author: ARTHUR, J.

text:
    137 A.3d 377
    STATE of Maryland v. William BRAVERMAN, et al.
    No. 429,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 1, 2016.

      Matthew J. Fader (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for appellant.
    Sara H. Arthur, Annapolis, MD and Edward J. Meehan (Groom Law Group, Washington, D.C., and Richard L. Brusca, Skadden Arps, Slate, Meagher & Flom, LLP, Washington, D.C.), all on the brief, for appellee.

      Panel: WOODWARD, ARTHUR, ROBERT A. ZARNOCH, (Retired, Specially Assigned), JJ.

       Judge Daniel A. Friedman did not participate in the Court’s decision to report this opinion pursuant to Rule 8-605.1.

   ARTHUR, J.

Maryland landowners brought a class action against the State, alleging a taking in violation of the Maryland Constitution. After several years of litigation, two motions for summary judgment, and an appellate ruling in a related case, the landowners ultimately prevailed, and the Court of Appeals affirmed the decision in their favor.

Upon a request by the landowners’ attorneys, the circuit court ordered the State to pay $5 million in attorneys’ fees. The State appealed. We reverse.

Factual and Procedural History

A. Introduction: Ground Leases and the 2007 Modifications to the Ground Lease System

This case is the latest chapter in the litigation that grew out of the 2007 legislative modifications to Maryland’s centuries-old system of financing real estate purchases through the use of “ground leases.” See generally State v. Goldberg, 437 Md. 191, 85 A.3d 231 (2014); Muskin v. State Dep’t of Assessments and Taxation, 422 Md. 544, 30 A.3d 962 (2011).

In very brief summary, a ground lease is a 99-year, perpetually renewable lease, by which an owner rents land to a lessee, who is allowed to use and improve the land much as a typical landowner would. Ground leases are quite common in residential real estate in Baltimore City and have been employed in other areas of the State as well.

Under a ground lease, the lessee agrees to pay a specified amount of yearly rent, as well as taxes and other assessments. If the lessee defaults, the ground-lease owner may become entitled to reenter the property and eject the tenant, terminate the lease, and take possession of the land and any improvements. When the ground-lease owner successfully enforces the right of reentry, the lessees lose any equity that they had accrued.

In late 2006, the Baltimore Sun ran a series of articles highlighting what it considered to be grave and unfair abuses by ground rent owners. Among other things, the articles reported that tenants had been evicted, and had lost all of their equity, after they failed to make ground-rent payments totaling far less than the value of their homes.

Galvanized by the articles, the General Assembly unanimously passed two laws that altered the ground-rent system in the 2007 legislative session. Chapter 290 mandated that the lessors record their leases in a central registry upon pain of losing their reversionary interests and having fee-simple title vest in their lessees. Chapter 286, the provision at issue in this case, eliminated an action for ejectment in most cases involving a failure to pay ground rents on residential real estate. In place of the action for ejectment, Chapter 286 established a lien-and-foreclosure remedy, similar to the remedy for mortgage foreclosures. Under the lien-and-foreclosure remedy, the tenants would not lose their equity if the proceeds of the foreclosure sale exceeded the unpaid rent and the recoverable costs.

After the 2007 legislation, the market for ground leases, previously seen as a stable, low-risk investment, dropped drastically.

B. The Early Phases of this Litigation

On November 1, 2007, William Braverman, Stanley Goldberg, and 47 other plaintiffs filed suit in the Circuit Court for Anne Arundel County to challenge Chapter 286. After several amendments, their complaint alleged that the legislation resulted in both the physical and regulatory taking of property without just compensation in violation of the federal and State constitutions and that it violated the Contract Clause and the Tenth Amendment of the United States Constitution. The sole defendant was the State of Maryland.

The State removed the case to federal court, but the court on its motion exercised its discretion to remand the case to the circuit court. The circuit court rejected the State’s effort to transfer the case to Baltimore City on grounds of improper venue and forum non conveniens. The court did, however, dismiss all claims that alleged a physical taking of property. In addition, the court certified the case as a class action for purposes of liability, but not damages.

After several years of litigation, in September 2010, both parties filed cross-motions for summary judgment. On January 6, 2011, the circuit court denied the motions, stating “that the evidence presents genuine and novel questions of law as to whether Chapter 286 constitutes a taking.”

C. The Muskin Decision

Meanwhile, a challenge to Chapter 290, the registration provisions of the 2007 legislation, was wending its way through the courts. On October 25, 2010, the Circuit Court for Baltimore City upheld Chapter 290. Exactly one year later, however, a divided Court of Appeals reversed. Muskin v. State Dep’t of Assessments and Taxation, 422 Md. 544, 554, 30 A.3d 962 (2011). In a 5-2 decision, the Muskin Court held that, by extinguishing ground rents and transferring title to lessees as a penalty for the failure to record ground leases, the legislation abrogated vested rights and took private property without just compensation in violation of the Maryland Constitution. Id. at 553, 30 A.3d 962; id. at 560, 30 A.3d 962; id. at 563, 30 A.3d 962; id. at 565, 30 A.3d 962. Judge Adkins, joined by former Chief Judge Bell, dissented. Id. at 568, 30 A.3d 962 (Adkins, J., dissenting).

Muskin did not directly concern Chapter 286 and its replacement of the right of reentry with the lien-and-foreclosure remedy. Nonetheless, in reaching its decision, the Muskin majority implied that the owner of a ground lease had a vested right in the right of reentry. For example, the Court stated: “A ground lease creates a bundle of vested rights for the ground rent owner, a contractual right to receive ground rent payments and the reversionary interest to re-enter the property in the event of a default or if the leaseholder fails to renew.” Muskin, 422 Md. at 559, 30 A.3d 962 (emphasis added). The Court added: “These two rights cannot he separated from the other, together they are the essence of this unique property interest, and as such, vested rights analysis must consider them together.” Id. at 559-60, 30 A.3d 962 (emphasis added).

On the other hand, the Muskin Court recognized “an exception” to the “general prohibition” against abrogating vested rights. Id. at 561, 30 A.3d 962. The exception, wrote the Court, “applies solely to remedies and rules of evidence.” Id. Under the exception, “the Legislature has the power to alter the rules of evidence and remedies, which in turn allows statutes of limitations and evidentiary statutes to affect vested property rights.” Id. (citations omitted).

In short, Muskin did not clearly decide the question of whether the General Assembly had impermissibly deprived ground-lease owners of a vested right, or whether it had merely altered the applicable remedies, when it substituted the lien-and-foreclosure remedy for the right of reentry that was implemented through an action for ejectment.

D. Summary Judgment and Affirmance on Appeal

Immediately after the Muskin decision, the plaintiffs in this case renewed their motion for partial summary judgment on the claim that Chapter 286 violated the Maryland Constitution by abrogating their vested right to reenter the leased property in case of a default. On December 20, 2011, the circuit court granted their motion.

After the grant of summary judgment on the State constitutional claims, the plaintiffs secured a final judgment by having the court dismiss all remaining claims, including any individual claims for damages by the two named plaintiffs, on mootness grounds. The State appealed, and a divided Court of Appeals affirmed. State v. Goldberg, 437 Md. 191, 199, 85 A.3d 231 (2014).

In reaching its decision, the Goldberg majority rejected the State’s contention that Chapter 286 abrogated no vested rights, but simply substituted the new lien-and-foreclosure for the previous remedy of ejectment, which facilitated the right of reentry. Instead, the majority held that the legislation unconstitutionally impinged upon a vested right to reenter the leased premises and to terminate the lease. Id. at 216-17, 85 A.3d 231. Two judges dissented. Id. at 217, 85 A.3d 231 (Adkins, J., dissenting); id. at 227, 85 A.3d 231 (Watts, J., dissenting).

