EBC Properties, LLC v. Urge Food Corp., Case No. 1952, September Term 2021. Opinion 

filed on February 28, 2023, by Berger, J.

TRADE FIXTURES – INTENT OF TENANT CONTROLS – REMOVAL FROM, AND 

REPAIR TO, REALTY NOT DETERMINATIVE

The three-factor fixture test articulated in Dudley v. Hurst, 67 Md. 44, 47 (1887), and relied 

upon by Maryland courts for nearly a century-and-a-half, focuses the analysis on the 

tenant’s intent when determining if the chattels installed are “trade fixtures,” and in so 

doing strictly construes the chattels’ attachment to the realty such that even structures 

requiring tremendous effort to remove, and significant repairs following their removal, 

remain trade fixtures. Because Tenant installed the chattels for the purpose of operating 

its grocery business, they were trade fixtures. Further, because the chattels could be 

detached from the realty, and the realty could be repaired thereafter, the extent of the 

damage caused by their removal did not alter the chattels’ status as trade fixtures. 

TRADE FIXTURES – TRANSFER OF TITLE UPON DEFAULT – CONTRACT 

INTERPRETATION – REFUSAL TO IMPLY TERM TRANSFERRING TITLE

Where a landlord’s claim to ownership of the trade fixtures is tied to an alleged breach of 

the lease prior to the end of its term, and not to the abandonment of property after such a 

term ends, “covenants restricting, or claiming to restrict, the tenants’ ordinary right to 

remove such property, are always strictly construed, and cannot be extended by 

implication.” Though the lease provided that Tenant could not remove Tenant’s Property, 

including the trade fixtures, if the Tenant was in default, and that abandoned items “shall 

become property of Landlord,” this cannot be read to imply that title to the trade fixtures 

transferred to Landlord immediately upon Tenant’s default, when no such term expressly 

transferring title existed. Following Tenant’s default, the installations and improvements 

made by Tenant remained trade fixtures and thus Tenant’s Property.

TRADE FIXTURES – TRANSFER OF TITLE – COMMON LAW – PRESUMPTION 

OF ABANDONMENT

As the common law regarding trade fixtures dictates, a tenant ordinarily must remove its 

trade fixtures before the end of the lease term, or the fixtures become the property of the 

landlord, as any chattels left on the premises following the tenant quitting the realty are 

presumed abandoned. The presumption of abandonment relies upon the principle that no 

injustice can be found if the tenant, on his own accord, surrenders the premises with fixtures 

annexed to it. Because Landlord did not repossess the land upon Tenant’s default but 

instead permitted Tenant to remain on the premises until the end of the lease term, Tenant’s 

trade fixtures were never presumed abandoned, and Tenant could remove them at any point 

prior to the lease’s termination date or Landlord’s repossession of the realty.
SCOPE OF REMAND – FURTHER PROCEEDINGS TO CLARIFY LIMITED ISSUE

A reviewing court may vacate the circuit court’s ruling and remand the matter to the circuit 

court strictly to resolve an issue for which the reviewing court determines it may not 

properly evaluate the circuit court’s ruling. The scope of such a remand will be limited to 

the circuit court conducting further proceedings, or reviewing the record already before it, 

so that it may better articulate clear factual findings and tie those findings to relevant law 

that cogently explains the circuit court’s ruling. 
Circuit Court for Prince George’s County

Case No. CAL1931614

REPORTED

IN THE APPELLATE COURT 

OF MARYLAND

No. 1952

September Term, 2021

______________________________________

EBC PROPERTIES, LLC

v.

URGE FOOD CORPORATION 

______________________________________

Berger,

Leahy,

Zic,

 

JJ.

______________________________________

Opinion by Berger, J.

______________________________________

Filed: February 28, 2023

*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.
This appeal arises from a dispute between a landlord and its tenant regarding the 

transfer of chattelsinstalled in the rented commercial realty and the restoration of the rented 

realty at the conclusion of the lease. On September 27, 2019, Appellee and tenant Urge 

Food Corporation (“Urge”) filed suit in the Circuit Court for Prince George’s County 

seeking a declaratory judgment and damages for breach of contract. Appellant and 

landlord EBC Properties, LLC (“EBC”) filed a counterclaim and a third-party complaint 

against Urge and the individual guarantors of the lease contract between Urge and EBC, 

for breach of contract, as well as for detinue and conversion.

The circuit court conducted a two-day bench trial via Zoom on May 24 and 25, 

2021.

1

 The court ruled in favor of EBC regarding Urge’s complaint for breach of contract 

and requested post-trial briefing from both parties as to the remaining issues. After both 

parties submitted such briefing, the trial judge issued a ruling from the bench. The court 

issued judgment in favor of EBC as to its claims that Urge breached the contract by failing 

to pay additional rents. The court ruled in favor of Urge as to EBC’s claims of conversion, 

damages, and detinue regarding Urge removing property it installed to operate its grocery 

business on the premises and as to EBC’s claim that Urge failed to fully repair the premises 

to the same condition it was in prior to the start of Urge’s tenancy. The circuit court entered 

its judgment, and EBC filed its notice of appeal the following day.

1

“Zoom is an online video platform, which has been used to facilitate remote 

hearings because some court hearings have not been able to be held in person due to the 

COVID-19 pandemic.” Tallant v. State, 254 Md. App. 665, 688 n.17 (2022) (citing Remote 

Hearing Toolkit, Md. Cts., https://mdcourts.gov/legalhelp/remotehearing (last visited 

Dec. 1, 2022), archived at https://perma.cc/UCV5-7JNN.
2

EBC presents three questions for our review, which we reorder but otherwise 

present verbatim below: 

I. Whether the Circuit Court erred when it ruled that all of 

Urge’s installations were trade fixtures and, therefore, 

“Tenant’s Property” under the terms of the Lease.

II. Whether the Circuit Court erred when it found that Urge 

retained a right to remove its “Tenant’s Property,” and 

that such items had not become the property of EBC.

III. Whether the Circuit Court erred when it found that Urge 

was not liable to EBC for the costs to restore the 

Premises to the condition required in the Lease.

For the reasons explained herein, we affirm on the first two questions and remand

for further proceedings, without affirming or reversing, on the third question.

FACTS AND PROCEDURAL HISTORY

The Relevant Provisions of the Lease Contract

On August 30, 2006, Urge and EBC -- as Tenant and Landlord, respectively --

entered into a thirteen-year contract (“the Lease”), running from October 1, 2006 to 

September 30, 2019, in which Urge rented 2340 University Boulevard East in Adelphi,

Maryland (“the Premises”), a commercial retail space in a strip mall owned by EBC. 

Section 14 of the Lease permitted Urge to freely make improvements and alterations to the 

Premises, so long as such improvements did not affect utility systems or the building’s 

structure. Section 14 further provided that such improvements (including “trade fixtures”) 

not permanently affixed to the building, would remain Urge’s property unless “abandoned” 
3

in the event of default or the termination of the lease.2 In the event of Urge’s default under 

Section 15 of the Lease, EBC reserved the right to terminate the lease, to re-enter and 

repossess the Premises -- including all of Tenant’s Property deemed abandoned therein --

and to re-rent the Premises. Section 15 further provided that the Landlord would be 

considered in default if it failed to cure an alleged breach of the Lease within 30 days of 

receiving written notice thereof. 

