Womble v. Miller

Gilbert, J., delivered the opinion of the Court. J. D. Womble, appellant pro se, brought suit in the Circuit Court for Montgomery County against Charles Woodrow Miller, appellee. The action alleged that Miller had assaulted and shot Womble on the 24th day of April, 1971, but the suit was not filed until July 30, 1973. Miller, in addition to the general issue plea, interposed the defense of limitations.

See then Md. Ann. Code art. 57, § l. 1 Simultaneously, Miller moved for a summary judgment. Thereafter, Womble amended his declaration. The amendment deleted the allegation of assault and substituted in lieu thereof claims of false arrest and malicious prosecution. Issue was joined.

Miller subsequently, through his attorney, served notice of his intention to take, on oral examination, the deposition of Womble. The deposition notice was filed on November 9, 1973. The time of the deposition was designated therein as 9:30 A.M., December 21, 1973. Apparently, because of difficulty in reaching the place of the deposition, Womble did not arrive until 11:00 A.M. We glean from the record that by that time the court reporter had departed, and the deposition was not taken.

On January 8, 1974 another notice of deposition was filed. The notice provides: “NOTICE OF TAKING DEPOSITION Please take notice that on Friday, the 1st day of February, 1974 at 9:30 A.M., in Room 205, 27 West Jefferson Street, Rockville, Maryland, I will take ⁶⁵⁸ the deposition of the plaintiff, J. D. Womble, upon oral examination pursuant to the Maryland Rules before a Notary Public or some other officer authorized by law to take depositions. . . .” The deposition, filed in the record, reveals that after being sworn, Womble objected to the form of the notice. He said: “There is a preliminary matter. The court over here has gotten rather sticky insofar as nonmembers of the Bar are concerned.

And they do not permit me to file papers of any description without citing points and authority. I am speaking of those matters which are clearly outlined in the Maryland Rules, and should be familiar to the clerks, dupties, [sic] and most assuredly, to the judges. Now, in your Notice you see you did not cite any rule. You said pursuant to the Maryland Rules, and at this point, I would ask you to specify under which rule or rules of Maryland that I am here.

MR. FORD [Miller’s attorney]: Well, you are here under the rules of discovery, chapter 400 of the Maryland Rules of Procedure, which provide for the taking of deposition of either parties, or witnesses. Parties may be required to appear for the deposition by notice being served by regular mail. And the record should reflect that a Notice was filed in this case setting your deposition for February 1, 1974, at 9:30.

Thereafter, at your request, the deposition was changed from 9:30 to 10:30. MR. WOMBLE: But what is the authority? MR.

FORD: Chapter 400 of the Maryland Rules of Procedure. They are the discovery rules in Maryland. MR. WOMBLE: All right. ⁶⁵⁹ MR.

FORD: If we can proceed now, would you state your name and address for the record? MR. WOMBLE: I don’t think that I am quite through. I don’t know that I am ready to proceed, Mr. Ford.

MR. FORD: Could you state for the record why you are not — let me ask you this, Mr. Womble. If you have an objection to something relative to this deposition, I think it might be worthwhile, if at least we get your name and address on the record so there won’t be any misunderstanding as to — MR. WOMBLE: Who I am and why.

I am J. D. Womble ... I think I do have an objection. I am not a member of the Bar. I have not had the time to research the Rules under which I am brought in here, and since there was no citation, I think that I will simply stand on the necessary period of time that I must be given by that rule or rules to prepare myself for such a deposition.

And, in short, I ask that you reissue, citing the authority under which you want to take this deposition, and we will reschedule it after I have had due time to get to a law library and take a look-see and find out just what you can ask me and whether or not 1 can refuse to answer. MR. FORD: I respectfully decline to do that, Mr. Womble, and I would further ask that the record show that the original notice of Deposition in this case was filed on or about November 2, 1973, scheduling your deposition for December 21, ’73, and on that date, that is, December 21, ’73, I and Mr. Burke, and the court reporter waited in excess of an hour for an appearance. I am informed that you actually appeared at about 11:00 that morning; the deposition was set for 9:30.

