Wilson v. N.B.S., Inc.

BYRNES, Judge. Angel Wilson (“Angel”), a minor, by her next friend, challenges the dismissal with prejudice of her lead paint premises liability action against N.B.S., Inc. (“N.B.S.”). Angel’s lawyers, Alan J. Mensh and Saul E. Kerpelman, also challenge an order of the circuit court directing Angel “and/or” her lawyers to reimburse N.B.S.’s insurance carrier for the amount of a “ ‘no show’ fee” that an expert witness for N.B.S. charged when Angel failed to appear for a court ordered psychological examination. Angel and her lawyers pose the following questions for review, which we have rephrased and reordered: I. Did the lower court err in ordering Angel’s lawyers to pay the “ ‘no show’ fee”?

II

Did the lower court err in granting N.B.S.’s motion to dismiss with prejudice, without affording Angel a hearing?

III

Did the lower court abuse its discretion in dismissing Angel’s case with prejudice? For the reasons that follow, we answer the first two questions affirmatively. Accordingly, we shall vacate the order ⁴³⁶ regarding payment of the “ ‘no show 5 fee,” reverse the judgment, and remand the case for further proceedings consistent with this opinion. We do not reach the third question.

FACTS AND PROCEEDINGS From her birth in March 1991 until sometime in May, 1993, Angel lived at 1733 McCulloh Street, in Baltimore City, with her mother (Annette Butler), her older sister (Lisa Allen), and seven other siblings. N.B.S. owned the McCulloh Street property during the relevant time period. Angel contends that she was exposed to lead-based paint when she was living at the McCulloh Street property and that, as a consequence, she sustained lead poisoning, from which she continues to suffer ill effects. On July 27, 1995, Angel brought a negligence action against N.B.S. in the Circuit Court for Baltimore City.

The suit was filed by Ms. Butler, as Angel’s next friend. In the complaint, Ms. Butler also brought a claim in her own right, for the loss of her minor child’s services. N.B.S. answered the complaint and discovery proceeded. In March 1997, more than a year after N.B.S. had propounded interrogatories to Angel that remained unanswered, it moved for sanctions under Rule 2-433, seeking, inter alia, dismissal of the case.

Angel opposed the motion and requested a hearing. She argued that her lawyers had made numerous efforts to obtain information from Ms. Butler so as to answer the interrogatories, without success. She also informed the court that Angel was no longer in the custody of Ms. Butler but instead was being cared for by her adult sister, Lisa Allen, and that her lawyers had been unable to locate Ms. Allen. On April 8, 1997, the lower court conditionally granted the motion for sanctions, without a hearing.

It issued an order stating that the complaint “is hereby dismissed with prejudice, unless outstanding discovery is complied with within thirty (30) days of this order.” Thereafter, on April 28, 1997, Angel filed a “Motion to Stay Operation of Discovery Order” and a ⁴³⁷ “Motion for Substitution of the Next Friend.” She argued in support of these motions that her lawyers recently had located Ms. Allen, and had learned from her that Ms. Butler was mentally ill, had been committed to a psychiatric hospital, and was no longer able to care for Angel. For that reason, Ms. Allen had been granted guardianship of Angel in a Child in Need of Assistance proceeding. Angel represented that Ms. Allen was willing to act as her next friend in the suit and that because Ms. Allen had resided at the property in question, she had the requisite knowledge to provide discovery responses on Angel’s behalf. N.B.S. opposed the motions.

The lower court granted them on June 9, 1997 and June 11, 1997, respectively, and thereafter, on July 25, 1997, issued a new discovery order setting various discovery deadlines and assigning a January 5, 1999 trial date. On May 29, 1998, N.B.S. filed a motion for mental and physical examinations of Angel under Rule 2-423, which Angel opposed. The lower court granted the motion on July 6, 1998. Its order directed counsel for Angel to produce her for examinations by Gerard A. Gioia, Ph.D. and Joseph M. Schel-ler, M.D.

