Bond v. Messerman

DAVIS, J. Appellant, William C. Bond, filed suit against appellees, Gerald A. Messerman and Sheppard Pratt Health System, Inc. (Sheppard Pratt) on February 4, 2003 in the Circuit Court for Baltimore City, alleging legal malpractice, negligent mis ⁹⁷ representation, breach of fiduciary duty and constructive fraud, stemming from Messerman’s failure to expunge appellant’s Ohio juvenile records. On April 11, 2003, appellant filed a motion to dismiss for lack of personal jurisdiction and a hearing on the motion was held on May 14, 2003. The Court (Matricciani, J.) held the matter sub cuña, and issued a written Order on May 16, 2003, granting appellant’s motion, ruling: “[Ujnder the facts and circumstances of this case, the court can exercise neither general nor specific personal jurisdiction over [appellee].” On May 3, 2004, another member of the circuit court (Berger, J.) issued an oral ruling, granting the summary judgment motion filed by Sheppard Pratt Health Systems. From the circuit court’s grant of Messerman’s motion to dismiss and Sheppard Pratt’s motion for summary judgment, Bond noted this appeal, presenting two questions for our review: I. Did the circuit court err by ruling [that] it could not exercise personal jurisdiction over Messerman?

II

Did the circuit court err in granting summary judgment on Count V (negligence) in favor of [Sheppard Pratt]? Finding no error, we shall affirm the judgment. BACKGROUND On June 19, 1981, in the garage of his grandparents’ home in Chagrin Falls, Ohio, little more than seven months before his eighteenth birthday, appellant bludgeoned his father to death with a hammer’. After murdering his father, appellant stuffed the body into the trunk of his father’s car, drove it to an isolated location, and left the car there.

A warrant for appellant’s arrest was issued three days later. Messerman, an Ohio attorney, was retained to represent appellant. On July 1, 1981, Judge Frank G. Lavrich, of the Juvenile Division of the Geauga County, Ohio Common Pleas Court, heard sufficient evidence “tending to show that there is reason to believe that William Rovtar[ 1 ] did commit the of ⁹⁸ fense as charged in the complaint and that said act would constitute a felony if committed by an adult.” The judge ordered that appellant be held at the Geauga Juvenile Center and undergo psychological testing. The fact that the hearing occurred, but not its contents, was reported in a July 9, 1981, article in a local newspaper, the Chagrin Valley Herald Sun.

The article stated: Geauga County Juvenile Judge Frank Lavrich ruled last week that there is sufficient grounds for the arrest of William Rovtar, 17, charged with the murder June 19 of his father, Mirko Rovtar, Jr., 37, in Bainbridge Township. Lavrich made his decision after hearing testimony and evidence for nearly 2lh hours. He also ordered psychiatric testing for Rovtar, required for juveniles under Ohio law. According to Robert Shields, chief probation officer for Geauga County, psychiatric testing of Rovtar will begin next week at the Ohio Youth Commission’s Scioto Village Diagnostic Center in Powell, Ohio.

Shields said that in addition to the psychiatric testing, a social investigation of the boy has begun. Rovtar is a student at University School in Pepper Pike, where he was to begin his senior year in September. On August 31, 1981, based on an agreement Messerman negotiated with the prosecutor, Judge Lavrich agreed to retain jurisdiction in the Juvenile Division, and he accepted appellant’s guilty plea to his father’s murder. Part of the plea agreement included appellant’s commitment to a psychiatric hospital, and Messerman located and recommended Sheppard Pratt, in Baltimore County, Maryland, as a suitable hospital.

Appellant alleges that he and Messerman “discussed the concept of expungement in 1981, prior to the proffer of the delinquent plea ..., its legal effects under Ohio law and the importance to [appellant] of being able to expunge his juvenile record.” ⁹⁹ The juvenile court’s order described the disposition preliminarily imposed: William Rovtar was committed to the permanent custody of the Ohio Youth Commission.... Execution of the commitment [sic] was suspended pending an evaluation of 60 day duration at a Mental Health facility, the Pratt Shephard Hospital [sic] regarding the suitability and feasibility of said William Rovtar being committed to such facility for treatment, care and counseling. Said hospital to submit to the Court a report accepting said juvenile as a suitable patient along with a diagnosis, prognosis, program of treatment and care and the projected duration of such program. In a September 1, 1981 article in the Geauga Times Leader, the prosecutor, Craig Albert, was quoted as saying, “Commitment cannot last beyond his 21st birthday.” In fulfillment of the juvenile court’s order, after appellant spent approximately sixty days at Sheppard Pratt, Judge Lavrich received the following report from Kay Pak Roller, M.D., a psychiatrist at the hospital: William Rovtar has been an inpatient at this facility since September 23, 1981.