On remand, the State agreed not to enforce the unconstitutional statute. The court awarded no damages.

E. The Fee Award

Class counsel represented the class on a contingent-fee basis, under which no fee would be due or payable unless the action were successful. The fee agreement did not identify a percentage of any recovery that would accrue to counsel in the event of settlement, trial, or appeal. See Md. Lawyers’ R. of Profl Conduct 1.5(c). Instead, counsel agreed that if the lawsuit were certified as a class action (as it was), they would “apply to the court for any success fee.”

In response to the Court of Appeals’ decision in Goldberg, the plaintiffs filed a fee petition in the circuit court. In the petition, class counsel requested over $5,560,000.00 in fees, $109,925.45 in costs, and a “fee multiplier” of 1.5 times the fee award, or more than $2,780,000.00, because of the undesirability of the representation, the State’s refusal to resolve the case, and the amount of value restored to the class.

After an evidentiary hearing, the circuit court ordered the State to pay $5 million in fees. In reaching that decision, the court employed a number of theories: 42 U.S.C. § 1988, which authorizes an award of attorneys’ fees in an action to enforce the provisions of a number of federal statutes; the common-fund doctrine, under which class counsel may receive a fee from the monetary recovery that they generate for the class; Md.Code (1974,2015 Repl.Vol.), § 12-106 of the Real Property Article (“RP”), which allows a court to award reasonable legal fees that a prevailing “defendant” has “actually incurred” in a condemnation action; and Md. Rule 1-341, which allows a court to award the “reasonable expenses, including reasonable attorneys’ fees,” that a party has “incurred” because the opposing party has maintained or defended a case in bad faith or without substantial justification.

The State appealed.

Question Presented

This case boils down to one question: Did the circuit court err in concluding that attorneys’ fees were authorized in this case?

We answer this question in the affirmative. The circuit court had no legal authority to award any amount of attorney’s fees. We reverse.

The Circuit Court Had No Authority to Award Fees

A. Attorneys’ Fees

“We generally adhere to the ‘American Rule,’ in which each party is responsible for its own legal fees, regardless of who wins in the litigation.” Henriquez v. Henriquez, 413 Md. 287, 294, 992 A.2d 446 (2010) (footnote and citations omitted). Exceptions are available only by contract, by statute or court rule, or (in rare instances) under a well-established common-law principle. See Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 445 & n. 3, 952 A.2d 275 (2008).

The circuit court premised its award of fees on four legal grounds. The applicability of those grounds is a question of law, which we review on a de novo basis. See Barufaldi v. Ocean City, Maryland Chamber of Commerce, 206 Md.App. 282, 295-96, 47 A.3d 1097 (2012). To the limited extent to which the award depends on factual findings, we review the decision for clear error. See Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 267, 596 A.2d 1049 (1991) (concerning Rule 1-341).

B. 42 U.S.C. § 1988

42 U.S.C. § 1988 allows the court to award attorney’s fees to the prevailing party in:

any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of [title 42], title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of [title 42].

42 U.S.C. § 1988(b).

The circuit court concluded that the plaintiffs were entitled to an award of fees under § 1988 because, it said, they had brought a “substantial claim” under 42 U.S.C. § 1983. To the contrary, the plaintiffs neither alleged nor could have alleged a § 1983 claim against the State of Maryland.

Section 1983 provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____

Although the plaintiffs alleged that Chapter 286 violated the federal Constitution in several respects, they did not expressly or even implicitly set forth a claim for relief under § 1983— i.e., a claim that a “person” acting “under color of’ Maryland law had deprived them “of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. More important, the plaintiffs had no viable § 1983 claim against the sole named defendant in the case — the State of Maryland — because the United States Supreme Court has held that a State is not a “person” under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

Had the plaintiffs asserted § 1988 claims against the State officials who administered Chapter 286, they might have obtained a different result. See, e.g., Hafer v. Melo, 502 U.S. 21, 23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that “state officials sued in their individual capacities are ‘persons’ for purposes of § 1983”). If a plaintiff raises alternative grounds for relief under § 1983 and state law, but the court rules in the plaintiffs favor only on state-law grounds, the plaintiff is ordinarily entitled to attorneys’ fees as long as “the § 1983 ground was substantial and grew out of the same facts.” Cnty. Exec. of Prince George’s Cnty. v. Doe, 300 Md. 445, 456, 479 A.2d 352 (1984); accord Maryland Green Party v. State Bd. of Elections, 165 Md.App. 113, 125, 884 A.2d 789 (2005).

We must, however, decide the case not on the basis of what the plaintiffs might have done, but on the basis of what they actually did. The plaintiffs named one and only one defendant — the State of Maryland. The State is not a “person” within the meaning of § 1983. As a matter of law, therefore, the circuit court had no authority to award fees against the State under § 1988.

C. The Common-Fund Doctrine

Under the “common-fund doctrine,” class counsel are paid out of the monetary recovery that they generate for the class. See, e.g., Hess Constr. Co. v. Bd. of Educ. of Prince George’s County, 341 Md. 155, 166, 669 A.2d 1352 (1996) (stating that an equity court has “the power to direct payment of counsel fees out of a fund that has been created by the efforts of counsel”); Bowling v. Brown, 57 Md.App. 248, 268, 469 A.2d 896 (1984) (allowing fees “where a common fund, benefitting the public, has been created as a result of litigation”).

The circuit court employed the common-fund doctrine to support its award of fees to class counsel. The court erred, because the common-fund doctrine does not apply in this case for at least two reasons.

First, by definition, the common-fund doctrine requires a fund. In this case, however, the judgment resulted in the invalidation of the statute, but not in any actual monetary recovery or fund. Second, the common-fund doctrine envisions that the class members themselves will pay class counsel out of the recovery that they receive. In this case, however, the court ordered the State, and not the class members, to pay class counsel’s fees. The circuit court erred in employing the common-fund doctrine in a case that generated no common fund and in ordering payment from outside a common fund.

The circuit court itself recognized that “no common-fund has actually been created.” Nonetheless, the court reasoned that class counsel had “restored” an estimated $60 million in value to Maryland landowners. On the premise that it would be “impractical to seek reimbursement from the class,” the court ordered the State to pay $5 million in fees.

In that aspect of its decision, the circuit court relied on Brewer v. School Bd. of Norfolk, 456 F.2d 943 (4th Cir.1972), which employed what that court called “a quasi-application of the ‘common fund’ doctrine.” Id. at 951. In Brewer, the plaintiffs had secured free busing to facilitate an earlier desegregation order against the school board. Although the order yielded a pecuniary benefit to the students, the court recognized that it did not generate a common fund or result in a monetary recovery. Id. Nonetheless, because the “basic purpose” of the order was “to secure transportation without cost or deduction,” the court required the school board to pay the students’ attorneys’ fees. Id. at 952 (emphasis in original).

Brewer is of questionable viability in 2016. Brewer was decided at a time when federal courts were devising federal common-law theories to compensate prevailing parties for the attorneys’ fees that they incurred in civil rights cases and other litigation against governments and governmental officials. The Supreme Court put an end to those efforts in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), when it held that federal law recognizes only statutory exceptions to the American Rule. “[CJourts,” the Supreme Court wrote, “are not free to fashion drastic new rules with respect to the allowance of attorneys’ fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases.” Id.

In light of Alyeska, it appears that the Brewer court overstepped its authority. We would likewise overstep our authority by extending Maryland’s common-fund doctrine to a situation without a fund. Applying the common-fund doctrine where there is no fund is not just uncommon; it is unheard of in Maryland (or anywhere else within the last 44 years). We do not start today.

