Schisler v. State

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HEADNOTE: Kenneth Schisler v. State of Maryland, No. 3033, September Term, 2006 ________________________________________________________________________ LAW O F THE CA SE After a decision by the Court of Appeals, the law of the case doctrine prevents a litigant from r aising new substantive claims base d on the sa me facts th at were in existen ce prior to the ap peal. REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3033 September Term, 2006 KENNETH SCHISLER v. STATE OF MARYLAND Eyler, Jam es R., Thiem e, Raym ond G ., (Ret., specially assigned), Rodo wsky, L awren ce F., (Ret., specially assigned), JJ. Opinion by Eyler, James R., J. Filed: December 31, 2007 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3033 September Term, 2006 KENNETH SCHISLER v. STATE OF MARYLAND Eyler, Jam es R., Thieme, Raymond G. (Ret., specially assigned), Rodowsky, Lawrence F. (Ret., specially assigned), JJ. Opinion by Eyler, James R., J. Filed: Kenneth D. Schisler, individually and as Chairman of the Maryland Public Service Commission (PSC), and on behalf of all members of the PSC similarly situated, and the PSC, appellants,1 filed a complaint in the Circuit Court for Baltimore City against the State of Maryland, an appellee, challenging, as unconstitutional, certain provisions of legislation enacted by the General Assembly in June, 2006. After the circuit court denied appellants request for preliminary injunctive relief, appellants appealed to the Court of Appeals, and the Court of Appeals determined that the challenged provisions violated the State Constitution and ordered the circuit court to enter a permanent injunction in favor of appellants. On rema nd, appellants filed an am ended comp laint, adding Governo r Robert L. Ehrlich, Jr., President of the Senate Thomas V. Mike Miller, Jr., and Speaker of the House of Delegates Michael E. Busch, Jr., additional appellees, and also added new claims, including a claim for attorney s fees incurred in the litigation. Upon motion by appelle es, the cir cuit cou rt dismis sed the amen ded co mplain t. On app eal, appellan ts raise the sole is sue of w hether the c ircuit court erre d in dismissing their amended complaint. We conclude that the addition of new claims and new defendants was barred by the law of the case doctrine and that the causes of action 1 On appeal, appellees assert that Mr. Schisler is the only appellant. We need not address that question, how ever. The Cou rt of Appeals has stated th at Mr. Schisler s author ity to act on behalf of the o ther me mbers of the P SC, or the PS C itself, i s uncle ar. See Schisler v. S tate, 394 M d. 519, 523 , n.2 (2006) (explaining Mr. Sch isler s authority to act on behalf of the PSC, or the PSC itself, is unclear, but not deciding the issue). For conve nience , we w ill identif y the partie s appea ling as a ppellan ts. -1- copied from the original complaint did not support an award of attorney s fees. Thus, we shall af firm. Factual Background Procedural History Following this overview, we shall address relevant matters in greater detail. On June 26, 2006, appellants filed a complaint against the State of Maryland seeking a declaratory judgment and temporary and permanent injunctive relief against enforcement of certain provisions of legislation enacted during a Special Session of the Maryland General Assembly. The legislation in question, Senate Bill 1 ( S.B. 1 ), was enacted on June 23, 2006, in response to anticipated increased energy costs affecting Maryland citizens. Appellants alleged that certain provisions of S.B. 1 violated the Maryland Constitution, Maryland Declaration of Rights, and the United States Constitution. The challenged provisions of the legislation, sections 12 and 22, removed the Chairman and Comm issioners of th e PSC f rom offic e as of Jun e 30, 2006 , and provid ed for their replace ment o n or afte r July 1, 20 06. See 2006 (Special Session) Md. Laws ch. 5, §§ 12, 22. On the same d ay they filed their complaint, appellants filed a motion f or a temporary restraining order and p reliminary injunction. On June 28 , the circuit court denied appellants motion for interim injunctive relief, and appellants noted