He has been receiving intensive psychiatric treatment which include [sic] three times per week individual psychotherapy and four times per week group psychotherapy, including 24 hour nursing care and other therapies. William has been responding to the therapeutic approach. Currently, he uses less denial and has gained better insight into his problems. Without intensive psychotherapy in the hospital setting, he is considered to be suicidal as he became aware of his previous violent act.

Thus, it is strongly recommended of [sic] long term hospitalization in order to work through his conflicts and depression. His prognosis appears to be good since he is responding to the intensive psychotherapy in the hospital setting. After receiving that report and holding a hearing, Judge Lavrich ordered final disposition on December 11,1981: ¹⁰⁰ The Sheppard and Enoch Pratt Hospital having duly made its diagnosis and treatment plan for the respondent, William Rovtar and the Court finding same to be appropriate and in the best interest of the minor and the community interest, same is hereby approved. William Rovtar is hereby placed in the temporary custody of the Sheppard and Enoch Pratt Hospital for care and treatment.

Sheppard Pratt released appellant from its custody on July 31, 1982; appellant spent less than a year in the hospital. Appellant’s father’s estate was settled in 1982. On June 14, 1982 (shortly before appellant’s release), Messerman sent a letter to appellant at Sheppard Pratt, advising him that his grandfather, as executor of his father’s estate, had filed a declaratory judgment action regarding the estate. Paragraph 9 of the complaint in that case alleged: 9.

Plaintiff further states that on August 31, 1981, WILLIAM C. ROVTAR was found to be a “delinquent” by causing the death of his father, MIRKO L. ROVTAR, JR., and remanded to the permanent custody of the Ohio Youth Commission but the execution of the commitment was suspended pending an evaluation of sixty (60) days duration at a mental health facility; on December 11, 1981 the Juvenile Court Division of the Court of Common Pleas of Geauga County, Ohio placed WILLIAM C. ROVTAR in the temporary custody of the SHEPPARD & ENOCH PRATT HOSPITAL in Towson, Maryland for care and treatment, as is more particularly set forth in Case No. 81J379 of the Records of the Juvenile Court Division of the Court of Common Pleas, Geauga County, Ohio. Additionally, a motion to intervene in that case was filed by the Insurance Company of North America. The insurer’s motion explained its dilemma: ¹⁰¹ Messerman’s June 14, 1982 letter informed appellant of these issues, and advised him to accept a settlement he was helping to negotiate with the other parties. ¹⁰⁰ Intervenor is uncertain as to whether or not it should pay insurance funds to, William C. Rovtar, due to the fact that said, William C. Rovtar, has been found delinquent by causing the death of decedent, intervenor’s insured.... ¹⁰¹ On September 13, 1982, after another hearing, the juvenile court placed appellant on probation until his twenty-first birthday, requiring him to continue his outpatient treatment with Sheppard Pratt. After appellant turned twenty-one, the court terminated his probation on February 22, 1985.

Later that year, around December 4, 1985, appellant received a letter from his probation officer confirming that his probation had terminated, and explaining that appellant could “file an application, available from this Court, for the expungement of [appellant’s] juvenile record two years from this action.” In 1985, Messerman allegedly told appellant that his “juvenile record would be expunged” and that appellant “would never have to admit to the existence of the juvenile case once the record was expunged.” Appellant alleges that he called Messerman shortly after receiving the probation officer’s letter, reminding Messerman of his desire to have his juvenile records expunged. In a letter of January 17, 1986, addressed to appellant at his St. Paul Street address in Baltimore City, and printed on “Mes-serman & Messerman” law firm stationery, Messerman asked, “Please remind me in two years to file an application for expungement and I will do so.” Appellant called Messerman soon thereafter, saying that because Messerman had been paid $25,000 to represent appellant, 2 Messerman ought to file for expungement without the necessity of a reminder. Mes-serman agreed. Eight years later, appellant wrote to Messerman on May 12, 1994: Dear Gerry, Its [sic] been quite a while since you’ve heard from me.

I’ve been back and forth between Baltimore and Jamaica working as a tennis pro. In the mean time [sic], I’ve been ¹⁰² working very hard to develop myself as a human being and as a writer. It looks like my diligence is about to pay off. I’ve been signed by an L.A. entertainment agency to market the literary and dramatic rights to my book tentatively titled SELF-PORTRAIT of a PATRICIDE.

