Allen v. Allen

HARRELL, Judge. In the aftermath of a divorce suit between the parties that had been concluded in 1993, appellee filed a Notice of Deposition for Perpetuation of Evidence, under Rule 2-404, in the Circuit Court for Cecil County in anticipation of bringing a collateral cause of action against appellant. The proposed deposition was to be of the custodian of records of Dean Witter Reynolds, Inc., a stock brokerage firm that had reputedly handled appellant’s account during the period 1987-1992. Appellant moved for a protective order and to dismiss the Notice of Deposition.

The court denied both of those motions, as well as a motion for reconsideration, prompting this timely appeal. ISSUES Appellant presents two issues for our review, which we have rephrased as follows: I. Did the circuit court err by failing to dismiss appellee’s Notice of Deposition for Perpetuation of Evidence for lack of personal jurisdiction over appellant? ³⁶³ II. Did the circuit court err by failing to grant appellant a protective order where appellee was in a position to commence a cause of action and where the documents sought were not in danger of being destroyed? FACTS On 9 November 1990, Stanley Michael Allen, appellee here, filed a complaint for divorce against Jean Allen, appellant here, in the Circuit Court for Cecil County.

Appellee took appellant’s deposition on 3 November 1992 in that action. During the deposition, appellant was questioned about a retirement income account that she maintained with Dean Witter Reynolds, Inc. (“Dean Witter”). Appellee maintains that Ms. Allen testified in her deposition that her account initially had a value of approximately $149,000. Part of her portfolio in the account was comprised of Koger Properties (“Koger”) stock.

Mr. Allen contends that his former wife claimed to have acquired, at various times, a total of 2,500 shares of Koger stock at between twenty-five and twenty-seven dollars per share. According to appellee, Ms. Allen testified that the net worth of her account had decreased to $42,145 at the time of her deposition, a loss she largely attributed to the steady decline in the value of Koger stock, which had fallen to twenty-five cents per share. The parties agreed to settle their dispute concerning marital property during the course of trial. Their settlement agreement was later incorporated into an 11 May 1993 judgment of absolute divorce.

For the purposes of settlement, the Dean Witter retirement account stock was assigned the value attributed to it by appellant in her deposition. The divorce decree provided that the retirement account would remain the exclusive property of Ms. Allen. Following the entry of the divorce judgment, Mr. Allen discovered two statements from his former wife’s Dean Witter retirement account. Appellee thereafter reviewed stock summaries from the Wall Street Journal, which indicated that the value of Koger stock had fallen below twenty dollars per share ³⁶⁴ by the end of August 1990, and had continued to decline steadily thereafter.

Because the 31 August 1990 account statement in his possession indicated that Ms. Allen held only 500 shares of Koger stock at that time, appellee concluded that the additional 2,000 shares purchased by his former wife must have been acquired after that date. After comparing the information contained in appellant’s account statements with the figures from the Wall Street Journal, Mr. Allen concluded that, because of the stock’s decline in value, appellant could not have purchased 2,000 additional shares subsequent to August 1990 at the claimed price of twenty-five to twenty-seven dollars per share. Armed with this conclusion, appellee filed a Notice of Deposition for Perpetuation of Evidence and a Request for Subpoena Duces Tecum on 8 June 1994 in the Circuit Court for Cecil County. In accordance with the filing requirements of Maryland Rule 2-404, entitled “Perpetuation of Evidence”, Mr. Allen’s notice stated as follows: Pursuant to Rule 2-404(a)(2), the said Jean Miles Allen is hereby notified that the subject matter of the expected action involves stock accounts which the said Jean Miles Allen held with Dean Witter Reynolds, Inc., stockbrokerage firm, for the period 1987 to November 1992.

The facts that the said Stanley Michael Allen desires to establish are that the said Jean Miles Allen did give false testimony in a deposition taken on November 3, 1992 in connection with divorce proceedings between the parties in Case Number 90680E in the Circuit Court for Cecil County. The reasons for which the said Stanley Michael Allen wishes to perpetuate such evidence is to allow him to make determination [sic] as to whether the averments herein are in fact true, and if so, whether such averments will give rise to a cause of action in his favor against the said Jean Miles Allen, or against any other parties. Pursuant to Rule 2-404, the said Jean Miles Allen is hereby notified of her right to be present during the taking of the deposition proposed herein, and is further hereby given notice that the information ³⁶⁵ sought and obtained through this deposition may be used in a later action involving her. Ms. Allen was served with the Notice of Deposition for Perpetuation of Evidence on 30 June 1994.

