Christian v. Maternal-Fetal Med. Assoc.

Greene, J. The questions before us in this case involve the application of Maryland Rule 1-341(a), the rule granting a court authority to award attorney's fees to an adverse party who was subjected to proceedings that were brought in bad faith or lacked substantial justification. We are called upon to determine what findings a court must make in order to require attorney's fees to be paid to an adverse party. Also we are tasked with determining the appropriate means for calculating attorney's fees, pursuant to Maryland Rule 1-341(a), when a court determines that a party's complaint includes claims that have substantial justification and claims that lack substantial justification. Petitioner, Heather Stanley-Christian, M.D.

("Petitioner" or "Dr. Christian") sued Respondents, Maternal-Fetal Medicine Associates of Maryland, LLC ("Maternal-Fetal"), and its principal, Sheri L. Hamersley, M.D. ("Dr. Hamersley") (collectively "Respondents"), after a disagreement that ultimately resulted in Petitioner ending her employment with Respondents. Dr. Christian brought multiple causes of action against Respondents, and Respondents prevailed in having the trial judge dispose of Petitioner's claims after the close of all the evidence. Respondents then requested an award of attorney's fees under Maryland Rule 1-341.

During the hearing for attorney's fees, the hearing judge found no substantial justification, pursuant to Rule 1-341(a), for each of the claims brought by Petitioner against Respondents. The hearing judge awarded $300,000 in attorney's fees to Respondents. Petitioner appealed to the Court of Special Appeals, and that court vacated the judgment entered in the Circuit Court. Maternal-Fetal Medicine Assocs. v. Christian , No. 0967, 2009, 2013 WL 3941970 (Md. Ct. Spec.

App., July 24, 2013). The Court of Special Appeals affirmed the hearing judge's findings of no substantial justification for the fraudulent inducement, negligent misrepresentation, and wrongful termination claims. Id. The Court of Special Appeals, however, reversed the hearing judge's findings of no substantial justification for the breach of contract and tortious interference with contract claims.

Id. We granted certiorari and affirm the judgment of the Court of Special Appeals. We hold that the hearing judge did not commit clear error in finding no substantial justification for the claims brought by Petitioner, namely, fraudulent inducement, negligent misrepresentation, and wrongful termination. We determine, however, that the hearing judge abused his discretion in assessing $300,000 in attorney's fees against Petitioner without articulating how he calculated the fees.

Therefore, we affirm the judgment of the Court of Special Appeals vacating the award of attorney's fees and we remand the case to the Circuit Court for further fact finding. I. This case has meandered through the judicial system for over a decade, and, unfortunately for the parties, its odyssey does not end with us. Dr. Christian entered into an employment agreement with Maternal-Fetal on November 14, 2005. 1 After a deterioration in relations between Drs. Christian and Hamersley, Dr. Christian left her employment with Maternal-Fetal on July 17, 2006.

In March 2007, Petitioner began employment at Greater Washington Maternal-Fetal Medicine and Genetics ("Greater Washington"), located in the Washington area. Soon after, Dr. Hamersley informed Greater Washington of a non-compete agreement between Dr. Christian and Maternal-Fetal. Greater Washington terminated Petitioner's employment shortly thereafter. Petitioner, in turn, filed a complaint in the Circuit Court for Montgomery County on April 19, 2007, alleging fraudulent inducement, breach of contract, tortious interference with contract, wrongful termination, and sought declaratory judgment, damages, attorney's fees, injunctive relief, and equitable relief.

After dismissal of the original complaint without prejudice, Petitioner filed an amended complaint on August 27, 2007. The amended complaint included all five of the original claims and added a claim for negligent misrepresentation. Respondents filed a counterclaim for breach of contract, asserting that Petitioner had breached the terms of the non-compete clause. Respondents filed and the trial judge granted a motion for summary judgment in favor of Respondents on all of Petitioner's claims, except the wrongful termination claim.

