Geelhoed v. Jensen

• Decision Date: 04 March 1976
• Docket Number: No. 118,118
• Citation: 352 A.2d 818,277 Md. 220
• Parties: Glenn W. GEELHOED v. Robert David JENSEN.
• Court: Maryland Court of Appeals

Page 220

277 Md. 220

352 A.2d 818

Glenn W. GEELHOED v. Robert David JENSEN.

No. 118.

Court of Appeals of Maryland.

March 4, 1976.

Gary Howard Simpson, Bethesda, for appellant.

C. Oliver Goldsmith, Glenwood and Robert S. Bourbon, Rockville, for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ., and HARRY A. COLE, Special Judge.

LEVINE, Judge.

This case raises issues of jurisdiction involving the separate requirements of the Maryland long arm statute, Maryland Code (1974), § 6-103 of the Courts and Judicial Proceedings Article, the Due Process Clause of the Fourteenth Amendment, and their interaction. The question, originally presented in the trial court by a motion raising preliminary objection, is the validity of the exercise of in personam jurisdiction over a nonresident defendant who was not served with process in the State and who has not submitted to the jurisdiction of the court. After hearing argument on the motion, the trial court, for want of jurisdiction over the person of the defendant, issued an order dismissing appellant's declaration in an action sounding in criminal conversation. ¹ After an appeal was taken to the Court of Special Appeals, this Court granted a writ of certiorari.

The facts before the trial court on the motion to dismiss revealed a unique factual setting. Appellant and his wife were at all relevant times domiciled in Maryland. Appellee, a lifetime domiciliary of California, took up residence in Howard County, Maryland, in July of 1969 and remained for two years, until June 1971, while fulfilling his Selective Service obligation by working at the National Institutes of Health in Bethesda, Maryland, and at the Armed Forces Institute of Pathology in Washington, D. C. In June of 1971, appellee returned to California. While working at the Armed Forces Institute, he became acquainted with the wife of appellant.

In his original declaration, appellant, in support of his claim of criminal conversation involving his wife and appellee, alleged acts of intercourse during the period March 9 to April 28 of 1971, without specifying where the alleged acts occurred. Appellant now concedes, however, that he can prove no act of sexual intercourse in Maryland. The only provable act occurred, as it develops, in Montreal, Canada, between March 8 and 13 of 1971, while appellee and appellant's wife were both attending a medical convention. Appellee, as already noted, then had his principal residence in Maryland.

The sole basis for appellant's claim of jurisdiction is the long arm statute, Code (1974), § 6-103 of the Courts and Judicial Proceedings Article, ² which is the source of authority in Maryland for the exercise of personal jurisdiction over nonresidents. In the trial court, appellant relied on two subsections of § 6-103, subsections (b)(3) and (b)(4), which provide:

'(b) In general.-A court may exercise personal jurisdiction over a person, who directly or by an agent:

'(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 persistent course of conduct in the state or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the state(.)'

Appellant has since abandoned his reliance on subsection (b)(3) pursuant to his concession that he can prove no act of sexual intercourse in Maryland, ³ and now relies exclusively on subsection (b)(4).

Application of the long arm statute is a two-step process. First, it must be determined whether the statute purports to authorize the assertion of personal jurisdiction. And secondly, it must be determined whether an exercise of jurisdiction permitted by the statute violates the Due Process Clause of the Fourteenth Amendment. It is important to note, however, that these determinations are interrelated. As noted repeatedly in the cases, the long arm statute represents an effort by the Legislature to expand the boundaries of permissible in personam jurisdiction to the limits permitted by the Federal Constitution. See, e.g., Lamprecht v. Piper Aircraft Corp., 262 Md. 126, 130, 277 A.2d 272 (1971); Harris v. Arlen Properties, 256 Md. 185, 195-96, 260 A.2d 22 (1969); Gilliam v. Moog Industries, 239 Md. 107, 111, 210 A.2d 390 (1965). It is therefore necessary to interpret the statute in light of constitutional limitations, rendering where possible an interpretation consistent with those limitations. Lamprecht v. Piper Aircraft Corp., supra, 262 Md. at 130, 277 A.2d 272.