The intangible value restored to the class is not a “fund.” But even if it were, the common-fund doctrine would only allow an award of fees off the top of the fund, not on top of it. By reducing the class members’ recovery, the doctrine allocates costs between the class and its counsel. It does not allocate costs between the respective parties.

Class counsel cannot use the common-fund doctrine to collect fees out of nothing. Nor can the class employ the common-fund doctrine to require its adversary to pay the class counsel. As a matter of law, therefore, the circuit court erred in relying on the common-fund doctrine to support the award of fees in this case.

D. Section 12-106 of the Real Property Article

Subtitle 1 of Title 12 of the Real Property Article contains the general rules for eminent domain proceedings. Section 12-106(a) states that in those proceedings u[t]he plaintiff shall pay all the costs in the trial court.” (Emphasis added.) Section 12-106(b) states that “[t]he costs in a condemnation proceeding include ... (5) [a]n allowance to the defendant, as fixed by the court, for the reasonable legal, appraisal, and engineering fees actually incurred by the defendant because of the condemnation proceeding, if the judgment is for the defendant on the right to condemn.” (Emphasis added.)

In plain English, § 12-106(b)(5) compels the court to shift the costs of a condemnation proceeding from the defendant to the plaintiff. (Emphasis added.) Despite the plain language of § 12-106(b)(5), however, the circuit court concluded that the statute authorized an award of fees to the plaintiffs from the defendant. The circuit court’s interpretation is untenable.

Nothing about this statute is ambiguous, debatable, or open to interpretation. “Defendant” does not mean “plaintiff,” and “plaintiff’ does not mean “defendant.” Unless words are to become untethered from all meaning, § 12 — 106(b)(5) cannot be read to authorize a court to require the State, as the defendant, to pay the plaintiffs’ attorneys’ fees.

Section 12-106 envisions an award of fees to the defendant because it applies in a proceeding in which the State, or one of its instrumentalities or political subdivisions, exercises the right to acquire “private property for public use by condemnation” (RP § 12-101) in accordance with the rules governing “actions for acquisition of property by condemnation under the power of eminent domain” (Md. Rule 12-201(a)) in Title 12, Chapter 200, of the Maryland Rules. In those proceedings, the State is the plaintiff; the property owner, whose private property is taken for public use under the power of eminent domain, is the defendant. “[I]f the judgment is for the defendant on the right to condemn,” the plaintiff — i.e., the State — must pay the defendant’s “reasonable legal ... fees.” RP § 12 — 106(b)(5).

This is not a case in which the State exercised the rights of eminent domain to acquire property by condemnation. The plaintiffs, however, claim that this is an “inverse condemnation” case, where an owner attempts to recover the value of property that the government has taken through legislative or regulatory action, "without any “ ‘formal exercise of the power of eminent domain.’ ” See Litz v. Maryland Dep’t of the Env’t, 434 Md. 623, 653, 76 A.3d 1076 (2013) (quoting College Bowl, Inc. v. Mayor & City Council of Baltimore, 394 Md. 482, 489, 907 A.2d 153 (2006)); see also Litz v. Maryland Dep’t of the Env’t, 446 Md. 254, 267-69, 131 A.3d 923 (2016) (allowing claim for inverse condemnation based on governmental inaction where government had duty to act). We shall assume, without deciding, that this is an inverse condemnation action. Even so, § 12-106(b)(5) does not apply in inverse condemnation claims, because, by definition, they do not involve the power of eminent domain. As a matter of law, therefore, the circuit court erred in employing RP § 12-106(b)(5) to award fees in an inverse condemnation action.

Finally, § 12-106(b)(5) authorizes an award of fees that have been “actually incurred.” But although some of the individual plaintiffs did advance about $100,000.00 to class counsel to cover some of the initial costs of the litigation, no one has “actually incurred” any attorneys’ fees, much less $5 million in fees. Nor does it appear that the plaintiffs have any contractual liability for the fees, as the fee agreement stated that class counsel would look only to the court for an award of fees. For that additional reason, the circuit court erred, as a matter of law, in relying on § 12-106(b)(5) to require the State to pay class counsel’s fees.

E. Rule 1-341

If a court finds that a party maintained or defended a civil proceeding in bad faith or without substantial justification, Rule 1-341 (a) permits the court, on motion, to require the party, the party’s attorney, or both to pay “the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.” In awarding $5 million in fees to class counsel, the circuit court found that the State had acted both, in bad faith and without substantial justification.

Ordinarily, an appellate court will affirm a finding of bad faith or substantial justification unless “it is clearly erroneous or involves an erroneous application of law.” Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 267, 596 A.2d 1049 (1991). In our view, one of the circuit court’s findings was clearly erroneous, while others were legally incorrect.

1. Lack of Substantial Justiñcation

A party lacks substantial justification to maintain or defend a proceeding when it has no “ ‘reasonable basis for believing that the claims would generate an issue of fact for the fact finder’ ” id. at 268, 596 A.2d 1049 (quoting Needle v. White, Mindel, Clarke & Hill, 81 Md.App. 463, 476, 568 A.2d 856 (1990)), or when “ ‘the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for extension, modification or reversal of existing law.’ ” Id. (quoting Md. Lawyers’ R. of Profl Conduct 3.1). By contrast, a claim or defense has substantial justification when it is “ ‘fairly debatable’ and ‘within the realm of legitimate advocacy.’ ” Id. (quoting Newman v. Reilly, 314 Md. 364, 381, 550 A.2d 959 (1988)); see also Yamaner v. Orkin, 313 Md. 508, 516, 545 A.2d 1345 (1988) (stating that Rule 1-341 is not intended to penalize a party or counsel for asserting a colorable claim or defense). “[T]he fact that a court rejects the proposition advanced by counsel and finds it to be without merit does not mean the proposition was advanced without substantial justification or in bad faith.” Legal Aid Bureau, Inc. v. Farmer, 74 Md.App. 707, 713, 539 A.2d 1173 (1988); see also Black v. Fox Hills North Cmty. Ass’n, Inc., 90 Md.App. 75, 84, 599 A.2d 1228 (1992) (Rule 1-341 does not apply merely because party “urged a legal theory which was not adopted by the court”). It is “erroneous to determine a lack of substantial justification from the vantage point of judicial hindsight.” Legal Aid Bureau, Inc. v. Bishop’s Garth Assocs. L.P., 75 Md.App. 214, 222, 540 A.2d 1175 (1988).

The circuit court was clearly erroneous in concluding that the State lacked substantial justification to defend this proceeding. After dismissing several counts of the plaintiffs’ complaint because of their legal insufficiency, the court itself denied the parties’ cross-motions for summary judgment, stating “that the evidence presents genuine and novel questions of law as to whether Chapter 286 constitutes a taking.” Indeed, in justifying the magnitude of the $5 million fee, class counsel acknowledged that “[tjhis case presented novel and difficult constitutional questions.” Yet, if those issues were sufficiently novel, difficult, and debatable to justify dismissing portions of the complaint and denying cross-motions for summary judgment, they must also have been sufficient to justify the State in defending the case. See Needle, 81 Md.App. at 478-80, 568 A.2d 856 (holding that circuit court was clearly erroneous in making post-trial award of Rule 1-341 (a) sanctions against plaintiff after denying defendant’s motion for summary judgment before trial and motions for judgment during trial).

