Bond v. Messerman

HARRELL, J. This particular case began when William C. Bond (Petitioner) filed suit against Gerald A. Messerman (Respondent), an attorney admitted to practice law in Ohio, on 4 February 2003 ⁷¹⁰ in the Circuit Court for Baltimore City, alleging professional malpractice, negligent misrepresentation, breach of fiduciary duty, and constructive fraud stemming from legal representation undertaken, and advice given, by Messerman to Bond by letter and telephone conversation regarding the expungement of Bond’s Ohio juvenile records and the failure to expunge those records. The Circuit Court’s dismissal of the suit, and the Court of Special Appeals’s affirmance of that judgment, reaches us because we granted Bond’s writ of certiorari to consider: 1. Whether a lawyer, or other professional, has transacted business or performed a service in Maryland under Courts and Judicial Proceedings, § 6—103(b)(1)[ 1 ] for purposes of establishing personal jurisdiction when the lawyer, never physically present in Maryland, provides negligent professional advice by mail and telephone to a person the lawyer knows resides in Maryland and will rely upon the negligent professional advice in Maryland; 2. Whether a lawyer, or other professional, “causes tortious injury in the State by an act or omission in the State” under Courts and Judicial Proceedings, § 6-103(b)(3)[ 2 ] when the lawyer provides negligent professional advice by mail or telephone, never physically entering Maryland, to a person he knows resides in Maryland and who will rely upon the negligent advice in Maryland; and 3.

Whether communicating negligent legal advice into Maryland is a sufficient minimum contact to establish ⁷¹¹ personal jurisdiction under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Bond v. Messerman, 388 Md. 404 , 879 A.2d 1086 (2005). I. The Court of Special Appeals stated succinctly the relevant facts in its reported opinion in the present case, 162 Md.App. 93 , 873 A.2d 417 (2005): On June 19, 1981, in the garage of his grandparents’ home in Chagrin Falls, Ohio, little more than seven months before his eighteenth birthday, [Bond] bludgeoned his father to death with a hammer. After murdering his father, [Bond] 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 [Bond]’s arrest was issued three days later. Messerman, an Ohio attorney, was retained to represent [Bond]. 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[ 3 ] did commit the offense as charged in the complaint and that said act would constitute a felony if committed by an adult.” The judge ordered that [Bond] be held at the Geauga Juvenile Center and undergo psychological testing. 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 [Bond]’s guilty plea to his father’s murder.

Part of the plea agreement included [Bond]’s commitment to a psychiatrist hospital, and Messerman located and recommended Sheppard Pratt, in Baltimore County, Maryland, as a suitable ⁷¹² hospital. [Bond] 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 [Bond] of being able to expunge his juvenile record.” The juvenile court’s order described the disposition preliminarily imposed: [Bond] 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 feasability of said [Bond] 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 fulfillment of the juvenile court’s order, after [Bond] spent approximately sixty days at Sheppard Pratt, Judge Lavrich received [a] report from Kay Pak Koller, M.D., a psychiatrist at the hospital. [The report stated that Bond was responding to the therapeutic approach and that his prognosis appeared to be good.] On September 13, 1982, after another hearing, the juvenile court placed [Bond] on probation until his twenty-first birthday, requiring him to continue his outpatient treatment with Sheppard Pratt.

After [Bond] turned twenty-one, the court terminated his probation on February 22,1985. Later that year, around December 4, 1985, [Bond] received a letter from his probation officer confirming that his probation had terminated, and explaining that [Bond] could “file an application, available from this Court, for the expungement of [Bond’s] juvenile record two years from this action.” In 1985, Messerman allegedly told [Bond during a telephone ⁷¹³ call placed by Bond to Messerman] that his “juvenile record would be expunged” and that [Bond] “would never have to admit to the existence of the juvenile case once the record was expunged.” [Bond] 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 [Bond] at his St. Paul Street address in Baltimore City, and printed on “Messerman & Messerman” law firm stationery, Messerman asked, “Please remind me in two years to file an application for expungement and I will do so.” [Bond] called Messerman soon thereafter, saying that because Messerman had been paid $25,000 to represent [Bond],[footnote states: [Bond] does not contend that he paid Messerman] Messerman ought to file for expungement without the necessity of a reminder. Messerman agreed.

