Kortobi v. Kass

SHARER, J. In this appeal we are called upon to decide whether jurisdiction lies in Maryland over a non-resident decedent’s estate where the only contact with Maryland is the Maryland residence of the personal representative. We shall hold that Maryland does not have jurisdiction for the purpose of a tort action against the decedent. Therefore, we shall affirm the judgment of the Circuit Court for Prince George’s County, which granted appellee’s motion to dismiss on lack of jurisdiction grounds. The genesis of this litigation is a personal injury action arising out of an automobile collision that occurred on January 6, 2008, at the intersection of 12th Street, N.W., and K Street, N.W., in Washington, D.C. A vehicle being operated by appellant, M’Hamed Kortobi, was struck by a vehicle driven by Carver James Leach, Jr. Both Kortobi and Leach were residents of the District of Columbia.

Kortobi was injured and required medical treatment. Leach died from causes unrelated to the motor vehicle accident before suit was filed. ⁴³⁰ Because Leach was a resident of the District of Columbia, and his assets, including real estate, were located in that jurisdiction, an estate was opened in the Probate Division of the Superior Court of the District of Columbia. Brian L. Kass, appellee, was appointed by the probate court as the personal representative of Leach’s estate. Kass is an attorney in the firm of Kass, Mitek & Kass, located in Washington, D.C. He is a resident of Maryland.

All filings for the Leach Estate were made from Kass’s District of Columbia office. 1 No estate business was conducted in Maryland. As Leach’s personal representative, Kass gathered and reported all assets to the Superior Court. Leach’s only beneficiaries were Willene C. Leach and Angela Leach, both of whom are residents of the District of Columbia. Leach owned no property in Maryland, or in any jurisdiction other than the District of Columbia.

Initially, Kortobi filed a complaint against the Leach Estate in the Superior Court of the District of Columbia. After the appointment of Kass as the personal representative, Kortobi dismissed the District of Columbia suit, and filed the instant suit in the Circuit Court for Price George’s County. On July 15, 2006, Kortobi served Kass, in his capacity as personal representative, at Kass’s residence in Howard County, Maryland. Kass then filed, inter alia, a motion to dismiss based on lack of personal jurisdiction.

After reviewing the parties’ initial submissions, the circuit court ordered the parties to prepare memoranda to address the applicability of Md.Code, Trusts and Estates, § 5-502(a), with particular focus on the following provision: Any foreign personal representative may exercise in Maryland all powers of his office, and may sue and be sued in ⁴³¹ Maryland, subject to any statute or rule relating to nonresidents. Neither party requested an evidentiary hearing, and none was held. The trial court, upon “consideration of all submitted pleadings, the record and applicable case law and statutes,” issued a memorandum opinion and order granting Kass’s motion to dismiss on the grounds of lack of personal jurisdiction, finding “[t]he only basis for bringing suit in Maryland is that the Estate’s Personal Representative is a Maryland resident.” 2 Judgment was entered on April 25, 2007, and Kortobi noted his timely appeal, asking: Did the trial court err in granting appellee’s motion to dismiss for lack of personal jurisdiction over the personal representative of the estate? Standard of Review In our review of a grant of a motion to dismiss for lack of personal jurisdiction, we must determine “whether the trial court was legally correct in its decision to dismiss the action.” Bond v. Messerman, 391 Md. 706, 718 , 895 A.2d 990 (2006) (citing Beyond Systems, Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 12-29 , 878 A.2d 567 (2005); Jason Pharmaceuticals, Inc. v. Jianas Bros.

Packaging Co., Inc., 94 Md.App. 425, 431-34 , 617 A.2d 1125 (1993)). Foreign Personal Representative Jurisdiction over a foreign or domestic estate is typically based on in rem jurisdiction theories. The State has the right “ ‘to subject all property within its borders to its laws’ ” Livingston v. Naylor, 173 Md.App. 488, 514 , 920 A.2d 34 (2007) (quoting Belcher v. Gov’t Employees Ins. Co., 282 Md. 718, 720 , 387 A.2d 770 (1978)).