In addition, Mr. Allen served a subpoena duces tecum on Dean Witter’s resident agent in Baltimore, requesting that an officer, employee, or agent of the brokerage firm bring to the deposition all records relating to accounts maintained by Ms. Allen between 1987 and November 1992. On 16 August, appellant filed motions to dismiss the notice of deposition for perpetuation of evidence and for a protective order. Ms. Allen asserted two grounds for dismissal of the notice of deposition. First, she maintained that venue was improper because she was a Delaware resident who did not live, work, or conduct business in Cecil County.

Second, appellant claimed that the Circuit Court for Cecil County lacked jurisdiction over her person because she was neither domiciled, served with process in, nor maintained a principal place of business in Maryland. In the memorandum in support of her motion for a protective order, Ms. Allen argued that a party seeking to perpetuate evidence pursuant to Md.Rule 2-404 must demonstrate that 1) he or she is not currently in a position to commence a cause of action; and 2) the taking of the deposition is necessary because of the danger that the evidence may be lost or destroyed by delay. Ms. Allen contended that appellee had failed to satisfy these requirements because Mr. Allen neither averred in his notice of deposition that the brokerage statements would somehow become unavailable, nor maintained that he was incapable of immediately bringing suit. Moreover, appellant asserted that since all of the issues concerning •the parties’ marital assets had been litigated in the divorce proceeding, no action relating to her stock accounts could be brought.

A hearing was held on both of appellant’s motions on 28 October 1994. Because the information sought by appellee related only to financial records held by Dean Witter and did ³⁶⁶ not directly involve deposing Ms. Allen, the court concluded that it would not prevent Mr. Allen from deposing a representative of the brokerage firm in Maryland. The judge therefore denied appellant’s motion to dismiss, as well as her motion for a protective order. After the court also denied her motion for reconsideration, appellant filed a timely appeal to this Court.

We issued an order staying the decision of the circuit court pending our decision in this matter. DISCUSSION I. Appellant’s first assignment of error concerns the failure of the circuit court to grant her motion to dismiss appellee’s Notice of Deposition for Perpetuation of Evidence for lack of personal jurisdiction over appellant. Ms. Allen asserts that, because Rule 2-404(a)(2) requires a notice of deposition to include a statement that the information sought may be used iñ a later action, the court must be able to exercise personal jurisdiction over the party receiving notice of the deposition to the same extent as if an action had been filed. Appellee, on the other hand, contends that personal jurisdiction is not an issue in cases, such as the one sub judice, where no suit has yet been filed and appellant was provided with notice of the deposition as required by Rule 2-404.

Maryland Code Ann., Cts. & Jud.Proc. §§ 6-102 and 6-103 delineate the general limitations on a court’s jurisdiction over a person. Section 6-102(a) provides that “[a] court may exercise personal jurisdiction as to any cause of action over a person domiciled in, served with process in, organized under the laws of, or who maintains his principal place of business in the State,” while, correspondingly, § 6-103(a) of the Maryland Long Arm Statute states that “[i]f jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.” (Emphasis supplied). Our reading of these statutory provisions makes clear that the maintenance of personal jurisdiction relates specifically to the capacity of one party to main ³⁶⁷ tain a suit against another. Thus, jurisdiction must be acquired over a person in order for a court to impose a personal liability or obligation upon a defendant in favor of a plaintiff.