If I can believe what I’m being told my writing will be received as literature and will make a positive social statement. Presently, I am on a 45 day revision deadline and there are a few documents that I need from you.... 1) I need transcripts of the sentencing. 2) I am missing any records indicating that my juvenile record was expunged. Was it? If it was I need a record of it.

If it wasn’t can we have it expunged now? Soon thereafter, on May 16,1994, Messerman wrote back to appellant at his Cockeysville, Maryland address, this time on the stationery of “Duvin, Cahn, Barnard & Messerman”: Dear Bill: I am glad to hear that you are healthy and creative. I would be delighted to review your book. Is it finished?

I don’t have transcripts of your sentencing. We never ordered any transcripts. I know of none currently available. There is no procedure for expunging your juvenile record.

It is automatically “expunged” in the sense that it is private, confidential and sealed. It is not a criminal record. You don’t have to worry about it. In a June 2,1994 letter, appellant responded: Dear Gerry, Thank you for your quick response to my letter.

I am enclosing two letters, one from the court dated 12/5/85 and one from you dated 1/86. If, as you say in your recent letter, that my record is automatically expunged then why is a reference made in both of the enclosed letters to filing for expungement? Also, if I on my own volition make my case public then does that give the court implied permission to ¹⁰³ make my entire record public based on some kind of public domain theory? I am currently revising my book.

My agent is planning to auction it to publishers either at the end of June or early July. I will send you a revised copy as soon as my revisions are complete. Appellant called Messerman around that same date. During their conversation, Messerman reiterated that the juvenile records were expunged, and again advised appellant that he “would never have to admit to the existence of the juvenile case” and assured appellant that he “had nothing to worry about.” In the fall of 1993, appellant bought a .38 caliber Smith & Wesson revolver from a gun shop on Harford Road, in Baltimore County.

In the spring of 1994, appellant bought a Clock 9mm handgun from the same dealer. Later that year, appellant bought a second dock 9mm and, in the winter of 1994-1995, appellant bought a Beretta .25 caliber pistol; both of those weapons were purchased from a gun shop on Falls Road, just north of Baltimore City. In each of the firearm purchase applications, appellant certified that he had never spent more than thirty consecutive days in a medical institution for treatment of a mental disorder. See Md.Code (2003 RepLVol., 2004 Supp.), Public Safety § 5 — 118(b)(3)(vii) (previously codified at Art. 27 § 442).

Appellant, of course, had spent more than thirty days in such an institution. His affidavit explains: I entered “no” when asked whether I had ever been committed to a mental institution on each of the applications to purchase handguns because Mr. Messerman had told me several times in writing and on the telephone that my juvenile records would be and/or had been expunged and that therefore the matters contained in the records were “deemed never to have occurred” and that I would never have to admit to the existence of the juvenile case. Appellant married Alyson Blum Slavin in 2001. At this point, the chronology of the present case intersects with the ¹⁰⁴ facts recounted in the Fourth Circuit’s opinion in Bond v. Blum, 317 F.3d 385, 390-91 (4th Cir.2003): In the child-custody case of Slavin v. Slavin, commenced in July 2000 and pending in the Circuit Court for Baltimore City, Case No. 95249006/CE 201677, Alyson Slavin Bond sued her former husband, William Slavin, for exclusive custody of their three children.

William Slavin filed a cross-petition for exclusive custody and, in support of his position, introduced into evidence an autobiographical manuscript written by Alyson’s current husband, William Bond, to establish that the home of Alyson and William Bond would not be a suitable place for the three children. Bond’s manuscript was entitled Self-Portrait of a Patricide: How I Got Away with Murder. In 1987, Bond began to write Self-Portrait of a Patricide: How I Got Away with Murder, “the true story of and by William Bond,” which he hoped to market to publishers for profit. The manuscript describes in horrific detail how Bond planned and committed the murder of his father with a hammer, and how his dying father attempted to raise himself off the floor of the garage before Bond delivered the final blows to his neck and head.

It describes Bond wiping away his fingerprints, scrubbing the garage floor, cleaning blood, flesh, and bone from his clothes, ■ and stuffing his father’s dead body in his car’s trunk. Most sinister of all, it depicts a remorseless individual who brags about fooling the police and the juvenile system to “get away scot-free” and even collecting, as planned, the money from his father’s estate. Although verifiable facts of the murder are consistent with the details provided in the manuscript, Bond has now stated in an affidavit that the manuscript is “a highly fictionalized and stylized work,” based on his “juvenile experience.” Bond circulated his manuscript directly and through agents in order to find a publisher, asking for a seven-figure advance. His efforts, however, were unsuccessful.

