This particular case began when William C. Bond (Petitioner) filed suit against Gerald
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 personal jurisdiction under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Bond v. Messerman,
I.
The Court of Special Appeals stated succinctly the relevant facts in its reported opinion in the present case,
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 ascharged 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 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 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.
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?
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
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], 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,
A series of equally unfortunate events unfolded over the next several years, see
Bond v. Slavin,
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 firearms to the State and not possess any other guns for one year.
Bond,
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,
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,
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.,
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
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
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 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.,
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,
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
The Court of Special Appeals outlined the acts by Messerman from which the malpractice action against him arose:
1. Shortly after December 4, 1985, [Bond] called Messerman, in Ohio, and was told by Messerman that his Ohio juvenile record would be expunged.
2. In January 1986, Messerman mailed a letter to Maryland, which was addressed to [Bond], asking [Bond] to remind him in two years to file for an expungement of [Bond’s] juvenile record.
3. [Bond], in 1986, phoned Messerman in Ohio and told him that he ought to file the petition for expungement without a reminder. Messerman orally agreed to do so.
4. [Bond] wrote to Messerman in Ohio in 1994, which was after he had filed for at least one gun permit, asking for a copy of the transcript showing that his juvenile record had been expunged or, in the alternative, asking (that if the record had not been expunged) to now have it expunged.
5. On May 16, 1994, Messerman responded to [Bond’s] May 12, 1999, missive with a letter to [Bond] in Maryland. In that letter he told [Bond] that there was no Ohio procedure for expunging a juvenile record but that he need not worry about the lack of expungement because the records were “private, confidential and sealed.”
6. On June 2, 1994, [Bond] wrote to Messerman in Ohio, questioning his statement that the juvenile records were “automatically expunged.”
7. Also in June 1994, [Bond] followed up on his June 2 letter by phoning Messerman in Ohio. In that phone conversation, Messerman reiterated that the Ohio juvenile record had been expunged, and as a consequence, [Bond] had “nothing to worry about.”
Bond,
Bond argues that because the injury of the alleged malpractice was felt in Maryland, due process considerations are satisfied. We have not resolved previously whether an out-of-state attorney establishes minimum contacts in Maryland: (1) where his or her client relocates to Maryland; (2) the attorney thereafter allegedly gives legal advice by letter and telephone about the law of the now foreign jurisdiction; (3) the attorney knows (or should
In
McGann v. Wilson, supra,
The intermediate appellate court concluded that McGann’s single trip to Maryland was insufficient to establish minimum
State appellate and federal trial and appellate courts in jurisdictions possessing long-arm statutes similar to Maryland’s long-arm statute differ as to whether an out-of-state attorney, under circumstances similar to those in the present case, should be subject to personal jurisdiction in the forum state.
Compare Sher v. Johnson,
[T]he constitutional touchstone remains whether the defendant purposefully established “minimum contacts” in the forum State. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require/ ] the Court has consistently held that this kind of foreseeability is not a “sufficient benchmark” for exercising personal jurisdiction. Instead, 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 there. In defining when it is that a potential defendant should “reasonably anticipate” out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla,357 U.S. 235 , 253,78 S.Ct. 1228 ,2 L.Ed.2d 1283 (1958). (Citations and quotations omitted).
Burger King Corp.,
The relevant contacts by Messerman with Bond consisted of the alleged provision of legal advice by telephone and letters concerning the effect of and/or need for expungement of Ohio juvenile proceedings. The number of contacts over nine years were few and the number of those initiated by Messerman were fewer still. As the Court of Special Appeals pointed out, only two of the seven relevant contacts were initiated by Messerman: Messerman sent two letters to Bond in Maryland—one in January of 1986 and one in May of 1994.
Bond,
We hold that Messerman’s contacts do not rise to the level of an “act by which the defendant purposefully avail[ed][him]self of the privilege of conducting activities within the forum State” for purposes of a Maryland court exercising personal jurisdiction over him in this case. We conclude also that to exercise jurisdiction over Messerman would be unreasonable. We believe that any possible interest in favor of
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.
Notes
. Section 6—103(b)(1) of our long-arm statute provides that a court may exercise personal jurisdiction over a person, who directly or by an agent ''[transacts any business or performs any character of work or service in the State.” Maryland Code (1973, 2002 Repl.Vol.), Courts and Judicial Proceedings Article, § 6-103(b)(1). Unless otherwise provided, all statutory references are to § 6-103.
. Section 6-103(b)(3) provides that a court may exercise personal jurisdiction over a person, who directly, or by an agent ‘‘[cjauses tortious injury in the State by an act or omission in the State.” § 6-103(b)(3).
. The intermediate appellate court noted that Bond “was born William Crockett Rovtar, blit changed his name after the events described here.”
. Bond was not prosecuted for these two gun purchases because the applicable statute of limitations had expired.
. We note the discrepancy between the number of applications to purchase a handgun (five), the number of handguns that Bond possessed when charged with illegal possession (eight), and the number of counts of providing false information on a handgun application (two). The resolution of these discrepancies, however, is not necessary to decide whether Maryland courts may exercise personal jurisdiction over Messerman.
. Bond also asserted a cause of action against Sheppard Pratt for allegedly disclosing his medical records in violation of Maryland Code (1982, 2000 Repl.Vol.), Health-General Article, § 4-302(a). The Circuit Court granted Sheppard Pratt's motion for summary judgment. Bond appealed and the intermediate appellate court affirmed the Circuit Court’s judgment. Bond has not pursued to this Court a further challenge to the judgment to dismiss the action against Sheppard Pratt.
. Bond also argued in his Brief (although he did not present tills argument in his Petition for Writ of Certiorari), in the alternative, were we to conclude that Messerman's misrepresentations were acts that occurred in Ohio, not Maryland, personal jurisdiction under § 6-103(b)(4) is established nonetheless in two "distinct” ways: "(1) Messerman '[caused] tortious injury in the State or outside of the State by an act or omission outside of the State' ... and he ... '[derived]' substantial revenue from ... services ... used or consumed in the State;' ... and (2) because he ‘[caused]’ tortious injury in the State or outside of the State by an act or omission outside the State ... [while] he engagefd] in any other persistent course of conducl in the State” because Messerman persistently communicated over several years with a resident from Maryland, failed to obtain expungement of Bond's juvenile record in Ohio as he was retained and promised to do, and gave incorrect legal advice regarding the effect of the juvenile case proceedings. Because we conclude, infra, that to exercise personal jurisdiction over Messerman would violate Due Process requirements, we do not need to resolve whether Messerman’s conduct otherwise satisfies § 6-103(b)(4) of our long-arm statute.
. We observe, in passing, that Messerman's alleged failure to expunge Bond's juvenile court records in Ohio does not satisfy the long-arm statute because it was not an act committed in Maryland. The commission of legal malpractice by failure to act in another State does not constitute the commission of a tort in Maryland, which is an element required by § 6—103(b)(3). § 6—103(b)(3) (providing that a court may exercise personal jurisdiction over a person who "[cjauses tortious injury in the State by an act or omission in the State”);
Layton v. AAMCO Transmissions, Inc.,
. Bond offered several cases decided by courts in other jurisdictions supposedly supporting his argument that asserting personal jurisdiction over Messerman would satisfy the Maryland long-arm statute and comport with Due Process. We find the facts and circumstances of each of these cases distinguishable from the present case.
In
Klump v. Duffus,
In
Ores v. Kennedy,
In
Miceli v. Stromer,