its motion for judgment, 

incorporating its earlier arguments. The trial court again denied the motion. Following 

closing arguments, the court ruled in VKES’s favor: 

Spriggs was a senior project manager. That is why he was there. That 

was his job, to deal with the sub-contractors. Mr. White had, and was aware 

of just about everything that went on. These were direct agents of the 

Defendant. And in the email exchanges between VKES and Spriggs, it was 

really clear that there was apparent authority. Spriggs never said he needed 

approval.

It just simply sounds like a failure of communication between Spriggs 

and his superiors, and time was always an issue here. I heard about blackouts, 

and power being down, and things had to be done in a timely fashion. So, I 
10

can understand why some of that fell through the cracks, but the bottom line 

is, this Plaintiff did the work. He did the work and earned the pay.

This is an easy call for the Court. [Patriot was] very anxious to get 

paid. They submitted it to whoever was paying them without consideration 

of who was going to pay the Plaintiff in this case. And they would never have 

been paid if this electric work was not completed. It is simple. So, they were 

very generous with his money and his work product. They didn’t hesitate, 

because they wanted to get paid the same as he wants to get paid.

This is such an easy decision for me. I think that [Patriot is] not only 

extremely unreasonable in not paying this contract, that if it had been argued, 

and if I had authority to do it, I would have ordered counsel fees in this case.

* * *

So, this is an easy call. Judgment in favor of [VKES] for [$]64,575.09 

with interest and costs. Thank you, all. 

Written judgment was recorded on August 19, 2021. Patriot filed a timely notice of 

appeal. 

DISCUSSION

When a case has been tried without a jury, we “review the case on both the law and 

the evidence.” MD. R. 8-131(c). We review questions of law without deference, but “give 

due regard to the trial court’s role as fact-finder and will not set aside factual findings unless 

they are clearly erroneous.” Clickner v. Magothy River Ass’n Inc., 424 Md. 253, 266 

(2012). We consider the evidence presented at trial in the light most favorable to the 

prevailing party. Id. If there is substantial evidence to support the trial court’s 

determination, “it is not clearly erroneous and cannot be disturbed.” Id. (quoting Ryan v. 

Thurston, 276 Md. 390, 392 (1975)).
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I. CONDITION PRECEDENT

We turn first to Patriot’s argument that VKES’s claims should have been barred 

because VKES failed to meet a condition precedent to receiving payment. Patriot asserts 

that because the subcontract contained at least three explicit clauses stating that there would 

be no compensation for any work outside the contract in the absence of written 

authorization—and VKES admitted that it did not receive written authorization to perform 

the ticket work—Patriot should not be liable for payment for that work. At trial, VKES did 

not dispute the subcontract’s language, but countered that the condition precedent was 

waived by the parties’ actions. The trial court found that Patriot’s representative, Duane 

Spriggs, had acted with apparent authority and waived the written authorization 

requirement. We agree. 

A condition precedent is “‘a fact, other than a mere lapse of time, which, unless 

excused, must exist or occur before a duty of immediate performance of a promise 

arises.’” Richard F. Kline, Inc. v. Shook Excavating & Hauling, Inc., 165 Md. App. 262, 

273 (2005) (quoting Chirichella v. Erwin, 270 Md. 178, 182 (1973)). In other words, 

“‘where a contractual duty is subject to a condition precedent, whether express or implied, 

there is no duty of performance and there can be no breach by non-performance until 

the condition precedent is either performed or excused.’” All State Home Mortg., Inc. v.

Daniel, 187 Md. App. 166, 182 (2009) (quoting Pradhan v. Maisel, 26 Md. App. 671, 677 

(1975)).