After the close of plaintiff's case in chief, Respondents moved for judgment as a matter of law, which the trial court denied. The trial judge, however, granted Respondents' renewed motion for judgment at the close of all the evidence. When granting judgment on the wrongful termination claim, the trial judge explained: [Petitioner] has demonstrated that it wasn't intolerable to the point that she was required to leave. She only made that decision to leave when [Respondents] wouldn't accede to her financial request to up the ante in what she was getting paid and to shorten the time and increase the amount of business that she could buy from the [Respondents].

Additionally, the trial judge found that "[Petitioner] made allegations and assertions of changed billing records for which there's no proof that Dr. Hamersley changed them. [Also] [t]here was not evidence that [Dr. Christian] was threatened ever of being fired." The jury returned a verdict in favor of Respondents on the breach of contract counterclaim and awarded damages in the amount of $22,902. After the jury returned its verdict on Respondents' counterclaim, Respondents filed a motion for attorney's fees and expenses pursuant to Maryland Rule 1-341. On December 29, 2009, the hearing judge indicated he would assess attorney's fees in an amount to be determined upon submission of the legal bills to the court. The hearing judge awarded $300,000 in attorney's fees and costs on July 25, 2011.

Both parties noted timely appeals. The First Appeal On the first appeal, the Court of Special Appeals addressed four questions. Maternal-Fetal Medicine Assocs. v. Christian , No. 0967, 2009, 2013 WL 3941970 (Md. Ct. Spec. App., July 24, 2013).

The only one relevant to our inquiry is whether the trial court erred in awarding $300,000 in attorney's fees to Respondents. 2 Id. In its unreported opinion, the Court of Special Appeals grappled with the basis of the trial court's award of fees, and remanded for clarification. Id. The Court of Special Appeals identified that an award of attorney's fees based on the contractual provision for fees would have been improper, signaling to the trial court that an articulation of a basis beyond the contract itself was necessary.

Id. On remand, the Circuit Court requested supplemental briefing and held an additional hearing specific to the issue of attorney's fees. On February 3, 2015, the hearing judge entered a Memorandum Opinion & Order in which he explained, in part, the basis for his award of attorney's fees. The hearing judge cited Inlet Assocs. v. Harrison Inn Inlet, Inc. , 324 Md. 254 , 596 A.2d 1049 (1991), and then determined whether there was a lack of substantial justification for each party's litigation position.

In his discussion, the hearing judge found that each claim brought by Petitioner lacked substantial justification. The judge explained: 1. Medical Billing and Prescription of Lovenox: The basis for most of Dr. Christian's claims was [Respondents'] medical billing and prescription of the drug Lovenox. Dr. Christian's allegations of misconduct regarding these issues lack merit.

Dr. Christian alleged [Respondents] overbilled patients and Dr. Hamersley improperly signed billing forms when Dr. Christian was the physician who provided the service. Dr. Hamersley denied this allegation and presented exhibits at trial that showed billing forms alleged to be signed by Dr. Hamersley were actually signed by Dr. Christian. [Respondents] also presented evidence showing Dr. Hamersley was not even in town when the bills at issue were signed. [Respondents'] medical billing expert, Robin Roach, testified at trial that it is appropriate for a supervising physician to sign billing forms on behalf of a practice, and the supervising physician obtained no benefit from signing the forms. Dr. Christian did not retain a medical billing expert for trial or even cross-examine Robin Roach. While Dr. Christian claims that others ( i.e. , Wayne Kramer and Megan Sterner) have witnessed improper billing, none of these individuals were called as witnesses at trial.

Dr. Christian failed to present any evidence to the jury that [Respondents'] billing practices were illegal or unethical. After trial, Dr. Christian has argued an advisory letter to Dr. Hamersley from the Board of Physicians indicates fault. These letters are issued to inform, educate or admonish a health care provider. Dr. Christian has not read the letter nor does she have any information about its contents; however, she admits that the letter resulted from [ ] allegations she made against Dr. Hamersley.