Eight years later, [Bond] 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 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? ⁷¹⁴ Soon thereafter, on May 16, 1994, Messerman wrote back to [Bond] at his Cockeysville, Maryland address, this time on the stationary 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, [Bond] 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 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. [Bond] called Messerman around that same date. During their conversation, Messerman reiterated that the juvenile records were expunged, and again advised [Bond] that he “would never have to admit to the existence of the juvenile case” and assured [Bond] that he “had nothing to worry about.” In the fall of 1993, [Bond] bought a .38 caliber Smith & Wesson revolver from a gun shop on Harford Road, in Baltimore County. In the spring of 1994,[Bond] bought a ⁷¹⁵ Glock 9mm handgun from the same dealer.[ 4 ] Later that year, [in the autumn of 1994, Bond] bought a second Glock 9mm and, in the winter of 1994-1995, [Bond] bought a Beretta .25 caliber pistol; both of those weapons were purchased from a gun shop on Falls Road, just north of Baltimore City.[Bond also completed an application to purchase a .38 caliber Smith & Wesson handgun in the summer of 2001.] In each of the firearm purchase applications, [Bond] 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 Repl.Vol., 2004 Supp.), Public Safety § 5—118(b)(3)(vii) (previously codified at Art. 27 § 442). [Bond], 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 wilting 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 had to admit to the existence of the juvenile case. (Some alterations in original). Bond, 162 Md.App. at 97-103 , 873 A.2d at 419-23 .

A series of equally unfortunate events unfolded over the next several years, see Bond v. Slavin, 157 Md.App. 340 , 851 A.2d 598 (2004), and Bond v. Blum, 317 F.3d 385, 390-91 (4th Cir.2003). Because those events are of little relevance to the question of specific personal jurisdiction presented here, we need not describe them in detail. Suffice it to state that a copy of the manuscript and Bond’s Ohio juvenile court records came into the possession of the Maryland State Police, who, ⁷¹⁶ thereafter, learned of Bond’s handgun purchases and his mendacities in answering on the four gun permit applications that he had not been institutionalized for more than thirty days. As a result of obtaining this information, the State Police procured a warrant for Bond and arrested him on 25 May 2001.

Bond, 162 Md.App. at 107 , 873 A.2d at 426 . As the Court of Special Appeals explained in its opinion: The State’s Attorney for Baltimore City charged [Bond] with illegally possessing eight handguns and, in the Circuit Court for Howard County, the Attorney General’s Office charged [Bond] with two counts of providing false information on his handgun purchase applications.[ 5 ] 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” [Bond’s] inpatient treatment. In response, records custodians at Sheppard Pratt sent copies of all their records on [Bond]—both medical records and mental health records—to the State’s Attorney’s Office.[ 6 ] 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 [Bond] forfeit his ⁷¹⁷ firearms to the State and not possess any other guns for one year.

Bond, 162 Md.App. at 107 , 873 A.2d at 425 . As noted at the beginning of our opinion, Bond filed suit against Messerman on 4 February 2003 in the Circuit Court for Baltimore City alleging legal malpractice, negligent misrepresentation, breach of fiduciary duty, and constructive fraud because Messerman failed to expunge Bond’s Ohio juvenile records and gave assertedly incorrect legal advice by telephone and letter. On 11 April 2003, Messerman filed a motion to dismiss for lack of personal jurisdiction. After conducting a hearing on the motion, the trial judge entered a written Order on 20 May 2003 granting Messerman’s motion and dismissing the case.

Bond appealed to the Court of Special Appeals, which affirmed the Circuit Court’s judgment. The intermediate appellate court concluded that “ [although it would appear that Messerman’s conduct brought him within the purview of § 6—103(b)(1),” the court turned “to the question of whether exercising jurisdiction on these facts comports with the Due Process clause.” Bond, 162 Md.App. at 113 , 873 A.2d at 428 . Quoting from Burger King Corp. v. Rudzewicz, 471 U.S. 462 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985), the Court of Special Appeals noted that, rather than focusing on the foreseeability of causing injury in the forum State by one’s actions outside the forum State, the “foreseeability that is critical to due process analysis [ ] is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court [in the forum State].” Bond, 162 Md.App. at 113 , 873 A.2d at 429 . The panel of the court observed that, of Messerman’s relevant seven contacts with Maryland alleged in the cause of action, only two were initiated by Messerman: the two letters written by him.

Bond, 162 Md.App. at 117 , 873 A.2d at 431 . The other five contacts were initiated by Bond from Maryland, either by telephone or letter. Id. “Because Messerman’s contacts with Maryland exist[ed] only by virtue of the unilateral conduct of his client,” the court concluded that “requiring Messerman to defend [Bond’s] suit in Maryland would offend ⁷¹⁸ traditional notions of fair play and substantial justice.” Bond, 162 Md.App. at 118 , 873 A.2d at 431 . The two contacts by letter initiated by Messerman, the court determined, were not sufficient to satisfy the minimum required by Due Process.