Nonetheless, “[p]arties to a contract may waive the requirements of the contract by 

subsequent oral agreement or conduct, notwithstanding any provision in the contract that 
12

modifications must be in writing.” Kline, 165 Md. App. at 277. In considering whether 

waiver or modification of a contract has occurred, courts “look to the totality of a party’s 

actions.” Hovnanian Land Inv. Grp., LLC v. Annapolis Towne Ctr. at Parole, LLC, 421 

Md. 94, 122 (2011). See also Taylor v. Univ. Nat’l Bank, 263 Md. 59, 63 (1971) (“the 

conduct of parties to a contract may be evidence of a subsequent modification of their 

contract”). Waiver or modification of an agreement may be established by a preponderance 

of the evidence, and “‘[w]hether or not the subsequent conduct of the parties amounts to a 

waiver is a question of fact to be decided by the trier of fact.’” Kline, 165 Md. App. at 278

(quoting Hoffman v. Glock, 20 Md. App. 284, 289 (1974)).

The evidence presented at trial showed that Spriggs, Patriot’s project manager, 

approached VKES about putting in a bid for the electrical work on the project after the first 

subcontractor was unable to complete the job. Spriggs then negotiated the terms of the 

subcontract with VKES, and then and thereafter, Spriggs was the only person with whom 

VKES had any direct contact regarding the day-to-day work on-site. VKES performed the 

fire alarm and other ticket work at Spriggs’s specific direction on an emergency basis after 

the MPO declared the work had to be completed immediately. 

Even if Spriggs did not have actual authority to bind Patriot in relation to its 

subcontractor’s work, the modification of a contract by an agent who lacks actual authority 

may nonetheless be enforceable against the principal if the agent acts with apparent 

authority. See Dickerson v. Longoria, 414 Md. 419, 442 (2010) (“In the absence of actual 

authority, a principal can be bound by the acts of a purported agent when that person has 

apparent authority to act on behalf of the principal. Apparent authority results from certain 
13

acts or manifestations by the alleged principal to a third party leading the third party to 

believe that an agent had authority to act.”); Penowa Coal Sales Co. v. Gibbs & Co., 199 

Md. 114, 119 (1952) (“[A]s between the principal and third persons, the mutual rights and

liabilities are governed by the scope of the agent’s apparent authority, which is that 

authority which the principal has held the agent out as possessing or which he has permitted 

the agent to represent that he possesses and which the principal is estopped to deny.”). 

Whether Spriggs was Patriot’s agent for purposes of waiving terms of the subcontract “is 

a factual determination that we review using the clearly erroneous standard.” Dickerson, 

414 Md. at 433. 

Patriot claims that there was no waiver of the condition precedent because Spriggs 

did not have the authority to waive or modify the contract’s provisions. The trial court

disagreed, however, and was persuaded that there were sufficient facts to find that Spriggs 

acted with apparent authority. Moreover, the trial court was persuaded that Patriot and 

VKES waived the written authorization requirement by their actions:

Spriggs was a senior project manager. That is why he was there. That was 

his job, to deal with the subcontractors ... And in the email exchanges 

between VKES and Spriggs, it was really clear that there was apparent 

authority. Spriggs never said he needed approval.

The trial court also pointed out that “you had White and Spriggs there for a reason, right? 

Why else would they have been there? To deal with issues like this. They were agents of 

Patriot.” As to Spriggs’s apparent authority to authorize VKES’s work, the trial court noted 

that the ticket work was not a one-time situation. Instead, “[t]his was ongoing, and 

everyone knew this work was being done, and condoned it,” especially as “things 
14

developed spontaneously, time was of the essence” in completing the additional work. 

Moreover, in addition to the ticket work, Spriggs also directed VKES to perform the 

additional work that was subject to the change orders that were executed by Patriot and 

accepted by the MPO, evidencing his authority to act on behalf of Patriot. 

Then, after the ticket work was completed, Patriot assured VKES on several 

occasions that it was going to submit the ticket work invoice to the MPO and that VKES 

would be paid for the work. At no time did anyone from Patriot mention that written 

authorization was lacking. Even when Bradford, who took over project management for 

Patriot in 2020, notified VKES it would not be paid, the reason given was not that the work 

had not been authorized properly but that Patriot believed VKES had inflated the price and 

thus had already been compensated sufficiently for its work. 