a direct appea l to the C ourt of Appe als. -2- On July 7, the Court of Appeals heard argument and, that afternoon, issued an order enjoining enforcement of sections 12 and 22 of S.B. 1, pending further order of the Court. On September 14, 2006, the court issued a decision in appellants favor, holding that the challenged provisions violated separation of powers principles under the Maryland Declaration of Rights and Maryland Constitution. Despite the fact that the appeal was from the denial of a preliminary injunction, the Court, presumably concluding that its decision required no further evid entiary proceed ings, ordere d the circuit co urt to issue a permanent injunction against enforcement of those provisions. On October 16, 2006, the Court issued its mandate. The C ourt reversed the decision b y the circuit court and remanded the case with instructions to render a declaratory judgment and permanent injunction consistent with this opinion. On Oc tober 10, 20 06, after the C ourt of A ppeals issue d its decision, a ppellants filed an am ended co mplaint. A ppellants ad ded as de fendants G overnor E hrlich, Sena te President Miller, and House Speaker Busch, and also added new claims under state and federal law, including an express request for attorney s fees. On November 27, 2006, appellees m oved to dis miss the am ended co mplaint, and on Janua ry 27, 2007, the circuit court grante d the motio n. Appe llants then ap pealed to th is Court. Senate Bill 1 On Jun e 14, 2006 , the Marylan d Gene ral Assem bly convene d a Specia l Session to address an anticipated 7 2% incre ase in energ y rates by Baltimo re Gas & Electric -3- Company (BG&E). The result of that Special Session was S.B. 1. On June 22, 2006, Governor Ehrlich vetoed the bill, but on June 23, 2006, the General Assembly overrode the veto by a three-fifths majority vote in both the House and Senate. S.B. 1 was an emergency bill and became immediately effective pursuant to article II, section 17(d) of the Maryland Constitution. S.B. 1 addressed the anticipated increase in energy rates, created processes by which rate increases could be studied, terminated the terms of office of the existing Chairman and Commissioners on the PSC, and altered the criteria for appointment to the PSC The PSC is an independent unit in the Executive Branch of the state government with sta tutorily con ferred d uties an d pow ers. See Maryland Code (1998, 2007 Supp.) §§ 2-101 and 2-112 of the Public Utility Companies Article. Under the law as it existed prior to enactment of S .B. 1, the five Comm issioners were appoin ted by the Governor, with the ad vice and c onsent of the Senate , to five year, stagg ered terms, b eginning o n July 1 of the year each was ap pointed . See Maryland Code (1998, 2007 Supp.) § 2-102 of the Public Utility Companies Article. The Governor designated one of the five Commissioners as Chairman, with the advice and consent of the Senate, and the Chairm an serv ed a fiv e year term , beginn ing on J uly 1 of th e year app ointed. See Maryland Code (1998, 2007 Supp.) § 2-103 of the Public Utility Companies Article. At the time of appellants suit, all five incumbent Commissioners were duly appointed by the Governor and confirmed by the Senate. -4- Pursuant to the terms of section 12 of S.B. 1, the term of office of the Chairman and each Commissioner of the PSC was to terminate on June 30, 2006, and on July 1, 2006, the S enate Presid ent and the House S peaker w ere to presen t two lists of n ames to the Governor, one list from which the Governor would select a new Chairman, and a second list from which the Go vernor would select fo ur new Com mission ers. See 2006 (Special Session) Md. Laws ch. 5, § 12(1)-(2). If the Governor failed to appoint a new Chairma n and new Comm issioners by July 15 , 2006, sectio n 12 prov ided that the S enate President and the House Speaker would appoint members to the PSC See id. § 12(3 )(i). Section 12 of S.B. 1 expressly retained the holdover provisions in sections 2-102(d)(3) and 2-103(b)(2) of the Public Utility Companies Article, providing that the Chairman and Com mission ers rem ain in the ir positio ns until a succes sor qua lifies. Section 22 of S.B. 1 provided that if any provisions of the act