The Court will not speculate as to the contents of that letter nor will it require Dr. Hamersley to produce it. This case has been fully litigated and Dr. Christian had plenty of opportunity to present evidence to support her claims, but failed to do so. Dr. Christian also claimed Dr. Hamersley had a financial arrangement with the manufacturers of the blood thinner, Lovenox, and Dr. Hamersley over-prescribed Lovenox because of the financial relationship. As a result of this allegation, [Respondents] were required to hire Adam Duhl, a medical expert on the prescription of Lovenox during pregnancy, to justify Dr. Hamersley's prescription of Lovenox to patients.

No evidence was brought forth by Dr. Christian to support this claim, so this claim is without justification. 2. Fraud in the Inducement: "[F]raudulent inducement means that a party has been led to enter into an agreement to his or her disadvantage as a result of deceit." Sass v. Andrew , 152 Md. App. 406 , 422, 832 A.2d 247 (2003). This must include a willful non-disclosure or false representation of a material fact. Id.

Dr. Christian alleged Dr. Hamersley made material omissions about patient care, billing practices, and the treatment of employee doctor's medical judgment and patient relations. At [the] summary judgment [hearing], [the Circuit] Court [judge] found that Dr. Christian failed to establish any material misrepresentation made by [Respondents] and failed to show that [Respondents] had any intent to defraud Dr. Christian. In Dr. Christian's deposition she said that she consulted with her mentors about the opportunity and decided to take the position. Dr. Christian did not mention any representations by [Respondents] that caused her to enter [into] the employment contract.

Because Dr. Christian failed to bring forth a fraudulent misrepresentation, this claim was also without substantial justification. 3. Negligent Misrepresentation: Similar to the issue of Fraud in the Inducement, Dr. Christian failed to plead or prove any facts to support a claim of Negligent Misrepresentation. There is no evidence that Dr. Hamersley intended Dr. Christian to act on any omission or negligent misrepresentation. * * * 3 6. Constructive Discharge/Wrongful Termination: The standard for constructive discharge is whether the employer has deliberately caused or allowed the employee's working conditions to become so intolerable that a reasonable person in the employee's place would have felt compelled to resign.

Beye v. Bureau of Nat'l Affairs , 59 Md. App. 642 , 653, 477 A.2d 1197 (1984). Dr. Christian alleged ethical issues with [Respondents'] billing practices and allegations that Dr. Hamersley yelled at Dr. Christian and denied her access to the records rooms as the underlying facts for this claim. Dr. Christian complained her medical license would be jeopardized if she did not leave MFMA because [of Respondents'] billing practices and patient treatment. These claims are inconsistent with Dr. Christian's actions.

Prior to her departure from MFMA, Dr. Christian made handwritten changes to her employment contract. In order for Dr. Christian to stay, the conditions she added had to be met. They were mostly financial conditions, including the opportunity to purchase a 49% ownership interest in MFMA instead of the 20-30% membership interest agreed upon in the initial contract. Dr. Christian also added a more favorable calculation of her bonuses and MFMA to pay all [ ] her malpractice insurance coverage.

Dr. Christian claimed that the conditions at MFMA were so intolerable that she had to leave; however, she was willing to remain and purchase half of the practice if her financial conditions were met. Clearly the conditions were not so intolerable that a reasonable person in her position would leave because she was negotiating to stay if her demands were met. Consequently, the evidence presented by Dr. Christian was not even close to the standard required for a constructive discharge claim. The hearing judge found that "[t]he total amount of attorney's fees accumulated by [Respondents] was $555,995.81." He awarded Respondents "$300,000 in attorney's fees as the amount [he] f[ound] to be reasonable and necessary to defend the claims brought by Dr. Christian without substantial justification." The Second Appeal On March 2, 2015, Petitioner noted a timely appeal to the Court of Special Appeals.