The circuit court reasoned that after Muskin Chapter 286 was obviously indefensible. To the contrary, while Muskin contains dicta implying that a ground rent owner has a vested right of reentry (Muskin, 422 Md. at 559, 30 A.3d 962), it also recognizes “an exception” to the “general prohibition” against abrogating vested rights when the legislature exercises a power to alter remedies. Id. at 561, 30 A.3d 962. Both before and after the Muskin decision, the State had contended that the Chapter 286 represented a legitimate exercise of the General Assembly’s power to substitute one remedy for another.

The Court of Appeals did not settle the question of Chapter 286’s constitutionality until Goldberg, which effectively held that the legislation abrogated a vested right in a remedy. See Goldberg, 437 Md. at 216-17, 85 A.3d 231. Yet, even then, two judges of the Court of Appeals dissented, at length, from the majority’s decision and insisted that the legislation was constitutional. Id. at 217, 85 A.3d 231 (Adkins, J., dissenting); id. at 227, 85 A.3d 231 (Watts, J., dissenting). When two of the seven judges of the State’s highest court agree with a party’s position, it is, as a matter of law, erroneous to conclude that the party lacks substantial justification to advocate that position.

2. Bad Faith

A party acts in bad faith when it acts “vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons.” Inlet Assocs., 324 Md. at 268, 596 A.2d 1049. Citing comments by a total of three of the 187 members of the General Assembly, the circuit court traced the State’s bad faith “intent on abolishing property rights” to “the very beginning of the law.” The legislators’ comments have no bearing on whether the State defended this litigation in bad faith.

Rule 1-341 concerns bad faith conduct in a “civil action.” When the legislators made their comments, however, the legislation had not even become law, much less a subject of civil litigation. The court had no authority to impose sanctions against the State for comments made by three legislators before this litigation ever began.

Even if the legislators had made their comments in the course of the litigation, a statement by an individual legislator is not a party-admission by the State. See, e.g., Bennett v. Yoshina, 98 F.Supp.2d 1139, 1153-54 (D.Haw.2000), aff'd, 259 F.3d 1097 (9th Cir.2001); see also id. at 1154 (“[i]f every legislator could be said to speak on behalf of the state with regard to every piece of legislation, there could be no cogent state voice”). In any event, under the doctrine of separation of powers, courts simply should not inquire into the motives for enactment of the legislation. See O’Hara v. Kovens, 92 Md.App. 9, 23, 606 A.2d 286 (1992). As a matter of law, therefore, the circuit court erred in imposing sanctions on the State on account of comments by three legislators.

The circuit court also erred in ignoring the Attorney’s General legal duty, “as the State’s advocate[,] to present the best arguments he can possibly muster in support of the State’s position.” State ex rel. Att’y Gen. v. Burning Tree Club, Inc., 301 Md. 9, 36, 481 A.2d 785 (1984). A presumption of constitutionality attaches to the enactments of the General Assembly (id. at 35, 481 A.2d 785), and “the Attorney General ordinarily has the duty of appearing in the courts as the defender of the validity” of those enactments. Id. at 37, 481 A.2d 785. Even if the Attorney General believes that a statute may ultimately be held unconstitutional, that belief “does not make it such.” Id. at 36, 481 A.2d 785. “A statute, with its presumption of constitutionality, has just as much right to an advocate of its validity” as a criminal defendant has to an advocate of his or her defense. Id.

This is not to say that Attorney General must defend a law that is undeniably unconstitutional. See, e.g., American Trucking Ass’ns, Inc. v. Goldstein, 312 Md. 583, 589, 541 A.2d 955 (1988). Chapter 286, however, was not such a law. At the outset of the case, the circuit court dismissed part of the plaintiffs’ allegations about the law. Later, the court denied cross-motions for summary judgment because of “genuine and novel questions of law” about the constitutionality of Chapter 286. The plaintiffs agreed that the case “presented novel and difficult constitutional questions.” With the impermissible benefit of hindsight, one might say that Muskin foreshadowed the ultimate outcome in this case; yet not only did Muskin not decide the specific issue of Chapter 286’s constitutionality, but the Muskin majority made some statements implying that the legislature could constitutionally substitute one remedy for another, as the State believed it had done. Even when Goldberg invalidated Chapter 286, two judges of the Court of Appeals wrote forcefully in support of their conclusion that the majority was wrong and that the legislation was valid. Once the Court of Appeals had settled the question of Chapter 286’s constitutionality, the State accepted the decision. In these circumstances, the State, as a matter of law, did not act in bad faith in defending the constitutionality of Chapter 286.

3. Fees “Incurred

Finally, Rule l-341(a), much like RP § 12-106(b)(5), authorizes an award only of the fees that a party has “incurred.” A party can “incur[ ]” fees, within the meaning of the rule, even if a third party has paid the fees on the party’s behalf. See Worsham v. Greenfield, 435 Md. 349, 78 A.3d 358 (2013). Here, however, neither the plaintiffs nor any third parties acting on their behalf have “incurred” any fees, let alone the $5 million in fees that the circuit court awarded. When “a party does not incur any expense for attorney’s fees, those fees cannot be reimbursed” under Rule 1-341. Seney v. Seney, 97 Md.App. 544, 552, 631 A.2d 139 (1993). For this additional reason, the award of fees cannot stand.

Conclusion

For the foregoing reasons, we reverse the order of the circuit court on the issue of attorney’s fees.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED. COSTS TO BE PAID BY APPELLEES.

      . U.S. Const, art. I, § 10, cl. 1 ("No State shall ... pass any ... [l]aw impairing the [o]bligation of [contracts”).

      . U.S. Const, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”).

      . The legislation arguably damaged individual owners in individual ways, so that common questions of law or fact might not "predominate over questions affecting only individual members” on the issue of damages. Md. Rule 2-231(b)(3).

      . The Muskin Court expressly assumed that Chapter 286 would not violate the United States Constitution. Id. at 550, 30 A.3d 962.

      . The request for the fee multiplier also cited the risk that the class would recover nothing, as well as the delay in payment, both of which would appear to be characteristic of any contingent fee. In addition to the request for fees, costs, and the fee multiplier, counsel requested $103,180.00 for their local counsel, Sara H. Arthur, whose fees were to be paid by class counsel. Ms. Arthur is not related in any way to the author of this opinion.

      . Because we conclude that the circuit court had no authority to award any fees in any amount, we need not consider the State’s additional contention that the amount of fees awarded was unreasonable and excessive.

      . At common law, a plaintiff may recover his or her attorneys’ fees if “ ‘the wrongful conduct of a defendant forces a plaintiff into litigation with a third party' ” or if " 'a plaintiff is forced to defend against a malicious prosecution.' " Nova Research, 405 Md. at 445, 952 A.2d 275 (quoting Thomas v. Gladstone, 386 Md. 693, 699, 874 A.2d 434 (2005)). In addition, “an insurer is liable for the damages, including attorneys’ fees, incurred by an insured as a result of the insurer’s breach of its contractual obligation to defend the insured against a claim potentially within the policy’s coverage, and this is so whether the attorneys’ fees are incurred in defending against the underlying damage claim or in a declaratory judgment action to determine coverage and a duty to defend.’’ Bankers & Shippers Ins. Co. v. Electro Enters., 287 Md. 641, 648, 415 A.2d 278 (1980).

      . Even if the plaintiffs had brought suit against a "person” within the meaning of § 1983, they would not have a § 1983 claim for a violation of the Contracts Clause. Crosby v. City of Gastonia, 635 F.3d 634 (4th Cir.) (citing Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1885), for the proposition that "recourse to § 1983 for the deprivation of rights secured by the Contracts Clause is limited to the discrete instances where a state has denied a citizen the opportunity to seek adjudication through the courts as to whether a constitutional impairment of a contract has occurred, or has foreclosed the imposition of an adequate remedy for an established impairment”), cert. denied, — U.S. -, 132 S.Ct. 112, 181 L.Ed.2d 37 (2011). Furthermore, because the Tenth Amendment concerns limitations on federal power (see supra n. 2), it is difficult to imagine how a person acting under color of state law could possibly deprive anyone of any rights privileges, or immunities secured by that amendment.