Id.

III

The Circuit Court granted Messerman’s Motion to Dismiss for Lack of Personal Jurisdiction. A motion to dismiss for lack of personal jurisdiction is made pursuant to Md. Rule 322(a), which provides: (a) Mandatory. The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person.... If not so made and the answer is filed, these defenses are waived.

The defense of lack of personal jurisdiction ordinarily is collateral to the merits and raises questions of law. Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 11-12 , 878 A.2d 567, 573-74 (2005) (citing Judge Paul V. Neimeyer and Linda Shuett, Maryland Rules Commentary 205 (3d ed.2003)). If additional facts are necessary to decide the motion to dismiss for lack of personal jurisdiction, the court may consider affidavits or other evidence adduced during an evidentiary hearing, without transforming the motion to dismiss into a motion for summary judgment. Beyond Systems, Inc., 388 Md. at 12 n. 10, 878 A.2d at 574 n. 10 (“This [standard of review] contrasts with the effect of the trial court’s consideration of matters outside the pleadings on a motion to dismiss for failure to state a claim upon which relief may be granted under Maryland Rule 2-322(b)”); Neimeyer, supra, at 205.

The applicable standard of appellate review of the grant of a motion to dismiss for lack of personal jurisdiction is whether the trial court was legally correct in its decision to dismiss the action against Messerman. See Beyond Systems, Inc., 388 Md. at 12-29 , 878 A.2d at 574-84 (considering the evidence presented to the trial court regarding minimum ⁷¹⁹ contacts of the defendant company with Maryland and concluding that the trial court properly determined that the plaintiff had failed to establish a prima, facie case for personal jurisdiction over the defendants); Jason Pharmaceuticals, Inc. v. Jianas Bros. Packaging Co., Inc., 94 Md.App. 425, 431-34 , 617 A.2d 1125, 1128-30 (1993) (considering the evidence relevant to a determination of whether the defendant business had transacted business in Maryland under § 6-103(b)(1) of the long-arm statute and holding that the trial court erred wdien it concluded that the plaintiff had not transacted business in Maryland by negotiating and entering into one contract for sale with a Maryland company).

IV

Bond argues that Messerman’s conduct satisfied two sections of Maryland’s Long Arm Statute. First, Bond argues that Messerman directly transacted business in Maryland by providing negligent legal advice by use of telephone communications and correspondence mailed to a Maryland resident, citing § 6—103(b)(1). Second, Bond maintains that Messerman caused tortious injury to him in Maryland by failing to expunge his Ohio juvenile court records and rendering incorrect legal advice and negligent misrepresentations to Bond by the same telephone calls and letters, causing harm to a Maryland resident, citing § 6—103(b)(3). 7 ⁷²⁰ Bond asserts that exercising personal jurisdiction over Messerman would satisfy Due Process requirements of fair play and substantial justice because Messerman’s alleged negligent representations about expungement of Bond’s juvenile records “created a ‘substantial connection’ to Maryland, and the ‘effects’ of Messerman’s contacts were such that he should reasonably anticipate being haled into Maryland courts to answer for the harm he caused here.” The Court of Special Appeals, he claims, focused incorrectly on the fact that Bond initiated nearly all of Messerman’s contacts with Maryland, rather than emphasizing Messerman’s contacts with Bond and Messerman’s knowledge that Bond resided in Maryland when the advice was dispensed. Messerman, therefore, should have foreseen that any injury caused by his alleged malpractice would be felt in Maryland.

The harm caused in Maryland through the alleged malpractice was the prosecution and jailing of Bond for lying on his gun permit applications. Bond also notes his interest in obtaining convenient and effective relief in his current home state, as well as the interstate interest in furthering the social policies of Maryland tort and professional liability law, weigh in favor of asserting personal jurisdiction over Messerman. Messerman retorts that the trial court properly dismissed the suit because Bond failed to allege any, let alone sufficient, contacts between Messerman and the State of Maryland relative to the cause of action pleaded against him. Messerman contends that he conducted all of his representation of Bond in Ohio and it was only because of “courtesy” to a former client that he responded to Bond’s communications from Maryland and thereby did not avail himself purposefully of the benefits and protections of doing business in Maryland.