In its second unreported opinion, the Court of Special Appeals vacated the judgment of the Circuit Court. Christian v. Maternal-Fetal Medicine Assocs. , No. 0013, 2015, 2017 WL 2839146 (Md. Ct. Spec. App., July 3, 2017). The Court of Special Appeals affirmed the hearing judge's findings of no substantial justification for the fraudulent inducement, negligent misrepresentation, and wrongful termination claims.

Id. However, the Court of Special Appeals reversed the hearing judge's findings of no substantial justification with respect to the breach of contract and tortious interference with contract claims. 4 Id. The Court of Special Appeals then remanded the case. Id.

This Court granted certiorari to answer the following questions, which we have revised for clarity: 1. Whether the hearing judge in the Circuit Court for Montgomery County committed clear error when he determined that Petitioner did not have substantial justification for the fraudulent inducement, negligent misrepresentation, and wrongful termination claims under Maryland Rule 1-341 and whether he abused his discretion when he awarded $300,000 in attorney's fees? 2. Whether this Court should expressly adopt the "but-for" test set forth by the United States Supreme Court in Fox v. Vice , 563 U.S. 826 , 131 S.Ct. 2205 , 180 L.Ed.2d 45 (2011) for determining awards of attorney's fees? Christian v. Maternal-Fetal Medicine Assocs. of Md. , 456 Md. 78 , 171 A.3d 610 (2017). 5 We answer no to the first question, and hold that the hearing judge did not commit clear error in entering factual findings as explicated in the Memorandum Opinion & Order issued by the Circuit Court.

The hearing judge properly determined that Petitioner's claims of fraudulent inducement, negligent misrepresentation, and wrongful termination lacked substantial justification under Md. Rule 1-341. Although the wrongful termination claim survived summary judgment as well as a motion for judgment raised at the end of the plaintiff's case, the hearing judge disposed of the wrongful termination claim after Respondents' renewed their motion for judgment. Notwithstanding our observation that the hearing judge was not clearly erroneous in finding no substantial justification for these claims, we determine that the hearing judge abused his discretion under Rule 1-341(a) when he awarded $300,000 in attorney's fees without explaining the basis for that award. Thus, we remand for further factual findings regarding the amount of attorney's fees to be paid, if any, by Petitioner, and for an explanation as to how the court calculates the specific amount.

II

Our task is to determine whether the trial court erred in its application of Rule 1-341. Petitioner references various pieces of evidence that the hearing judge considered and argues that the hearing judge did not afford appropriate weight to that evidence. Petitioner contends that the evidence, by itself or by inference, amounts to factual disputes with regard to substantial justification for the causes of action she brought against Respondents. Petitioner generally refers to alleged incorrect legal determinations made by the hearing judge, and specifically refers to the hearing judge's alleged reliance on the grant of summary judgment and then a renewed motion for judgment as the basis for finding no substantial justification in the claims she brought against Respondents. 6 Petitioner contends that simply because the hearing judge dismissed two of her claims does not necessarily mean that those claims lacked substantial justification.

Lastly, Petitioner urges that because she believed that unethical billing practices were occurring, regardless of their legality or ethicality, the evidence was sufficient to create substantial justification for her claims. To the contrary, Respondents contend that the hearing judge was not clearly erroneous in finding no substantial justification for the claims brought by Petitioner. Additionally, Respondents posit that we do not need to reach the second question because there is no gap in Maryland law relating to how to calculate attorney's fees. We essentially agree and will discuss our reasons in detail later in the opinion.