Section 4 of the Lease imposed the responsibility on Urge to pay two categories of 

rent, noting that the failure to pay either would be treated as a default under the Lease. 

“Basic Rent” referred to the yearly cost for Urge to use and enjoy the Premises, paid in 

monthly installments, with relevant provisions regarding annual increases and late fees. 

The Lease also required the payment of “Additional Rent,” related to the Tenant’s 

Covenants under Section 8 of the Lease, including section 8(K), which required Urge to 

contribute to Common Area Costs (“CAM Charges”) such as utilities, insurance premiums, 

maintenance and repair expenses, trash removal, and “fees and personnel costs” related to 

the hiring of engineers, superintendents, and security. 

Tenant Improvements and Installations

Prior to Urge’s tenancy, the Property had served as a used clothing store. When 

Urge took possession, the Premises was “completely empty.” Urge undertook extensive 

efforts to ready the location for its intended use as a grocery store. Urge installed numerous

2 Under the terms of the Lease, “Tenant’s Property” included “any movable goods, 

inventory, furniture, equipment trade fixtures and machinery necessary to the conduct of 

its business, and such items together with other movable personal property belonging to 

Tenant that are not permanently affixed to the Premises.” 
4

chattels related to operating a grocery, making the requisite improvements to the plumbing, 

electrical, and HVAC systems to accommodate these installations, including seafood, 

meat, and deli counters; a bakery, including an oven and hood for ventilation; display cases; 

checkout counters and registers; interior freezer cases; and similar chattels common to 

grocery stores. Notably, there were four walk-in coolers connected to the outside of the 

building that required holes to be cut in an exterior wall, the installation of a concrete slab 

to which the coolers were bolted, wood framing to be erected for their support, and 

connections made to the HVAC and fire suppression systems. EBC approved all such 

improvements where it was required to do so. 

Dispute Over Security and Departure from the Premises

Shortly after Urge began operating, crime became an issue, with customers and 

employees falling victim to automobile break-ins, stolen property, robbery, and knife 

attacks. After notifying EBC, and finding their response insufficient, Urge began hiring 

its own security personnel to keep watch of the grocery store (“Mega Mart”) and parking 

lot but not the other properties in the strip mall. By December of 2017 -- roughly a decade 

later -- EBC also became concerned about crime and hired its own security company to 

patrol the entire strip mall property, including the Mega Mart. When EBC sought 

proportional compensation from Urge, Urge refused to pay, maintaining that it was content 

with the security company it already contracted with and did not see a need to pay for 

redundant services. EBC pointed out that such security costs were part of the CAM 

Charges that Urge was required to pay under “Additional Rent” in Sections 4 and 8(K) of 

the Lease. 
5

EBC, through counsel, sent a letter to Urge on May 15, 2019, noting that under the 

terms of the Lease, the Lease would terminate on September 30, 2019, at which point Urge 

should vacate the Premises. The letter also demanded Urge cure its breach of the Lease by 

May 22, 2019, pertaining to $52,083.97 in unpaid CAM Charges, or EBC would have “no 

alternative but to pursue all legal remedies available.” EBC sent Urge another letter on 

June 7, 2019, again requesting that the outstanding balance of $52,083.97 be paid by 

June 17, 2019, and explaining the origins of the security charges, water usage, grease trap 

charge, and cleaning charge. On September 17, 2019, EBC sent another letter to Urge as 

notice of the Additional Rent arrearages that had been accruing since 2017. In the letter, 

EBC warned that the owed amounts continued to accrue, and that failure to timely pay 

would be considered a default under the Lease. Further, the letter reminded Urge that in 

the event of default, Section 14(A) of the Lease prevented Urge from removing its installed 

chattels, which EBC expressly listed, thus removal would be considered additional breach. 

Around this same time, Urge believed it was paying above-market rent and decided 

to vacate the Premises at the end of the term of the Lease and move to a new location.

3

 

During September of 2019, Urge began removing most of the items it installed as it 

prepared to vacate. The security company hired by EBC confronted Urge personnel while 

they were removing the installations at night, informing Urge employees they were to 

“leave it how it is.” Urge proceeded to cover the windows so EBC’s security could no 

longer see inside as Urge continued removing the installations from the Mega Mart. 

3 Shortly after vacating the Premises, Urge relocated its grocery business, along with 

some of the chattels removed from the Premises, to a new location a short distance away. 
6

Security personnel alerted EBC to Urge’s actions, but EBC told security to not intervene 

and to avoid conflict. 

Prior Legal Proceedings

On September 27, 2019, Urge filed a two-count complaint in the Circuit Court for 

Prince George’s County, alleging EBC breached the contract by preventing Urge from 

removing all of its property, including the exterior walk-in coolers, which were trade 

fixtures. Urge also sought declaratory relief that Urge was the sole owner of the exterior 

trade fixtures and thus had a right to remove such fixtures. Urge further maintained that 

EBC should be enjoined from preventing the removal of the remaining trade fixtures. 

EBC responded with a three-count counterclaim on October 24, 2019, eventually 

filing its fourth-amended counterclaim and third-party complaint on April 23, 2021.4 In 

Count I, EBC alleged Urge breached the contract by failing to pay the additional rent, and 

then further breached the Lease by removing fixtures and failing to make necessary repairs

in violation of the Lease. EBC sought damages in excess of $75,000.00, as well as 

attorney’s fees. In Count II, EBC sought detinue for the return of the installations Urge 

had removed. EBC claimed such removal was in violation of the lease and committed 

through trespass, and that Urge unjustly detained the removed chattels. Similarly, Count 

III alleged conversion of the chattels removed as well as the walk-in coolers left at the 

Premises, now deemed inoperable due to damage resulting from Urge’s removal of HVAC 

4

In EBC’s third-party complaint, it named as third-party defendants Uriel Ochoa

Diaz, Alba Rivas, Gerson Lopez, Lillian Lopez, and Dos Friends, Inc., who were the 

guarantors of the lease on behalf of Urge.
7

and plumbing extensions connecting the walk-ins to the building. EBC sought the return 

of the property, damages in excess of $75,000.00, as well as attorney’s fees.

The dispute progressed to a two-day bench trial conducted on May 24 and 25, 2021. 

Both sides put forth evidence and testimony from expert witnesses as to the removed 

chattels and damage sustained by the Premises upon their removal, as well as the prior 

security issue, and EBC’s response. During the hearing, the court granted EBC’s motion 

for judgment regarding the claim it had breached the contract by failing to provide security 

when prompted. The court found that Urge did not provide written notice, as required by 

the Lease, of the crime issues and the need for security, and therefore -- as a matter of 

law -- EBC did not breach the Lease. Following the hearing, the court requested additional 

briefing. 

