Bresnahan v. Bresnahan

²²⁸ CATHELL, Judge. Dona K. Bresnahan appeals from a jury verdict and subsequent court judgments rendered in the Circuit Court for Prince George’s County. William B. Bresnahan, appellee, cross appeals from other aspects of the jury verdict and from the trial court’s denial of his motion for judgment notwithstanding the verdict. Appellant presents five issues: Whether proof of actual malice is a prerequisite to an award of punitive damages in a partnership dissolution case where the jury found that [appellee] breached his fiduciary duty to the estate of his deceased partner.

Whether the trial should have been bifurcated to allow [appellant] to present evidence of [appellee’s] net worth in connection with the submission to the jury of [appellant’s] claim for punitive damages against [appellee]. Whether the evidence, consisting of [appellant’s] testimony concerning the amount of attorneys’ fees incurred in this case, is sufficient to support [appellant’s] demand for attorneys’ fees in the absence of expert testimony that the fees incurred were “reasonable.” Whether the trial court properly set aside the jury verdict awarding [appellant]' the profits earned by the [appellee] from the partnership after the death of the decedent. Whether the trial court properly allowed the deed to the partnership real estate to be released to [appellee] prior to the conclusion of these proceedings. The first two issues are intertwined, and we shall address them together.

We shall address the other issues separately. Appellee, in his cross-appeal, presents a two-part question: Did the trial court err in entering judgment for [appellant] for deposition costs and appraisal fees, and in failing to grant [appellee’s] motion for judgment notwithstanding the verdict in this respect? ²²⁹ The Facts Both parties in their briefs expound upon their allegations that the actions of the other were bizarre. There are allegations that one of the parties placed dead bats in condoms and rooster heads in boxes and deposited them on the other’s property and allegations that the other party stated, “Hitler lived in the center of the earth,” and made references to “space aliens,” construction of space ships, “vision quests,” etc., most of which, in regard to this appeal, are completely irrelevant. We will not insert ourselves in the parties’ vindictiveness.

We shall attempt a judicious and restrained recitation of the facts. Appellee and Daniel Bresnahan were equal partners in a “crab house” operated as a general partnership. Daniel Bres-nahan died, and appellant, his widow, became the personal representative of his estate. Attempts were made by both parties to arrive at a settlement in regard to the estate’s interest in the partnership and a winding up of the partnership.

These attempts, to the extent that the parties participated, were rancorous and ultimately unsuccessful. Eventually, appellant instituted suit against appellee. The case proceeded to trial on appellant’s First Amended Complaint. It provided, after a factual recitation, that: 15.

All allegations in Paragraphs 1 through 14 are real-leged and incorporated herein by this reference as if fully set forth herein. 16. The improper actions of [appellee] herein constitute a breach of the fiduciary duty owed by [appellee] to [appellant] and to the Partnership, which duty is owed to these parties by [appellee] insofar as [appellee] is the sole remaining Partner of the Partnership. WHEREFORE [appellant], on behalf of the estate, on her own behalf and on behalf of the Partnership prays for (1) Distribution to [appellant] of $62,500, representing one-half of the value of the interest in the Partnership owned by Decedent Daniel Bresnahan as of the date of death, net of amounts received heretofore by [appellant], plus undistributed Partnership profit of $6,000 accrued in 1991; (2) Distri ²³⁰ bution to [appellant] of one-half of the partnership profits earned between November 1, 1991 and the date on which [appellee] deposited the final installment of the Partnership value into the registry of this Court; (3) [Appellant’s] attorneys’ fees and related costs in maintaining this action and in attempting, in connection with ... the filing of this case, to recover the value of the Partnership from [appellee], consisting of appraisal fees of $15,960, deposition costs of $550.30, and legal fees of approximately $50,000; (4) Punitive damages, in an amount to be determined by the jury in this matter, for breach of [appellee’s] fiduciary duty in this matter.[ 1 ] The case was tried on this amended complaint, and a special verdict form was used. The parties do not direct us to any place in the record where either of them objected to the special verdict form used.

At one point, the trial court stated: I’ve constructed the verdict sheet in the fashion that I have in order to preserve, or at least to make clear, preserve certain issues if there is an appeal, so that whatever would happen on appeal would not require the parties to exhaust resources again trying the case a second time. That’s my real purpose in constructing a verdict sheet, because it’s not going to be ... to anyone’s benefit, least of all mine, if the parties have to try this case again. The verdict sheet, as answered by the jury, provided: ²³¹ VERDICT SHEET 1. Did [appellee] breach a fiduciary duty owed to [appellant]?