See, e.g., Altman v. Altman, 282 Md. 483, 486 , 386 A.2d 766 (1978). Under the familiar due process analysis articulated in a number of Maryland and Supreme Court decisions, a defendant must have sufficient minimum contacts with the forum state so that the maintenance of a suit does not offend “traditional notions of fair play and substantial justice.” See International Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945); see also Camelback Ski Corp. v. Behning, 307 Md. 270 , 513 A.2d 874 (1986), vacated and remanded on other grounds, 480 U.S. 901 , 107 S.Ct. 1341 , 94 L.Ed.2d 512 (1987), opinion on remand, 312 Md. 330 , 539 A.2d 1107 , cert. denied, 488 U.S. 849 , 109 S.Ct. 130 , 102 L.Ed.2d 103 (1988). Although the critical question regarding personal jurisdiction is whether “a defendant’s connection with the forum state [is] such that he should reasonably anticipate being haled into court there,” Bahn v. Chicago Motor Club, 98 Md.App. 559, 571 , 634 A.2d 63 (1993) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 , 100 S.Ct. 559, 567 , 62 L.Ed.2d 490 (1980)) (emphasis supplied), this does not mean that the same test must be met in order to serve a party with a notice of a deposition to perpetuate evidence pursuant to Rule 2-404. The constitutional standards that govern a court’s exercise of personal jurisdiction over a nonresident ordinarily must be met only in order to compel a person to submit to the authority of a court, such as by subjecting that person to a judgment in personam.

See Sleph v. Radtke, 76 Md.App. 418, 427 , 545 A.2d 111 , cert. denied, 314 Md. 193 , 550 A.2d 381 (1988); see also Jason Pharmaceuticals v. Jianas Bros., 94 Md.App. 425, 434 , 617 A.2d 1125 (1993). In the case sub judice, appellee notified appellant, in accordance with the requirements of Rule 2-404(a), of his intent to depose a representative of Dean Witter with authority over appellant’s stock accounts. There is no dispute that the court could exercise personal jurisdiction over the Dean Witter ³⁶⁸ representative. Personal jurisdiction over Ms. Allen was not required where her stockbroker, not she herself, was the deponent from whom testimony and documentary evidence was sought.

Moreover, no suit had been filed, and she was exposed neither to the subpoena power of the court nor to the imposition of a judgment against her. Accordingly, the circuit court did not err in declining to dismiss appellee’s notice of deposition for lack of personal jurisdiction over appellant.

II

Appellant also complains that the circuit court should have granted her motion for a protective order because appellee failed to demonstrate that he was not then in a position to commence an action and, furthermore, because there was no indication that the stock account records sought would become unavailable in the future. In an issue of first impression, we must determine what threshold showing, if any, is required of a party seeking to perpetuate evidence under Maryland Rule 2-404. Rule 2-404(a) provides, in pertinent part, as follows: (1) Right to Take.—A person who may have an interest in an action that the person expects to be brought may perpetuate testimony or other evidence relevant to any claim or defense that may be asserted in the expected action in accordance with these rules. In applying these rules, a person who files or is served with a notice, request, or motion shall be deemed a “party” and references to the “court in which the action is pending” shall be deemed to refer to the court in which the notice, request, or motion is filed.

(2) Notice, Request, Motion.—The notice of deposition required by Rule 2-412, the request for production of documents required by Rule 2-422, and the motion for mental or physical examination required by Rule 2-423 shall include a description of the subject matter of the expected action, a description of the person’s interest in the expected action, the facts that the person desires to establish through the evidence to be perpetuated, the person’s reasons for desiring to perpetuate the evidence, and, in the case of a deposi ³⁶⁹ tion, the substance of the testimony that the person expects to elicit and a statement that any person served has the right to be present. The notice, request or motion shall include a statement that the information sought may be used in a later action. The rule facially does not require a party to make any particular showing of need in order to perpetuate testimony or other evidence in anticipation of an action. Although 2-404(a)(2) indicates that a notice of deposition must contain certain specified information, only a general statement of the person’s reasons for desiring to perpetuate the evidence is mandated by the text of the rule itself.

In determining whether any specific averment must be made to permit a person to perpetuate evidence under the auspices of Rule 2-404, we observe that this rule was derived in part from Rule 27, Fed.R.Civ.P. Where Maryland rules of civil procedure are patterned after the federal rules, we will look to federal decisions interpreting the corresponding federal rules for guidance in construing the similar Maryland rule. See Androutsos v. Fairfax Hospital, 323 Md. 634, 639 , 594 A.2d 574 (1991); see also Bartell v. Bartell, 278 Md. 12, 18 , 357 A.2d 343 (1976); Snowhite v. State ex rel. Tennant, 243 Md. 291, 308-09 , 221 A.2d 342 (1966). Prior to the adoption of Fed.R.Civ.P. 27, the U.S. Supreme Court held