The question of whether ⁴³² there is property within the court’s territorial reach that will provide a jurisdictional base “is a simple one since the situs of realty or tangible personalty is not difficult to determine.” Id. In the case before us, however, there is no question that the circuit court lacked in rem jurisdiction over the Estate, and neither party asserts a claim to the contrary. Instead, Kortobi contends that Kass’s Maryland residence gives Maryland in personam jurisdiction over the Leach Estate. Kortobi contends that “[i]t cannot be disputed that Brian L. Kass, was the correct Defendant below,” because “[t]he estate of a deceased person is not an entity known to the law, and is not a natural or artificial person but is merely a name indicating the sum total of assets and liabilities of a decedent.” Therefore, Kortobi maintains, a personal jurisdiction, or minimum contacts, analysis is unnecessary.

He asserts: Clearly, whether the Estate itself has any contacts with the State of Maryland is irrelevant to the determination of personal jurisdiction over the Personal Representative of the Estate. Clearly, whether the decedent himself had sufficient contacts with the State of Maryland is also irrelevant to the issue before the court. In sum, Kortobi concludes that Maryland would have jurisdiction over the Estate solely on the fortuitous basis of the residence of the personal representative. 3 The trial court correctly viewed Kass as a foreign personal representative of the Leach Estate. A foreign personal representative is identified in Md.Code, Estates and Trusts § 5-502(a) and (b): (a) Any foreign personal representative may exercise in Maryland all powers of his office, and may sue and be sued in Maryland, subject to any statute or rule relating to nonresidents. ⁴³³ (b) A foreign personal representative has the same power to sell, mortgage, lease, convey, or otherwise transfer or assign real property or an interest in the property which is located in Maryland as a Maryland personal representative has with respect to real property and an interest in the property.

(Emphasis added). Our research has disclosed no Maryland authority to answer whether the Maryland residence, absent more, of a foreign personal representative creates personal jurisdiction over the foreign estate. Other jurisdictions have dealt with this issue, and provide helpful guidance, which we shall discuss, infra. First, however, we discuss the effect of Trusts and Estates § 5-502.

Statutory Interpretation In Tribbitt v. State, 403 Md. 638, 645-46 , 943 A.2d 1260 (2008), the Court of Appeals summarized the fundamental rules of statutory interpretation: The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Statutory construction begins with the plain language of the statute, and ordinary, popular understanding of the English language dictates interpretation of its terminology. Bowen v. City of Annapolis, 402 Md. 587, 613 , 937 A.2d 242 (2007) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576-78 , 870 A.2d 186 (2005)). “When construing a statute, we recognize that it ‘should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.’ ” Collins v. State, 383 Md. 684, 691 , 861 A.2d 727 (2004) (quoting James v. Butler, 378 Md. 683, 696 , 838 A.2d 1180 (2003)). We will “neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.... ” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003).

If the plain language of the statute is unambiguous, “the inquiry as to legislative intent ends; we do not then need to resort to the various, and sometimes inconsistent, external ⁴³⁴ rules of construction, for -the Legislature is presumed to have meant what it said and said what it meant.’ ” The Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886 , (2004) (quoting Toler v. Motor Vehicle Admin., 373 Md. 214, 220 , 817 A.2d 229 (2003)). “If, however, the meaning of the plain language is ambiguous or unclear, we seek to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128 (1998) (citing Haupt v. State, 340 Md. 462, 471 , 667 A.2d 179 (1995)). The language of Estates and Trusts § 5-202(a) appears to create ambiguity in a situation such as that before us, where the “foreign” personal representative is actually a resident of Maryland. Because we find uncertainty in the wording of the statute, we look to the legislative history of Estates and Trusts § 5-202(a). Section 5-502 was formerly Md.Code, Article 93, § 5-202. 4 The comment to Art. 93, § 5-502, (1969 Rep.

Yol.) is instructive: This Section adopts the basic theory of The Uniform Powers of Foreign Representatives Act. The new statute also repeals § 87, which gave to District of Columbia personal representatives certain powers given to Maryland personal representatives. The powers of a District of Columbia or any foreign representative will now be governed by the laws of the jurisdiction in which he was appointed. (Emphasis added).

(Internal citations omitted). The comment suggests that a foreign personal representative is vested with the same powers in Maryland that he or she would have had in the jurisdiction in which he or she was appointed. Thus, the question of Kass’s personal residence is irrelevant. Therefore, we turn to the laws of the District of Columbia that control the powers and authority of a personal ⁴³⁵ representative. 5 The District of Columbia Code § 20-701(c) (2001) provides: Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in the District of Columbia at his death has the same standing to sue and he sued in the courts of this and any other jurisdiction as the decedent had, immediately prior to death.