Yes x No___ IF YOUR ANSWER TO QUESTION # 1 IS “NO,” STOP AND GO NO FURTHER. 2. What damages, if any, proximately caused by [appel-lee’s] breach, do you award [appellant]? Deposition Fees $ 900.00 Appraisal Fees $ 7,500.00 Profits 62,500.00 for % business 3. Do you find, by clear and convincing evidence, that [appellee] acted with actual malice?

Yes__No....._x_ IF YOUR ANSWER TO QUESTION # 3 IS “NO,” STOP AND GO NO FURTHER. 4. What damages, if any, do you award as punitive damages? $- Appellant’s first issue is: 1, Whether proof of actual malice is a prerequisite to an award of punitive damages in a partnership dissolution case where the jury found that [appellee] breached his fiduciary duty to the estate of his deceased partner. Appellant extends the impact of, and relies heavily on Hartlove v. Maryland Sch. for the Blind, 111 Md.App. 310 , 681 A.2d 584 (1996), vacated and remanded for reconsideration, 344 Md. 720 , 690 A.2d 526 (1997), for the proposition that Hartlove adopts in full section 874 of the Restatement (Second) of Torts, which provides that, in breach of fiduciary duty actions, the breach alone is sufficient to provide a basis for an award of punitive damages. Thus, according to appellant, the trial judge’s instruction to the jury that it had to find actual malice in order to award punitive damages was wrong.

An initial concern is that, at the time of the verdict in this case, the tortious cause of action upon which appellant relied ²³² and prevailed, had not yet been recognized in Maryland. Even if it had been recognized, Hartlove , as appellant admits, did not explicitly adopt that aspect of the Restatement’s provision as to punitive damages. We shall, however, leave the interesting and difficult question of the ex post application of Hartlove's holdings to another case, as we shall decline to extend Hartlove , to the extent it may still exist after Kann, to any degree beyond its limits as we perceive them. We initially note that the only count that survived at the time this case was submitted to the jury was the single, separate count of breach of fiduciary duty.

Appellant’s count of fraud had been disposed of either by motion or voluntarily, by amending it out of the cause of action. Moreover, appellant has not appealed any decision of the trial court that may have resulted in the fraud count being eliminated from the suit. We are, therefore, faced with a situation in which fraud has not been established and the only cause submitted to the jury was an independent count alleging a breach of fiduciary duty. On December 20, 1996, the Court of Appeals denied certio-rari in Hartlove .

On March 7, 1997, it ordered its December 20, 1996, order to be rescinded and recalled, and finally, on March 12, 1997, the Court of Appeals granted certiorari (Pet.Doc. No. 488/96) on the petition for certiorari, denied the cross-petition for certiorari, ordered our opinion to be vacated, and remanded Hartlove to this Court for reconsideration in light of its opinion in Kann v. Kann, 344 Md. 689 , 690 A.2d 509 (1997). The Court of Appeals in Kann discussed Hartlove , noting the Hartlovee majority’s holdings: First, it said: “Given the standard of conduct imposed upon fiduciaries, we are of the view that fiduciaries who breach their duty should be held accountable under an independent cause of action aimed at such conduct.” [Hartlove, 111 Md.App. at 331 , 681 A.2d 584 ] (footnote omitted). The panel of the Court of Special Appeals divided two to one on this first holding. ²³³ Kann, at 708-709, 690 A.2d 509 .

In respect to this holding, the Court of Appeals commented: Regina [Kann] and the Court of Special Appeals read too much into § 874 of the Restatement. As we saw in Part III.A, § 874 in effect recognizes the universal proposition that a breach of fiduciary duty is a civil wrong, but the remedy is not the same for any breach by every type of fiduciary. For some breaches the remedy may be at law, for others it may be exclusively in equity, and for still others there may be concurrent remedies. Id. at 710, 690 A.2d 509 .

It further commented: Under the tort that Regina seeks, if Donald [Kann] breached the trust, he would be liable for damages for “stress, mental anguish and exacerbation of various physical ailments and conditions directly resulting from Donald’s actions.” Brief of Appellant at 17-18. It is not at all clear that Regina would limit damages for emotional distress to cases in which the trustee has caused some economic loss to the beneficiary. Given the fact that Regina does not challenge for lack of evidence the trial court’s finding that Louis misappropriated assets of the Frances Trust, Regina’s arguments strongly suggest that she seeks emotional distress damages if Donald made any misstep, even if it did not cause loss. Regina’s quest for this new tort liability of trustees is particularly unpersuasive when one considers that there may be instances in which a trustee may commit a breach of trust mistakenly and non-negligently.