For all these reasons, we cannot say that the trial court clearly erred in determining 

that Spriggs had at least apparent authority to direct VKES to perform work outside the 

subcontract in the absence of written authorization. There was also significant evidence

presented for the trial court to conclude, by a preponderance of the evidence, that Spriggs, 

with at least apparent authority, waived the condition precedent that work outside the 

subcontract was required to be approved in writing. We, therefore, conclude that the trial 

court did not err in finding that the condition precedent in the subcontract was not a bar to 

VKES’s recovery of damages. 

II. STATUTE OF LIMITATIONS

Patriot next contends that the trial court erred in concluding that VKES’s lawsuit 

was not barred by the three-year statute of limitations. Patriot claims that the statute of 
15

limitations began to run when VKES completed its work in July 2016, and thus, the 

complaint filed in June 2020 was too late. VKES disagrees, asserting that in light of the 

pay-when-paid clause in the subcontract, the statute of limitations did not begin to run until 

sometime in late 2019 when the MPO paid Patriot, but Patriot refused to pay VKES.1

Under Maryland law, “[a] civil action shall be filed within three years from the date 

it accrues unless another provision of the Code provides” otherwise. MD. CODE, COURTS 

& JUDICIAL PROCEEDINGS (“CJ”) § 5-101. Contract actions are generally governed by 

Maryland’s three-year statute of limitations. Kumar v. Dhanda, 198 Md. App. 337, 342-43 

(2011). “As a general rule, the party raising a statute of limitations defense has the burden 

of proving that the cause of action accrued prior to the statutory time limit for filing the 

suit.” Newell v. Richards, 323 Md. 717, 725 (1991). Ordinarily, “‘the question of accrual 

in [CJ] § 5-101 is left to judicial determination,’ unless the determination rests on the 

resolution of disputed facts regarding discovery of the wrong.” Poole v. Coakley &

Williams Const., Inc., 423 Md. 91, 131 (2011) (quoting Frederick Rd. Ltd. P’ship v. Brown 

& Sturm, 360 Md. 76, 95 (2000)).

1 The trial court rejected Patriot’s argument that the pay-when-paid clause did not 

apply because Patriot never submitted VKES’s outstanding invoices to the MPO and was 

thus never paid for them. We similarly reject this argument on appeal. When a party to a 

contract contributes to the non-occurrence of the condition precedent, a trial court may

apply the “prevention doctrine” to waive the condition precedent. The prevention doctrine 

is a generally recognized principle of contract law that states if one party to a contract 

“hinders, prevents or makes impossible performance by the other party, the latter’s failure 

to perform will be excused.” WSC/2005 LLC v. Trio Ventures Assocs., 460 Md. 244, 267 

(2018) (quoting 13 Richard A. Lord, Williston on Contracts § 39:3, at 569 (4th ed. 2013)). 

There was sufficient evidence presented to support the implicit finding that, under the 

prevention doctrine, Patriot was liable to VKES for payment notwithstanding the alleged 

failure to fulfill the “pay-when-paid” clause in the subcontract.
16

The test to be utilized in fixing the accrual date of a cause of action “is to ascertain 

the time when [the complaining party] could have first maintained [its] action to a 

successful result.” Kumar v. Dhanda, 426 Md. 185, 194 (2012) (quoting James v.

Weisheit, 279 Md. 41, 44 (1977)); accord Henry’s Drive-In, Inc. v. Pappas, 264 Md. 422, 

428 (1972) (“[L]imitations will run from the time the plaintiff could have acted.”). “In 

Maryland, a cause of action for breach of contract accrues when the contract is breached, 

and when ‘the breach was or should have been discovered.’” Boyd v. Bowen, 145 Md. App. 

635, 669 (2002) (quoting Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 648 (1999)).