(Emphasis added). 6 Under the laws of the District of Columbia, Kass has the same standing “to sue and be sued” as did Leach immediately before his death. Kass, therefore, steps into the shoes of Leach for purposes of jurisdictional analysis. The question becomes whether Kortobi could have sued Leach in Maryland as a result of injuries alleged to have been caused in the District of Columbia car accident. In other words, did Maryland have personal jurisdiction over Leach at that time?

On its face, Md.Code, Estate and Trusts, § 5-502 makes no distinction about the personal residence of a personal representative. Kass is a foreign personal representative, appointed by the Probate Court of the Superior Court of the District of Columbia, to represent a District of Columbia estate. As a foreign personal representative, he may “sue or be sued,” subject to “any statute or rule relating to nonresidents.” That provision, we are satisfied, includes, inter alia, ⁴³⁶ the Maryland Long Arm Statute, Md.Code, Courts & Jud. Proe., § 6-103 (2006 Rep.

Vol.), which we shall discuss below. In other words, as a foreign personal representative, Kass is to be viewed as a non-resident, despite his Maryland residency. Personal Jurisdiction Analysis Turning to the question of whether Maryland would have personal jurisdiction over Leach, we note the general rule that, in personal actions, “jurisdiction must be acquired over a person in order for a court to impose a personal liability or obligation upon a defendant in favor of a plaintiff.” Allen v. Allen, 105 Md.App. 359, 367 , 659 A.2d 411 (1995) (citing Altman v. Altman, 282 Md. 483, 486 , 386 A.2d 766 (1978)). Normally, such jurisdiction is obtainable only over persons subject to the territorial jurisdiction of the court.

See Hunt v. Tague, 205 Md. 369 , 109 A.2d 80 (1954). Judge Adkins, now a member of the Court of Appeals, recently wrote for this Court in Taylor, et al. v. CSR, Ltd., et al., 181 Md.App. 363, 373-74 , 956 A.2d 754, 760 (2008): The defense of lack of personal jurisdiction ordinarily is collateral to the merits and raises questions of law. Bond v. Messerman, 391 Md. 706, 718 , 895 A.2d 990 (2006). “The burden of alleging and proving the existence of a factual basis for the exercise of personal jurisdiction, once the issue has been raised, is upon the plaintiffs.” McKown v. Criser’s Sales and Serv., 48 Md.App. 739, 747 , 430 A.2d 91 (1981). Plaintiffs must establish a prima facie case for personal jurisdiction to defeat a motion to dismiss.

See Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 26-29 , 878 A.2d 567 (2005). “If facts are necessary in deciding the motion, the court may consider affidavits of other evidence adduced during an evidentiary hearing.” Id. at 12 , 878 A.2d 567 . Without an evidentiary hearing, courts are to consider the evidence in the light most favorable to the non-moving party when ruling on a motion to dismiss for lack of ⁴³⁷ personal jurisdiction. See Zavian v. Foudy, 130 Md.App. 689, 702 , 747 A.2d 764 (2000). As in Taylor, the court did not conduct an evidentiary hearing, and was required to consider, and did consider, the pleadings and other matters of record, including the arguments of counsel.

Personal jurisdiction over Maryland residents is governed by Md.Code, Courts and Jud. Proc., § 6-102: Persons domiciled in, organized under laws of, or maintaining principal place of business in State. (a) Basis of personal jurisdiction. — A court may exercise personal jurisdiction as to any cause of action over a person domiciled in, served with process in, organized under the laws of, or who maintains his principal place of business in the State. (b) Exercise of jurisdiction on other basis. — This section does not limit any other basis of personal jurisdiction of a court in the State.

Since Leach was not domiciled in Maryland, our analysis is guided by Md.Code, Courts and Jud. Proc., § 6-103, otherwise known as the Maryland Long Arm statute. It provides: Cause of action arising from conduct in State or tortious injury outside of state. (a) If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.

(b) A court may exercise personal jurisdiction over a person, who directly or by an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply goods, food, services, or manufactured products in the State; (3) Causes tortious injury in the State by an act or omission in the State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly ⁴³⁸ 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; (5) Has an interest in, uses, or