See Restatement (Second) of Trusts § 201 cmt. a. Regina’s requested tort would also carry the potential for punitive damages. But punitive damages are not at all available in equity.... In overview, Regina asks this Court to make a very far reaching change in Maryland law by creating a tort that will apply to all fiduciaries.

Neither Regina nor the Court of Special Appeals in Hartlove has undertaken to review all of the relationships to which the new tort would apply. There has been no analysis of whether, as to any given fiduciary ²³⁴ relationship, the tort would duplicate existing remedies at law or would eliminate, as in the case of trustees, the nearly complete exclusivity of equitable jurisdiction. There has been no analysis of the effect of the new tort on the probate area. Further, recognition of the new tort would make trustees, and any other fiduciaries whose breaches are currently primarily remediable in equity, subject to potential liability for punitive damages.

The instant matter differs radically from a number of this Court’s decisions in which new causes of action have been recognized. By way of illustration, and not limitation, we have recognized a new cause of action when there was no existing legal remedy directed at the problem. In the instant matter we have not been presented with, nor are we aware of, any lack of adequacy of the existing remedies for breach of a trustee’s duties. There is, in our view, no justification for the wholesale changes in Maryland law that Regina advocates.

Indeed, so enduring has been the marriage between trusts and equity in this State that adoption of Regina’s contentions would violate the spirit, if not the letter, of [Maryland Code, Estates & Trusts Article,] § 14-101 (“A court having equity jurisdiction has general superintending power with respect to trusts.”). Accordingly, we hold that there is no universal or omnibus tort for the redress of breach of fiduciary duty by any and all fiduciaries. This does not mean that there is no claim or cause of action available for breach of fiduciary duty. Our holding means that identifying a breach of fiduciary duty will be the beginning of the analysis, and not its conclusion.

Counsel are required to identify the particular fiduciary relationship involved, identify how it was breached, consider the remedies available, and select those remedies appropriate to the client’s problem. Id. at 711-713, 690 A.2d 509 (citations omitted). The last three sentences above can be interpreted as a restatement of the law prior to Hartlove, ie., identify a fiduciary relationship, identify the breach, determine what causes of action are supported by the breach of fiduciary duty, ²³⁵ and select the cause of action that best serves the wronged party. The Court of Appeals went on to state: Counsel do not have available for use in any and all cases a unisex action, triable to a jury.

This Court would not preside over the death of contract by recognizing as a tort a breach of contract that was found to be in bad faith. See K & K Management, Inc. v. Lee, 316 Md. 137 , 557 A.2d 965 (1989). Nor shall we preside over the death of equity by adopting Regina’s contentions. To the extent that Hartlove v. Maryland School for the Blind, 111 Md.App. 310 , 681 A.2d 584 (1996), is contrary to the views expressed in this opinion, Hartlove is disapproved.

Kann, at 713, 690 A.2d 509 (citations omitted). In light of Kann , it is doubtful that Hartlove's creation of an independent tort of breach of fiduciary tort has survived. In the case sub judice, it was the only count submitted to the jury. It is very possible that, had appellee/cross-appellant presented the issue of the validity of the cause of action itself, we might have been required to reverse the entire verdict and decision in light of Kann} However, the issue has not been preserved. 2 3 Accordingly, we shall address the issues presented as to punitive damages.

We agree with the statement in appellee’s brief that “the Court of Appeals has conclusively determined that actual malice is a prerequisite to an award of punitive damages, although actual malice may be met by proving fraud.” We now examine the cases. Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992), is, as the parties indicate, the seminal case expressing Maryland’s current view of punitive ²³⁶ damages. Zenobia was a products liability case in which the question of punitive damages was a major issue. We shall, in our consideration of it, go directly to the Court of Appeals’s discussions about the role of punitive damages in Maryland tort law.