(the expert examiners designated by N.B.S.) at the examiners’ offices, “within twenty (20) days of this Order” (i.e., July 26, 1998). By agreement of counsel, the examinations were rescheduled for dates after that time: August 20 and 22, 1998 for Dr. Gioia and September 8, 1998 for Dr. Scheller. Angel did not appear for her scheduled examination with Dr. Gioia. On August 31, 1998, N.B.S. filed a motion for sanctions under Rule 2-433.

It explained that, at Dr. Gioia’s insistence, its insurance carrier had advanced his $1,750 fee for the examination. It further stated that on August 18, 1998, a paralegal for counsel for N.B.S. had called Angel’s counsel to confirm the August 20 and 22 dates and was told that he had been unable to reach Ms. Allen, and that Dr. Gioia’s examination would have to be canceled. Because the cancellation took place less than ten days before the scheduled examination date, however, Dr. Gioia charged a $437.50 “ ‘no ⁴³⁸ show fee,” which he was retaining from the sum that had been advanced to him. N.B.S. asked the court to order Angel and her next friend and/or Angel’s lawyers to reimburse N.B.S.’s carrier for the forfeited “no show” fee.

It also asked the court to dismiss the complaint with prejudice. 1 N.B.S. requested a hearing on its motion. Angel filed a timely opposition to the motion for sanctions and also requested a hearing. She stated that her lawyers had made good faith efforts to ensure that she would appear for the examination by making telephone calls to Ms. Allen, sending her letters, and offering to arrange for transportation. Angel also asserted that on August 14, 1998, her lawyers had informed the lawyers for N.B.S. that they had been unable to contact Ms. Allen to confirm the dates for Angel’s examinations by Drs.

Gioia and Scheller, and for that reason, they could not guarantee that Angel would appear for the examinations. 2 On October 2, 1998, the lower court issued an order granting N.B.S.’s motion for sanctions, directing that “Plaintiffs and/or their counsel shall pay to [N.B.S.’s insurance carrier], through mailing to Defendants [sic] counsel, the amount of $437.50 in reimbursement of Dr. Gioia’s fee,” and further ordering that the complaint “be DISMISSED WITH PREJUDICE, unless the exams are conducted within twenty (20) days of this order.” (Emphasis in original.) The lower court did not hold a hearing. Angel filed a motion for reconsideration and a request for a hearing on that motion. She argued, inter alia, that under Rule 2 — 311(f), the court was required to afford her a hearing before dismissing her complaint with prejudice. The record does not contain a response to the motion for reconsideration or a ruling on it. ⁴³⁹ On October 27, 1998, N.B.S. filed a “Motion to Dismiss.” The motion was filed under Rule 2-311, the general motions rule, and Rule 2-433, which is entitled, “Sanctions.” N.B.S. asserted that as of October 22, 1998, Angel had not submitted to the examinations previously ordered by the court and had made no effort to reschedule them.

Explaining that “[t]he condition which would have preserved Plaintiffs’ cause of action [was] unfulfilled,” N.B.S. asked the court to enforce its October 2, 1998 order and dismiss the complaint with prejudice. It did not request a hearing. Angel filed an opposition to N.B.S.’s motion to dismiss and again requested a hearing. She argued that dismissal was not warranted because her lawyers had made good faith efforts to have her present for the examinations, without success; that the examinations could not be completed because her lawyers could not locate her or Ms. Allen, despite their best efforts; and that the lawyers for N.B.S. had not made efforts to reschedule the examinations in any event.

The lower court did not schedule a hearing. On December 8, 1998, it issued an order granting the motion to dismiss and dismissing the complaint with prejudice. This appeal followed. DISCUSSION Because Questions I and II are interrelated, we shall discuss them together.

Under Rule 2-433, entitled “Sanctions,” a circuit court may impose sanctions for certain failures of discovery, and for the failure to comply with an order compelling discovery. In addition, Rule 2-433 provides that in some circumstances, the court may order the attorney who advised the sanctionable conduct to pay the costs and expenses resulting from it. Rule 2-423, entitled “Mental and physical examination of persons,” provides, inter alia, that “when the mental or physical condition or characteristic of a party ... is in controversy, the court may issue an order directing the party to submit to ... [an] examination” and, in its order, the court “may regu ⁴⁴⁰ late the filing and distribution of a report of findings and conclusions and the testimony at trial of the examiner, the payment of expenses, and any other relevant matters.” Angel’s lawyers contend that the lower court erred in ordering them to pay Dr. Gioia’s “ ‘no show’ fee” because, under Rule 2^133, the court was empowered to impose such a sanction only if it first gave them an opportunity for a hearing and only if it found, as a matter of fact, that they had advised Angel not to appear for the examination. Because the court did neither, they argue, its order must be vacated. 3 Angel contends that the lower court erred in the first instance because it did not afford her a hearing before it dismissed her case for failure to comply with its Rule 2-423 order for psychological examination.