      . A year after Alyeska, Congress responded to the Supreme Court by passing 42 U.S.C. § 1988, which authorizes an award of reasonable attorneys' fees to a prevailing party in an action to enforce 42 U.S.C. § 1983, among other federal statutes. Had Brewer been decided after the enactment of § 1988, the Fourth Circuit could have employed that statute to award fees to the students' attorneys. As previously discussed, however, the circuit court could not employ § 1988 in this case, because the plaintiffs neither brought nor could have brought a § 1983 action against the only named defendant — the State of Maryland.

      . Even if Brewer were still viable, it is distinguishable. Unlike Brewer, this was not a case in which the basic purpose was to secure relief "without cost or deduction" to the class members. Had the litigation resulted in a monetary settlement or an award of damages to individual class members, class counsel would undoubtedly have applied to the court for compensation that would be paid out of the recovery.

      . The circuit court did not quote or discuss the language of § 12-106(b)(5). Instead, it wrote abstractly of a statute that allows courts to award attorneys’ fees where the State attempts to condemn private property, but the property owner prevails on the right to condemn. That abstract assertion is accurate, but only insofar as the State attempts to condemn private property in an action for eminent domain under Title 12, Subtitle 1, of the Real Property Article and Title 12, Chapter 200, of the Maryland Rules.

      . In every legislative session since 2013, the General Assembly has considered and rejected legislation that would authorize a court to award reasonable attorneys' fees to a prevailing party in an action to remedy the violation of a Maryland constitutional right, such as a regulatory taking by inverse condemnation. The initial proposal was introduced by the Chair of the House Judiciary Committee at the request of the Chief Judge of the Court of Appeals. H.B. 130, 2013 Gen. Assemb. Reg. Sess. (Md.2013). Subsequent iterations expressly authorized an award of fees against the State, as well as its political subdivisions and agents and employees of the State and its subdivisions. H.B. 130, 2016 Gen. Assemb. Reg. Sess. (Md.2016); H.B. 283, 2015 Gen. Assemb. Reg. Sess. (Md.2015); H.B. 568, 2014 Gen. Assemb. Reg. Sess. (Md.2014). These proposed enactments would have been unnecessary if the circuit court already had the power to order the State to pay attorneys' fees when it took property by inverse condemnation.

      . Even if Muskin had destroyed any justification for defending this litigation (which it did not), the court could award only the fees and costs that the plaintiffs had "incurred” after the Muskin decision. The court could not base the fee award on the hours that class counsel claimed to have worked on the case during the entire, seven-year course of the litigation.

      . The court cited Senator Gladden as stating that "[g]round rents are horrible” and that Chapter 286 "is the best way of getting rid of ground rents." It quoted Delegate McIntosh as asserting a "consensus” that "ground rents serve no viable, good purpose at this time” and announcing that the legislature had "ended ground rents in the way they do, in fact, exist.” It quoted Senator McFadden as stating that "[t]he time has come for us to sunset this ground rent business.” The court did not cite Delegate Niemann’s statement that the legislative goal "was not to be punitive but to modernize the ground rent process,” Delegate McIntosh's statement that the law would "provide a more equitable remedy for failure to pay the ground rents,” or Delegate Rosenberg’s statement that the "General Assembly has the power to substitute one remedy for another.” Nor did the court cite the Attorney General’s contemporaneous opinion that Chapter 286 represented a constitutional substitution of the lien-and-foreclosure remedy for the remedy of ejectment.

      . In addition to the legislators’ comments, the court faulted the State for the General Assembly's "rush to enact Chapter 286.” The legislative record refutes the court’s assertion. At the beginning of the session, Chapter 286 originated as S.B. 396 and H.B. 463 (which was introduced by the Speaker at the request of the administration). The first reading in the Senate occurred on February 2, 2007. The first reading in the House occurred on March 19, 2007. The Senate passed its version of the bill on March 22, 2007. The House passed an amended version of the bill on March 31, 2007. The Senate passed the bill, as amended by the House, on April 2, 2007. Nothing in this record suggests any manner of undue haste.

      . As an additional instance of bad faith, the court cited the State's "scorched earth litigation” tactics "following the decision in Muskin." We disagree that the State acted in bad faith by continuing to defend a statute whose invalidity was, at most, in question after Muskin and by advocating a position that won the approval of two judges on the Court of Appeals. Elsewhere, the court seemed to object that the State attempted to remove the case to federal court (on account of the numerous federal claims in the complaint) and to have it transferred to Baltimore City (where the majority of ground rents are located). Suffice it to say that it was no more of an exercise in bad faith for the State to assert its right to remove or transfer the case to a jurisdiction in which it could have been brought than it was for the plaintiffs to bring the case in the forum of their choice.

      . As previously noted, some of the class members did incur about $100,000.00 in costs when they advanced that sum to class counsel at the outset of the litigation. Nonetheless, because the State did not defend the case in bad faith or without substantial justification, the circuit court could not have employed Rule 1-341 to require the State to reimburse the class members for those costs.


source: Caselaw Access Project

license: Public Domain

text:
    137 A.3d 1035
    Steven BERG v. Susan BERG.
    No. 0624,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 2, 2016.

      Maurice B. VerStandig (The VerStandig Law Firm, LLC, on the brief), Potomac, MD, for Appellant.
    Howard B. Soypher (Alexis K. Miller & Paley, Rothman, Goldstein, Rosenberg, Eig & Cooper, on the brief), Bethesda, MD, for Appellee.
    Panel: DEBORAH S. EYLER, WOODWARD, JAMES P. SALMON (Retired, Specially Assigned), JJ.
   JAMES P. SALMON (Retired, Specially Assigned), J.

The Maryland Constitution, which was ratified in 1867, included a provision that granted most litigants in Maryland a right to an in banc appeal. That right was set forth in Article IV, section 22 of the Maryland Constitution.

Article IV, section 22 was amended in 1978 and in 2006. Nevertheless, much of the original language endures. Presently, section 22 reads:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.

(Emphasis added.)

In this appeal, appellant, Steven Berg, makes an argument that has never been addressed by any Maryland appellate court during the (approximately) 150 years that Article IV, section 22 has been in effect. Mr. Berg maintains that the right to an in banc appeal “spring[s] only from trial verdicts and judgments,” and not from any other final judgment. Mr. Berg asserts that the issue considered by the three judges in this case was one that the panel had no jurisdiction to decide because the issue addressed by the panel did “not stem from a merits trial” but rather stemmed from the consideration by the in banc panel of an issue that arose long after the merits trial had been held. According to appellant, the word “trial,” as used in section 22, has a very narrow meaning.

For the reasons set forth below, we conclude that the in banc panel did have jurisdiction in this case and we therefore affirm the order issued by that panel.

I.

This case had its origin in 2005, when Steven Berg filed, in the Circuit Court for Montgomery County, a complaint for divorce and other relief against appellee, Susan Berg. Ms. Berg filed a counter-claim for divorce in which she also asked for alimony, child support, child custody, and a monetary award.

In the early part of June 2007, a merits trial was held to address numerous issues about which the parties disagreed. After an evidentiary hearing, the circuit court took the matter under advisement. The court, inter alia, later made a $450,000 monetary award in favor of Susan Berg, which was reduced to judgment. Mr. Berg thereafter made irregular payments on that judgment but, to date, the judgment has not been paid in full.

