Kortobi v. Kass

HARRELL Judge. We issued a writ of certiorari in this case to determine whether a nonresident decedent’s foreign estate is subject to being haled into court in Maryland, for a tort allegedly committed by the decedent during his lifetime in the District of Columbia, solely on the jurisdictional basis that the appointed personal representative of the estate happens to be a Maryland resident who was served with process at his residence. The Court of Special Appeals affirmed the judgment of the Circuit Court for Prince George’s County, holding that mere residency of the representative and service in Maryland were too ephemeral for the tort action to be maintained in Maryland. For the reasons that follow, we shall affirm the judgment of the intermediate appellate court. ¹⁷³ I. FACTUAL AND PROCEDURAL BACKGROUND On 6 January 2003, a vehicle operated by Carver James Leach, Jr., struck a vehicle driven by M’Hamed Kortobi in the intersection of 12th Street, N.W., and K Street, N.W., in Washington, D.C. Kortobi allegedly received medical attention for injuries sustained in the collision.

At the time of the accident, Kortobi was a resident of Virginia and Leach was a resident of the District of Columbia. A little over a year after the accident, on 9 January 2004, Leach died from causes unrelated to the 2003 motor vehicle accident. Because he was a resident of D.C. and his assets, including real estate, were located in the District of Columbia, an estate was opened in the Probate Division of the Superior Court of the District of Columbia. Brian L. Kass, Esquire, ultimately was appointed on 19 April 2006 by the probate court as the personal representative of Leach’s estate. 1 Kass is an attorney in the firm of Kass, Mitek & Kass, with offices in Washington, D.C. Although he is a resident of Maryland, Kass initiated all of the filings for the Leach Estate from his District of Columbia office.

Kass conducted no estate business related to the Leach Estate, in his capacity as personal representative, in the State of 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 did not own property in the State of Maryland or in any jurisdiction other than the District of Columbia.

Initially, Kortobi filed a tort action, arising from the 2003 automobile accident, against the Leach Estate and Progres ¹⁷⁴ sive Casualty Insurance Company 2 in the Superior Court of the District of Columbia, even before Kass’ appointment. After the appointment of Kass as the personal representative, Kortobi dismissed the action in the Superior Court, and filed the instant suit in the Circuit Court for Prince George’s County. 3 On 15 July 2006, after amending the complaint to sue Kass as the personal representative, Kortobi served Kass, in his capacity as the personal representative of the Leach Estate, at Kass’ residence in Howard County, Maryland. In response, Kass filed, among other things, a motion to dismiss based on lack of personal jurisdiction. The motion was denied by the first judge who considered it.

A motion to reconsider the denial was placed before a different judge. After reviewing the parties’ initial submissions, the second judge ordered the parties to prepare memoranda addressing the applicability of Md. Code (2001 Repl. Vol.), Estates and Trusts Art., § 5-502(a) (discussed infra). Neither party requested an evidentiary hearing, and none was held.

The Circuit Court, upon consideration of the parties’ papers and the case law deemed applicable, issued a memorandum opinion and order granting Kass’ motion to dismiss on the ground of lack of personal jurisdiction, concluding that there was insufficient contact with the State of Maryland to sustain the exercise of personal jurisdiction. Kortobi pursued an appeal in the Court of Special Appeals. In a reported opinion, the intermediate appellate court affirmed the trial court’s judgment, opining that Maryland does ¹⁷⁵ not have personal jurisdiction over a foreign estate based solely on the Maryland residence of the estate’s personal representative. Kortobi v. Kass, 182 Md.App. 424, 442-43 , 957 A.2d 1128, 1138 (2008).

We issued a writ of certiorari upon Kortobi’s petition. Kortobi v. Kass, 406 Md. 743 , 962 A.2d 370 (2008). 4 II. STANDARD OF REVIEW We review the trial court’s grant of a motion to dismiss for lack of personal jurisdiction to determine whether the trial court was legally correct in its decision to dismiss the action. Bond v. Messerman, 391 Md. 706, 718-19 , 895 A.2d 990, 998 (2006) (citing Beyond Sys., Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 29 , 878 A.2d 567, 584 (2005); Jason Pharms., Inc. v. Jianas Bros.

Packaging Co., 94 Md.App. 425, 434 , 617 A.2d 1125, 1129 (1993)).

III

ANALYSIS Kortobi does not dispute that the Leach Estate has no contacts with the State of Maryland and that all estate business performed by Kass on behalf of the Estate was performed in the District of Columbia. Rather, Kortobi pins his hopes on two statutory provisions which, he contends, subject Kass, in his capacity as personal representative, to jurisdiction in Maryland. Kortobi argues that the plain language of § 5-502(a) of the Estates and Trusts Article provides that a foreign personal representative may sue and be sued in Maryland. In addition, Kortobi contends that the personal service of Kass at his residence in Maryland gives the Circuit Court jurisdiction pursuant to § 6-102 of the Courts and Judicial Proceedings Article. ¹⁷⁶ A. Section 5-502(a) of the Estates and Trusts Article The parties agree that Kass was viewed properly by the trial court, for purposes of Maryland law, as a foreign personal representative.