She also contends that the court abused its discretion in dismissing her case as a sanction for her having disobeyed its Rule 2-423 order. N.B.S. counters the argument that Angel’s lawyers advance about the “ ‘no show’ fee” by arguing that, under the authority granted the court by Rule 2-423 to “regulate ... the payment of expenses,” the court could pass an order requiring Angel’s lawyers to pay the “ ‘no show’ fee,” without a hearing and without a showing of sanctionable conduct. N.B.S. reasons that because Angel and her next friend could not be located and were indigent, an order assessing the “ ‘no show’ fee” against them would have been unenforceable and would have resulted, unfairly, in N.B.S. bearing that expense. It adds that, given that it already had sought and had been conditionally granted a dismissal of the action for Angel’s failure to respond to interrogatories for over a year, the imposition of the “ ‘no show’ fee” as a sanction against Angel and her ⁴⁴¹ lawyers for her failure to appear for Dr. Gioia’s examination was not an abuse of the court’s discretion.

N.B.S. has not addressed in its brief Angel’s contention that the circuit court was required to hold a hearing before dismissing her claim. It argues, however, that Angel’s repeated failures to provide discovery generally and to appear for the court ordered examinations specifically warranted the court’s exercise of discretion to dismiss her action. (i) Although the order directing Angel to submit to psychological and physical examinations by Drs. Gioia and Scheller was entered under Rule 2-423, the order directing Angel “and/or” her lawyers to pay Dr. Gioia’s “ ‘no show’ fee” was issued by the court as a ruling on N.B.S.’s motion for sanctions under Rule 2-433.

To a great extent, the arguments put forth by the parties and by Angel’s lawyers are premised on the assumption that Rule 2-433 sanctions apply when a party or other person who has been ordered to submit to an examination under Rule 2-423 fails to do so. We disagree with that premise. In construing the Maryland Rules, we apply principles of interpretation similar to those used to construe a statute. Holmes v. State, 350 Md. 412, 422 , 712 A.2d 554 (1998); State v. Harrell, 348 Md. 69, 79, 702 A.2d 723 (1997).

We first look to the text of the rule, and give its words their usual and ordinary meaning, consistent with logic and common sense. If the words are clear and unambiguous, our inquiry ends. Id. at 80 , 702 A.2d 723 . Generally, we look elsewhere to discern the intent of the Court of Appeals in promulgating the rule when the text of the rule is ambiguous.

Greco v. State, 347 Md. 423, 428 , 701 A.2d 419 (1997). Even if the language of the rule is clear, however, we may consider other sources that bear on the purpose or goal of the rule. State v. Wiegmann, 350 Md. 585, 592-93 , 714 A.2d 841 (1998). Rule 2-433 addresses two discovery failure situations, and provides for each that the court may enter such orders in ⁴⁴² regard to the failure as are just, including orders imposing sanctions, as specified.

The first situation, which is dealt with in subsection (a) of the rule, arises when a party (or in some instances a party’s designee) has committed one of the discovery failures listed in Rule 2 — 432(a), and the opposing party has moved for immediate sanctions. These discovery failures are: 1) not appearing for a properly noticed deposition; 2) not serving a response to a properly served request for production of documents; and 3) not serving a response to properly served interrogatories. The second discovery failure situation, which is addressed by Rule 2 — 433(b), occurs when a “person” has not obeyed an “order compelling discovery.” Under Rule 2-432(b), an “order compelling discovery” may be obtained for the following discovery failures: 1) those enumerated in Rule 2 — 432(a), as we have described above; 2) failure to answer a written or oral deposition question; 3) failure by a corporation or other entity to make a designation under Rule 2-412(d); 4) failure to answer an interrogatory under Rule 2-421; 5) failure to comply with a request for production of documents or a request for inspection under Rule 2-422; 6) failure to supplement a response under Rule 2-401(e); and 7) failure by a non-party to produce tangible evidence without having filed a written objection under Rule 2-510(f). The plain language of Rule 2-433 thus reveals that neither of the discovery failure situations covered by the rule includes noncompliance with a Rule 2-423 order for examination.

