Bond v. Messerman, 48, September Term, 2005.

• Decision Date: 07 April 2006
• Docket Number: No. 48, September Term, 2005.,48, September Term, 2005.
• Parties: William C. BOND v. Gerald A. MESSERMAN, et al.
• Court: Court of Special Appeals of Maryland

895 A.2d 990

391 Md. 706

William C. BOND v. Gerald A. MESSERMAN, et al.

No. 48, September Term, 2005.

Court of Appeals of Maryland.

April 7, 2006.

COPYRIGHT MATERIAL OMITTED

Timothy M. Gunnin (Law Offices of Timothy M. Gunning, LLC, Towson, Richard M. Karceski, Law Offices of Richard M. Karceski, Towson, on brief), for petitioner.

Irwin R. Kramer (Kramer & Connolly, Owings Mills, on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

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 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 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 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.

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?

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] 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...