612
VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Scalia, J., concurring
costs were awarded for a reason that the catalyst theory would support, but today's holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co., 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because "the granting of [appellee's] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal." And that case is irrelevant to the meaning of "prevailing party," because it was a case in equity. While, as Mansfield observed, costs were awarded in actions at law to the "prevailing party," see 111 U. S., at 387, an equity court could award costs "as the equities of the case might require," Getz v. Johnston, 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn, 96 Md. 8, 12-13, 53 A. 576, 577 (1902) ("The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie" (internal quotation marks and citation omitted)).1 The other state or state-law cases the dis-1 The jurisdiction that issued Baldwin has used the phrase "prevailing party" frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691-692 (1924) (an equity decision noting that "on reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant" (internal quotation marks and citation omitted)). See also, e. g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) ("Md. Rule 604a provides: 'Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment' "); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) ("We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below"); Chillum-Adelphi Volunteer Fire Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) ("At common law, an arbitration award became a cause of action in favor of the prevailing party"); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) ("[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite").
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