were declared invalid, t he prov isions w ere sev erable. See 2006 ( Specia l Sessio n) Md . Laws ch. 5, § 22(a). Sectio n 22 prov ided specif ically that if the prov isions in sectio n 12 we re held invalid, then the terms of the Chairman and the Commissioners would be eliminated and they would s erve at the p leasure of th e Attorney G eneral, wh o was au thorized to termina te their se rvice an d appo int their su ccesso rs. Id. § 22(b). Section 22 further provided that the Attorne y General was to app oint the new Ch airman and Co mmissioners in acco rdance with th e rema ining p rovision s of sec tion 12 . Id. § 22(c) . -5- Allegations in Complaint On June 26, 2006, appellants filed a complaint for a declaratory judgment and injunctive relie f to preven t implemen tation of sec tions 12 an d 22 of S .B. 1. In their complaint, appellants claimed sections 12 and 22 of S.B. 1 infringed o n the Governo r s power to remove civil officers for incompetency or misconduct under Article II, section 15 of the M aryland Con stitution, and v iolated app ellants due p rocess rights u nder Article 24 of the Maryland Declaration of Rights. Appellants also claimed the removal provisions of S.B. 1 constituted an unlawful bill of attainder under Article I, section 10 of the United States Constitution. The complaint did not contain a claim based on a violation of 42 U.S.C. § 1983. The complaint did not contain an express claim for attorney s fees but did contain a claim for costs and such other and further relief as the nature of this case may require. Court of Appeals Opinion On September 14, 2006, the Court of Appeals reversed the circuit court s denial of appellants motion for a temporary restraining order and preliminary injunction.2 In a plurality opinion authored b y Judge Da le R. Cathe ll, joined by Chie f Judge R obert M . Bell, Judge Clayton Greene, Jr., and in part, Judge Alan M. Wilner , the Court concluded 2 Prior to issuan ce of the C ourt s interim o rder on July 7, a ppellants rem ained in their positions on the PSC pursuant to the holdover provisions of the Public Utilities Comp anies Article that remaine d in effec t under S.B . 1. Subseq uent to July 7, ap pellants remain ed in the ir positio ns purs uant to th e Cou rt s injun ction. -6- that sections 12 and 22(b) and (c) of S.B. 1 violated (1) Article 8 of the Maryland Declaration of Rights, regarding separation of powers among the legislative, executive, and judicial branches of government; (2) Article II, section 1 of the Maryland Constitution, regarding the Governor s power to supervise executive branch employees; (3) Article II, section 9, regarding the Governor s power to execute the laws; and, (4) Article II, section 15, regarding the G overnor s pow er to remove appo inted civil officers in the ex ecutive branch of gov ernme nt. See Schisler v. S tate, 394 Md. 519, 602-03 (2006). The Court did not address whether S.B. 1 violated the United States Constitution. The Court produced three other opinions. In a concurring opinion, Judge Alan M. Wilner concluded that the challenged provisions of S.B. 1 violated Article 8 of the Maryland Declaration of Rights, and Article II, sections 1 and 9 of the Maryland Cons titution, a lthoug h not se ction 15 . See Schisler, 394 Md. at 604-06. In a concurring and dis senting opinio n, Judg e Glen n T. H arrell Jr., jo ined by Ju dge Irm a S. Ra ker, concluded that the challenged provisions of S.B. 1 violated Article 8 of the Maryland Decla ration o f Righ ts, but no t any prov ision of the M aryland C onstitutio n. See id. at 61314. In a dissenting opinion, Jud ge Lynne A. Ba ttaglia concluded that the circuit court s denial of a temporary restraining ord er was not appea lable, the members of the PSC w ere not civil officers for purposes of Article II, section 15 of the Maryland Constitution and the challenged provisions of S.B. 1 did not violate the Maryland Declaration of Rights or the M aryland C onstitutio n. See id. at 631- 32. -7- None of the concurring or dissenting judges discussed and, thus, did not conclude that S.B . 