Rule 1-341 dictates the remedial authority of the court in any civil action to require a party to pay an opposing party's attorney's fees for unjustified proceedings. Rule 1-341(a) provides: In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party of the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys' fees, incurred by the adverse party in opposing it. Rule 1-341 constitutes a limited exception to the American Rule, which is that, generally, "litigants pay their own attorney's fees regardless of the lawsuit's outcome." Johnson v. Baker , 84 Md. App. 521 , 527, 581 A.2d 48 , 51 (1990), cert. denied , 322 Md. 131 , 586 A.2d 13 (1991) (citing Sierra Club v. U.S. Army Corps of Engineers , 776 F.2d 383 , 390 (2d Cir. 1985) ). As we have so stated, "[I]t is clear from the history of the Rule, and the case law interpreting it, that Rule 1-341 was intended to function primarily as a deterrent" against abusive litigation.

Worsham v. Greenfield , 435 Md. 349 , 369, 78 A.3d 358 , 371 (2013) ; see also Zdravkovich v. Bell Atlantic-Tricon Leasing Corp. , 323 Md. 200 , 212, 592 A.2d 498 , 504 (1991) ("[ Rule 1-341's] purpose is to deter unnecessary and abusive litigation."). Despite its capacity as a deterrent, Rule 1-341 should not be construed as a punishment but merely as a mechanism to place "the wronged party in the same position as if the offending conduct had not occurred." Major v. First Virginia Bank-Central Md. , 97 Md. App. 520 , 530, 631 A.2d 127 , 132 (1993), cert. denied , 334 Md. 18 , 637 A.2d 1191 (1994) ; see also Beery v. Md. Med. Laboratory, Inc. , 89 Md. App. 81 , 102, 597 A.2d 516 , 526-27 (1991), cert. denied , 325 Md. 329 , 600 A.2d 850 (1992) ("[T]he court must be guided by the principle that ... despite our occasional use of the word 'sanction,' [ Rule 1-341 ] is not punitive but is intended merely to compensate the aggrieved party for their reasonable costs and expenses, including reasonable attorney's fees[.]"). Because the rule serves as a deterrent and is intended to compensate as opposed to punish, an award of attorney's fees is considered "an 'extraordinary remedy,' which should be exercised only in rare and exceptional cases." Barnes v. Rosenthal Toyota, Inc. , 126 Md. App. 97 , 105, 727 A.2d 431 , 435 (1999) (quoting Black v. Fox Hills N. Cmty.

Assn. Inc. , 90 Md. App. 75 , 83, 599 A.2d 1228 , 1232 (1992) ); see also Major , 97 Md. App. at 530 , 631 A.2d at 132 ("[A]warding attorney's fees under this rule is an extraordinary remedy, and it should be used sparingly."); Art Form Interiors, Inc. v. Columbia Homes, Inc. , 92 Md. App. 587 , 595, 609 A.2d 370 , 374 (1992) ("[ Rule 1-341 ] is reserved for the rare and exceptional case."); Legal Aid Bureau, Inc. v. Farmer , 74 Md. App. 707 , 722, 539 A.2d 1173 , 1180 (1988) (" Rule 1-341 represents a limited exception to the general rule .... It is not intended to punish legitimate advocacy."). Judges must cautiously award attorney's fees to avoid firing "judicially guided missiles" at innovative legal causes, thereby chilling access to the courts.

Legal Aid Bureau, Inc. v. Bishop's Garth Assocs. Ltd. P'ship , 75 Md. App. 214 , 224, 540 A.2d 1175 , 1180, cert. denied , 313 Md. 611 , 547 A.2d 188 (1988) ; see also Dent v. Simmons , 61 Md. App. 122 , 128, 485 A.2d 270 , 272-73 (1985) ("A litigant ought not be penalized for innovation or exploration beyond existing legal horizons unless such exploration is frivolous."); Bohle v. Thompson , 78 Md. App. 614 , 639, 554 A.2d 818 , 830, cert. denied , 316 Md. 364 , 558 A.2d 1206 (1989) ("A person has a right to 'lose' within the judicial system without incurring the added imposition of paying the other side's attorney's fees"). Therefore, judges have the responsibility of properly applying the rule to calibrate its application such that abusive practices are deterred and aggrieved parties are compensated without stunting the development of the law. See Needle v. White , 81 Md. App. 463 , 470-71, 568 A.2d 856 , 860.