At the very inception of the opinion, Judge Eldridge noted that the Court had issued its writ of certiorari to “consider several important questions ... and to reconsider some of the principles governing awards of punitive damages in tort cases.” Id. at 427-28 , 601 A.2d 633 . The Court noted its order to the parties: [Tjhis Court issued an order requesting that the briefs and argument encompass the following issue: In light of the concurring opinion of Judges Eldridge, Chasanow, and Cole in Schaefer v. Miller, 322 Md. 297, 312-332 , 587 A.2d 491 (1991), what should be the correct standard under Maryland law for the allowance of punitive damages in negligence and products liability cases, i.e., gross negligence, actual malice, or some other standard. Zenobia, 325 Md. at 450 , 601 A.2d 633 . It then discussed some of its reasons for requesting that the parties address that particular issue: As noted in the opinion of Judges Eldridge, Cole and Chasanow in Schaefer v. Miller, supra, 322 Md. at 312-332 , 587 A.2d 491 , in recent years there has been a proliferation of claims for punitive damages in tort cases, and awards of punitive damages have often been extremely high.

See 2 J. Ghiardi and J. Kircher, Punitive Damages Law and Practice § 21.01, at 2 (1985); D. Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. Chi. L.Rev. 1, 6 (1982) (“Large assessments of punitive damages may not yet be a major threat to the continued viability of most manufacturing concerns, but the increasing number and size of such awards may fairly raise concern for the future stability of American industry”)---- Accompanying this increase in punitive damages claims, awards and amounts of awards, is renewed criticism of the ²³⁷ concept of punitive damages in a tort system designed primarily to compensate injured parties for harm. Zenobia, 325 Md. at 450-51 , 601 A.2d 633 (some citations omitted). The Court then gave an advance summary of its holding in the case: In Maryland the criticism has been partly fueled and justified because juries are provided with imprecise and uncertain characterizations of the type of conduct which will expose a defendant to a potential award of punitive damages.

Accordingly, we shall (1) examine these characterizations of a defendant’s conduct in light of the historic objectives of punitive damages, (2) more precisely define the nature of conduct potentially subject to a punitive damages award in non-intentional tort cases, and (3) heighten the standard of proof required of a plaintiff seeking an award of punitive damages. Id. at 451 , 601 A.2d 633 . The Zenobia Court noted that we (and the trial court) had required the plaintiffs to show “by a preponderance of evidence that the defendants acted with ‘implied’ rather than ‘actual’ malice.” Id. at 452 , 601 A.2d 633 . The Court discussed punitive damages arising out of contracts and then noted: “[W]e abandon the ‘arising out of a contract’ distinction ‘and return to the principles relating to punitive damages which had prevailed in this State for many, many years before [H & R Block v.] Testerman [, 275 Md. 36 , 338 A.2d 48 (1975) ].’ ” Zenobia, 325 Md. at 455 , 601 A.2d 633 .

It noted the general principle that “punitive damages are awarded in an attempt to punish a defendant whose conduct is characterized by evil motive, intent to injure, or fraud, and to warn others contemplating similar conduct of the serious risk of monetary liability.” Id. at 454 , 601 A.2d 633 . The Court then preliminarily held: “In a non-intentional tort action, the trier of facts may not award punitive damages unless the plaintiff has established that the defendant’s conduct was characterized by evil motive, intent to injure, ill will, or fraud, i.e., ‘actual malice.’ ” Id. at 460 , 601 A.2d 633 (footnote omitted). ²³⁸ We shall digress for a moment to note certain aspects of the majority’s discussion in Hartlove, supra, a case upon which appellant relies extensively. The majority there noted that a “personal representative must ‘... act reasonably and in good faith.’” Hartlove, 111 Md.App. at 330 , 681 A.2d 584 . We said: “[The personal representative] ... is required to act in good faith, and must perform his fiduciary duties with the same degree of care and diligence that would be exercised by a prudent person under similar circumstances____” Id.

(quoting Ba stian v. Baffin, 54 Md.App. 703, 708 , 460 A.2d 623 (1983)). The majority later noted that the standard of care for a fiduciary includes “[t]he exercise of reasonable watchfulness over investments; and ... [t]he maintenance of full, accurate and precise records.” Id., 111 Md.App. at 330-31 , 681 A.2d 584 (quoting Allan J. Gibber, Gibber on Estate Administration 3-1 (3d ed. 1991)). It is clear then that carelessness and lack of diligence can be the basis for a breach of fiduciary duty action, as the Hartlove majority described the tort. Interestingly, the Court of Appeals in Kann noted, “Regina’s quest for this new tort liability of trustees is particularly unpersuasive when one considers that there may be instances in which a trustee may commit a breach of trust mistakenly and non-negligently.” Kann, at 711, 690 A.2d 509 .