On October 26, 2021, the court issued its ruling from the bench, disposing of all 

claims against Urge and the third-party defendants. The court found Urge was in default 

for its failure to pay the CAM Charges. Regarding the improvements and chattels Urge 

installed at the Premises, the court found such items were “all trade fixtures,” as they were 

installed in order to “operate[] a food store” and had not been permanently attached to the 

realty but could be removed with any resultant damage being repairable. As such, the 

chattels remained the property of Urge, which could remove the items prior to the 

conclusion of the Lease. The trial court further found that EBC was not entitled to any 

replacement costs and the only right EBC had in the chattels was that they could have been 

“held until such time as Urge paid whatever fees it owed to EBC for breach.” The court 

proceeded to find that Urge had an obligation to return the Premises to the state it was in 
8

prior to the commencement of the lease, but that, by locking Urge out of the building, EBC 

prevented Urge from removing all of its chattels and repairing the damage to the Premises. 

The court entered judgment in favor of EBC, and against Urge and the third-party 

defendants, for $41,209.00, representing the outstanding balance of the Additional Rent 

regarding the unpaid amounts for fat grease removal ($537.00), snow removal ($710.00), 

CAM Charges ($1,612.00), and security personnel ($38,350.00). Thereafter, EBC filed a 

motion for reconsideration. The trial court denied the motion, did not alter its earlier 

findings, and memorialized the bench ruling in an order sheet dated December 20, 2021 

and docketed January 18, 2022. On February 11, 2022, EBC filed this timely appeal. 

DISCUSSION

Standard of Review

Because this dispute reaches this Court following a bench trial, we “review the case 

on both the law and the evidence.” Md. Rule 8-131(c). “[We] will not set aside the 

judgment of the trial court on the evidence unless clearly erroneous, and [we] will give due 

regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. 

Rule 8-131. Clear error exists where the trial court’s factual findings are not supported by 

competent evidence. Spaw, LLC v. City of Annapolis, 452 Md. 314, 339 (2017). “If there 

is any competent and material evidence to support the factual findings of the trial court, 

those findings cannot be held to be clearly erroneous.” Carroll Indep. Fuel Co. v. Wash. 

Real Est. Inv. Tr., 202 Md. App. 206, 224 (2011) (quoting Jackson v. 2109 Brandywine, 

180 Md. App. 535, 567 (2008)).
9

We do not afford the same deference to the trial court’s conclusions of law. Id. 

“Instead, we apply a de novo standard of review to determine whether the court’s 

conclusions are legally correct.” Id.; Cain v. Midland Funding, LLC, 452 Md. 141, 151–

52 (2017) (“[W]hen a trial court ‘order involves an interpretation and application of 

Maryland . . . case law, our Court must determine whether the lower court’s conclusions 

are “legally correct” under a de novo standard of review.’” (quoting Walter v. Gunter, 367 

Md. 386, 392 (2002)). If we find the trial court erred in its understanding or application of 

law, ordinarily “further proceedings in the trial court” are warranted, unless the error is 

harmless. Reichert v. Hornbeck, 210 Md. App. 282, 304 (2013) (quoting In re Yve S., 373 

Md. 551, 586 (2003)). We will disturb conclusions of the trial court, “founded upon sound 

legal principles and based upon factual findings that are not clearly erroneous . . . only if 

there has been a clear abuse of discretion.” Id. at 304. 

I. The Circuit Court Correctly Classified as Trade Fixtures the Chattels 

Installed, and Later Removed, by Urge for the Purpose of Operating a Grocery 

Business.

The circuit court correctly applied the relevant law in concluding the chattels Urge 

installed on the Premises were trade fixtures. Sufficient evidence was presented to 

demonstrate that the varying pieces of equipment Urge installed were both associated with 

running a grocery business and were not permanently affixed to the realty. We, therefore,

hold that the circuit court was factually and legally correct in finding that the property 

installed by Urge constituted trade fixtures because of their movable status, coupled with

Urge’s clear intention to make such investments as a means to benefit the use of the 

Premises to carry out its grocery business trade. 
10

Whether a chattel changes from personal property to a fixture attached to the realty 

is a mixed question of law and fact. Droney v. Droney, 102 Md. App. 672, 686 (1995). 

For mixed questions of law and fact, this Court reviews the circuit court’s evidentiary 

findings for clear error, so long as we find no error in the court’s application of the law. 

Storetrax.com, Inc. v. Gurland, 168 Md. App. 50, 81 (2006).

The term “fixture” in property law references some personal chattel that has become 

so affixed to the realty, actually or constructively, as to become a part of the realty and no 

longer distinguishable from it. Carlin v. Ritter, 68 Md. 478, 483 (1888). The “general rule 

of the common law certainly is, that whatever is once annexed to the freehold becomes part 

of it, and cannot afterwards be removed, except by him who is entitled to the inheritance.” 

Van Ness v. Pacard, 27 U.S. 137, 143 (1829); see also Colonial Pipeline Co. v. State Dep’t

of Assessments & Tax’n, 371 Md. 16, 32–33 (2002). 

An exception to this common law rule on fixtures pertains to “trade fixtures,” which 

are not treated as part of the realty but remain removable by the tenant. Supervisor of 

Assessments of Anne Arundel Cnty. v. Hartge Yacht Yard, Inc., 379 Md. 452, 463–64

(2004); see also Van Ness, supra, 27 U.S. at 143–44 (“Fixtures which were erected to carry 

on trade and manufactures, were from an early period of the law allowed to be removed by 

the tenant, during his term; and were deemed personalty for many other purposes.”). “A 

trade fixture commonly is defined as an item affixed to realty for the purpose of enabling 

the tenant to perform properly a trade or profession, which can be removed without material 

or permanent injury to the realty.” Colonial Pipeline Co., supra, 371 Md. at 34–35. “The 

policy justification for the trade fixtures exception is to encourage trade,” so that tenants 
11

would not be reluctant to invest in the beneficial use of the land for fear that improvements 

made in the name of carrying out the tenant’s business would be lost upon the termination 

of the lease. Id. at 34–35 (2002) (citing Van Ness v. Pacard, 27 U.S. 137, 143–44 (1829)). 

Roughly 145 years ago, the Supreme Court of Maryland (at the time named the 

Court of Appeals of Maryland)5articulated a three-factor test to identify fixtures. Hartge 

Yacht Yard, Inc., supra, 379 Md. at 463 (citing Dudley v. Hurst, 67 Md. 44, 47 (1887)).

First, annexation to the realty either actual or constructive. 

Second, adaptation to the use of that part of the realty with 

which it is connected. Thirdly, the intention of the party 

making the annexation, to make the article a permanent 

accession to the freehold, this intention being inferred from the 

nature of the article annexed, the situation of the party making 

the annexation, the mode of annexation, and the purpose for 

which it was annexed.

Colonial Pipeline Co., supra, 371 Md. at 33–34 (quoting Dudley v. Hurst, 67 Md. 44, 47 

(1887)). For trade fixtures, “the touchstone” of the fixture test is intent. Id. at 35. “The 

sole question is, whether it is designed for purposes of trade or not.” Id. (quoting Van 

Ness v. Pacard, 27 U.S. 137, 146 (1829)). “When the proper intent is found, ‘[n]o matter 

how strongly [the fixtures are] attached to the soil or imbedded in it, they are treated as 

personal property, and as such subject to removal by the person erecting them.’” Id.