After some revisions, Bond also gave a copy of the manuscript to Norman Pessin, [a Maryland] attorney who ¹⁰⁵ had represented Bond in various unrelated matters, to help him get the manuscript published, but his efforts, too, failed. Although Pessin thereafter died, his widow retained a copy of the manuscript. Bond met Alyson Slavin in early 1995, after Alyson was separated from her husband, William Slavin. Bond and Alyson continued to see each other until they married in May 2001.

In 1996, shortly after Bond and Alyson met, Bond wrote a lengthy letter to Alyson’s father, Kenneth Blum, Sr., indicating that he intended to marry Alyson and become the stepfather of her children. The letter offered an analysis of individual members of Blum’s family and purported to offer “solutions” to correct perceived deficiencies in the Blum-Slavin extended family. In addition, the letter set forth an expansive financial plan, pursuant to which Bond demanded from Blum a dowry, a salary, establishment of an investment account, purchase of a studio apartment in addition to a house, and a severance package should Bond’s marriage with Alyson not work out. Bond stated to Blum, “You can pay me now or pay me later.” In this letter, Bond also made reference to his personal history, stating that he “had a past,” and that, although it was “none of [Blum’s] business,” it makes “interesting reading.” Blum not only found this letter very disconcerting, considering it to be an attempt to extort money from him, but he also became concerned for the safety of Alyson and her children.

In June 2000, just before the state custody action was commenced, Blum hired a private investigator, Dudley F.B. Hodgson, to look into Bond’s background. At their first meeting, Blum gave Hodgson an overview of his dealings with Bond and expressed his concern over both the safety of his grandchildren and Bond’s effort to “shake him down” for money. Blum gave Hodgson a copy of the letter that Bond had sent him and told Hodgson that he had heard that Bond may have had some problems with his family involving violence in Ohio. In the course of his investigation, Hodgson learned about the murder of Bond’s father and contacted the Bainbridge, ¹⁰⁶ Ohio police department, obtaining copies of the police report and other documents relating to the homicide investigation.

Hodgson reported these findings to Blum, and at Blum’s request, Hodgson went to the home of Miriam Pessin, the widow of Norman Pessin, believing that Bond had also tried to “shake Pessin down” for money before he died. When Hodgson interviewed Miriam Pessin in April 2001 and asked her if she had any information that would be helpful in his investigation of Bond, she told Hodgson that she did have, stored in a box, a loose-leaf copy of a manuscript that Bond authored. Mrs. Pessin stated that Bond had given a copy of the manuscript to her husband for him to read for the purposes of locating a publisher. She later testified that this box of materials was not part of Pessin’s legal files, which he carefully kept separate, and that Bond had also given her portions of the manuscript to read.

Not wanting to retain the manuscript in her home, Mrs. Pessin gave it to Hodgson. Hodgson made a copy of the manuscript and gave copies to Alyson’s ex-husband, William Slavin, and the attorneys representing him in the state custody action. William Slavin’s attorneys made the manuscript an exhibit during the deposition of Alyson in July 2001 and intended to make it a part of the custody litigation in the Circuit Court for Baltimore City, in which a hearing was scheduled for December 10, 2001. For the sole purpose of preventing further use of the manuscript in the proceedings before the Baltimore City Circuit Court, Bond registered a copy of his manuscript with the Copyright Office in August 2001.

Immediately after registering the manuscript, Bond commenced this action for copyright infringement, naming as defendants Blum, Blum’s son, Hodgson, William Slavin, and Slavin’s attorneys. He requested a preliminary and permanent injunction prohibiting the use of the manuscript by the defendants for any purpose and requiring the return of all existing copies. See also Bond v. Slavin, 157 Md.App. 340 , 851 A.2d 598 (2004). Ultimately, the Fourth Circuit held that use of appellant’s ¹⁰⁷ book in the domestic proceedings amounted to “fair use” under 17 U.S.C. § 107 .

In appellant’s complaint in the present case, he alleges that during May 2001, Dudley Hodgson contacted the Maryland State Police to tell them that appellant had been committed to Sheppard Pratt as a juvenile for the death of his father. Hodgson also gave the State Police a copy of appellant’s manuscript and an Ohio police report, which included Ohio court records. On investigating this information, the State Police also learned of appellant’s handgun purchases and, upon their request, the Geauga County Court of Common Pleas sent copies of court records indicating that appellant had not truthfully answered the question as to whether he had ever been institutionalized for more than thirty days. With this information, the State Police obtained a warrant and arrested appellant on May 25, 2001.