The history behind the adoption of Rules 2-432 and 2 — 433 is helpful in that it also shows that the sanctions set forth in Rule 2 — 433 were not meant to apply to a failure to comply with a Rule 2 — 423 examination. Rules 2 — 432 and 2 — 433 were derived from former Rule 422, which covered sanctions for, inter alia, noncompliance with an order to submit to a mental or physical examination under former Rule 420 (the predecessor to Rule 2-423). Rule 422 was entitled “Failure to Comply With Orders for Discovery.” From 1957, when the Maryland Rules of Practice and Procedure were adopted by the Court of ⁴⁴³ Appeals, until 1973, Rule 422 provided that for enumerated discovery violations, including a party’s failure to comply with a Rule 420 order, a circuit court could impose sanctions as were just, including taking a matter as being established, dismissing the action, and other penalties. A1973 amendment to Rule 422 removed from the list of discovery failures for which sanctions could be imposed a party’s failure to submit to an examination ordered under Rule 420.

At the same time, however, the rule was rewritten to include subsection (b), under which the court could impose sanctions, including dismissal, for noncompliance with an “order permitting discovery.” Thus, even though a specific reference to Rule 420 was deleted from Rule 422, subsection (b) still authorized the imposition of sanctions against a party for failure to comply with a Rule 420 order for examination. Effective July 1, 1984, the Court of Appeals rescinded the existing Maryland Rules of Practice and Procedure and adopted a substantially revised set of rules. Almost four years earlier, in late 1980, the Court of Appeals Standing Committee on Rules of Practice and Procedure (“Rules Committee”) began the process of considering proposals for revised discovery rules. With respect to sanctions, it first considered proposed Rule 2-412, which would have incorporated much of the language of Rule 422(b).

Specifically, proposed Rule 2-412(d) would have provided that if a party “fail[ed] to obey an order requiring him to provide or permit discovery” the court could impose sanctions, including dismissal. The minutes of the October 18, 1980 meeting of the Rules Committee confirm that proposed Rule 2-412(d) was meant to apply when a party failed to submit to an order for mental or physical examination. Indeed, the Rules Committee directed its Style Subcommittee to revise the wording of proposed Rule 2-412(d) to make that clear. Thereafter, in 1981, proposed Rule 2-412 was broken down into three new proposed rules: Rule 2-432 “Sanctions for Failure to Provide Discovery”; Rule 2-433 “Motion for Order Compelling Discovery”; and Rule 2-434 “Failure to Comply with Discovery Order.” One draft of proposed Rule 2-434 ⁴⁴⁴ incorporated the language previously included in proposed Rule 2-412(d) and added, consistent with the Rules Committee’s directive, that failure to comply with an order entered pursuant to Rule 2-428 would constitute a sanctionable “Failure to Comply with a Discovery Order.” By late 1981, however, the proposed rules had been revamped so that discovery violations and sanctions would be covered by two, not three, proposed rules: Rule 2-482 “Motions Upon Failure to Provide Discovery,” and Rule 2-433 “Sanctions.” Proposed Rule 2-432 was redrafted to provide, at subsection (b), for a motion for order compelling discovery and to specify the precise discovery violations for which an order compelling discovery could be sought.

Those violations did not include noncompliance with a Rule 2-423 order. At the same time, Rule 2-433 was redrafted to authorize, at subsection (b), the imposition of sanctions for failure to comply with an “order compelling discovery.” The combined effect of these revisions was to replace the broad language of Rule 422(b), under which a court could impose sanctions for the failure to comply with an order permitting discovery, with narrowly drawn and specific language authorizing sanctions for the failure to comply with an “order compelling discovery,” which could be entered only upon certain violations, not including noncompliance with a Rule 2-423 order. Consequently, the proposed discovery violations and sanctions rules (2-432 and 2-433) no longer covered noncompliance with an order for physical or mental examination. See Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary, 314-15, 318-20 (1992).