1 violate d the U nited S tates Co nstitution . Amended Complaint Subsequent to issuance of the Court of Appeals opinions, appellants filed an amended complaint. Appellants added new substantive claims and three new defendants, identifie d abov e. In count I of the complaint, appellants sought a declaratory judgment that the legislation in question violated Article II, section 15 of the Maryland Constitution (separation of pow ers), Article 24 of the M aryland Declaration of R ights (due process), and Article I, section 10 o f the Unite d States C onstitution (bill o f attainder). C ount I remain ed the s ame in the am ended comp laint. In count II of the complaint, appellants sought injunctive relief, based on the constitutional violations alleged in Count I. Appellants requested the court to issue a temporary and permanent injunction and also requested the award of costs and such and further relief as the nature of this case may require. Count II of the amended complaint was essentially the same except that appellants added an express claim for attorneys fees. In the amended complaint, appellants added a count III and a count IV. In count III, appellants asserted a 42 U.S.C. §1983 action for violation of their federal civil rights. In count IV, appellants asserted a violation of Articles 16 and 25 of the Maryland -8- Declaratio n of Righ ts, regarding th e prohibition against crue l and unus ual punish ment, and Article 24, regardin g their due p rocess rights. In counts III an d IV, app ellants soug ht reasonable attorney s fees, costs, and any further damages or relief to which Plaintiffs may be entitled. Appellees Motion to Dismiss On November 27, 2006, appellees moved to dismiss or, in the alternative, strike the amen ded com plaint. App ellees mad e the follow ing argum ents in supp ort of their motion: (1) a ll of the equ itable claims w ere moot a nd thus the re was no civil right to enforce under 42 U.S.C. § 1983; (2) the amendment was untimely and barred by Rule 8604(d); (3) the amend ed complaint failed to state a ca use of action in coun ts I and II because th e matter had been dete rmined; on ly the State wa s named , the State w as not a person under § 1 983, and th us could n ot be liable; (4) th e amend ed comp laint failed to state a cause of action in count III, bec ause the S tate was no t a person under § 1 983; § 1983 did not app ly to state constitutional violations; the factual allegations were insufficient regarding Governor Ehrlich, Senate President Miller, and House Speaker Busch; and each official was immune from suit; and (5) appellant failed to state a cause of action in count IV because of failure to give notice under the Maryland Tort Claims Act; insufficient factual allegations to state a constitutional claim against Governor Ehrlich, Senate President Miller, or House Speaker Busch; and a state constitutional violatio n does not sup port an award of attor ney s fee s. -9- Circuit Court s Rulings On Nov ember 29, 2006 , after remand, the circuit court entered a declaratory judgm ent and perma nent inju nction in accord ance w ith the C ourt of Appe als ma ndate. The circu it court declare d (1) section s 12 and 2 2(b) and (c ) of S.B. 1 u nconstitution al, null, and void, (2) permanently enjoined the State from enforcing those provisions of the bill, and (3) ord ered the Sta te to pay appella nts costs, purs uant to the C ourt of A ppeals mandate, totaling $1,959.60. On Janu ary 22, 2007, th e circuit cour t heard argu ments on appellees m otion to dismiss appellants amended complaint. At argument, counsel for appellants stated that the only damages they were seeking in the amen ded complaint w ere costs and attorney s fees incurred in litigation. On January 27, 2007, the circuit court granted appellees motion to d ismiss the am ended co mplaint, on all the bases a sserted by app ellees in their motion to d ismiss. App ellants appe aled the dism issal of their am ended co mplaint to this Court. Discussion Standard of Review Under Maryland Rule 2-322(b)(2), a defendant may seek dismissal of a complaint if the complaint fails to state a claim u pon which relief ca n be granted. The standard for review ing the gran t of a motio n to dismiss is whether the trial court w as legally correct . Fioretti v. Md. State Bd. of Dental Exam rs, 351 Md. 66, 71 (1998) (citations -10- omitted ). In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action. Id. at 