Accordingly, while the action for breach of fiduciary duty may arise from intentional conduct, the cause of action may also arise out of careless and undiligent conduct, i.e., negligent actions of omission or commission. The Zenobia Court, although addressing a product liability action, set a standard for punitive damages that appears to be generally applicable, given the Court’s earlier discussion of the problems created by punitive damages. It stated: The knowledge component, which we hold is necessary to support an award of punitive damages, does not mean “constructive knowledge” or “substantial knowledge” or “should have known.” More is required to expose a defendant to a potential punitive damages award. The plaintiff must show that the defendant actually knew of the defect ²³⁹ and of the danger of the product at the time the product left the defendant’s possession or control.

Zenobia, 325 Md. at 462 , 601 A.2d 633 (footnote omitted). Still addressing strict liability causes of action, the Court opined: The showing of actual malice required for a punitive damages award is the same regardless of whether the plaintiffs claim for compensatory damages was based on strict liability or on negligence. In either case, the evidence must show malicious conduct and not simply the supplying of a defective product or negligence. Id. at 465 , 601 A.2d 633 .

In a strict products liability cause of action, the plaintiff must establish that the product was defective; that it was unreasonably dangerous; that it caused injury; and that it reached the customer in the same condition. Id. at 464 , 601 A.2d 633 . The plaintiff is not required to prove any specific act of negligence. Once the above elements have been established, only certain defenses are permitted.

In a breach of fiduciary duty action (as it was created by this Court in Hartlove), a plaintiff must merely establish the existence of a fiduciary duty and allege its breach. 4 Once this is done, the defendant has the burden of establishing, i.e., proving, that he has not committed the breach. Thus, in some respects, “strict liability” and “breach of fiduciary” actions are similar. ²⁴⁰ In Adams v. Coates, 331 Md. 1 , 626 A.2d 36 (1993), 5 the Court issued its writ of certiorari to answer two questions. The second question was: “[I]s it incumbent upon your petitioner to prove actual malice in a case involving an intentional breach of a fiduciary relationship between the parties.” Id. at 3 , 626 A.2d 36 . The Adams trial court, discussing punitive damages for a breach of fiduciary duty, stated: “I don’t find any malice in the legal sense of the term in actual malice or anything of that matter.

I don’t believe that Mr. Adams has met his burden of proof in that area. If I was convinced ... that punitive damages are available purely for a breach of a fiduciary duty, absent the showing of actual malice, then I would be inclined to award punitive damages---- So, I don’t believe that on a sole proof of a breach of a fiduciary duty ... that punitive damages are available because I don’t find that you have proved malice, meaning actual malice.” Id. at 7 , 626 A.2d 36 . As can be readily discerned, appellant, in the case sub judice, is urging this Court to adopt the contrary position. Subsequently, the Adams trial court stated, “I do make a finding that fraud was not committed,[ 6 ] but that there was a breach of fiduciary duties.” Id. at 7-8 , 626 A.2d 36 .

The Court of Appeals, after a factual discussion, then framed the argument and issues that it perceived were presented for determination: The only issue for decision in the matter before us that turns on whether breach of fiduciary duty between partners can be asserted as a tort involves whether punitive damages are recoverable by Adams under the proof in this case. ²⁴¹ Whether punitive damages are recoverable is not determined exclusively by the elements of the tort, but depends primarily on Maryland policy as to the award of punitive damages. We shall assume, solely for the purpose of discussion in this case, the existence of a tort, and that, under proper proof, the tort can be the springboard for punitive damages.... ... We turn then to the second question on certiorari— whether, to obtain punitive damages, the plaintiff-partner must “prove actual malice in a case involving an intentional breach of a fiduciary relationship between the parties.” Id. at 12-13 , 626 A.2d 36 . The Court quoted portions of its opinion in Zenobia that related, in general, to punitive damages.

It held: To the extent that Adams’s argument is that a breach of fiduciary duty in and of itself permits the award of punitive damages, we reject his contention under the policy guidelines for punitive damages in general, as set forth in Zeno-bia. To the extent that Adams’s argument is that the facts in the instant matter support a finding of evil motive, intent to injure, or fraud, we hold that the circuit court was not clearly erroneous in finding an absence of actual malice or fraud. Adams, 331 Md. at 13 , 626 A.2d 36 . The Court concluded: By affirming the denial of punitive damages we hold simply that the circuit court was not clearly erroneous in finding a lack of evidence to support punitive damages.