Maryland case law teaches that merely because a specific discovery failure is not covered expressly by the sanctions rule, in and of itself, does not mean that the rule is inapplicable. When the conduct of a party or a deponent technically does not constitute a failure to abide by the rules of discovery, the court nevertheless may have rule-based sanctions authority, under Rule 2-433. ⁴⁴⁵ In Klupt v. Krongard, 126 Md.App. 179 , 728 A.2d 727 , cert. denied, 355 Md. 612 , 735 A.2d 1107 (1999), we affirmed the lower court’s dismissal of a party’s counterclaim as a sanction for his destruction of critical tape recordings for which a discovery request was outstanding. We noted that even though the Maryland Rules do not deal explicitly with the destruction of evidence, Rule 2-433 permits the dismissal of a party’s claim as a sanction for failure to respond to a request for production of documents and failure to obey an order compelling the production of documents. We concluded that the sanction of dismissal may be imposed under Rule 2-433 for the destruction of evidence sought in discovery, reasoning that [destruction of evidence ... would render hollow any response to a request for production, even if timely filed, just as it would render an order to compel moot.

If dismissal is permissible in those cases, it would seem to be a fortiori permissible in a case of destruction of discoverable evidence. 126 Md.App. at 194 , 728 A.2d 727 . (Citations omitted). Likewise, in Womble v. Miller, 25 Md.App. 656 , 336 A.2d 138 (1975), cert. denied, 275 Md. 758 (1975), which was discussed in Klupt , this Court affirmed the lower court’s imposition of sanctions under the Maryland Rules for conduct not addressed explicitly by the discovery rules. In Womble , a pro se plaintiff in a tort action appeared for his deposition but refused to participate without being given access to the discovery rules and cases and time to refer to them.

The deposition was aborted before any questions were posed, and the lower court ultimately sanctioned the plaintiff for refusing to submit to a deposition. Id. at 663 , 336 A.2d 138 . At that time, Rule 422, which, as we have explained, was the predecessor to Rules 2-432 and 2-433, permitted the circuit court to impose sanctions against a party who failed to appear for his deposition or failed to answer a question posed during deposition. Id. at 666 , 336 A.2d 138 .

The plaintiff argued that because he had appeared for his deposition and had not refused to answer any questions (as none had been posed), the court was without ⁴⁴⁶ authority to sanction him under Rule 422. Id. at 663 , 336 A.2d 138 . This Court disagreed. Reasoning that the Court of Appeals, in adopting Rule 422, had not intended “to provide therein against every conceivable contingency that could arise, but rather applied a broad rule vesting the trial court with discretion as to the rule’s enforceability,” id. at 666 , 336 A.2d 138 , we held that the lower court was authorized by Rule 422 to impose sanctions, even though the plaintiffs conduct did not fit squarely into one of the discovery violations enumerated in that rule.

We glean from these cases and from the language of Rule 2-433 that the circuit court’s authority to impose sanctions under that rule applies to certain rules violations, as enumerated; to orders compelling compliance with the rules after they have been violated; and, as explained in Klupt and Womble , to discovery abuses not explicitly covered by the rules, but implicitly covered by them. As we have observed, the language of Rule 2-433 does not authorize sanctions for the failure to comply with a Rule 2-423 order because a Rule 2-423 order is not a violation of an “order compelling discovery,” under Rule 2-432. The history behind the 1984 rules revisions indicates to us that the language changes that resulted in disobedience of an order for physical or mental examination no longer being covered by the sanctions rule were the product of careful deliberation and an intention to effect that result. In addition, we see a distinction between the failure to obey an order for examination issued under Rule 2-423 and the discovery rule violations involved in Klupt and Womble that militates against reading Rule 2-433 to cover, implicitly, the conduct at issue here.

The discovery violations to which Rule 2-433 sanctions apply are violations of discovery afforded by rule, not by court order. 4 ⁴⁴⁷ The rales themselves allow a party to a civil action to propound interrogatories, requests for production or inspection and for