On August 7, 2012, Ms. Berg brought a garnishment action against Mr. Berg in which she sought to seize some of her ex-husband’s personal property. With that filing, Ms. Berg attached an interest worksheet setting forth the method she had used in applying payments made on the judgment. According to her worksheet, Mr. Berg, as of September 27, 2012, had paid $871,562.51 toward the judgment but still owed $225,575.62. In that worksheet, she allocated all the payments received to principal and none to interest.

On March 27, 2014, Ms. Berg again brought a garnishment action-this time attempting to attach Mr. Berg’s wages. She again attached an interest worksheet. That worksheet showed that she applied the payments first to interest and then to principal. The worksheet indicated that since September 27, 2012, Mr. Berg had made an additional payment of $10,000, but he still owed $248,746.65.

Mr. Berg objected to the method his ex-spouse used in applying payments on the March 27, 2014 worksheet. He contended that Ms. Berg should have applied his payments first to principal.

On October 1, 2014, the circuit court held an evidentiary hearing concerning Mr. Berg’s objection to the garnishment worksheet. The purpose of the hearing was to determine the outstanding balance Mr. Berg owed on the judgment. At the hearing, exhibits were introduced and the court heard testimony from Ms. Berg. Thereafter, on December 17, 2014, the court entered a written order stating that all payments made on the judgment prior to August 7, 2012 should have been exclusively applied to the payment of principal and all payments made thereafter should be applied to the payment of accrued interest first and principal second.

After Ms. Berg filed a timely motion to alter or amend judgment, which was denied, she noted an in banc appeal. A hearing before a panel of three Montgomery County Circuit Court judges was held on May 8, 2015. At the hearing, Mr. Berg argued, as he does here, that the in banc panel had no jurisdiction to entertain the appeal because the issue the panel was asked to consider did not “stem from a merits trial.” The in banc panel ruled that it did have jurisdiction to hear the appeal and entered an order providing that all payments made on the $450,000 judgment should be credited “first to interest and then to principal.” Mr. Berg noted an appeal to this Court in which he does not claim that the in banc panel was incorrect in its ruling concerning the allocation of payments. Instead, the sole issue he presents is whether the in banc panel had jurisdiction to consider the issue it decided. According to Mr. Berg, because the panel had no jurisdiction, the order entered by the in banc panel should be stricken and the circuit court’s order of December 17, 2014 reinstated.

II.

RULES OF INTERPRETATION

“When interpreting constitutional provisions, we generally employ the same rules of construction ... of statutory language.” Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78 (2004).... One of the cardinal rules of interpretation is that a court should not reach a meaning beyond the Constitution unless the relevant section is ambiguous. Bernstein v. State, 422 Md. 36, 43 [29 A.3d 267] (2011)....

“Like construing a statute, to ascertain the meaning of a constitutional provision ... we first look to the normal, plain meaning of the language.” Davis, 383 Md. at 604, 861 A.2d 78.... When that language is clear and unambiguous, we need not review more than the words of the constitutional provision. Id. at 604-05, 861 A.2d 78.... However, we note that our “goal ... is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” ...

Remson v. Krausen, 206 Md.App. 53, 61-62, 47 A.3d 613 (2012) (some citations omitted).

III.

HISTORY

Before discussing the precise contentions of the parties in this appeal, it is useful to review some history. One of the framers of the Constitution of 1867 was Richard H. Alvey, who subsequently became a judge and later Chief Judge of the Maryland Court of Appeals. Judge Alvey was one of the judges who later decided Costigin v. Bond, 65 Md. 122, 3 A. 285 (1886). In Costigin, the Court said:

The Constitution, Art. 4, sec. 22, gave a new right of appeal. When a trial is conducted by less than the whole number of the [j]udges of a [circuit [c]ourt, it is competent for a party against whom a decision is made to have the point or question reserved for the consideration of the three [jjudges in banc; and their decision is to be conclusive against him. This proceeding is in substitution of an appeal to the Court of Appeals, and makes a considerable alteration in the law on this subject. The change is not to be extended by construction beyond the terms of the Constitution.

Id. at 123-24, 3 A. 285. (Emphasis added.)

Up until 2006, the first several lines of Article IV, section 22 read:

Where any Term is held, or trial conducted by less than the whole number of said [circuit [jjudges, upon the decision, or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved....

(Emphasis added.)

In 2006, Article IV, section 22 was amended, inter alia, by deleting the phrase “Term is held, or.” As mentioned earlier, section 22 now begins with the words “Where any trial is conducted by less than three Circuit Judges.... ” What exactly the framers intended to convey when they used the words “[w]here any Term is held” is uncertain. But as shown by the debates held when another section of the Constitution was being discussed, there were, in 1867, seven judicial circuits that each had three judges. Each year the circuit courts had one or more terms, meaning periods when the courts were in session. For instance, in some of the circuit courts, there would be two or more terms of court where jury trials were held and one or more terms when equity matters were considered. See Philip B. Perlman, Debates of the Maryland Constitutional Conventions of 1867, 334 (1923) (recounting discussion of an amendment to Article IV, section 20, which was defeated).

In Bienkowski v. Brooks, 386 Md. 516, 533, 873 A.2d 1122 (2005), the Court explained why the framers gave litigants the right to an in banc appeal, viz.:

The principal reason for Article IV, § 22, according to Judge Alvey, although in a case not directly involving § 22, was to create “a court in banc, where parties can have questions of law deliberately considered by at least three judges, without the delay and expense of an appeal to the Court of Appeals....” Roth v. House of Refuge, 31 Md. 329, 333 (1869). This was the same reason which had been suggested to the 1867 Convention by Delegate Syester. Another reason appears to have been to reduce the governmental expense associated with numerous appeals in the Court of Appeals. See John J. Connolly, Maryland’s Right of In Banc Review, 51 Md. L.Rev. 434, 446-459 (1992). In addition, one scholar, who has made a comprehensive study of § 22’s history, has suggested that the provision was a compromise between those convention delegates who believed that three judges should preside over circuit court trials and those delegates who favored a predominantly single-judge system. John J. Connolly, Maryland’s Right of In Banc Review, supra at 435-459.

Article IV, section 22 was amended in 1978 by substituting the words “District Court” for “Justices of the Peace.” In 2006, section 22 was amended once again. See Chapter 421 of the Acts of 2006. The amendment had its origin in House Bill 84, which was considered by the House Judiciary Committee on February 2, 2006. Material in the judiciary committee file indicates that the major purpose of the amendment was to overrule the decision in Bienkowski v. Brooks, supra. See written testimony by Melvin J. Sykes, Esquire, on behalf of the Court of Appeals Standing Committee of Rules of Practice and Procedure, submitted before the committee.

After the Court of Special Appeals was formed, an appellee in the court in banc, if he or she was dissatisfied with the ruling by the in banc panel, routinely filed his or her appeal to this Court and not to the Court of Appeals. See, e.g., Board of License Commissioners for Montgomery County v. Haberlin, 320 Md. 399, 405, 578 A.2d 215 (1990); Estep v. Estep, 285 Md. 416, 420-21 n. 4, 404 A.2d 1040 (1979). But the Bienkowski Court held that an appellee in the in banc court, who wished to challenge a decision of the in banc panel, could only have appellate review if that party filed a petition for a writ of certiorari to the Court of Appeals that was granted. 386 Md. at 549, 873 A.2d 1122.