Here, the question is whether the three-year statute of limitations began to run when 

VKES completed its work on the project and invoiced Patriot in July 2016, or whether, due 

to the condition precedent of the pay-when-paid provision in the subcontract, the statute of 

limitations began to run when Patriot was paid by the MPO for the general contract but 

refused to pay VKES, sometime in late 2019. Resolution of this question depends on the 

interpretation of the pay-when-paid clause in the subcontract, which provides: 

PAY-WHEN PAID PROVISION: PATRIOT 

CONSTRUCTION receipt of payment from OWNER is a 

CONDITION PRECEDENT to PATRIOT Construction’s 

payment obligation hereunder and the source of such payment. 

The interpretation of a contract is a legal question that we review without deference to the 

decision of the trial court. Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 392 

(2019). 

Normally, “unless the contract provides otherwise, a cause of action for extra labor 

and services accrues when the work is done or services provided.” Mayor & Council of
17

Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 157 (1975). Patriot argues that, 

under this principle, the statute of limitations began as soon as VKES completed the ticket 

work. But, “it is also true that when the contract requires some action, such as an 

accounting, a billing or a hearing, by one or both of the parties before the obligation for 

payment fully blossoms, then the performance of that activity is ‘a condition precedent to 

recovery of such payments, absent bad faith or collusion.’” Id. (quoting Laurel Race 

Course v. Regal Constr., 274 Md. 142, 150 (1975)). VKES argues that under this principle, 

the statute of limitations did not begin until the contract’s condition precedent—the paywhen-paid clause—was satisfied. 

Running the three-year statute of limitations from the date VKES’s work was 

complete, as Patriot urges, is inconsistent with the pay-when-paid clause of the contract. 

Due to the pay-when-paid clause, VKES could not maintain its action against Patriot until 

the MPO paid Patriot for the work on the project, but Patriot refused to pay VKES. Had

VKES ignored the pay-when-paid provision and brought this action within three years of 

its completion of the work, Patriot could have—and likely would have—moved to dismiss 

by virtue of the non-occurrence of the subcontract’s condition precedent that it had not yet 

been paid by the MPO. Regardless of how much time had passed since the completion of 

the work, the breach of contract did not occur until Patriot was paid by the MPO. We hold, 

therefore, that the pay-when-paid provision of the contract was a condition precedent to 

VKES’s ability to seek payment and thus the statute of limitations did not begin to run until 
18

that condition was satisfied.

2 As a result, the trial court properly found that the statute of 

limitations did not bar VKES’s lawsuit.

III. PAROL EVIDENCE REGARDING SCOPE OF SUBCONTRACT

Patriot next asserts that, because the contract language was unambiguous, the trial 

court erred in admitting prejudicial parol evidence regarding the terms of the contract. 

Under the objective theory of contract interpretation utilized by Maryland courts, if the 

language of a contract is unambiguous, the intent of the parties is “based on what a 

reasonable person in the position of the parties would have understood the language to 

mean and not the subjective intent of the parties at the time of formation.” Credible Behav.

Health, 466 Md. at 393 (cleaned up). It is only when a contract’s language is determined 

to be ambiguous that a “court is entitled to consider extrinsic or parol evidence to ascertain 

the parties’ intentions.” Id. Patriot argues that, because the trial court made no findings that 

the language of the subcontract was ambiguous, it should not have considered the 

testimony of Krakat and Spriggs regarding their subjective understanding of whether the 

fire alarm work was or was not within the scope of VKES’s subcontract. Patriot alleges 

that the terms of the subcontract unambiguously included the fire alarm work. VKES 

2 Other jurisdictions have held similarly. See, e.g., Shelter Mut. Ins. Co. v. Nash, 

184 S.W.3d 425, 428 (Ark. 2004) (“In ordinary contract actions, the statute of limitations 

begins to run upon the occurrence of the last element essential to the cause of action” and 