5 At the November 8, 2022 general election, the voters of Maryland ratified a 

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

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

also Md. Rule 1-101.1(a) (“From and after December 14, 2022, any reference in these 

Rules or, in any proceedings before any court of the Maryland Judiciary, any reference in 

any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of 

Maryland shall be deemed to refer to the Supreme Court of Maryland . . . .”).
12

(quoting N. Cent. Ry. Co. v. Canton Co., 30 Md. 347, 352 (1869)). “This exception in 

favor of trade fixtures has been held applicable in the cases we have cited to houses, steam 

engines, furnaces, railway tracks, cider mills, and like structures.” L.A. Thompson Scenic 

Ry. Co. v. Young, 90 Md. 278, 282 (1899).

Maryland courts continue to rely on the three-part Dudley test, focusing the analysis 

on the tenant’s intent when determining if the chattels installed are “trade fixtures” and, in 

so doing, strictly construing the chattel’s attachment to the realty such that even structures 

requiring tremendous effort to remove, and significant repairs following their removal, 

remain “trade fixtures.” The Supreme Court of Maryland has held that mooring buoys

installed in a riverbed were trade fixtures as they existed “to provide marina users a service 

that [the marina operator] directly profited from” by “generat[ing] rent for Hartge’s marina 

operation.” Hartge Yacht Yard, Inc., supra, 379 Md. at 466. Because the marina operator 

did not intend for the buoys to permanently remain on the river bottom, they were not 

fixtures. Id. at 465–66. Further, despite needing a crane to do so, they could be removed 

without causing serious damage to the riverbed. Id. at 464.

Similarly, the Supreme Court of Maryland has held that a 2,889-mile oil pipeline 

stretching through multiple states was a not a traditional fixture but a trade fixture. 

Colonial Pipeline Co., supra, 371 Md. at 38. The Supreme Court of Maryland noted that 

the two controlling factors of the Dudley “fixture test” made the pipeline a “trade fixture”

because the pipeline was not so affixed to the realty that, despite its excavation causing 

damage to the realty, such damage caused by its removal was “only temporary,” and could 
13

be repaired. Id. The Court further noted that Colonial’s “single factor in installing the 

pipeline system [was] to operate a business for profit” of transporting petroleum. Id. at 39.

A scenic railway “was to all intents and purposes a trade fixture” as it was attached 

to the realty through brick piers, “constructed in a firm and substantial manner” and built 

for the purpose of operating a “summer resort.” L.A. Thompson Scenic Ry. Co., supra, 90 

Md. at 279, 282. As such, the landlord could not prevent the tenant’s removal of the

elevated railway at the conclusion of the lease. Id. at 282. Similarly, a railway installed 

for the purpose of operating a railway company remained the personal property of the 

company and did not merge with the freehold and thus transfer to the owner of the realty 

upon which it was laid. N. Cent. Ry. Co. v. Canton Co., 30 Md. 347, 355 (1869). Even a 

house and other structures constructed so that their occupants could otherwise operate a 

business on the land did not become traditional fixtures, affixed to the realty, but remained

the character of trade fixtures and thus could be removed by the tenant. Van Ness, supra, 

27 U.S. at 147 (holding a residence built on a dairy farm for the purpose of the inhabiting

family and servants to engage in the dairy business was a trade fixture).

The trial court in this case did not err in finding the chattels installed by Urge prior 

to the operation of their grocery business constituted trade fixtures. The record contains

ample evidence from which the trial court arrived at this sound conclusion, and the court’s 

findings align with relevant Maryland law defining trade fixtures. As the Supreme Court 

of Maryland noted in Colonial Pipeline, the controlling factor in the Dudley “fixture test” 

is intent. 371 Md. at 35. Urge acquired the chattels, and made the requisite improvements 

and installations, for the purpose of operating a grocery store that provided fresh and frozen 
14

food to customers at the Premises rented from EBC. Indeed, Gerson Lopez, one of the 

partners of Urge, testified that upon taking over the Premises, it was “completely empty,” 

requiring Urge “to do all types of construction, everything from plumbing to electric, to 

refrigeration.” All of the chattels Urge installed related to the operation of a grocery 

business: deli counters, walk-in coolers, freezers, display cases, shelving, registers, and 

bakery ovens. Urge proceeded to operate the Premises as Mega Mart grocery store for the 

life of the lease. Based on intent alone, the chattels installed by Urge constituted trade 

fixtures. 

Further, applying the strict interpretation of “permanency” in the cases referenced 

above, the installations were not so affixed to the Premises to lose their status as trade 

fixtures. An April 19, 2021 letter sent to Urge by Nicholas Wijtenburg (a civil and 

structural engineer licensed in Maryland and hired by Urge to assess the structural changes 

to the Premises related to the grocery store installations) asserted that: (1) the exterior walkin coolers were temporary elements fastened to a platform; (2) the roof structure over the 

exterior coolers could be removed; and (3) the removal of accessory coolers and the 

relevant extensions of the sprinklers and cooling systems made to service those coolers did 

not negatively affect the building systems.

Indeed, Mr. Wijtenburg was qualified as an expert witness and testified how the 

walk-in coolers were “standalone structures” bolted to the Premises on a platform and thus 

could be removed without affecting the structural integrity of the Premises. There was “no 

distinct structural connection” between the coolers and the building. Removal of the 

coolers would require minimal repair to the concrete slab and the mending of the four holes 
15

cut in the wall, all of which Mr. Wijtenburg deemed non-permanent damage. Mr. 

Wijtenburg testified that the display freezers, cold-display cases, deli counters, ovens, 

tables, and similar installations were only attached to the building as much as necessary to 

provide safety and stability, but that they were not permanently affixed to the Premises. 

Accordingly, the record contains competent evidence to support the circuit court’s 

determination that the improvements made by Urge were for the purpose of conducting its 

trade and were sufficiently removable and impermanent to retain their character as trade 

fixtures. As a result, the circuit court’s ruling was not clearly erroneous. Spaw, LLC, 

supra, 452 Md. at 339. If accessory structures like houses, or vast industrial undertakings 

like sunken mooring buoys, buried pipelines, stretches of railroad tracks, and an elevated 

railroad platform were considered trade fixtures (primarily because they were installed for 

the purpose of furthering a tenant’s productive use of the rented realty by conducting the 

tenant’s business), then chattels installed for the purpose of running a grocery store, that 

were removable by the same party who installed them, requiring repair that did not 

otherwise compromise the building’s structural integrity or result in “permanently

damaging the realty,” also constitute “trade fixtures.” See Hartge Yacht Yard, supra, 379

Md. at 465. 

We, therefore, affirm the circuit court’s ruling that the chattels installed by Urge 

were trade fixtures. As such, Urge could remove its trade fixtures prior to the termination 

of the Lease, barring any controlling provisions of the Lease to the contrary. Accordingly, 

we turn our attention to the precise time the Lease terminated in order to ascertain Urge’s
16

ability to both remove such trade fixtures and to repair the damage to the Premises caused 

by their installation and subsequent removal.

II. Neither the Lease Nor the Common Law Vested Title to the Trade Fixtures in 

EBC Immediately Upon Default. As a Result, Urge Was Free to Remove Its 

Trade Fixtures Prior to the End of the Lease’s Term, Barring EBC Asserting 

Its Claim to the Trade Fixtures Prior to That Date.

