Allen v. Allen

659 A.2d 411, 105 Md. App. 359, 1995 Md. App. LEXIS 117
CourtCourt of Special Appeals of Maryland
DecidedJune 8, 1995
DocketNo. 1784
StatusPublished
Cited by11 cases

This text of 659 A.2d 411 (Allen v. Allen) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Allen, 659 A.2d 411, 105 Md. App. 359, 1995 Md. App. LEXIS 117 (Md. Ct. App. 1995).

Opinion

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]*363II. 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]*364by 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]*365sought 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]*366not 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.

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Bluebook (online)
659 A.2d 411, 105 Md. App. 359, 1995 Md. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-allen-mdctspecapp-1995.