“if the right of action depends upon some contingency or a condition precedent, the cause 

of action accrues and the statute of limitations begins to run when the contingency occurs 

or the condition precedent is complied with.”); JC Ryan EBCO/H&G, LLC v. Lipsky

Enters., Inc., 78 A.D.3d 788, 789-90, (N.Y.S. 2010) (the limitations clause in the 

subcontract conflicts with the pay-when-paid clause because the subcontractor’s right to 

bring an action against the contractor might not ripen until after the expiration of the 

limitations period).
19

counters, first, that the testimony was not parol evidence because it was not offered to 

explain, vary, or contradict the language of the subcontract, only to state that the fire alarm

work did not fall within the terms of the subcontract. Second, VKES asserts that Patriot did 

not preserve the issue because it did not object each time it was addressed at trial and itself 

elicited testimony from the witnesses about whether the ticket work was outside the scope 

of the subcontract. We agree with VKES that the issue was not preserved, thus we need 

not reach the correct scope of the parol evidence rule. 

Patriot points to several instances in which it objected to the trial court’s admission

of what it claimed was parol evidence about whether fire alarm work was included in 

VKES’s subcontract. As VKES points out, however, there were also several instances in 

which such testimony was admitted without objection by Patriot. And indeed, Patriot’s 

own attorney questioned the witnesses about whether the fire alarm work was part of the 

original subcontract. Patriot asked Krakat whether it was his position that “you didn’t have 

to do any fir[e] alarm work ... in the contract” and that he “didn’t agree to do any of that,” 

to which Krakat responded, “No.” Patriot also showed Spriggs VKES’s invoice for the fire 

alarm work and asked, “[T]he work that VKES performed, was this outside of its base 

contract work, sir?” Spriggs responded, “Yeah, this was outside of the base contract.”

A claim of error in the admission of evidence is “waived if, at another point during 

the trial, evidence on the same point is admitted without objection.” DeLeon v. State, 407 

Md. 16, 31 (2008). See also Yates v. State, 429 Md. 112, 120 (2012) (“Where competent 

evidence of a matter is received, no prejudice is sustained where other objected to evidence 

of the same matter is also received.”) (cleaned up); Berry v. State, 155 Md. App. 144, 172 
20

(2004) (“The failure to object as soon as the ... evidence was admitted, and on each and 

every occasion at which the evidence was elicited, constitutes a waiver of the grounds for 

objection.”). Because the alleged parol evidence about which Patriot complains was 

received without objection on several occasions, and elicited by Patriot itself on more than 

one occasion, Patriot has waived the issue.

IV. MARYLAND RULE 2-522(A)

Patriot next asserts that the trial court’s ruling in favor of VKES was “nearly devoid 

of any factual or legal findings concerning the issues raised by the parties” in violation of 

Rule 2-522(a), and thus the case should be remanded for a new trial. We disagree. 

Maryland Rule 2-522(a) requires that “[i]n a contested court trial, the judge, before 

or at the time judgment is entered, shall prepare and file or dictate into the record a brief 

statement of the reasons for the decision and the basis of determining any damages.” MD.

R. 2-522(a); see also PAUL V. NIEMEYER & LINDA M. RICHARDS, MARYLAND RULES 

COMMENTARY 573 (5th ed. 2014) (“In a case tried to the court without a jury, the court 

must make a decision and give its reasons for the decision ... and the basis for determining 

the damages, if any. A failure to comply with this requirement may result in a remand.”). 

There is no violation of the rule where the court clearly articulated the rationale behind its 

decision. See Viamonte v. Viamonte, 131 Md. App. 151, 162 (2000) (“[Rule 2-522(a)] 

simply requires the [court] to explain, at or before the time judgment is entered, her reasons 

for making her decision.”).