A. The Lease Did Not Expressly Require Title of Urge’s Trade Fixtures to 

Transfer to EBC Immediately Upon Default. Therefore, Urge’s Removal of 

Such Property Prior to the Termination Date -- and EBC’s Failure to Assert 

Its Claim to the Property Prior to that Date -- Resulted in Urge Retaining 

Ownership of Its Trade Fixtures. 

Urge’s breach of the Lease due to its failure to pay the outstanding Additional Rents 

(mostly tied to its refusal to pay for what it deemed “redundant” security personnel), is not 

before us. Germane to this matter regarding the removal of trade fixtures, though, is the 

timing of when Urge defaulted, and how that default affected other rights and obligations 

under the Lease. Thus, we examine the Lease, in the context of relevant Maryland law, to 

assess the implications of Urge’s default on the potential transfer of the trade fixtures.

The trial court’s interpretation of a contract “is a question of law that we review de 

novo.” Landaverde v. Navarro, 238 Md. App. 224, 243–44 (2018). Our chief concern in 

interpreting a contract is ascertaining and giving effect to the objective intentions of the 

parties, as determined from the language of the contract itself and reading the instrument 

as a whole. Id. “If the contract language is unambiguous and capable of only one meaning, 

we will give effect to its plain, ordinary, and usual meaning, taking into account the context 

in which it is used.” Id. (citing 100 Inv. Ltd. P’ship v. Columbia Town Ctr. Title Co., 430 

Md. 197, 234 (2013)). 
17

“As a bedrock principle of contract interpretation, Maryland courts consistently 

‘strive to interpret contracts in accordance with common sense.’” Credible Behav. Health, 

Inc. v. Johnson, 466 Md. 380, 397 (2019) (quoting Brethren Mut. Ins. Co. v. Buckley, 437 

Md. 332, 348 (2014)). “The rule to be applied is that an interpretation which makes a 

contract fair and reasonable will be preferred to one leading to a harsh or unreasonable 

result, so that a reading which produces a forfeiture will not be favored.” City of Balt. v. 

Indus. Elecs., Inc., 230 Md. 224, 229 (1962). “It is presumed that parties contract with a 

knowledge of the existing law . . . and such law becomes a part of the contract unless 

expressly rejected as inapplicable.” Cabana, Inc. v. E. Air Control, Inc., 61 Md. App. 609, 

616 (1985).

The Lease permitted Urge to make improvements and alterations to the Premises, 

though improvements affecting utility systems or the building’s structure required EBC’s 

approval. Indeed, Section 14(A) of the Lease provided that Urge had the “privilege of 

installing any movable goods, inventory, furniture, equipment, trade fixtures and 

machinery necessary to the conduct of its business,” and that such items installed would 

remain the personal property of the Tenant (“Tenant’s Property”) and remain removable 

by the Tenant at the conclusion of the lease, so long as the items were not “permanently 

affixed to the Premises.”6 Section 14(B) further provided that the Tenant shall remove all 

6 Section 14(A) of the Lease provides:

Subject to the terms and conditions of this Section 14, all 

present and future alterations, additions, renovations, 

improvements and installations made to the Premises, 
18

Tenant’s Property and repair all damage to the Premises caused by the installation and 

removal of such chattels and return the Premises to the state it was in before Tenant took 

possession, with allowance for normal wear and tear.7 This section also provides that if 

including the HVAC system (“Leasehold Improvements”), 

shall be deemed to be the property of Landlord when made and, 

upon Tenant’s vacation or abandonment of the Premises, 

unless Landlord directs otherwise, shall remain upon and be 

surrendered with the Premises in, good order, condition and 

repair. Tenant shall have the privilege of installing any 

movable goods, inventory, furniture, equipment, trade fixtures 

and machinery necessary to the conduct of its business, and 

such items together with other movable personal property 

belonging to Tenant that are not permanently affixed to the 

Premises shall remain Tenant’s property (“Tenant’s 

Property”). Tenant’s Property shall be removable by tenant at 

any time, provided that Tenant (i) is not in default under this 

Lease, and (ii) shall repair any damage to the Premises or the 

Building caused by the removal of any of Tenant’s property to 

restore the Premises or the Building to their original condition. 

Return of the premises should not require the removal of 

approved alterations which would also help in re-letting.

7 Section 14(B) of the Lease provides:

Upon the expiration or sooner termination of the Term of this 

Lease, Tenant shall quit and surrender to Landlord the 

Premises, broom clean, and in good order and condition, 

ordinary wear and tear and acts of God and casualty damage, 

and condemnation excepted; and shall surrender to Landlord 

all keys to or for the Premises and inform Landlord of all 

combinations on locks, safes and vaults, if any, left by Tenant 

in the Premises. Tenant shall remove all of Tenant’s Property 

and shall repair all damage to the Premises caused by such 

removal and restore the Premises to the condition in which they 

were in prior to the installation of the articles so removed, 

ordinary wear and tear and acts of God and casualty damage 

excepted, prior to the Termination Date or the termination of 

Tenant’s right to possession. In the event of failure of Tenant 
19

Urge failed to remove its Tenant’s Property before the expiration of the Lease, “it is agreed 

that Tenant is abandoning said item, and the same shall become property of Landlord.” 

Section 15 of the Lease defined the Tenant’s default as a failure to pay Basic or 

Additional Rent within 10 days of written notice and provided the Landlord the option 

upon such default of terminating the lease, re-entering and repossessing the property, and 

re-renting the Premises.8 Parallel to EBC’s legal rights under this Lease is Maryland law

to remove such items from the Premises before expiration of 

this Lease, it is agreed that Tenant is abandoning said item, and 

same shall become the property of Landlord, who shall have 

the right to use, remove or dispose of said items as Landlord 

shall desire. Tenant’s obligation to observe or perform this 

covenant shall survive the expiration or sooner termination of 

the Term of this Lease.

8 Section 15(A) of the Lease provided the “Definition of Default:”

For purposes of this Lease, the term “Default” shall mean any 

failure by Tenant to (i) pay the Basic Rent and/or Additional 

Rent herein reserved within ten (10) days after written notice 

of non-payment; (ii) keep and perform any or all of the other 

covenants and agreements on its part, to be kept and performed 

hereunder within thirty (30) days after written notice from the 

Landlord to Tenant specifying the nature and extent of the 

default or breach of covenant, or if such default is not 

susceptible of cure within thirty days, to commence the cure 

within thirty days and prosecute the same diligently to 

completion; and (iii) continuously operate as required under 

this Lease, or if Tenant shall vacate or abandon the Premises.

Section 15(B) provided the “Landlords Remedies Upon Default:”

In the event of a Default, Landlord may, at its option, exercise 

one or more of the following remedies: (i) terminate the Lease 

and the Default shall operate as a notice to quit, all and every 

kind of notice to quit being hereby expressly waived by 
20

permitting a landlord to bring an action for unpaid rent under the provisions of a lease with 

a term longer than three months, and to conduct a “sale under distress” of property installed 

by the tenant but remaining on the realty following default, to pay the outstanding rent 

claim. Md. Code, (1974, 2015 Repl., 2021 Suppl.) § 8-302(c) of the Real Property Article 

(“RP”); RP § 8-320(a). 