As the Court of Special Appeals explained in Needle : The objective of the Rule is to fine-tune the judicial process by eliminating the abuses arising from ... litigation that is clearly without merit. The inherent danger ... is that [overzealous] pursuit of the objective may result in ... stifling the enthusiasm or chilling the creativity that is the very lifeblood of the law. * * * Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties. Id. at 470-72 , 568 A.2d 856 , 860. (internal quotations omitted) (internal citations omitted).

Rule 1-341 requires a court to make two separate findings, each with different, but related, standards of review. Inlet Assocs. v. Harrison Inn Inlet, Inc. , 324 Md. 254 , 267-68, 596 A.2d 1049 , 1056 (1991). The judge must first find that the conduct of a party during a proceeding, in defending or maintaining the action, was without substantial justification or was done in bad faith. Id.

An appellate court reviews this finding for clear error or an erroneous application of the law. Id. Upon review, the evidence is viewed "in a light most favorable to the prevailing party." Liberty Mut. Ins.

Co. v. Md. Automobile Ins. Fund , 154 Md. App. 604 , 609, 841 A.2d 46 , 49 (2004). The burden of demonstrating that a court committed clear error falls upon the appealing party. Sydnor v. Hathaway , 228 Md. App. 691 , 726, 142 A.3d 658 , 678, cert. denied , 450 Md. 442 , 149 A.3d 558 (2016).

So long as "there is any competent material evidence to support the factual findings of the [ ] court, those findings cannot be held to be clearly erroneous." Major , 97 Md. App. at 531 , 631 A.2d at 132 . Next, the judge must separately find that the acts committed in bad faith or without substantial justification warrant the assessment of attorney's fees. Inlet Assocs. , 324 Md. at 267 -68 , 596 A.2d at 1056 . An appellate court reviews this finding under an abuse of discretion standard.

Id. So long as the hearing judge exercises his or her discretion reasonably, an appellate court will not reverse the judgment under review. See University of Maryland Medical System Corp. v. Kerrigan , 456 Md. 393 , 401, 174 A.3d 351 , 356 (2017) ("[A]ppellate courts should be reticent to substitute their own judgment for that of the trial court unless they can identify clear abuse[.]") (internal quotation marks omitted). In order to find that a party owes attorney's fees pursuant to Rule 1-341, a court must first find that the action was brought in either bad faith or without substantial justification.

URS Corp. v. Fort Myer Construction Corp. , 452 Md. 48 , 72, 156 A.3d 753 , 767 (2017). Although a finding of bad faith may overlap with a finding of no substantial justification, the two prongs operate disjunctively and as a necessary step prior to the imposition of attorney's fees. See, e.g., Blanton v. Equitable Bank, Nat'l Ass'n , 61 Md. App. 158 , 163, 485 A.2d 694 , 697 (1985). In the context of Rule 1-341, we have defined bad faith as "vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons." Inlet Assocs. , 324 Md. at 268 , 596 A.2d at 1056 .