72 (citations omitted). In reviewing the complaint, we must presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom. Id. (citation s omitte d). The above applies to a mo tion to d ismiss a n ame nded c ompla int. The M erits Appellants contend the amended complaint was timely. They rely on case law stating that amendments are liberally allowed under Rule 2-341, and that there was no showing of prejudice to appellees.3 In response, appellees contend that appellants already received the relief they sought, any new theories are duplicative and moot or barred by Rule 8 -604 an d the law of the c ase doc trine, and appelle es are im mune from s uit. Appe llants dis agree. The law of the c ase doc trine is a ru le of ap pellate p rocedu re. See Scott v. State, 379 M d. 170, 183 (2004) (citatio ns omitted). U nder the do ctrine, a ruling of an app ellate court upon a question becomes the law of the case and is binding on the courts and 3 Appellants contend that Rule 2-341 permitted the amendment but does not contemplate a motion to dismiss. This is incorrect. A defendant can move to dismiss an amended complaint, just as an original complaint, to the extent there are viable defenses that can be raise d by mot ion. Moreo ver, Rule 2 -341 exp ressly contemp lates a motio n to strike. A ppellee s motio n was frame d as a m otion to dismiss or, in the alternativ e, a motion to strike. See Lanasa v. Beggs, 159 Md. 311, 318 (1930) (explaining that after plaintiff s filing of an additional plea, a proper motion would be to strike the plea or challen ge the le gal suf ficienc y by demu rrer), overruled on other grounds by Morgan v. Cohen, 309 M d. 304 ( 1987) . -11- litigants in further proceedings in the same case. Acting Dir., Dep t of Forests & Parks v. Walker, 39 Md. Ap p. 298, 301 (1978 ), aff d, 284 Md. 357 (1979). The function of the law of the case doctrin e is to pre vent pie cemea l litigation . See Reier v. State Dep t of Assessments & Taxation, 397 M d. 2, 21 (200 7) (citations om itted). The C ourt of A ppeals defined the doctrine in Fidelity-Baltimore National Bank & Trust Co. v. John Hancock Mutual Life Insurance Co., 217 Md. 367 (1958), explaining: [Litigants] cannot prosecute successive appeals in a case that raises the same questions that have been previously decided by this Court in a former appeal of that same case; and, furthermore, they cannot, on the subsequent appeal of the same case raise any question that could have been presented in the previo us appea l on the then state of the re cord, as it existed in the court of original jurisdiction. If this were not so, any party to a suit could institute as many successive appeals as the fiction of his imagination could produce new reasons to a ssign as to w hy his side of th e case sho uld prevail, and the litigation would never terminate. Once this Court has ruled upo n a question properly prese nted on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the law of the case and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decid ed are ava ilable to be raise d in a subse quent app eal. 217 M d. at 372 . In John Hancock, an employee of John Hancock Mutual Life Insurance Company presen ted fals e insura nce cla ims to Jo hn Ha ncock Mutu al on be half of fictitious payees. John Hancock Mutual issued checks to these fictitious claimants, which were forwarded -12- to the employee, who then forged the endorsements of the fictitious claimants on the back of eac h chec k, depo sited the check s in seve ral bank s, and th ereafte r withd rew the mone y. John Hancock Mutual learned of the fraud and eventually brought suit against the collecting banks for ho noring the forged ch ecks. 217 M d. at 370. The trial court dismissed the complaint on the pleadings. On appeal, the Court of Appeals reversed, and held that the stipulation of facts by the parties entitled Joh n Hancock Mutual to sum mary judgment. On remand, the trial court entered summary judgment in favor of John Hanc ock M utual. Id. at 371. On a sec ond app eal by the collec ting banks , they raised two questions: f irst, whether a collecting b ank is liable to the draw er of a che ck issued to a fictitious payee if the drawer is unaware of the fictitious payee