MONA H. PINNER, ET AL.
RANDY R. PINNER
Circuit Court for Baltimore City Case No. 24-C-16-000247
C.J., Wright, Eyler, James R. (Senior Judge, Specially
JAMES R., J.
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.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"),  cross-appellees.
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
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.
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,  and entered a default judgment in favor
of Randy for $99, 856.84.
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?
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
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
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.
The Asbestos Case
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.
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.
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
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.
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. 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.
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
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.
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.
The Instant Case
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 ...