Because there are no findings by the hearing judge that Petitioner acted in bad faith, we have nothing under the bad faith prong of Rule 1-341 to review. Century I Condominium Ass'n, Inc. v. Plaza Condominium Joint Venture , 64 Md. App. 107 , 116, 494 A.2d 713 , 718 (1985) ("[B]ecause there is no definite indication of the judge's views of the facts, there is no opportunity for the application of the clearly erroneous rule.") (internal citation omitted). 7 For a claim or litigation position to lack substantial justification, a party must have no "reasonable basis for believing that the claims would generate an issue of fact for the fact finder," see Inlet Assocs. , 324 Md. 254 , 268, 596 A.2d at 1056 , and the claim or litigation position must not be "fairly debatable, [must] not [be] colorable, or [must] not [be] within the realm of legitimate advocacy." See URS Corp. , 452 Md. at 72 -73 , 156 A.3d at 768 (footnotes omitted). It is legal error for a court "to determine a lack of substantial justification from the vantage point of judicial hindsight because hindsight, judicial or otherwise, is always 20/20, irrespective of any astigmatism foresight may suffer." Bishop's Garth Assocs. Ltd. P'ship , 75 Md. App. at 222 , 540 A.2d at 1179 (citing Century I Condominium Ass'n, Inc. v. Plaza Condominium Joint Venture , 64 Md. App. 107 , 118, 494 A.2d 713 , 719 (1985) ); see also Needle , 81 Md. App. at 476 , 568 A.2d at 862-63 ("Lack of substantial justification, we said, may not be determined from the vantage point of judicial hindsight."); Kelley v. Dowell , 81 Md. App. 338 , 342-43, 567 A.2d 521 , 523 (1990) ("[T]he trial judge, in awarding attorney's fees, engaged in precisely the type of judicial hindsight ... that we found to be erroneous in Legal Aid v. Bishop's Garth .

"). While avoiding the trap of utilizing hindsight, a court must conduct "an examination of the merits" under the totality of the circumstances presented to the court when assessing whether a claim has substantial justification. See Kelley , 81 Md. App. at 344 , 567 A.2d at 524 ; Bohle , 78 Md.App. at 639 , 554 A.2d at 830 . Where a party has no evidence to support its allegations, the proceedings lack substantial justification from the outset.

See Worsham v. Greenfield , 187 Md. App. 323 , 342-43, 978 A.2d 839 , 850 (2009) (explaining that "there was not one scintilla of evidence" to support the claims alleged and that the claims were not substantially justified because "[they] lack[ed] any basis in law or fact" (citing Johnson v. Baker , 84 Md. App. 521 , 529, 581 A.2d 48 , 52 (1990) ) (emphasis added); DeLeon Enterprises, Inc. v. Zaino , 92 Md. App. 399 , 418, 608 A.2d 828 , 838 (1992) (explaining that where there was no evidence of an essential element of misrepresentation, the parties, nonetheless, lacked substantial justification to continue their suit after discovery). Additionally, frivolous claims, or claims that "indisputably ha[ve] no merit" lack substantial justification. Blanton , 61 Md. App. at 165-66 , 485 A.2d at 698 . In explicating the distinction between frivolous and non-frivolous actions, the Court of Special Appeals stated: The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.

Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if 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 an extension, modification or reversal of existing law. Bishop's Garth Assocs. Ltd. P'ship , 75 Md. App. at 221 -22 , 540 A.2d at 1179 ; see also Inlet Assocs. , 324 Md. at 268 , 596 A.2d at 1056 (explaining that an action is frivolous if "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").

The much frowned-upon "kitchen sink" approach to pleading may well happen to fall under the rubric of frivolous claims worthy of the imposition of attorney's fees. Beery , 89 Md. App. at 103 , 597 A.2d at 527 ("[R]equiring opposing counsel to defend a 'kitchen sink' type of pleading containing multiple claims strung together without any critical thought given to the applicability or merits of each claim [may] very well result in being assessed attorney's fees[.]"). Likewise, evidence supporting a litigation position must be genuine in order to provide substantial justification to the challenge. See Old Frederick Rd., LLC v. Wiseman , 213 Md. App. 513 , 530, 74 A.3d 820 , 830 (2013) ("Serio's creation of a fake contract suggests that his challenge to Wiseman's contract was not a genuine challenge.").

Although evidence must be genuine in order to support a finding of substantial justification for a claim, questions of credibility are factual issues to be resolved by the finder of fact, and the mere finding that testimony or evidence lacks credibility does not, in itself, create a basis for attorney's fees. See Bishop's Garth Assocs. Ltd. P'ship , 75 Md. App. at 223 , 540 A.2d at 1179 ("[I]t is the province of the jury to assess credibility when confronted with conflicting testimony. The fact that a jury may believe one witness instead of others does not mean that the party whose witnesses were not believed defended in 'bad faith' or 'without substantial justification.' ").