A secondary purpose of the amendment was to clean up some “archaic” language in section 22, e.g., deleting the provision in section 22 that allowed an appeal from a “writ of error.” See written testimony of Melvin J. Sykes, supra, to the House Judiciary Committee. In the legislative history, there is no specific discussion as to why the words “Term is held, or” were deleted. Nevertheless, the purpose of House Bill 84 was stated to be:

FOR the purpose of proposing an amendment to the Maryland Constitution relating to the establishment of the right of a party who did not seek review by a circuit court in banc to the Court of Special Appeals from an adverse decision by the circuit court in banc; altering the composition of a panel of judges for an in banc review; repealing the authority of the circuit courts to regulate by rules the procedure for appeals to the circuit court in banc; providing that the procedure for appeals to the circuit court in banc be provided by the Maryland Rules; providing that a decision by the circuit court in banc does not preclude the right of appeal to the Court of Special Appeals by an adverse party who did not seek in banc review; repealing an obsolete provision regarding “writs of error”; and submitting this amendment to the qualified voters of the State of Maryland for their adoption or rejection.

In his opening brief, Mr. Berg contended that the words “[T]erm is held, or” were deleted, with the intent of narrowing the scope of what could be considered by an in banc panel. According to appellant’s brief, before the deletion of these words in 2006, the scope of review by an in banc panel was much broader than it is now and would have encompassed review of “proceedings of the kind challenged below by Ms. Berg.” But at oral argument, appellant’s counsel abandoned that argument and admitted that the deletion of the words “Term is held, or” was not intended to narrow the scope of review and, in fact, did not constitute a substantive change. That concession is well-founded. The legislative history of House Bill 84 strongly suggests that the words at issue were considered to be archaic and for that reason were deleted with no substantive change intended. See Remson, 206 Md.App. at 64, 47 A.3d 613 (characterizing the 2006 changes in section 22, as non-substantive). It is inconceivable that the General Assembly would have intended to make such an important change in the right to file an in banc appeal without making any reference to such an intent in the “purpose clause” or elsewhere in the bill’s legislative history.

IV.

ANALYSIS

A. Post Trial Motions

Mr. Berg argues that one cannot file an in banc appeal from rulings on a post-trial motion. Mr. Berg reads the language where “any trial is conducted” to mean that in banc appeals must concern errors that were made by the judge at the “merits trial.” Mr. Berg cites no authority to support that argument nor can we find support by analyzing the words used in the Constitution. Section 22 allows an appeal “upon the decision or determination” of any point or question decided by less than three circuit court judges. It contains no time restrictions or other language that would evidence an intent to disallow review by an in banc panel of post trial “decision[s] or determination^]” that are decided by a single judge.

Since 1867, there have only been about two dozen reported cases that concern appeals to the Maryland appellate courts from decisions of an in banc panel. On several occasions, the matter under review concerned issues considered by the in banc panel that dealt with the propriety, vel non, of post-trial actions by trial judges. In other words, the decisions being reviewed did not concern an allegation that the judge made any error at trial. See, e.g., Bienkowski, 386 Md. at 555, 873 A.2d 1122 (after an in banc decision, the Court of Appeals considered, and decided, whether the judge who presided at a tort trial erred in denying a motion for new trial based on the alleged inadequacy of the verdict); Langston v. Langston, 366 Md. 490, 494, 784 A.2d 1086 (2001) (issue considered by the in banc panel was whether the trial judge, when considering a post-trial motion to reduce alimony, erred in reducing alimony retroactive to a date prior to when the request for reduction was filed); Dabrowski v. Dondalski, 320 Md. 392, 395, 578 A.2d 211 (1990) (per curiam) (decision concerned whether the judge’s denial, inter alia, of a motion for a new trial was a final appealable order); Bethesda Title & Escrow, LLC v. Gochnour, 197 Md.App. 450, 451, 14 A.3d 670 (2011) (appellant’s unsuccessful effort, before an in banc panel, to reverse a circuit court’s denial of a motion to vacate default judgment, barred a subsequent appeal to the Court of Special Appeals). In the cases just cited, the issues decided by the in banc panel, and later by an appellate court, did not “stem from a merits trial.” Instead, the issues resolved stemmed from either pretrial or post-trial decisions by the circuit court judge who initially decided the matter.

In support of her argument, Ms. Berg relies primarily on Langston, supra, which she claims has an almost identical “procedural posture” as the case at hand, i.e., “an appeal from a judge’s final ruling from a post-trial hearing in a family law case.” Ms. Berg also relies on Dean v. State, 302 Md. 493, 497, 489 A.2d 22 (1985), where the Court said that there is “no different standard” of appealability to a court in banc than from an appeal to the Court of Special Appeals. Ms. Berg also places reliance on language found in Board v. Haberlin, 320 Md. at 406, 578 A.2d 215, where the Court said: “The purpose of ... [Art. IV, section 22] was to provide a substitute or alternate for an appeal to the Court of Appeals or, in recent years, to the Court of Special Appeals.” The Haberlin Court also said:

In a majority of circuit court cases, an appeal from a final judgment to the Court of Special Appeals is authorized by § 12-301 of the Courts and Judicial Proceedings Article, and there are no other statutory provisions limiting or modifying the right of appeal under § 12-301. As to these ordinary cases, Art. IV, § 22, of the Constitution and Rule 2-551 provide an alternate avenue of appeal to a court in banc.
The General Assembly, however, will often enact statutes providing for a limited or extraordinary appeal in special cases. For example, while appeals in circuit court criminal cases are taken in the usual manner and go to the Court of Special Appeals, an appeal in a case where the death sentence has been imposed is automatic and goes to the Court of Appeals. Code (1957, 1987 Repl Vol), Art. 27, § 414; Rule 8-306.

Id. at 407, 578 A.2d 215 (emphasis added).

The in banc panel in this case agreed with Ms. Berg and held that within the meaning of Haberlin, this was an “ordinary case,” and therefore, because she could have taken an appeal (from the circuit court’s final decision regarding the application of interest) to this Court, she therefore had the option of taking an appeal to an in banc panel.

In his reply brief, Mr. Berg argues that the cases cited by Ms. Berg, although they discuss decisions from an in banc panel dealing with post trial decisions of the circuit court, are not binding because none of the cases discussed the jurisdictional issues he now raises. He words that argument as follows:

In essence, what Ms. Berg contends is that because people have been making the same legal error for a great many years that error has somehow effectively become the law of the land through a variety of adverse constitutional possession [sic]. Yet this is not how the law operates where the underlying mandate is one of a constitutional-and not common law-variety. There is a method through which the Maryland Constitution may be amended, and the presentation of a string citation to misguided case law is not a part of that method. See, e.g., MD Constitution, Art. 14 (setting forth the mechanisms through which the Maryland Constitution may be amended).

(Emphasis added, footnote omitted.)

Although the issue is not outcome-determinative in this case, it is plain to us that the cases cited by Ms. Berg (in which litigants filed in banc appeals objecting to decisions relating to rulings concerning post trial motions) were not wrongly decided, at least as far as in banc jurisdiction was concerned. Because section 22 allows in banc appeals from any “decision or determination” where a trial has been conducted by less than three judges, in banc appeals from post trial decisions or determinations by less than three judges are allowed.

B. The Meaning of the Word “Trial” as Used in Article TV, Section 22

What we have said in Part IV-A is dicta because, even if we were to assume, arguendo, that Mr. Berg is correct when he argues that an in banc appeal is not allowed from a decision or determination made concerning a post trial motion, Mr. Berg would not benefit. We say this because the issue here present was decided based on what occurred at a trial.

As mentioned earlier, when construing language used in a Constitution, we first look “to the normal, plain meaning” of the language. Remson, 206 Md.App. at 61, 47 A.3d 613, quoting Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78 (2004).

