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Pinner v. Pinner

Court of Special Appeals of Maryland

January 31, 2019

MONA H. PINNER, ET AL.
v.
RANDY R. PINNER

          Circuit Court for Baltimore City Case No. 24-C-16-000247

          Fader, C.J., Wright, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

          OPINION

          EYLER, JAMES R., J.

         This appeal is from a default judgment in favor of Randy R. Pinner, appellee/cross-appellant, a North Carolina resident, against his step-mother, Mona Pinner, appellant, also a North Carolina resident, in the amount of nearly $100, 000.[1]Randy noted a cross-appeal from the order dismissing his claims against Mona's former attorneys: Mary H. Keyes, Esq., and the Keyes Law Firms, LLC (collectively "the Keyes Defendants"); and against Napoli Bern Ripka Shkolnik, LLP ("the Napoli Firm"), various related entities, and lawyers employed by those entities, including Jason Weiner, Esq. (collectively "the Napoli Defendants"), [2] cross-appellees.

         Prior to this suit, Edwin Pinner, Mona's late husband and Randy's father, and Mona, filed suit in the Circuit Court for Baltimore City, seeking damages for personal injuries caused by asbestos exposure ("the Asbestos Case"). Following Edwin's death from mesothelioma, the Asbestos Case was converted to a wrongful death and survival action on behalf of Mona, individually and as personal representative of the Estate of Edwin F. Pinner ("the Estate"). Ms. Keyes represented Mona (and Edwin) in the Asbestos Case for nearly two years until, by agreement with Ms. Keyes, the Napoli Firm took over the case. After Mona added a wrongful death claim to the Asbestos Case, she did not timely serve notice on Randy, pursuant to Rule 15-1001, or name him as a use plaintiff. As a result, Randy did not learn of the wrongful death claim until more than three years after Edwin died and his motion to intervene in the Asbestos Case was denied as time-barred. After Mona settled with certain of the defendants in the Asbestos Case, she received settlement proceeds, but did not deposit those funds into the Estate in North Carolina.

         Randy filed the instant action in the Circuit Court for Baltimore City asserting claims for negligence and breach of fiduciary duty against Mona, the Keyes Defendants, and the Napoli Defendants, as well as claims for aiding and abetting, negligent retention and supervision, and respondeat superior against certain of the Keyes Defendants and the Napoli Defendants. The circuit court granted motions to dismiss for failure to state a claim upon which relief may be granted as to all of the claims against the Keyes Defendants and the Napoli Defendants.

         Mona failed to plead and Randy's request for an order of default was granted. After she unsuccessfully moved to vacate the order of default, the court held a damages inquisition hearing over two days, ruled that it had personal jurisdiction over Mona, [3] and entered a default judgment in favor of Randy for $99, 856.84.

         Mona appeals from the default judgment, presenting three questions, which we have rephrased:

I. Did the circuit court err by exercising personal jurisdiction over Mona?
II. Did the circuit court err by applying North Carolina law to calculate Randy's damages?
III. Did the circuit court abuse its discretion by denying Mona's motion to vacate the order of default?

         In his cross-appeal, Randy presents four questions, which we have condensed and rephrased as three:

IV. Did the circuit court err by dismissing the claims against the Keyes Defendants and the Napoli Defendants for negligence, negligent retention and supervision, and respondeat superior premised upon a breach of Rule 15-1001?
V. Did the circuit court err by dismissing the claims against the Keyes Defendants and the Napoli Defendants for aiding and abetting Mona's alleged breach of Rule 15-1001?
VI. Did the circuit court err by dismissing the claims against the Keyes Defendants and the Napoli Defendants for aiding and abetting a breach of fiduciary duty under North Carolina law?

         For the following reasons, we answer the first question in the affirmative and shall remand with direction that the court vacate the default judgment and enter an order dismissing the claims against Mona for lack of personal jurisdiction. The resolution of the first question obviates the need for us to address Mona's other contentions of error. In the cross-appeal, we answer all three questions in the negative and shall affirm the dismissal of the claims against the Keyes Defendants and the Napoli Defendants.