Foreign personal representatives are the subject of Subtitle 5 of Title 5 of the Estates and Trusts Article. Section 5-502 5 provides specifically for the powers of foreign personal representatives, stating in subsection (a): (a) In general.—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. Kortobi argues that the plain language of § 5-502(a) endorses that Kass may “be sued in Maryland” in his capacity as the personal representative of the Leach Estate. Kass retorts that the “subject to any statute or rule relating to nonresidents” language of § 5-502(a) sweeps up Maryland’s Long-Arm Statute, Md. Code (2006 Repl.

Vol. & Supp. 2008), Courts and Judicial Proceedings Art. § 6-103, and that, under Long-Arm Statute jurisprudence, the Leach Estate’s contacts with Maryland are insufficient for jurisdiction to lie in Maryland. Our polar star in navigating the sometimes treacherous straits of statutory interpretation questions is to ascertain ¹⁷⁷ and effectuate the intent of the Legislature. Tribbitt v. State, 403 Md. 638, 645 , 943 A.2d 1260, 1264 (2008). 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, 257 (2007) (quoting Kushell v. Dep’t of Natural Res., 385 Md. 563, 576 , 870 A.2d 186, 193 (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, 732 (2004) (quoting James v. Butler, 378 Md. 683, 696 , 838 A.2d 1180, 1187 (2003); Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 757 (1993)).

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, 1226 (2003) (citing County Council v. Dutcher, 365 Md. 399, 417 , 780 A.2d 1137, 1147 (2001)). 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 rules of construction, for ‘the Legislature is presumed to have meant what it said and said what it meant.’ ” Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (quoting Toler v. Motor Vehicle Admin., 373 Md. 214, 220 , 817 A.2d 229, 233 (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, 1131 (1998) (citing Haupt v. State, 340 Md. 462, 471 , 667 A.2d 179, 183 (1995)). “We have said that ambiguity exists within a statute when there are ‘two or more reasonable alternative interpretations of the statute.’ ” Melton v. State, 379 Md. 471, 477 , 842 A.2d 743, 746 (2004) (quoting Price, 378 Md. at 387 , 835 A.2d at 1226 ). Application of the language of Estates and Trusts § 5-502(a) that “[a]ny foreign personal representative may ... be ¹⁷⁸ sued in Maryland, subject to any statute or rule relating to nonresidents” is neither plain nor clear to us when the foreign personal representative happens to be a Maryland resident.

Thus, we turn to the legislative history of Estates and Trusts § 5-502(a) in a search for guidance as to legislative intent for application of the statutory provision in the particular situation before us in this case. Section 5-502 formerly was Maryland Code (1957, 1969 Repl. Vol.), Article 93, 6 § 5-502. 7 The comment accompanying former § 5-502 in Article 93 is instructive: This Section adopts the basic theory of The Uniform Powers of Foreign Representatives Act. Its adoption supplants the rules in former §§ 83-85.

See Sykes, §§ 471 through 473. The new statute also repeals § 87, which gave to District of Columbia personal representatives certain powers given to Maryland personal representatives. The poivers of a District of Columbia or any foreign representative toill now be governed by the laws of the jurisdiction in ivhich he was appointed. (emphasis added).

That comment suggests that the language “of his office” in § 5-502 should be interpreted as meaning that a foreign personal representative is bestowed with the ¹⁷⁹ same powers, capable of being exercised in Maryland, as he or she has in the jurisdiction in which he or she was appointed. Thus, the legislative scheme contemplates that the foreign personal representative’s powers be determined according to the laws of the appointing jurisdiction, taking no consideration of the personal residence of the representative. Thus, we examine the laws of the District of Columbia that provide for the powers and authority of a personal representative. 8 The powers and authority of a personal representative under District of Columbia law are provided in Title 20, Chapter 7 of the D.C.Code. Of particular relevance to the present case, D.C.Code Ann. § 20-701(c) (LexisNexis 2009) 9 provides: ¹⁸⁰ (c) 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 be sued in the courts of this and any other jurisdiction as the decedent had immediately prior to death.

Applying the laws of the District of Columbia in light of the instructive comment to former § 5-502, Kass, in his capacity as the personal representative of the Leach Estate, would have the same standing to “sue and be sued” as Leach had immediately prior to his death. Therefore, for purposes of jurisdictional analysis under D.C. law, Kass stands in the shoes of Leach. The issue then becomes whether Kortobi could have sued Leach in Maryland for the injuries he allegedly suffered in the District of Columbia car accident. In other words, was Leach subject to personal jurisdiction in Maryland for the alleged tort prior to his death?