Reading these Lease provisions in concert, we agree with EBC that Urge was in 

default when it failed to cure, within 10 days of receiving notice thereof, its delinquency 

as to the Additional Rents required under Sections 4 and 8 of the Lease. As such, EBC 

could have exercised its remedies under Section 15 of the Lease at any point between the 

close of that 10-day notice period and September 30, 2019, the actual termination date of 

the Lease. In so doing, it could have re-entered and repossessed the premises. In 

accordance with Section 14(B), any of the trade fixtures remaining on the realty, and any 

other Tenant’s Property, would have been treated as abandoned, and, thus, EBC could have 

rightfully taken possession of such Tenant’s Property. Because EBC never took such steps, 

we need not determine which letter alerting Urge of default triggered the 10-day period 

Tenant; (ii) re-enter and or obtain possession of the Premises 

under and by virtue of appropriate legal proceedings under the 

laws of the State of Maryland regulating proceedings between 

landlords and tenants, or by such other proceedings as may, at 

the time, be in full force in like cases, and the Default shall 

operate as notice to quit, all and every kind of notice to quit 

being hereby expressly waived by Tenant; (iii) re-rent 

Premises.
21

after which EBC could have repossessed the Premises and all Tenant’s Property 

“abandoned” therein. 

We distinguish this dispute from a similar case with somewhat more exacting 

contract language. This Court held that underground gas tanks installed by a tenant were 

trade fixtures that transferred to the owner of the real property upon termination of the 

lease, in accordance with the lease terms, after a dispute arose when the tenant left the tanks 

buried at the site after vacating the realty. Carroll Indep. Fuel Co. v. Wash. Real Est. Inv. 

Tr., 202 Md. App. 206, 229–30 (2011). In Carroll Independent Fuel Co., the lease 

expressly provided the trade fixtures transferred to the landlord upon the termination of the 

lease. 202 Md. App. at 229. Under the terms of EBC and Urge’s Lease, Section 14(A) 

provided that Urge could not remove Tenant’s Property, which included the trade fixtures, 

if Urge was in default, and Section 14(B) said that abandoned items “shall become property 

of [EBC].” Neither provision expressly conveyed title of such trade fixtures to EBC 

immediately upon the occurrence of Urge’s breach. As such, we will not imply such a 

term. 

Further, even without the rights provided by Section 14(B), EBC could have taken 

possession of any abandoned trade fixtures and sold as many as needed to cover the 

outstanding rent owed by Urge under Section 8-320(a) of the Real Property Article. The 

circuit court appeared to reckon with this statute in its ruling. While articulating its 

understanding of the potential stake EBC had in Urge’s trade fixtures, the circuit court 

noted that EBC could have prevented Urge from removing its property due to Urge’s 

default, but that “didn’t mean that the items became the property of EBC. If anything, the
22

property could just be held until such time as Urge paid whatever fees it owed to EBC for 

any breach.” The circuit court further surmised that if such fees owed by Urge were not 

paid after EBC seized the trade fixtures, “EBC could sell them and take what was owed to 

it and give any money left over to Urge.” 

The circuit court never construed the Lease as transferring title of the trade fixtures 

from EBC to Urge. Reading the contract similarly avoids a “harsh or unreasonable result”; 

otherwise Urge’s failure to pay roughly $50,000.00 in contested fees would provide EBC 

with a windfall of several hundred-thousand-dollars’-worth of chattels installed by Urge. 

See Indus. Elecs., Inc., supra, 230 Md. at 229. In short, we see no error in the trial court’s 

interpretation of the Lease.

B. Maryland Common Law Regarding Trade Fixtures Does Not Require that 

Ownership of Such Fixtures be Immediately Transferred to EBC Upon 

Urge’s Breach.

As we discussed supra, trade fixtures are unique because, unlike traditional fixtures, 

they retain their status as the personal property of the tenant, and thus they retain that 

character upon the conclusion of the lease. See Teddy-Rose Enters., Inc. v. Hartford Fire 

Ins. Co., 48 Md. App. 466, 470 (1981) (stating common law rule that traditional fixtures 

remain with the realty). A tenant ordinarily must remove its trade fixtures before the end 

of the lease term, or the fixtures become the property of the landlord, as any chattels left 

on the premises following the tenant leaving are presumed abandoned. See Cabana, Inc., 

supra, 61 Md. App. at 615. This rule is tied to the presumption of abandonment arising 

from the tenant quitting the premises while leaving the trade fixtures behind, as no injustice 

can be found if the tenant, on his own accord, surrenders the premises with fixtures annexed 
23

to it. See Carlin, supra, 68 Md. at 483–84. Nevertheless, where, as here, the landlord’s

claim to the trade fixtures is tied to an alleged breach of the lease prior to the end of its 

term, and not the abandonment of property after such a term ends, “covenants restricting, 

or claiming to restrict, the tenants’ ordinary right to remove such property, are always 

strictly construed, and cannot be extended by implication.” Rasch, supra, 136 Md. at 438.

9

EBC points us to this Court’s decision in Cabana as controlling. 61 Md. App. at

616–17. In attempting to decipher the applicability of a mechanic’s lien on a building 

deemed a trade fixture that remained on the landlord’s property following default, we held

9 Urge analogizes its installations to those the Supreme Court of Maryland deemed 

“trade fixtures” that remained the property of the tenant, despite potential contract language 

dictating otherwise, in Rasch v. Safe Deposit & Tr. Co., 136 Md. 435, 440 (1920). In

Rasch, the tenant leased a building with an empty elevator shaft and proceeded to install 

first a hand-operated elevator, then the requisite machinery and motors for an electronically 

driven one, in so doing drilling holes in the shaft’s wall to install bolts. Id. at 437. Prior 

to the conclusion of the tenancy, the tenants removed the elevator and all accompanying 

apparatuses, “without injury to the building other than the holes in the shaft caused by the 

withdrawal of the bolts.” Id. The lease required the lessee to obtain permission of the 

lessor before making “substantial alterations” and stated that such approved improvements 

would remain the property of the lessor. Id. at 440. The Supreme Court of Maryland held 

that the elevator was a trade fixture, reasoning that since the building had an elevator shaft, 

the landlord should have contemplated that a tenant would put that shaft to use by installing 

an elevator, and that the installation of the elevator did not cause substantial damage to the 

building, as the holes could easily be filled, and the tenant installed the elevator to “better 

enjoy the use of the leased premises in the management and conduct of his business.” Id.

at 440–42. As such, the Supreme Court of Maryland held the elevator was a trade fixture, 

and the installation of such a trade fixture was not such an alteration or improvement that 

would become property of the landlord at the expiration of the lease. Id. at 440. 

This precedent buttresses our holding that the installations and improvements made 

by Urge remained trade fixtures and thus Urge’s property, but it is also instructive in 

demonstrating the strict interpretation of such contractual provisions so that “trade fixtures” 

remain the property of the tenant. 
24

in Cabana that the tenant’s leaving the building on the property after defaulting on its 

obligation to pay rent forfeited the building to the landlord. Id.