We intimate no opinion on whether, from the record as a whole, facts sufficient to support an award of punitive damages might be gleaned, had the trier of fact reached the opposite conclusion. In any event, the trier of fact has discretion to deny punitive damages even where the record otherwise would support their award. See Nast v. Lockett, 312 Md. 343, 349 , 539 A.2d 1113 (1988), overruled on other grounds, Zenobia, 325 Md. at 460 , 601 A.2d 633 ; Dennis v. Baltimore Transit Co., 189 Md. 610, 616 , 56 A.2d 813 (1948) (citing Sloan v. ²⁴² Edwards, 61 Md. 89, 100 (1883)); Maryland Civil Pattern Jury Instructions 10:6(a), at 226 (1984) (“If you award plaintiff damages to compensate him for the actual ... [losses] he suffered, you may, but are not required to, award him an additional amount as punitive damages.” (Emphasis added)). Adams, 331 Md. at 15 , 626 A.2d 36 .

The Court, in Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216, 228 , 652 A.2d 1117 (1995) (citing Adams, 331 Md. at 13 , 626 A.2d 36 ), a case dealing with an action for fraud, again stressed that the “policy explained in Zenobia generally ‘should govern any award of punitive damages,’ including punitive damages arising from intentional torts.” It noted that the trial court held that the “actual malice” required to support an award of punitive damages is inherent in the elements of a tort action for fraud or deceit. This holding was, of course, too broad, as the trial court did not, and could not have been expected to, anticipate the distinction which we have drawn between actual knowledge of the falsity and “reckless indifference.” Id. at 241, 652 A.2d 1117 . As we have indicated, no fraud count went to the jury nor, we presume, was any fraud instruction given. More recently, the Court in Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 540-50 , 682 A.2d 1143 (1996), an asbestos case, reiterated: Moreover, under Zenobia plaintiffs in any tort case seeking punitive damages must prove knowledge and bad faith by a standard of “clear and convincing evidence” rather than the preponderance standard used to prove liability for compensatory damages.

Zenobia, 325 Md. at 469 , 601 A.2d 633 . We reasoned in Zenobia that the heightened standard of proof was appropriate because not only money but stigmatization was at stake in an award of punitive damages ____ ²⁴³ Clear and convincing evidence of bad faith to support a punitive damages award “goes far beyond that required to support a compensatory damages award based on the underlying strict liability claim.... And lastly, in its most recent case concerning punitive damages, Judge Karwacki, in Scott v. Jenkins, 345 Md. 21, 29 , 690 A.2d 100 (1997), stated: We have lately, and at great length, discussed the necessary prerequisites to a punitive damages award. Lest there be any remaining doubt, in order to recover punitive damages in any tort action in the State of Maryland, facts sufficient to show actual malice must be pleaded and proven by clear and convincing evidence....

In our review of the Court of Appeals’s cases since Zenobia , we have seen no weakening of the Zenobia holding — rather, its scope, whenever possible, appears to have been extended. It was expressly extended to actions for breach of fiduciary duty (if the action had then existed) in Adams and to all tortious actions no later than Scott. We hold, therefore, that the trial court did not err or abuse its discretion in its findings and instructions to the jury in regard to appellant’s first question and did not err in respect to appellant’s second question. With the jury’s finding of no actual malice, there was no necessity for a bifurcated hearing, even if the trial court agreed to proceed in that manner.

A defendant’s net worth has no relevance to the issue of actual malice. 3. Whether the evidence, consisting of [appellant’s] testimony concerning the amount of attorneys’ fees incurred in this case, is sufficient to support the [appellant’s] demand for attorneys’ fees in the absence of expert testimony that the fees incurred were “reasonable.” The trial court declined to submit the issue of attorneys’ fees to the jury because appellant had not presented any ²⁴⁴ testimony as to reasonableness during the presentation of her case. Appellant testified: Q Mr. DeCaro is a good lawyer. How much did you pay him?

A For what? Q His work on your behalf advocating for you. A Totally in this case how much have I paid personally? Q How much did you pay him?

A From the beginning to today, probably about $31,000, $32,000. Under the “American Rule,” attorneys’ fees are not recoverable by the winning litigant. Appellant at trial never asserted any authority supporting her claim for attorneys’ fees. In Hess Constr.

Co. v. Board of Educ., 341 Md. 155, 159-61 , 669 A.2d 1352 (1996), the Court stated: The “American Rule” is that attorney’s fees are ordinarily not recoverable by a prevailing party in a lawsuit. “In Maryland, ‘[t]he general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for [compensatory] damages.’ ” Attorney’s fees may be awarded where a statute allows for the imposition of such fees, and where parties to a contract have an agreement regarding attorney’s fees. Where the wrongful conduct of a defendant forces a plaintiff into litigation with a third party, the plaintiff