A claim that advances a reasonable position in light of legal ambiguity has substantial justification. See Toliver v. Waicker , 210 Md. App. 52 , 72, 62 A.3d 200 , 212, cert. denied , 432 Md. 213 , 68 A.3d 287 (2013) (holding that there was no error for a trial court to deny a request for sanctions when there remained an open question as to the status of the law in that case); see also Newman v. Reilly , 314 Md. 364 , 380-82, 550 A.2d 959 , 967-68 (1988) (explaining that Mr. Reilly had substantial justification for his cause of action based upon his interpretation of an ambiguous statute). When considering whether a claim lacks substantial justification, the lack thereof cannot be found exclusively on the basis that "a court rejects the proposition advanced by counsel and finds it to be without merit." State v. Braverman , 228 Md. App. 239 , 260, 137 A.3d 377 , 389 (2016). Generally, survival of summary judgment indicates that a claim likely has substantial justification.

Braverman , 228 Md. App. at 261 , 137 A.3d at 390-91 ("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."). Survival of motions for judgment may generate a presumption of substantial justification for claims. Needle , 81 Md. App. at 479 , 568 A.2d at 864 ("If the evidence was sufficiently debatable to deny the [three] motions [for judgment] throughout the trial, it was sufficient to justify Gerst in bringing and continuing the case."); see also Havilah Real Property Servs., LLC v. Early , 216 Md. App. 613 , 630-31, 88 A.3d 875 , 885-86 (2014) (affirming the holding in Needle that survival of motions for summary judgment and judgment at trial creates a presumption of a claim having substantial justification). And, merely because a cause of action is dismissed does not mean a party brought the claim without substantial justification.

See Black v. Fox Hills N. Cmty. Ass'n, Inc. , 90 Md. App. 75 , 84, 599 A.2d 1228 , 1232 (1992) (" Rule 1-341 applies only when a suit is patently frivolous and devoid of any colorable claim."). In the present case, we review three of Petitioner's claims to determine if the hearing judge appropriately concluded that each of the claims lacked substantial justification. First, we address the claims of fraudulent inducement and negligent misrepresentation together because neither claim survived Respondents' motion for summary judgment.

With regard to the claim for fraudulent inducement, the hearing judge explained: "At summary judgment, this Court found that Dr. Christian failed to establish any material misrepresentation made by [Respondents] and failed to show that [Respondents] had any intent to defraud Dr. Christian." The hearing judge then explained the basis of this finding as follows: In Dr. Christian's deposition she said that she consulted with her mentors about the opportunity and decided to take the position. Dr. Christian did not mention any representations by [Respondents] that caused her to enter [into] the employment contract. Because Dr. Christian failed to bring forth a fraudulent misrepresentation, this claim was also without substantial justification. Then, in finding that "Dr. Christian failed to plead or prove any facts to support a claim of [n]egligent [m]isrepresentation," the hearing judge explained: "There is no evidence that Dr. Hamersley intended Dr. Christian to act on any omission or negligent misrepresentation," and he compared this to being "[s]imilar to the issue of [f]raud in the [i]nducement." The hearing judge was not clearly erroneous in concluding that the fraudulent inducement and negligent misrepresentation claims brought by Petitioner had no substantial justification.

Petitioner contends that the hearing judge should have been persuaded that there was substantial justification for the two claims. 8 Given the deference owed to a court when reviewing for clear error, we disagree with Petitioner's contention. This Court agrees with the findings of the hearing judge that there was not even "a scintilla of evidence" showing either that Respondents' intent was to defraud Petitioner or that Respondents misrepresented, explicitly or by omission, material information in order to induce Petitioner to enter into an employment agreement. 9 See Worsham , 187 Md.