In our view, the facts of this case are easily distinguishable from Cabana. In 

Cabana, this Court held that the lease term was not terminated during the court action 

finding the tenant in default. 61 Md. App. at 616. Instead, we noted that the lease term 

ended, and the tenant no longer had rights in the leased premises, nor the property left upon 

it, after the tenant failed to cure its breach within 10 days of notice thereof and the landlord 

changed the locks on the building. Id. at 616–17. Unlike in Cabana, EBC did not repossess 

the land upon Urge’s default but instead permitted Urge to remain on the premises until 

the end of the Lease term. EBC’s management even instructed its security personnel, upon 

learning that Urge was removing its installations, to do nothing, as “they had every right to 

stay until the end of the Lease month.” Further, unlike in Cabana, Urge’s trade fixtures

did not remain on the premises after the lease term ended and thus could not rightfully be 

treated as abandoned and surrendered to the landlord, as the common law regarding trade 

fixtures dictates. 

We find no legal error with the circuit court’s interpretation of the Lease provisions 

and the relevant Maryland statutes and common law. We hold that the circuit court 

correctly concluded that ownership of the trade fixtures did not immediately transfer to
25

EBC upon Urge’s default.10 Accordingly, barring EBC exercising its rights to detain such 

property upon default, Urge did not commit further breach by removing its trade fixtures.

III. The Circuit Court Erred in Finding That Urge Was Not Liable to EBC for the 

Costs to Restore the Premises to the Condition Required in the Lease.

Both the common law regarding trade fixtures and the terms of the contract required 

Urge to repair the damage to the Premises caused by the installation and removal of its 

trade fixtures, and to do so by the end of the lease’s term. EBC claimed that Urge’s 

surrender of the property in a state of disrepair constituted breach of the terms of the Lease. 

As such, Urge should be liable for damages related to the cost of such repairs, as well as 

for related attorney’s fees. Urge counters that EBC frustrated Urge’s ability to fulfill its 

contractual obligation to make these repairs when EBC locked Urge out of the Premises 

following the removal of the trade fixtures. As such, any breach by Urge regarding repairs 

should be excused.

Evidence of a breach exists when a plaintiff can show that the defendant owed a 

contractual duty to the plaintiff, and the defendant failed to perform that obligation. 

WSC/2005 LLC v. Trio Venture Assocs., 460 Md. 244, 265 (2018). However, a party may 

also commit breach by preventing another party to the contract from performing its duties, 

or by failing to cooperate when such cooperation is implied for both parties to perform and 

10 Regarding EBC’s conversion claims, conversion, “at a minimum” requires the 

defendant to “exercise dominion or control over” property that is “inconsistent with the 

plaintiff’s rights” in that property. Darcars Motors of Silver Spring, Inc. v. Borzym, 379 

Md 249, 262 (2004) (quoting Keys v. Chrysler Credit Grp., 303 Md. 397, 414 (1985)). 

Because EBC did not have ownership rights in the trade fixtures before or after Urge’s 

default, as we explain supra, conversion is not a viable theory of liability.
26

enjoy the benefit of the bargain. Livingston v. Green Props., Inc., 222 Md. 354, 357 (1960);

see also WSC/2005 LLC, supra, 460 Md. at 267 (“[T]he prevention doctrine applies when 

one party prevents another party from performing under the contract.”). 

Section 14(A) of the Lease clearly required Urge, as Tenant, to surrender the 

Premises “in good order, condition and repair.” Section 14(B) extends this obligation, 

requiring Urge to surrender the Premises “broom clean, and in good order and condition,” 

with all Tenant’s Property (including trade fixtures) having been removed, and with the 

Tenant repairing all damage and restoring the “Premises to the condition in which they 

were in prior to the installation of the articles so removed, ordinary wear and tear and acts 

of God and casualty damage excepted, prior to the Termination Date.” The Termination

Date was September 30, 2019, the last day of the Lease’s term. 

Thus, by the express provisions of the Lease, Urge’s repairs were to have been 

completed by September 30, 2019. See Landaverde, supra, 238 Md. App. at 243–44 

(holding court must give effect to plain, ordinary meaning of unambiguous contract terms 

and interpret contract as a whole). The parties made no allowance for a “reasonable time 

thereafter” or any similar cushion for Urge to both remove its trade fixtures and then return 

the Premises to the state Urge found it in at the commencement of the Lease in 2006, 

normal wear and tear excused. Such an interpretation of the contract further squares with 

the common law of trade fixtures explored above, in which a trade fixture must not cause 

“serious injury” to the land upon its removal. See Hartge Yacht Yard, Inc., supra, 379 Md. 

at 465. 
27

We struggle to decipher the evidence as to whether and how Urge may have been 

frustrated in completing its contractual obligations. Mr. Lopez testified that Urge had every 

intention of returning to the Premises after removing the trade fixtures and completing all 

required repairs. Nevertheless, EBC thwarted this effort by having security personnel 

block Urge’s access to the Premises. EBC’s security manager testified that he was 

instructed not to interfere with Urge’s comings and goings from the Premises, even after 

EBC thought Urge was violating the Lease by removing trade fixtures despite its default. 

Based on this apparently conflicting testimony, it is unclear when and to what extent Urge 

was frustrated from fulfilling its obligation to repair damages and return the Premises to its

prior state.11 

We find insufficient clarity in the trial court’s ruling on this issue to allow us to 

evaluate the court’s legal or factual accuracy or error in concluding that EBC frustrated 

Urge’s ability to repair the Premises, and that this relieved Urge from this obligation and 

the resultant damages. Accordingly, we remand this issue to the circuit court to determine 

whether Urge breached the duty to return the Premises to its condition prior to the 

commencement of the Lease, and, therein, whether EBC frustrated Urge’s performance of 

11 EBC argues in its brief that Sections 14 and 15’s requirements that Urge remove 

its property and repair the Premises to its prior state do not necessarily mean that Urge was 

entitled to make such repairs itself, and thus there was no requirement for EBC to permit 

Urge to make such repairs, therefore there was no frustration in contractual performance, 

even if Urge was locked out. We make no explicit ruling on this argument and only 

acknowledge that as much as the Lease may not explicitly require Urge to perform the 

repair work, the Lease also does not forbid Urge from doing such work. Indeed, the only 

clear obligation is that the work be completed by the Termination Date. 
28

this obligation, thereby relieving Urge of liability for damages regarding repairs. Our 

remand is without affirmance or reversal of the circuit court’s initial ruling on this specific 

issue. We return the issue to that court for further proceedings so that it may better 

articulate clear factual findings and tie those findings to relevant law that cogently explains 

the court’s ruling on Urge’s liability, or lack thereof, regarding damages due to its failure 

to repair and restore the Premises.

In its oral ruling from the bench, the circuit court pronounced that “the landlord 

essentially stopped Urge from removing anything and prevented them, as the [c]ourt sees 

it, from putting the property” back to its prior state. In response to EBC’s protests, the

circuit court noted that EBC “stopped [Urge] from doing what they were doing . . . they 

were stopped from doing the work they were doing to move away. . . The [c]ourt finds they 

weren’t permitted to do and they were basically stopped from removing items from the 

property.” The circuit court’s ruling seemed to conflate efforts to prevent Urge from 

removing property with efforts to prevent Urge from making repairs. Previously in its 

ruling, the court seemed to endorse the idea that EBC was within its right to lock Urge out 

of the Premises, saying EBC could prevent Urge from removing property “given that the 

lease said that these kinds of fixtures could not be removed if there was breach." 