The present case included a hearing on Patriot’s motion to dismiss and a two-day 

trial on the merits. During both, Patriot raised essentially the same defenses and the trial 
21

court sufficiently articulated the rationale for its decisions. Throughout the motions hearing 

and the trial (which included a ruling on Patriot’s motion for judgment), the court 

thoroughly detailed the background information, which provided the factual predicate for 

its decisions that: (1) Spriggs, as senior project manager, operated as an authorized agent 

of Patriot when he directed VKES, with White’s knowledge, to complete the disputed ticket 

work on an emergency basis; (2) the continuing course of conduct between VKES and

Spriggs, the only Patriot agent with whom VKES interacted during the pendency of the 

project, served as a waiver of the condition precedent that authorization for all additional 

work be in writing; (3) VKES had satisfactorily completed the work for which it invoiced 

Patriot; and (4) after performing the work in a timely fashion, VKES was entitled to 

payment for that work under the terms of the subcontract, especially as Patriot had been 

paid by the MPO for the entire general contract. Ultimately, the court determined that “the 

bottom line is, this Plaintiff did the work. He did the work and earned the pay” and that 

Patriot was “extremely unreasonable in not paying this contract.”

The court’s factual findings and legal conclusions at the end of the trial, while spare, 

were not so summarily articulated as to prevent us from adequately assessing the cogency 

of its conclusion or the reasonableness of its remedy. See Prahinski v. Prahinski, 75 Md. 

App. 113, 136 n.6 (1988) (holding that “a trial court is not required to articulate each step 
22

in its thought process”). We conclude, therefore, that the trial court sufficiently complied 

with Rule 2-522(a).3

V. MOTION TO DISMISS

Finally, we address Patriot’s contention that the trial court erred in denying its 

pretrial motion to dismiss VKES’s complaint for failure to state a claim. 

As an initial matter, we note that Maryland’s appellate courts have not yet addressed 

whether a party may appeal from the denial of a motion to dismiss for failure to state a 

claim or whether success at trial on the merits of an issue renders such an appeal moot. In 

the absence of clear direction from the Supreme Court, we assume without deciding that 

such an order is appealable and proceed to the merits.4

3 We also note that, even if we agreed with Patriot that the trial court did not comply 

with Rule 2-522(a), the remedy would be a remand for a more comprehensive articulation 

of the facts and reasoning underlying its ruling on this issue, not, as Patriot argues, a remand 

for a new trial. See Shum v. Gaudreau, 322 Md. 242, 243-44 (1991). 

4

It is Patriot’s view that the circuit court erred in denying its motion to dismiss and 

that it should be able to test the legal sufficiency of VKES’s complaint despite its loss at 

trial. In support of this, Patriot points to Maryland Rule 8-131(e), which provides—without 

qualification—that “[a]n order denying a motion to dismiss for failure to state a claim upon 

which relief can be granted is reviewable only on appeal from the judgment.” MD. R. 8-

131(e); see also Planning Bd. of Howard Cnty. v. Mortimer, 310 Md. 639, 653-54 (1987) 

(explaining that the denial of a motion to dismiss “merely maintains the status quo of the 

litigation and ... is inherently an interlocutory order”); City of Dist. Heights v. Denny, 123 

Md. App. 508, 518-19 (1998) (noting that “the denial of [a] motion to dismiss [does] not 

constitute a final judgment on the merits”). VKES, by contrast, argues that by prevailing 

at trial it has demonstrated that relief on its claim can, in fact, be granted, and the appeal of 

the issue should now be moot. In support of this, VKES points us to significant out-of-state 

authority, see, e.g., Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir. 1996) (reasoning that 

“[w]hen the plaintiff has prevailed after a full trial on the merits, a [trial] court’s denial of 

a [motion to dismiss for failure to state a claim] becomes moot. The plaintiff has proved, 

not merely alleged, facts sufficient to support relief. Any pleading defect may be cured by 
23

We review the grant or denial of a motion to dismiss to determine whether the trial 

court was legally correct. Blackstone v. Sharma, 461 Md. 87, 110 (2018); Myers v. State, 

248 Md. App. 422, 430-31 (2020). “‘A motion to dismiss for failure to state a claim tests 

the sufficiency of the pleadings.’” Iglesias v. Pentagon Title & Escrow, LLC, 206 Md. App. 