and the check bears a fraudulent endorsement; and second, whether the imposter rule barred John Hancock Mutual from recove ry. Id. As to the first question, the Court of Appeals explained this question was raised in the first appeal and was specifically answered. As to the imposter rule defense, th e court exp lained that alth ough this iss ue was n ot raised in the previous a ppeal, there was no doubt that it was available in that proceeding as a ground to sustain the demurrers, if it be available here to defeat the judgments obtained by the appellee. Id. As a result, the Court held that both issues had already been settled in the first appeal under t he law of the c ase doc trine. Id. at 372. Thus, the rule of John Hancock is that under th e law of th e case doc trine, litigants -13- cannot raise new defenses once an appellate court has finally decided a case if these new defen ses cou ld have been ra ised ba sed on the fac ts as they e xisted p rior to the first app eal. See id. at 371- 72. See also Davis Sand & Gravel Corp. v. Buckler, 231 Md. 370, 373-74 (1963) (holding defendant that won at trial on issue of whether it had right to use easement, but then lost on appeal, could not on remand raise the issue of whether damages were proved at trial when this question could have been raised on a motion for reargu ment). Just as the law of the case doctrine prevents litigants from raising new defenses following an appellate court s final decision on the case if the new defenses could have been raised on the facts as they existed before the appeal, it follows that the doctrine should also prevent litigants from raising new claims after the appeal if the claims arise from th e facts a s they exis ted bef ore the a ppeal. See Pasarew Constr. Co. v. Tower Apartments, Inc., 208 Md. 396, 404 (1955) (holding plaintiff could not on remand raise issue of w hether intere st should be added to a ward fo llowing ap pellate court s mandate that award be increased by $4,000 without other changes, because question of additional allowanc e for interest w as conclud ed). In other w ords, once an appellate court has f inally decided a case based upon a set of facts, if the facts on remand remain unchanged, the appellate court s holding is the law of the case and it precludes consideration of new claims that may arise from those same facts. To hold otherwise would allow piecemeal litigation. See Grant v. Katson, 261 Md. 112 , 113-14 (1971) (ex plaining that trial court s -14- findings of fact and determination of liability of defendant neighbor for increasing and diverting the flow of surface waters onto plaintiff s neighboring property was the law of the case for purpose of determining w hether ancillary injunctive relief was appro priate); Beane v . Prince Ge orge s Co unty, 20 Md. App. 383, 396-97 (1974) (holding the trial court on remand from Court of Appeals could n ot disregard or reach con clusions contrary to factual matters already determined by the jury, and that based upon those facts, plaintiffs were entitled to more complete injunctive relief than they were granted by the trial court on remand). For a recent review of the law of the case doctrine, see Reier v. State Dept. of Assessments and Taxation, 397 Md. 2, 20-2 6 (2007). In the case before us, the facts alleged in appellants amended complaint and original complaint are the same. Appellants did not allege new facts in the amended complaint on the ground that they were mistaken as to the originally alleged facts or that they became aware of new fac ts. We exp ress no op inion with re spect to the a pplicability of the law of the case doctrine in that hypothetical situation. Appellants added new defendants, federal and state claims, and a claim for attorney s fees to the amended complain t. They could h ave includ ed the add itional defen dants, new federal an d state claims, and new claim for relief in their original complaint, but did not. The Court of Appeals addressed the merits of the claims in appellants original complaint, and issued a final judgm ent on the m erits. The C ourt issued a mandate requiring the circuit court to enter a declaratory judgment an d permanent injunc tion consistent with the Co urt s -15- opinio n, and th e circuit