A threshold issue we must address before turning to the personal jurisdiction analysis is the meaning of the language in Estates and Trusts § 5-502 that a foreign personal representative may be sued in Maryland “subject to any statute or rule relating to nonresidents.” Kass argues that the language “subject to any statute or rule relating to nonresidents” includes, among other things, the Maryland Long-Arm Statute, § 6-103 of the Courts and Judicial Proceedings Article. Kortobi does not dispute Kass’ contention, arguing only that the plain language of Estates and Trusts ¹⁸¹ § 5-502 authorizes the exercise of personal jurisdiction over Kass in Maryland. The legislative history of the change in the law implemented by Estates and Trusts § 5-502 supports Kass’ argument. As the comment accompanying former § 5-502 in Article 93 indicated, § 5-502 “adopt[ed] the basic theory of The Uniform Powers of Foreign Representatives Act.” That basic theory was that the revised statute now would give foreign personal representatives the power to sue in Maryland without having to open an ancillary administration.

See Stiller & Redden, supra note 6, at 104-06. 10 Thus, the Legislature, consistent with the Henderson Commission’s recommendations, adopted former § 5-502 in Article 93 to revise the law so that it would be consistent with the approach taken in the Uniform Powers of Foreign Representatives Act. 11 ¹⁸² The parallel section that former Article 93, § 5-502 drew upon in the Uniform Powers of Foreign Representatives Act was Section 2. That Section provided: Section 2. (Powers of Foreign Representative in General.) When there is no administration or application therefor pending in this state, a foreign representative may exercise all powers which would exist in favor of a local representative, and may maintain actions and proceedings in this state subject to the conditions imposed upon nonresident suitors generally. Banks McDowell, Jr., Foreign Personal Representatives 194 (1957) (quoting Handbook Of The Nat’L Conference Of Comm’rs On Unif.

State Laws 325 (1944)). Notably, the Maryland Legislature’s version of the powers of foreign personal representatives in § 5-502 12 departs from the version presented in the Uniform Act in a significant way—the Legislature’s version included the additional language (when enumerating the powers authorized) that the foreign personal representative may “be sued.” While expanding this “power” of foreign personal representatives via statute, the Legislature was careful to articulate the conditions qualifying its reach. The Legislature did not employ language similar to the Uniform Act’s “subject to the conditions imposed upon nonresident suitors generally.” Rather, the Legislature’s version employed the language “subject to any statute or rule relating to nonresidents,” which, unlike the Uniform Act, does not contain a specific reference to the nonresident representative’s role as a party in court proceedings. 13 Thus, “subject to any ¹⁸³ statute or rule relating to nonresidents” could be interpreted to mean that “any statute or rule relating to nonresidents” should apply both to the situation in which the foreign representative is suing and the situation in which the personal representative is sued. 14 Given that the Maryland Legislature employed more general, non-party-specific language in the qualifying condition when expanding the “powers” of a foreign representative to include the power to “be sued,” we agree with Kass that the conditional “subject to any statute or rule relating to nonresidents” includes, among other things; the Maryland Long-Arm Statute, 15 to which we now turn. B. Sections 6-102 and -103 of the Courts and Judicial Proceedings Article and Personal Jurisdiction Personal jurisdiction in Maryland is governed by, among other things, Md. Code, (2006 Repl.

Vol. & Supp. 2008), Courts & Judicial Proceedings Art. § 6-102. That section provides: (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 of the State. ¹⁸⁴ Personal jurisdiction in Maryland over nonresident defendants is provided for in Maryland’s Long-Arm Statute, Courts & Judicial Proceedings Art. § 6-103. That section provides, in pertinent part: (a) Condition.—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) In general.—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 does or solicits business, engages in any other pertinent 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 possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed with the State at the time the contract is made, unless the parties otherwise provide in writing. In determining whether a Maryland court may exercise personal jurisdiction over a foreign defendant, we engage in a dual inquiry, considering if the exercise of jurisdiction (1) -15-is authorized under Maryland’s Long-Arm Statute, Md.Code, Courts & Judicial Proceedings Art. § 6-103, and (2) comports with the due process requirements of the Fourteenth Amendment. Beyond Sys., Inc., 388 Md. at 14-15 , 878 A.2d at 575-76 (citations omitted). “The purview of the long arm statute is coextensive with the limits of personal ¹⁸⁵ jurisdiction set by the due process clause of the Federal Constitution.” Id. at 15 , 878 A.2d at 576 . As a result, “our statutory inquiry merges with our constitutional examination.” Id. at 22 , 878 A.2d at 580 .

In order to pass constitutional muster under the Due Process Clause, a foreign defendant must have “minimum contacts” with Maryland, such that exercise of personal jurisdiction in Maryland “does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 , 61 S.Ct. 339 , 85 L.Ed. 278 (1940)). “[T]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within [Maryland], thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228 , 2 L.Ed.2d 1283 (1958) (citing Int’l Shoe Co., 326 U.S. at 319 , 66 S.Ct. 154 ). While the “nature” of the defendant’s contacts with Maryland are important, see Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 416-19 , 104 S.Ct. 1868 , 80 L.Ed.2d 404 (1984), we must additionally consider “the relationship among the defendant, the forum, and the litigation,” Shaffer v. Heitner, 433 U.S. 186, 204 , 97 S.Ct. 2569 , 53 L.Ed.2d 683 (1977), to determine whether the defendant “should reasonably anticipate being haled into court” in Maryland. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980). “Ordinarily, cases involve either ‘general jurisdiction’ where the cause of action is unrelated to the defendant’s contact