Black’s Law Dictionary (9th ed.2009) defines a “trial” as “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” Blackstone gave a similar, but more succinct definition: “the examination of the matter of fact[.]” See 3 William Blackstone, Commentaries on the Laws of England 330 (1825). See also Miller v. Tobin, 18 F. 609, 616 (D.Or.1883) (“ ‘Trial’ is a common-law term, and is commonly used to denote that step in an action by which issues or questions of fact are decided.”).

In 42A Words and Phrases 107-146 (Thomson Reuters/West 2008), several hundred cases are summarized. In those cases, courts have considered the meaning of the word “trial” as used in various documents, including the U.S. Constitution, state constitutions and various statutes, rules of procedure and contracts. Many of those cases utilized the common law definition of “trial” that in substance, is the same as in Black’s and Miller, both supra. This too is the normal, plain meaning of the word “trial.”

In Smith v. State, 115 Md.App. 614, 619-20, 694 A.2d 182 (1997), we were called upon to decide whether a probation revocation hearing is a separate trial within the meaning of the Maryland Post Conviction Act, which was then codified in Article 27, § 645(a)(2)(i) of the Md.Code (1957, 1996 Repl. Vol.). Art. 27, § 645A(a)(2)(i) provided: “A person may file only one petition arising out of each trial, for relief under this [post conviction statute].” After an extensive review of the legislative history of the Post Conviction Act, we held that a probation revocation hearing is a “trial” within the meaning of the Act. Id. at 625, 694 A.2d 182.

Under Mr. Berg’s interpretation of Art. IV, section 22, “trial” means a “merits trial” that results in a final appealable judgment; any subsequent proceeding, according to appellant, is not a trial even when, as here, a court makes a decision based on evidence presented in open court.

In the case sub judice, we know that the framers intended in banc appeals to be a vehicle by which litigants could save money, which accounts for the nickname “the poor person’s appeal.” See Remson, 206 Md.App. at 60, 47 A.3d 613 (quoting Washabaugh, 285 Md. at 396, 404 A.2d 1027, and citing Roth v. The House of Refuge, 31 Md. 329, 333 (1869)). As any litigator knows, many important issues are resolved by post trial motions at which the court decides facts based on evidence. That is what happened here and it is what happened in Smith, supra, where a probation revocation hearing was deemed to be a trial.

Because the reduction of litigation expenses was one of the primary goals of section 22, we can think of no reason why the framers could possibly have intended to give the word “trial” a meaning so narrow as to restrict in banc appeals in the manner espoused by Mr. Berg. Moreover, we can think of no persuasive reason why the framers would have intended that the word “trial” would not be given its common law meaning. Therefore, we interpret the word “trial” as used in section 22 as meaning “that step in an action by which issues or questions of fact are decided.” Miller, 18 F. at 616. Applying that definition, a trial was held on October 1, 2014 by the circuit court when it was called upon to decide, based on evidence introduced, how Mr. Berg’s payments on the monetary award should be applied. Thus the in banc court did have jurisdiction to decide the issue presented to it by Ms. Berg.

Mr. Berg asserts that if we adopt the meaning of “trial” discussed above, then various provisions of the Maryland Declaration of Rights “would be utterly without limitation or meaning.” In this regard, he directs our attention to Article 5(a) and Article 23 of the Declaration of Rights, which, insofar as here pertinent, grant inhabitants of Maryland “[t]he right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $15,000[.]” There is no merit in this argument. Our decision concerns what constitutes a trial: it has nothing to do with whether a litigant is entitled to a jury trial. Such entitlement depends on whether 1) the issue arises out of a civil proceeding at law; 2) whether the amount in controversy exceeds the sum of $15,000; and 3) whether a timely request for a jury trial is made.

V.

OTHER CONTENTIONS

As mentioned earlier, Ms. Berg cites cases that state that under ordinary circumstances, an in banc court has jurisdiction to hear any matter that could be heard by this Court. If this is literally true, this would mean that an in banc court could hear cases where no trial was even conducted.

Mr. Berg contends that when construing section 22, we cannot treat that section as if the words “[wjhere any trial is conducted” did not exist. This is an interesting point, but one that we shall not address because the resolution of that issue would not affect the outcome of this case. Nevertheless, we can imagine that such an issue could arise in the future when, for instance, an in banc panel is asked to decide whether a motion for summary judgment should have been granted, or whether a circuit court judge erred in granting a motion to dismiss a complaint for failure to state a cause of action upon which relief can be granted. Members of the bar should be aware that such an issue lurks.

JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.

      . Before the Baltimore City courts were reorganized and the Supreme Bench abolished in 1980, Article IV, § 22 did not apply to cases filed in Baltimore City. See Dan Friedman, The Maryland State Constitution 248 (G. Alan Tarr ed., 2011). See also Washabaugh v. Washabaugh, 285 Md. 393, 403, 404 A.2d 1027 (1979).

      . Interest was calculated at 10% per year — the legal rate of interest owed on unpaid judgments.

      . Baltimore City constituted the Eighth Judicial Circuit and in 1867 had a different system, which included the Supreme Bench and several subsidiary courts. See Harry M. Sachs, Jr., 1 Poe’s Pleading and Practice, § 21 (6th ed. 1970).

      4. The language of section 22, as originally written, began with the words: "Where any Term is held, or trial conducted by less than the whole number of said Circuit Judges, upon the decision, or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling, or decision is made, upon motion, to have the point, or question reserved for the consideration of the three Judges of the Circuit, who shall constitute a Court in banc----" Up until 1887, when, by statute, some circuits were granted more judges, this meant that the in banc panel would always include the judge whose ruling the appellant was seeking to overcome. For appellant's counsel, this must have been awkward, and probably accounts for the fact that in banc appeals were seldom filed. See State Roads Commission v. Smith, 224 Md. 537, 540, 168 A.2d 705 (1961) (in banc appeals have been "long authorized, but rarely used”).

      . Before the change, section 22 read, in material part: "The right of having questions reserved, shall not, however, apply to trials of Appeals from judgments of Justices of the Peace....

      . The writ of error has been abolished in Maryland.

      . In Washabaugh, 285 Md. at 397 n. 2, 404 A.2d 1027, the Court lists the first eleven cases that concerned in banc appeals. Not counting Washabaugh, there have since been about twelve additional cases of that sort, the latest of which was Remson, 206 Md.App. 53, 47 A.3d 613.

      . Maryland Rule 2-551(a) states that “a party may have a judgment or determination of any point or question reviewed by a court in banc," when such a review "is permitted by the Maryland Constitution^]”

      . Under the Maryland Rules of Procedure, a trial need not dispose of all issues in a case. The Rules allows a court to order a separate trial “of any separate issue[.]” See Rule 2-503(b).

      . Judge Alvey introduced section 22 at the 1867 Constitutional Convention. He was one of the judges who decided Costigin, supra. The Costigin Court certainly did not give the word "trial” a narrow meaning when it stated, less than twenty years after section 22 was adopted, that in banc appeals were intended as a substitution of the right to file an appeal to the Court of Appeals. 65 Md. at 124, 3 A. 285. Certainly Judge Alvey and his judicial colleagues would have known that so long as a final judgment had been entered, an appeal to the Court of Appeals was allowed from judgments entered long after the merits trial was held.

      . Mr. Berg also claims that if we give the word '‘trial” its common law meaning, then he would have had a right to a jury trial concerning the issue of how interest should be allocated. He provides no explanation as to why this is true — which it plainly is not because the issue did not arise in an action at law. See Declaration of Rights Article 5(a) and Article 23. In Maryland, the right to a jury trial exists only in cases that under common law could be tried by a court of law as opposed to a court of equity.