And I understand that there was some ⁶⁶⁰ difficulty with your vehicle, or traffic, I don’t recall what, but in any event, it was mutually agreed that the deposition would be rescheduled. You and I agreed by telephone to that, and I then, thereafter, on or about January 7, 1974, caused another notice to be filed scheduling your deposition for February 1,1974, which is today. Between the time that the notice was filed and today, you and I spoke again, and you requested that the deposition be changed from 9:30 to 10:30, and we did this. It is my feeling, Mr. Womble, that we have every right under the Maryland Rules to proceed with the deposition at this time, and if you do not wish to be deposed, or if you object to being deposed, I will merely inform you I will apply to the court for the proper motion — either to dismiss or other sanction. . . . [Y]our refusal to be deposed is not supported by any adequate legal authority.

MR. WOMBLE: Well, let’s examine the rule. What does it say? And what does the local rules of the court — Montgomery County Circuit Court — say with regard to citing an authority?

What does it say? MR. FORD: I am not going to discuss the rules, Mr. Womble. . . . [A] 11 parties, whether represented by counsel or not are presumed to know the rules of the court, and it is not my function, as counsel for Mr. Miller to advise you. MR.

WOMBLE: All right. I am quite prepared to argue such a motion before the court. Let me state for the record very clearly, I am not here to refuse to be deposed. I want the Defendant under — acting under the same guidelines which the court has imposed on me through the Clerk’s Office.

MR. FORD: I am not in any position — MR. WOMBLE: Now — ⁶⁶¹ MR. FORD: Mr. Womble — MR.

WOMBLE: If I may finish? MR. FORD: No, sir. We have a point here that has to be resolved, whether we are going to proceed with the deposition or not.

If we are not, fine. I am not going to take up the time of the Reporter, or other counsel, and, indeed, your time and my time for you and I to discuss whether the Clerk’s Office has treated you in any fashion other than any other litigant. That is not the purpose of this Deposition. This deposition is to inquire of you the matter put into issue in this case.

If you don’t want to proceed on that basis, fine, we will end the transcript right here, and you and I can then take the opportunity of presenting our views to the court. This is not the time to argue how you have been treated by the Clerk’s Office. MR. WOMBLE: You have made your position crystal clear, however, in this record you have also made a couple of statements which are not correct.

To wit, you stated that we have talked on the telephone. You and I have spoken once, and that was when I stated to you that Ford was — not Ford, I beg your pardon, Miller — is not really the object that I am after. The other conversation was with regard to the snow storm on the morning of — when was it — November, the earlier notice, and subsequent conversation with, regard to time. Those conversations were with your secretary, not with you.

And let’s let the court determine whether you are right or I am right. MR. FORD: Very well. And just — MR.

WOMBLE: Nothing personal in this. MR. FORD: Just so the record is clear, Mr. Womble, and I again tell you this because you are not represented by counsel, but based upon your ⁶⁶² position, that you refuse to proceed per the deposition notice filed, I will apply to the court for a motion to dismiss your claim, or for other sanctions, and I want you to understand that. MR.

WOMBLE: Let the record equally show that I am not unwilling to be déposed. I simply am requesting that the authority in the Maryland Rules — let it be clearly cited which rule or rules under which you are operating, — MR. FORD: I have already cited that. MR.

WOMBLE: — be made known to me, and give me the opportunity to go see the case law or the Annotated code and any cases — citations there so I know what I have got to say to you. MR. FORD: Well, I already cited that we are proceeding under the discovery rule, or Maryland rules of Procedure under the State of Maryland. I don’t think it is my obligation to counsel you on the Discovery rules or, indeed, any case that might have come down from the Court of Appeals interpreting those rules.

MR. WOMBLE: I most assuredly am not asking that. I want to know — be put on formal notice, the rules under which you are operating and have the appropriate period of time to prepare myself, which most assuredly, those rules must give me that, will give me 10 days, one day, they have to give me some days. MR.

FORD: On the basis, then, of your statement, you are not prepared to proceed with the deposition at this time? MR. WOMBLE: No.” Miller’s attorney promptly filed against Womble a motion to dismiss or for other relief. The case, having been removed on Womble’s motion, to the Circuit Court for Frederick County, went to hearing before Judge Samuel W. Barrick on Miller’s “Motion To ⁶⁶³ Dismiss and/or Other Relief”, as well as Womble’s “Motion Ne Recipiatur.” Womble argued that the court was “without authority to impose sanction [s] until such time as deponent shall have refused to answer a question” that was “posed with the approval of the court.” Judge Barrick disagreed with Womble’s position, but he declined to dismiss the case.

Instead he passed an order on May 20, 1974, which provided in pertinent part: “ORDERED, That the Plaintiff, J. D. Womble, pay to Francis J. Ford, counsel for the Defendant, the sum of