c ourt did so. The Co urt of Ap peals judg ment is the la w of the c ase as to the f acts alleged in appellants original complaint. Without pleading additional facts, appellants cannot now add new defendants and claims after the Court of Appeals judgment. This would be contrar y to the law of the c ase, and would , in effe ct, perm it piecem eal litigatio n. Conseq uently, the court d id not err in dis missing ap pellants am ended co mplaint as to new d efend ants an d new substan tive claim s. Recovery of attorney s fees based on original allegations Having determined that appellants amended complaint was properly dismissed under the law of the case doctrine with respect to new defendants and new substantive claims, we now consider whether appellants can recover fees based upon the allegations that we re copie d from the orig inal com plaint. Appellants contend that their claim for fees was encompassed within the claims for relief in the original complaint; the circuit court never lost its jurisdiction while the denial of the requ est for the pre liminary injunctio n was on appeal; and on reman d, the circuit court was free to address the claim. Appellants contend that their original complaint should be construed as a 42 U .S.C. § 198 3 claim, and as a result, they are e ntitled to recover attorney s fees under 42 U.S.C. § 1988, even if their claim for attorney s fees was not within the original claims for relief, because §1988 provides a basis for recovery of fees ev en if no t expres sly pled. -16- First, there is sub stantial autho rity that attorney s fees d id not have to be expre ssly pled as an elem ent of re covery, in conjun ction w ith the su bstantiv e cause s of acti on. See B&P Enters. v. Overland Equip. Co., 133 Md. App. 583, 621-22 (2000) (holding an express request for attorney s fees in p laintiff s complaint was no t necessary to recovery of fees in b reach of c ontract action ); Mercedes Benz of N. Am., Inc. v. Garten, 94 Md. App. 54 7, 568 (19 93) (holdin g an expr ess request f or attorney s fee s was no t necessary to reco very in an actio n bro ught und er the Marylan d Co nsum er Pr otec tion Act). Ge nera lly, in the context of appealability and whether a final judgment exists for that purpose, claims f or attorn ey s fees are con sidered to be co llateral to the prin cipal ac tion. See County Executive of Prince George s County v. Doe, 300 Md. 445, 451 n.4 (1984) (explaining that a claim for attorney s fees under 42 U.S.C. § 1988 is viewed as being collateral to an action brou ght under 42 U.S.C . § 1983); Garten, 94 Md. App. at 568 (explaining that a claim for attorney s fees is viewed as being collateral to an action brought u nder M aryland s Co nsumer P rotection A ct); Larche v. Car Wholesalers, Inc., 80 Md. App. 322, 326-28 (1989) (explaining that a claim for attorney s fees is viewed as being collateral to an action brou ght under the M agnuson-M oss Act). 4 Therefore, we will assume that appellants request for costs and other and further 4 An exception to the rule that a claim for fees is considered to be collateral to the principal actio n, in the con text of wh ether a final ju dgment e xists, is when the fee claim is based o n an ex press p rovision in a con tract. See G-C P ship v. Schaefer, 358 Md. 485, 488 (200 0); N. Assurance Co. of Am. v. EDP Floors, Inc., 311 Md. 217 , 221-22 (1987); Mattvidi Assocs. P ship v. NationsBank of Va., 100 M d. App . 71, 78 n .1 (199 4). -17- relief was sufficient to permit recovery of attorney s fees, as a matter of pleading, assu ming the re w as a v alid s ubst antiv e bas is for recovery. 5 Appellants difficulty is that there is no substantive b asis upon which to award attorney s fees. Maryland applies the A merican Rule reg arding recovery of attorney s fees, under which the prevailing party in a lawsuit may not recover attorney s fees as an elemen t of dam ages or costs, un less ther e is a rec ognize d exce ption. Thomas v. Gladstone, 386 Md. 693, 699 (2005). The exceptions to the American Rule under Maryland la w are: (1) the parties to a contract h ave an ag reement to that effect, (2) there is a statute that allows the imposition of such fees, (3) the wro ngful con duct of a d efendan t forces a pla intiff into