The State’s Attorney for Baltimore City charged appellant with illegally possessing eight handguns and, in the Circuit Court for Howard County, the Attorney General’s Office charged appellant with two counts of providing false information on his handgun purchase applications. On or about July 20, 2001, Sheppard Pratt received a subpoena requiring the hospital to provide to the State’s Attorney’s Office “all certified medical records pertaining to” appellant’s inpatient treatment. In response, records custodians at Sheppard Pratt sent copies of all their records on appellant — both medical records and mental health records — to the State’s Attorney’s Office. The subpoena Sheppard Pratt received was irregular.

In a memorandum opinion issued in the course of the City’s prosecution, Judge Allen L. Schwait explained: The defendant argues that highly confidential privileged records of his treatment at Sheppard Pratt were subpoenaed by way of a grand jury subpoena despite the fact that a grand jury was never impaneled to investigate the defendant. As a result of the improper subpoena, the State received this confidential and privileged information without protest and without any notification to the defendant. ¹⁰⁸ The subpoena was issued by the State’s Attorney’s Office and the circumstances of its issuance were stipulated to in lieu of testimony at the motions hearings. Assistans [sic] State’s Attorney Douglas Ludwig accepted full responsibility for what was, apparently, an unintentional issuance of a subpoena duces tecum with language that indicated the subpoena was a grand jury subpoena. The particular language appeared at the bottom of the subpoena, just above a Circuit Court Judge’s signature, as the following paragraph: “The above should be furnished to the State’s Attorney’s Office five (5) days after service for it’s [sic] appearance and use in the Circuit Court for Baltimore City.

You are further directed, in accordance with the secrecy of investigations before the Grand Jury, not to disclose the existence of the Subpoena Duces Tecum.” Additionally, the subpoena was captioned “STATE VS. SPECIAL INVESTIGATION,” with no case number, although it was actually issued in the course of State v. Bond, Case nos. 201176015-16. Sheppard Pratt’s Records Custodian testified in a deposition that she knew the records request was not a court order, but she also testified that she immediately complied with the request, and treated it as a court order, because Judge Heard’s signature appeared on the document. Sheppard Pratt’s written policy governing records requests provided: SUBPOENAS, COURT ORDERS Subpoenas can come through the mail, be personally delivered or may come via fax.

A subpoena must have a copy of a certificate to the patient and/or their attorney notifying her/her/them [sic] that the records are being subpoenaed, the date of the hearing and that they have the option to file a Protective Order or Motion to Quash. If there is no certificate, a letter is sent to the attorney advising them of the statutes. ¹⁰⁹ There was no such certifícate accompanying the records request to Sheppard Pratt. Sheppard Pratt’s policy went on to state: CRIMINAL PROCEEDINGS: If a patient has committed a criminal act and the records are being subpoenaed for court — THEY DO NOT REQUIRE A CERTIFICATE OR A RELEASE. The records MUST be sent out.

IF the patient is a witness to a criminal act or is somehow involved in the case, but the patient IS NOT THE ONE THE CHARGES ARE BEING BROUGHT AGAINST, we must have a certificate or a release. Finally, the policy stated: COURT ORDER from a judge — often regarding a child— WE MUST SEND OUT ASAP, /s/_with seal of the court at the bottom does not have to be actually signed by the judge. The judge does NOT HAVE TO literally sign. Neither of the firearms prosecutions resulted in a conviction.

The Baltimore City case was dismissed, and in Howard County, by the parties’ stipulation, the case was placed on the “stet” docket on condition that appellant forfeit his firearms to the State and not possess any other guns for one year. LEGAL ANALYSIS I Appellant argues that the circuit court could assert personal jurisdiction over Messerman under several of Maryland’s long-arm jurisdiction provisions: Md.Code (2002 Repl.VoL), Cts. & Jud. Proc. (C.J.), § 6 — 103(b)(1), (3), or (4). 3 In response, ¹¹⁰ Messerman generally argues that the due process clause of the Fourteenth Amendment prohibits Maryland from asserting jurisdiction over him because he lacks minimum contacts with the State, but he also argues that the facts of this case do not fit C. J. § 6 — 103(b)(3) or (b)(4). 4 In Geelhoed v. Jensen, 277 Md.