The opinion
Concurring and dissenting opinion by
WILNER, J.,
in which BATTAGLIA, J., joins.
I join the Court’s opinion and judgment with respect to Count I of the complaint, but, with respect, I dissent from its judgment as to Count II — the action on the bond. I believe that the Court has both failed to consider and misconstrued the relevant documents in concluding that final payment under the contract did not fall due until the final loan closing on November 1,1984.
The Court notes that § 3C of the construction contract, which dealt specifically with final payment, stated that the balance due HEBA “shall be payable upon the expiration of 30 days after the work hereunder is fully completed, provided that all required government inspections had been completed, all required government approvals had been issued, and CDA had issued permission to occupy all units of the project.” It notes as well that (1) under § 14 of the construction contract, CDA, upon issuing its final project report declaring construction complete, could designate certain specific improvements *368 as incomplete, along with an estimated cost for the completion of those items, and (2) in that event, CDA would require, as a condition of final closing, that the parties enter into an escrow agreement, pursuant to which the owner would withhold from the final payment and deposit in escrow a sum equal to twice the CDA estimate of the cost of the incomplete items. What the Court omits to mention, however, because it flatly precludes the result that the Court reaches, is that, although the escrowed sum was to carry no interest, the contract expressly declared that the escrowed sum belonged to HEBA, subject only to its completion of the work set forth in the escrow agreement not later than the time specified in the agreement.
The full contract between the parties included a number of attachments known as the Contract Documents, one of which was a document entitled General Conditions of the Contract for Construction, a form document prepared by the American Institute of Architects and approved by the Associated General Contractors of America. Section 9.9.2 of those General Conditions stated, in relevant part, that neither the final payment nor the remaining retained percentage shall become due to HEBA until HEBA submitted to the architect (1) an affidavit that all payrolls and other bills connected with the work, for which the owner might be responsible, had been paid, (2) the consent of the surety to final payment, and (3) if required by the owner, certain other assurances of payment, releases, or satisfaction.
The evidence before the court showed that the City of Hagerstown conducted a final inspection of the project on December 16,1983, .that it issued a Use and Occupancy Permit the same day, that on December 21, 1983, the architect certified and appellant accepted that the work was substantially complete, and that, also on December 21, CDA granted permission for the occupancy of all 110 units of the project. The first tenant assumed occupancy on December 20. Attached to the architect’s Certificate of Substantial Completion was the “punch list” items to be corrected or completed. Some amount, not clearly identified in the record, was withheld and placed in escrow in order to assure completion of *369 those items. On February 28, 1984, HEBA advised the architect that it had completed all of the items listed on the architect’s final inspection report of October 6, 1983, and requested the architect to reinspect those items so that no escrow would be required at final closing.
It is not clear from the record when the architect reinspected the items. We know only that, on October 10, 1984, CDA applied to MHF for insurance of the advance of mortgage proceeds and that, on October 26, 1984, MHF approved an advance of $316,818. In its October 10 application, CDA certified that, to the best of its knowledge, information, and belief, “the sum requested is now payable.” A final loan closing, for the release of the remaining funds, was set for and took place on November 1, 1984. On that day, CDA instructed its trustee to wire $24,839 to a New Jersey bank for the account of appellant and to transfer $17,706 to a special escrow account as a “Construction Surplus Account — Final Draw.” A supporting memorandum shows that the disbursement would be $17,706 from the construction surplus account and $79,112 to the “sponsor.” However one may view these instructions, it appears that final payment was, in fact, made to HEBA the next day, on November 2, 1984. We are told by appellant that the final payment to HEBA was in the amount of $111,360, although there is no explanation as to how that amount was calculated. 1
Appellant urges that there were essentially two conditions precedent to final payment. Keying on the language in § 3 B *370 of the contract that payments to HEBA were “[s]ubject to the approval of CDA,” it contends that CDA’s approval was one condition to payment. CDA’s ability to provide that approval, it argues further, was conditioned on the prior approval of MHF. For that proposition, it relies on the statement in CDA’s October 10 application for insurance of advance payment that it intended to disburse the sum on a particular date (that was left blank in the document included in the record) “provided we receive prior approval.” That approval from MHF, appellant claims, did not occur until November 1.
Appellant’s reasoning, which has become the Court’s reasoning, is unduly strained. Under the most rational reading of the contract, final payment was due to HEBA on December 21, when the architect certified substantial completion. By that time, all required inspections had been completed, a use and occupancy permit had been issued by the City of Hagers-town, and CDA had granted permission for the occupancy of all 110 units. The final draw was then authorized. It is true that some part of that amount was required to be placed in escrow, to assure the completion of the “punch list” items, but, under the clear wording of § 14 of the contract, dealing with that situation, the money placed in escrow belonged to HEBA, subject only to the forfeiture of its right to such of those funds allocable to an item that it thereafter failed to complete. The escrowed funds, therefore, constituted part of the final payment to HEBA under the construction contract. Section 14 *371 treated a declaration of substantial completion as a declaration of 100% completion and the escrow arrangement as a delay in disbursement of the final payment, rather than as a delay in when final payment became due.
Even if the escrowed funds were to be treated as a withholding from final payment under the construction contract itself, as appellant insists and the Court seems to hold, CDA’s certificate to MHF that “the sum requested is now payable” establishes October 10 as the date final payment was due. Although, as a practical matter, CDA could not actually pay that sum until its loan closing with the MHF, the critical date, in my view, is not when CDA was able to disburse the final payment but when that payment fell due. It is not at all unusual for the disbursement of sums due to be delayed pending lender sign-offs and the preparation of closing documents. Accordingly, I would hold that the Circuit Court did not err in finding Count II barred by limitations.
Judge BATTAGLIA joins in this concurring and dissenting opinion.
. The record in this case is terribly confusing. Appellant’s draw requisition, attached to the CDA application, showed a "FAF Escrow Refund” of 5110,000, a construction surplus account of $17,706, and a "Balance to Sponsor” of $189,112, those three items totaling $316,818. CDA’s ultimate authorization to release the remaining funds identified the $17,706 as the "Construction Surplus Account — Final Draw.” It is impossible to tell from these documents, or from anything else in the record, whether the “final payment” to HEBA was to be $110,000, $17,706, or some other amount. As noted, the apparent final payment was $111,360. Apart from this confusion, so far as I can tell, the escrow agreement, the list of incomplete items, and the architect’s final inspection of the “punch list” items are not in the record. There was a nearly eight-month hiatus between the time HEBA certified final com *370 pletion of the “punch list” items and the time CDA confirmed that completion, with no explanation for the cause of the delay. I cannot tell from the documents how much was withheld after substantial completion and put in escrow for the “punch list” items, or whether additional funds were also withheld. The copies of the CDA application to MHF and the Fund’s approval of that application included in the record contain blanks and are not signed; nor is appellant’s draw requisition. Compounding these uncertainties is the fact that, notwithstanding the direction in Maryland Rule 8 — 50 l(i) that documents presented to the trial court more than once shall be reproduced in full only once in the record extract, many of the documents, such as the construction contract, are reprinted several times. It would certainly have been helpful if the record were more complete and the record extract had been prepared in a more coherent way.