Moreover, Bond neither retained Messerman to represent him in Maryland, nor consulted with him on any aspect of Maryland law, nor paid him for practicing law in Maryland. Messerman ⁷²¹ argues that none of his contacts with Maryland satisfy our long-arm statute or the Due Process Clause of the Federal Constitution because his contacts with the State are too tenuous and not substantial enough to satisfy minimum contacts requirements. Relying on Burger King Corp., Messerman posits that foreseeability of causing injury in another State is not a “sufficient benchmark” for exercising personal jurisdiction. Thus, he contends, to exercise personal jurisdiction over him would offend traditional notions of fair play and substantial justice and is prohibited.

V. We conclude that for a Maryland court to exercise personal jurisdiction over Messerman based upon the well-pleaded facts set forth in the pleading and papers in the present case would violate Due Process requirements, and hence, the long-arm statute of Maryland can not be satisfied. Determining whether a Maryland court may exercise personal jurisdiction over a foreign defendant requires a two-step analysis. “First, the requirements under the long-arm statute must be satisfied, and second, the exercise of jurisdiction must comport with due process.” Mackey v. Compass Marketing, Inc., 391 Md. 117, 129-30 , 892 A.2d 479, 486 (2006). We have construed our long-arm statute to authorize the exercise of personal jurisdiction to the full extent allowable under the Due Process Clause. See, e.g., id.; Beyond Systems, Inc., 388 Md. at 14-15 , 878 A.2d at 576 ; Geelhoed v. Jensen, 277 Md. 220, 224 , 352 A.2d 818, 821 (1976) (Citations omitted); see also Stover v. O’Connell Associates, Inc., 84 F.3d 132, 135 (4th Cir.1996).

Thus, if to exercise specific jurisdiction in a given case would violate Due Process, we construe our long-arm statute as not authorizing the exercise of personal jurisdiction over the defendant. See Mackey, 391 Md. at 130 , 892 A.2d at 486-87 (stating that “if the conspiracy theory [of specific personal jurisdiction] were inconsistent with due process, that inconsistency would require us to reject the conspiracy theory as an interpretation of the long-arm statute ... [;] we interpret the long-arm statute in light of the intent of the General ⁷²² Assembly to extend personal jurisdiction to the limits permitted by the Due Process Clause”). We need not resolve whether Messerman’s alleged dispensing of legal advice by telephone and letter to Bond satisfies the statutory requirements of §§ 6—103(b)(1) and (3) of the long-arm statute because, even assuming it did, we conclude, infra, that Messerman lacks minimum contacts with the State of Maryland—thus, our negative response to the third Question Presented, supra, is dispositive of this case. 8 To comply with the Due Process Clause of the Fourteenth Amendment, the exercise of personal jurisdiction over an out-of-state defendant requires that the defendant have established minimum contacts with the forum state and that to hale him or her into court in the forum state would comport with traditional notions of fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228 , ⁷²³ 1239-40, 2 L.Ed.2d 1283, 1297-98 (1958); International Shoe Co. v. Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 316 , 66 S.Ct. 154, 158 , 90 L.Ed. 95, 102 (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559, 567 , 62 L.Ed.2d 490, 501 (1980); Mackey, 391 Md. at 129-30 , 892 A.2d at 486 .

In determining whether minimum contacts exist, we consider (1) the extent to which the defendant has purposefully availed himself or herself of the privilege of conducting activities in the State; (2) whether the plaintiffs claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable. Burger King Corp., 471 U.S. at 472 , 105 S.Ct. at 2182 , 85 L.Ed.2d at 540-41 ; Beyond Systems, Inc., 388 Md. at 26 , 878 A.2d at 582 (Citations omitted); Presbyterian University Hosp. v. Wilson, 337 Md. 541, 551-552 , 654 A.2d 1324, 1330 (1995) (citing Camelback Ski Corp. v. Behning (Camelback II), 312 Md. 330, 336 , 539 A.2d 1107, 1110 (1988)). Under the law of specific jurisdiction, the contacts by the defendant with the forum state relevant to the Due Process analysis are those from which the cause of action arises. Generally, telephone calls and correspondence with the plaintiff in the forum state are not sufficient contact with the forum state to satisfy due process requirements.

Cape v. Maur, 932 F.Supp. 124, 128 (D.Md.1996) (stating that generally, correspondence and telephone calls are insufficient as a matter of law to establish minimum contacts to satisfy Due Process requirements) (citing Coating Engineers, Ltd. v. Electric Motor Repair Co., 826 F.Supp. 147, 149 (D.Md.1993)); Leather