The circuit court proceeded to invite this Court to return this matter to it, lamenting 

EBC’s likely exasperation in the face of the circuit court absolving Urge of its requirement 

to make repairs, and conceding, “I guess I will leave it at this. And someone else, some 

higher authority if you choose to pursue that will tell me if I am wrong. . . [T]he [c]ourt 

finds it doesn’t even have the wherewithal to say, yes, they should have done that.” 
29

Though the trial court ruled EBC frustrated, and thus absolved, Urge’s duty to 

repair, we are unable to locate competent evidence within the record, beyond the court’s 

conclusory declaration that such frustration occurred. As such, we cannot say whether 

competent evidence existed to support the circuit court’s ruling. See Spaw, LLC, supra, 

452 Md. at 339.

It is well settled that if we “conclude[ ] that the substantial merits of a case will not 

be determined by affirming, reversing or modifying the judgment, or that justice will be 

served by permitting further proceedings, the Court may remand the case to a lower court,” 

and in so doing we will “state the purpose for the remand.” Md. Rule 8-604(d); see 

Shapiro v. Greenfield, 136 Md. App. 1, 18 (2000) (holding this Court was “unable to 

review the factual underpinnings of the trial court’s conclusion,” thus, “[u]nder the 

circumstances we will remand for reconsideration”). This Court may order a “limited 

remand so that the circuit court can, based on the evidentiary record already before the 

court, conduct further proceedings and render further factual findings under the appropriate 

theories of liability discussed in [this Court’s] opinion.” Qun Lin v. Cruz, 247 Md. App. 

606, 642 (2020); see also Thompson v. State, 139 Md. App. 501, 537 (2001) (remanding a 

discrete issue in the opinion “to the trial judge in order to provide him with an opportunity 

to clarify” his ruling). 

Accordingly, we remand the issue of damages regarding Urge’s failure to return the 

Premises to “to the condition in which they were in prior to the installation of the articles 

removed . . . with the Premises in good order, condition, and repair,” ordinary wear and 

tear excepted. Upon remand, the trial court shall determine whether and when EBC 
30

prevented Urge from re-entering the Premises and making repairs that would restore the 

Premises to its original condition. 

We leave to the discretion of the trial court, upon remand, to review the evidence 

presented and to decide whether additional testimony or argument is needed on the issues 

of frustration of contractual performance and, lacking such frustration, damages related to 

the repair of the Premises. In reconsidering its findings, if the circuit court determines EBC 

prevented Urge from entering the property to make such repairs prior to the end of the term, 

then that court must further determine if this action constitutes frustration thereby 

alleviating Urge from some or all liability for damages. Such damages apply only to 

repairs to the Premises, and not to any Tenant Property or improvements still left on the 

Premises and considered abandoned.

12

 We, therefore, direct the trial court to make clear 

findings of fact following remand regarding whether Urge is liable to EBC for costs to 

restore the Premises to the condition required by the Lease.

Additionally, we note that this dispute began with Urge seeking declaratory 

judgment regarding its exterior trade fixtures, primarily the walk-in coolers attached to the 

building. Nonetheless, the circuit court failed to enter such judgment in the record. Md. 

Dep’t of St. Police v. Dashiell, 443 Md. 435, 449 (2015) (“[W]hether a declaratory 

judgment action is decided for or against the plaintiff, there should be a declaration in the 

12 As established above, the exterior walk-in coolers installed by Urge and left at the 

Premises are trade fixtures, but because they remain on the Premises following Urge’s 

default and the termination of the lease, they are considered abandoned. As such, Urge is 

not liable for such damage to the exterior walk-in coolers, regardless of the trial court’s 

ultimate ruling regarding EBC’s potential frustration of Urge’s duty to repair the Premises.
31

judgment or decree defining the rights of the parties under the issues made.”) (quoting Case 

v. Comptroller, 219 Md. 282, 288 (1959)). The circuit court erred by not clearly resolving 

the declaratory judgment issue and entering “in a separate document, state[d] in writing[,] 

its declaration of the rights of the parties, along with any other order that is intended to be 

part of the judgment.” Aleti v. Metro. Balt., LLC, 251 Md. App. 482, 519–20, cert. granted

476 Md. 263(2021), and aff’d 479 Md. 696 (2022) (quoting Bowen v. City of Annapolis, 

402 Md. 587, 608 (2007)). 

Notably, “[t]his error is procedural at worst, however, and not jurisdictional. . . . 

‘This Court may, in its discretion, review the merits of the controversy and remand for the 

entry of an appropriate declaratory judgment by the circuit court.’” Balt. Cnty. v. Balt. Cnty. 

Fraternal Ord. of Police Lodge No. 4, 439 Md. 547, 566 (2014) (quoting Bowen v. City of 

Annapolis, 402 Md. 587, 609 (2007)); see also Point’s Reach Condo. Council of Unit 

Owners v. Point Homeowners Ass’n, Inc., 213 Md. App. 222, 228-29 (2013) (“[T]he trial 

court's procedural error in not memorializing its decision in writing, after announcing it in 

detail on the record, does not preclude our review of the issues, was harmless, and can be 

corrected on remand without reversing the judgment.”). Accordingly, because we vacate 

the circuit court’s ruling regarding Urge’s duty to repair the Premises, we include in our 

mandate instructions that the circuit court shall issue a such a written declaration.

Accordingly, we affirm the circuit court’s findings as to the first two questions 

presented, but we remand to the trial court for further proceedings, in accordance with this 

opinion, on the third question regarding damages for Urge’s failure to repair the Premises. 
32

Additionally, on remand, the circuit court shall issue a written declaration of the parties’

rights and obligations, consistent with this opinion.

JUDGMENT OF THE CIRCUIT COURT 

FOR PRINCE GEORGE’S COUNTY IS 

AFFIRMED AS TO ISSUES I AND II. 

COSTS TO BE PAID BY APPELLANT. 

JUDGMENT OF THE CIRCUIT COURT 

FOR PRINCE GEORGE’S COUNTY IS 

VACATED AS TO ISSUE III. THE CASE IS 

REMANDED TO THAT COURT FOR 

FURTHER PROCEEDINGS CONSISTENT 

WITH THIS OPINION REGARDING 

WHETHER URGE IS LIABLE TO EBC 

FOR THE COSTS TO RESTORE THE 

PREMISES TO THE CONDITION 

REQUIRED IN THE LEASE. COSTS TO 

BE SPLIT EQUALLY BETWEEN 

APPELLANT AND APPELLEE. 

ADDITIONALLY, THE CASE IS 

REMANDED TO THAT COURT TO 

ENTER A WRITTEN DECLARATORY 

JUDGMENT IN CONFORMANCE WITH 

THIS OPINION.
The correction notice(s) for this opinion(s) can be found here: 

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/1952s21cn.pdf