Melnick v. New Plan Realty Trust

FISCHER, Judge. Robert Melnick appeals a contempt order issued on December 12, 1990 by the Circuit Court for Montgomery County. The finding of contempt was predicated on Mel-nick’s failure to comply with a notice directing him to appear for a deposition. Melnick now contends that the notice of deposition was invalid.

This controversy stems from a February 23, 1981 judgment in the amount of $384,829 entered by the Supreme Court of New York, County of New York, against Melnick and in favor of New Plan Realty Trust (New Plan), appellee. After transferring the judgment to Maryland, New Plan commenced post-judgment discovery proceedings and noticed the deposition of Melnick for February 6, 1984. Melnick appeared and gave his deposition. Five years later, on November 3, 1989, New Plan issued another notice of Deposition Duces Tecum in Aid of Enforcement to Melnick.

New Plan was unsuccessful in its attempts to serve Mel-nick, and on January 2, 1990, the lower court directed service of process pursuant to Maryland Rule 2-121(b). The deposition was rescheduled for February 20, 1990, but Melnick failed to appear. The court then entered the order finding Melnick in contempt for failing to abide by the notice and granted sanctions to New Plan for the sum of $750. Melnick argues that, in 1984, New Plan had previously deposed him and that, pursuant to Maryland Rule 2-411, New Plan is required to obtain leave of court in order to depose him again in the same action.

Since New Plan did not obtain leave of court, Melnick contends that the notice was invalid and, consequently, the court was without authority to find him in contempt and impose sanctions. ⁴³⁷ As a money judgment creditor, New Plan is authorized under Maryland Rule 2-638 to obtain Melnick's deposition. Rule 2-633(a) provides: Methods — A judgment creditor may obtain discovery to aid in enforcement of a money judgment (1) by use of depositions, interrogatories, and request for documents, and (2) by examination before a judge or an examiner as provided in Section (b) of this rule. Melnick concedes that Rule 2-638 allows New Plan to depose him; he contends, however, that the procedural process of the deposition must follow Rule 2-411 which governs the taking of depositions. Rule 2-411 provides: Any party to an action may cause the testimony of a person, whether or not a party, to be taken by deposition for the purpose of discovery or for use as evidence in the action or for both purposes.

Leave of court must be obtained to take a deposition (a) before the earliest day on which any defendant’s initial pleading or motion is required; or (b) of an individual who has previously been deposed in the same action; or (c) of an individual confined in prison. Leave of court may be granted on such terms as the court prescribes. Melnick refers to part (b) of Rule 2-411 and asserts that New Plan must obtain leave of court to depose him again. New Plan argues that Rule 2-633 does not explicitly refer to Rule 2-411 or, for that matter, to any of the discovery rules and, consequently, there is no requirement to obtain leave of court.

We do not agree with New Plan’s assessment of post-judgment