         FACTS AND PROCEEDINGS

         a. The Asbestos Case

         In August 2009, Edwin was diagnosed with mesothelioma. He lived with his wife, Mona, in North Carolina. Edwin has one biological son, Randy, from a prior marriage who also lives in North Carolina.

         In September 2009, Edwin and Mona retained the services of the Keyes Defendants. On February 23, 2010, Ms. Keyes, on behalf of Edwin and Mona, filed suit in the Circuit Court for Baltimore City, Case No. 24-X-10-000032, against numerous defendants, including two of Edwin's former employers headquartered in Baltimore City - Continental Wire and Inland Steel - alleging that he had been directly exposed to asbestos dust while working for those companies. During discovery, Edwin and Mona identified Randy as Edwin's only biological son in their answers to interrogatories.

         Eight months after suit was filed, on October 30, 2010, Edwin died from mesothelioma. In December 2010, Mona was appointed personal representative of the Estate in the General Court of Justice, Superior Court Division, Buncombe County, North Carolina. She listed the Asbestos Case as property of the Estate.

         In March 2012, Ms. Keyes entered into an "Association Agreement" with the Napoli Firm whereby they agreed to take over all aspects of the Asbestos Case.

         Two and one-half years after Edwin died, on April 24, 2013, Jason Weiner, Esq., an employee of the Napoli Firm and a lawyer admitted to practice in Maryland, filed an amended complaint on behalf of Mona that added a claim for wrongful death. In Maryland, "only one action" shall lie for the wrongful death of a person and it "shall be for the benefit of the wife, husband, parent, and child of the deceased person." Md. Code (1974, 2006 Repl. Vol.), section 3-904(a) & (f) of the Courts and Judicial Proceedings Article ("CJP"). Pursuant to Rule 15-1001(b), "[a]ll persons who are or may be entitled by law to claim damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action." If a potential wrongful death beneficiary is not joined in the action, the words "to the use of" should precede their name. Id. The party bringing the wrongful death action is required to serve a copy of the complaint on each use plaintiff, along with a notice explaining their right to join the action.[4] Id. at (d). Randy was not named as a use plaintiff in the amended complaint and was not served with a copy of the amended complaint or a Rule 15-1001(d) notice.

         Over a year later, in June 2014, two of the defendants in the Asbestos Case moved to dismiss the wrongful death count of the amended complaint on the ground that Mona had failed to name Randy as a use plaintiff. In response to that motion, on July 8, 2014, Mona, through the Napoli Firm and Mr. Weiner, filed by consent a second amended complaint. The second amended complaint substituted Mona, individually and as personal representative of the Estate, as the only plaintiff, and, added Randy as a use plaintiff in the wrongful death count.

         On July 10, 2014, three years and eight months after Edwin's death, Mona, through counsel, served Randy with a copy of the complaint and the Rule 15-1001(d) notice.

         Within sixty days, on September 4, 2014, Randy moved to intervene in the Asbestos Case. The defendants opposed his intervention on the ground that his claim was time-barred. By order entered October 27, 2014, the circuit court permitted Randy to intervene for the limited purpose of conducting discovery relative to the limitations issue and, by order of June 23, 2015, denied his motion to intervene as time-barred.

         b. The Instant Case

         On January 19, 2016, Randy filed a sixteen-count complaint against Mona, the Keyes Defendants, Mr. Weiner, and the remainder of the Napoli Defendants arising from their "failure, among other things, to timely name Randy . . . as a use plaintiff in a wrongful death action and provide him with the notice required by Maryland Rule 15-1001." He alleged that Mona was a resident of North Carolina and that the Napoli Firm (and related entities) all were organized under the laws of New York State or Delaware. He further alleged that the court had personal jurisdiction over the non-resident defendants pursuant to the Maryland long-arm statute, codified at CJP section 6-103, "in that each [defendant] either directly and/or by an agent, regularly solicited or conducted business, engaged in a ...


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