624, 644 (2012) (quoting Afamefune v. Suburban Hosp., Inc., 385 Md. 677, 681-82 n.4, 

(2005)). In such a motion, the defendant asserts that “‘despite the truth of the allegations, 

the plaintiff is barred from recovery as a matter of law.’” Id. at 644-45 (quoting Porterfield 

v. Mascari II, Inc., 374 Md. 402, 414 (2003)). When we review the trial court’s decision, 

we must assume the truth of all well-pleaded facts and allegations contained in the 

complaint, and view those facts, as well as all inferences that may reasonably be drawn 

from them, in the light most favorable to the non-moving party. Greater Towson Council 

of Cmty. Assoc. v. DMS Dev., LLC, 234 Md. App. 388, 408 (2017). An order granting 

dismissal is appropriate “‘only if the allegations and permissible inferences, if true, would 

not afford relief to the plaintiff.’” Id. (quoting Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 

142 (2012)). 

In its motion to dismiss, Patriot relied on the same grounds that it later argued at 

trial and that it has now also presented on appeal—that VKES’s complaint fails to state a 

a motion ... and the sufficiency of the plaintiff’s evidence may be tested by an appeal on 

that issue”); Denali Real Estate, LLC v. Denali Custom Builders, Inc., 926 N.W.2d 610, 

621 (Neb. 2019) (In matter of first impression, “[w]e hold that generally, the denial of a 

motion to dismiss ... becomes moot after trial”), although we have some questions about 

whether the appellate systems in those jurisdictions are, in relevant respects, analogous. A 

definitive resolution of this interesting, if unusual, question is a matter for the Supreme 

Court of Maryland, either through its adjudicative or its rulemaking function.
24

claim and should have been dismissed because of the failure to satisfy the condition 

precedent in the contract and that the suit was filed beyond the statute of limitations. Thus, 

although we have already discussed both questions at length, we will briefly address them

once more. 

In its complaint, VKES alleged that in addition to the initial subcontract work and 

the two formal change orders, “VKES performed certain additional work on a time and 

material work ticket[] outside of the scope of the Subcontract and Change Order work” in 

a timely and workmanlike manner and that Patriot and the MPO accepted the work but 

refused to pay. VKES specified that it had “satisfied all conditions precedent, or those 

conditions have been waived, for initiating this action and VKES may now pursue its cause 

of action in this Court.” Patriot argues that VKES’s assertion that any condition precedent 

had been satisfied or waived is too conclusory to overcome the motion to dismiss. The trial 

court disagreed, as do we. 

Patriot asserted that VKES had failed to satisfy the condition precedent of written 

authorization for the first time in its motion to dismiss. Until shortly before the filing of its 

complaint, VKES believed Patriot would pay the ticket work when the MPO paid Patriot. 

When VKES was eventually notified that it would not be paid, the reason given was that 

the outstanding invoices had been covered by the “inflated” $200,000 change order. It 

would be illogical to expect VKES to have alleged more specific facts in response to a 

defense that had not yet been raised and of which it was unaware. Patriot’s motion to 

dismiss did not show a legal deficiency in VKES’s complaint, but rather that the 
25

satisfaction of the condition precedent was a disputed fact. The trial court was thus legally 

correct in denying the motion to dismiss for failure to state a claim. 

Finally, we note that “a motion to dismiss ordinarily should not be granted by a trial

court based on the assertion that the cause of action is barred by the statute 

of limitations unless it is clear from the facts and allegations on the face of the complaint 

that the statute of limitations has run.” Litz v. Md. Dep’t. of Env’t, 434 Md. 623, 641 (2013). 

As we have already discussed, due to the pay-when-paid provision of the contract, the 

statute of limitations did not begin to run until Patriot was paid by the MPO in October 

2019. Thus, VKES’s complaint, filed in June 2020, was well within the three-year statute 

of limitations and the trial court properly denied the motion to dismiss on the grounds that 

it was time-barred. 

JUDGMENT OF THE CIRCUIT 

COURT FOR ANNE ARUNDEL 

COUNTY AFFIRMED; COSTS TO 

BE PAID BY APPELLANT.