Jafarzadeh v. Feisee

JAMES R. EYLER, Judge. This case involves a medical malpractice claim by Bahjat J. Jafarzadeh, appellant, against Seddigheh Feisee, M.D., appel-lee, in which the issue is whether the Circuit Court for Prince George’s County had personal jurisdiction over the appellee. We hold that it did not. Appellant alleges that she sustained injury as a result of appellee’s negligence that occurred during the course of appel-lee’s treatment of appellant on June 7, 1995, in appellee’s office in Virginia.

On July 21, 1997, appellant filed suit against appellee in the Circuit Court for Fairfax County, Virginia. On September 28, 1997, appellant voluntarily dismissed the action, presumably because it was barred by the Virginia statute of limitations. On March 1, 1998, appellant filed suit, alleging the same causes of action, in the District Court of Maryland in Prince George’s County. Appellee filed a demand for jury trial.

The case was transferred to the Circuit Court for Prince George’s County. Appellee filed a motion to dismiss for lack of personal jurisdiction over appellee. On August 18, 1998, Judge Arthur M. Ahalt granted appellee’s motion "without a hearing. On September 9, 1998, appellant filed a motion to vacate the ³³⁵ judgment, and on January 22, 1999, the court heard oral argument.

By order dated January 22, Judge Ahalt granted appellant’s motion and denied appellee’s motion to dismiss. On May 19, 2000, appellee filed another motion to dismiss, based on lack of personal jurisdiction. On June 13, 2000, Judge Steven I. Platt, after hearing argument, granted the motion to dismiss. Appellant’s Contentions Appellant contends (1) that the January 22, 1999 order by Judge Ahalt constituted the law of the case and that Judge Platt erred in granting the motion to dismiss on June 13, 2000, and (2) that the court erred in granting the motion to dismiss because there were sufficient minimum contacts to satisfy the Maryland long arm statute and the requirements of due process.

Discussion 1. Appellant argues that Judge Ahalt’s January 22, 1999 order was the law of the case and should not have been reversed by Judge Platt’s order on June 13, 2000. The Court of Appeals has stated: As a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo ... This general principle, however, is inapplicable if a statute or rule reflects a different intent in a particular situation.

State v. Frazier, 298 Md. 422, 449 , 470 A.2d 1269 (1984). Appellant argues that Rule 2-322(a) reflects a different intent. Rule 2-322(a) provides that the defense of lack of jurisdiction over the person shall be made by motion to dismiss filed before an answer, and if not so made, the defense is waived. Md. Rule 2-322(a)(2001). ³³⁶ Appellee did make a motion to dismiss, thus the defense was not waived.

The general principle stated in State v. Frazier applies to the case sub judice because the rule does not reflect a different intent. Moreover, an appellate court can review all matters that are properly before it for the first time. See Md. Rule 8-131(a)(2001). The question of personal jurisdiction is before us for the first time.

See People’s Counsel v. Prosser, 119 Md.App. 150, 176 , 704 A.2d 483 (1998). 2. Appellant contends that appellee’s contacts with the State of Maryland were sufficient to establish personal jurisdiction under section 6-103(b)(4), which provides: (b) In general. — A court may exercise personal jurisdiction over a person, who directly or by an agent: (4) Causes tortious injury in the State by an act or omission in the State; omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State. Md.Code (1998 Repl.Vol.), § 6-103(b)(4) of the Courts & Judicial Proceedings Article (“CJ”). We disagree with appellant and find appellee’s contacts with Maryland insufficient to confer personal jurisdiction.

Appellee was a resident of the Commonwealth of Virginia; has not resided in Maryland since 1973; and appellant’s medical treatment occurred in Virginia. In support of appellant’s argument, appellant asserts that appellee has “purposefully availed] [herself] of the privilege of conducting business” with Maryland because she has been licensed in Maryland since she pursued her residency at Union Memorial Hospital in 1972-1973; was licensed by the State as a Medicaid provider from September 30,1992 until