litigation with a third party, or (4) a p laintiff is force d to defen d again st a malic ious pro secutio n. Id. (citations omitted). This Court is not aw are of any commo n law rule permitting recov ery of attorney s fees fo r violatio ns of th e Mar yland Co nstitution . See Bahena v. Foster, 164 Md. App. 275, 289 (2005) (explaining the four general exceptions to the American Rule and noting excep tions to th e Am erican R ule are quite rar e unde r Maryla nd com mon la w ). In their complaint, appellants alleged violations of Article II, section 15 of the 5 It should be noted that court costs, which are normally awarded by a court to the prevailing party under M aryland Rule 2-603, are limited an d do not include attorney s fees. See Bahena v. Foster, 164 Md. App. 275, 291 (2005) (explaining costs, under Md. R ule 2-6 03, do n ot includ e either a ttorney s f ees or e xpert w itness fe es ). -18- Maryland Constitution, regarding separation of powers; Article 24 of the Maryland Declaration of Rights, regarding appellants due process rights; and, Article I, section 10 of the U.S . Constitution , regarding u nlawful b ills of attainder. T he State w as the only named defendant. The Court of Ap peals decided the case solely on state law grounds. With respect to appellants § 1988 claim, as this Court explained in Maryland Green Party v. State Board of Elections, § 1988 allows a p laintiff to recover attorney s fees when he has asserted federal and state law claims for the same relief; has prevailed solely on the state claim, and the federal claim is undecided. 165 Md. App. 113, 125 (2005 ) (citation s omitte d), cert. denied, 390 Md. 501 (2006). In determining whether attorney s fees s hould be a warded under § 1 988 for a n undecid ed federa l claim, we a pply a three-part test: (1) the § 1983 claim m ust be sufficiently substantial to support invocation of federal jurisdiction, (2) it arises from the same nucleus of operative facts as the claim on wh ich the plaintiff prevailed, and (3) it is reasona bly related to the plaintiff s ultimate succes s. Id. at 126. Even if appellants undecided bill of attainder claim satisfies the three-part test outlined in Maryland G reen Party, which is very doubtful, appellants cannot recover under § 1 988 beca use the State was the o nly named d efendan t, and a state is n ot a perso n with in the m eaning of § 19 83. See Will v. Mi. Dep t of State Police, 491 U.S. 58, 71 (19 89); Ritchie v. D onnelly, 324 M d. 344, 355 (1991). A ppellants are correct in stating attorney s fees can be recovered from a state under § 1988 in an action for -19- injuncti ve relief when state of ficials ar e sued i n their o fficial c apacitie s. See Hutto v. Finney, 437 U.S . 678, 700 (1 978) (hold ing attorney s fe es could b e recovere d from sta te department of corrections after state prisoners prevailed in their official-capacity suit for injunctive relie f against state prison off icials). But w ithout nam ing as a def endant a sta te official acting in his or her official capacity, there can be no recovery of fees against the State itself under § 1988. See Kentucky v. Graham, 473 U.S. 159, 171 (1985) (holding [o]nly in an official-capacity action is a plaintiff who prevails entitled to look for relief, both on the merits and for fees, to the governmental entity and that because respondents suit could on ly be litigated as a p ersonal-cap acity action, the aw ard of fee s against state was imp roper). The refore, bec ause app ellants origina l complain t named o nly the State as a def endan t, they hav e no su bstantiv e basis o n whic h to reco ver fee s again st appe llees. Conclusion We hold (1) it was not error to dismiss appellants amended complaint because the law of the case doctrin e preclude d appellan ts from ad ding new defenda nts and claim s in their amen ded com plaint witho ut additiona l facts, once th e Court of Appea ls had finally decided th e claims in ap pellants origin al compla int; (2) appellan ts alleged no valid substantive basis for recovery of attorney s fees, to the extent the amended complaint repeated th e original co mplaint. JUD GM ENT AFF IRM ED. COSTS TO BE PAID BY APP ELL ANT S. -20-

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