The precipitating act of the tort of criminal conversation is the sexual act itself. The Restatement of Torts § 685 (1938) defines the tort of criminal conversation committed with a married woman as follows:

'One who, without the husband's consent, has sexual intercourse with a married woman is liable to the husband for the harm thereby caused to any of his legally protected marital interests.'

See also Restatement of Torts § 690 (1938) (establishing liability to wife for criminal conversation with a married man). In the instant case, then, the 'act' which caused the tortious injury occurred 'outside the state,' in Montreal, Canada, thus placing the action within subsection (b)(4) of the Maryland statute, and conversely placing it outside subsection (b)(3) which requires 'an act or omission in the state.'

The requirement of subsection (b)(4) that the act cause 'tortious injury in the state or outside of the state,' is not in itself a separate requirement, since obviously the injury can have occurred anywhere. The distinction made, however, is of some significance in determining whether one of the three alternative requirements of subsection (b)(4) stated in the second clause is satisfied in light of the requirements of due process, about which more will be said later.

The statute requires, in subsection (b)(4), that where tortious injury is caused within or without the state by an act outside the state, the defendant have certain independent contacts with the state. The second clause of subsection (b)(4) provides in the alternative that the court may exercise personal jurisdiction over the defendant

'. . . 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 (.)' (emphasis added).

Appellant relies only on the second alternative, 'engages in any other persistent course of conduct in the state,' in seeking to establish that the court may exercise jurisdiction over appellee. See Johnson v. Helicopter & Airplane Services Corp., 389 F.Supp. 509 (D.Md.1974); Topik v. Catalyst Research Corporation, 339 F.Supp. 1102 (D.Md.1972), aff'd, 473 F.2d 907 (4th Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 38 L.Ed.2d 148 (1973); Lamprecht v. Piper Aircraft Corp., supra; Harris v. Arlen Properties, supra; Novack v. Nat'l Hot Rod Ass'n, 247 Md. 350, 231 A.2d 22 (1967).

In opposing the jurisdiction of the Maryland court appellee first contends that the 'persistent course of conduct' required by the statute must involve commercial activity. Simply stated, his argument is that the maxim 'ejusdem generis' is applicable and that since the other alternative requirements indicate commercial activity, the requirement in question must so indicate, thus narrowing the ordinary meaning of the words. We find that argument unpersuasive here.

The purpose of the long arm statute, as previously discussed, is to expand jurisdiction to constitutional limits. Personal jurisdiction is not limited by the Due Process Clause to defendants whose contacts arise out of commercial activity. Van Wagenberg v. Van Wagenberg, 241 Md. 154, 169-70, 215 A.2d 812, cert. denied, 385 U.S. 833, 87 S.Ct. 73, 17 L.Ed.2d 68 (1966). The reading of the statute advanced by the appellee, then, would result in an unwarranted limitation of jurisdiction at variance with the legislative intent. Further, the references to business conduct in the alternative phrases are of an almost all-inclusive nature with respect to commercial activity, thus rendering the 'persistent course of conduct' requirement mere surplusage under the interpretation advanced by appellee. We hold, therefore, that the 'persistent course of conduct' referred to in subsection (b)(4) of § 6-103 need not be conduct of a commercial nature. Cf. Malinow v. Eberly, 322 F.Supp. 594 (D.Md.1971); Harris v. Arlen Properties, supra, 256 Md. at 197-98, 260 A.2d 22.

The principal thrust of appellee's argument, however, is that the facts of this case do not show a 'persistent course of conduct' within the meaning of the long arm statute, or, in the alternative, that the exercise of personal jurisdiction over this nonresident defendant is violative of the Due Process Clause. It remains to be determined, then, whether the nonresident appellee's contacts with Maryland are sufficient for purposes of the long arm statute and due process to subject him to the jurisdiction of the Maryland courts. As already noted, the legislative purpose in enacting the long arm statute was to expand jurisdiction to the limits permitted by due process. When terms having a relatively flexible quality, such as 'persistent course of conduct,' are used in the statute, they necessarily take their meaning from that legislative purpose. In the case of the long arm statute, such terms are meant to be coextensive with the requirements of due process. See Krashes v. White, 275 Md. 549, 559, 341 A.2d 798 (1975).

Constitutional limitations on the exercise of jurisdiction by a state over a nonresident have been considered in three opinions of the Supreme Court: Internat. Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220,...