Kerpelman v. Smith, Somerville & Case, L.L.C.

693 A.2d 357, 115 Md. App. 353, 1997 Md. App. LEXIS 79
CourtCourt of Special Appeals of Maryland
DecidedMay 2, 1997
Docket1213, September Term., 1996
StatusPublished
Cited by7 cases

This text of 693 A.2d 357 (Kerpelman v. Smith, Somerville & Case, L.L.C.) 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
Kerpelman v. Smith, Somerville & Case, L.L.C., 693 A.2d 357, 115 Md. App. 353, 1997 Md. App. LEXIS 79 (Md. Ct. App. 1997).

Opinion

*354 WENNER, Judge.

Appellant, Saul E. Kerpelman, appeals from an order of the Circuit Court for Baltimore City holding him “in constructive contempt of this court.” On appeal, appellant presents us with the following questions:

(1) Did the trial court have the power in the underlying case to order an examination of the Plaintiff by a non-physician pursuant to Md. Rule 2-423;
(2) Did the trial court have jurisdiction to order counsel personally to pay for any missed appointments by the Plaintiff under the authority of Rule 2-423’s provision that the Court may “regulate the payment of the expense of the examination” when counsel was never a party in the case and had never submitted to the jurisdiction of the Court;
(3) Did the trial court err in ordering counsel personally to pay any “missed appointment fees” caused by the plaintiffs failure to appear for testing without a prior hearing and without any showing that counsel had advised the failure of discovery; and
(4) Did the trial court err in holding counsel in contempt for refusal to pay the doctors’ missed appointment fees and the Defendant’s attorney’s fees when the underlying order to do so was entered without the power to do so, without jurisdiction over counsel, without a hearing as required by the discovery rules, and -without any showing that an order compelling discovery had been disobeyed and that counsel had advised the failure of discovery?

We shall respond in the negative to the first question and reverse the judgment of the circuit court. Consequently, we need not consider the remaining questions.

Facts

The genesis of this appeal is an action filed by appellant on behalf of Laurie Taylor and her minor daughter, Diera Ellis, seeking damages from the Estate of William E. Koons for *355 injuries suffered by Diera from ingesting lead paint. Despite counsel having agreed to have them tested, opposing counsel obtained an order pursuant to Md. Rule 2-423 compelling Ms. Taylor and Diera to appear for testing. 1 The order also provided “[i]f the Plaintiffs fail to appear for testing and fail to provide the Defendant’s attorney with sufficient notice of their inability to appear, resulting in the Defendant incurring costs, such costs shall be paid by the Plaintiffs and/or their attorney.” Although we need not consider this issue, we find it interesting that appellant overlooked this provision of the order.

In any event, Ms. Taylor and Diera failed to appear for the scheduled examinations and the defendant sought reimbursement for the costs incurred. On appellant’s refusal to reimburse the defendant, appellee filed a motion “To Hold Plaintiffs Attorney [appellant] in Contempt and For Attorney’s Fees.”

During the hearing, it was appellant’s view that his clients could not be compelled by court order to be examined by one Glenwood C. Brooks, Jr., Ph.D., a psychologist. It was the trial court’s view, however, that Rule 2-423 authorizes such an examination and the court then held appellant in contempt of court for refusing to reimburse appellee for the costs incurred due to Ms. Taylor and Diera’s failure to appear for the scheduled examinations. This appeal followed.

Discussion

We must here determine the scope of Maryland Rule 2-423, which provides:

When the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a physician or to produce for examination the person in the custody or under the legal control of the party. The order *356 may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(Emphasis added.)

According to appellant, Rule 2-423 grants a trial court authority to compel a person to submit to a mental or physical examination only by a physician. 2 As Dr. Brooks is a psychologist, not a physician, appellant believes the trial court lacked authority to compel Ms. Taylor and Diera to submit to an examination by Dr. Brooks. Conversely, although acknowledging that Dr. Brooks is not a physician, appellee believes Rule 2-423 should not be so narrowly construed. 3

In Mazor v. State Dep’t of Correction, 279 Md. 355, 369 A.2d 82 (1977), the Court of Appeals said:

[T]he cardinal rule of construction of a statute is to ascertain and carry out the real intention of the Legislature: The primary source from which we glean this intention is the language of the statute itself. And in construing a statute we accord the words their ordinary and natural signification. If reasonably possible, a statute is to be read so that no word, phrase, clause or sentence is rendered *357 surplusage or meaningless. Similarly, wherever possible an interpretation should be given to statutory language which will not lead to absurd consequences. Moreover, if the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature.

279 Md. 355, 360-61, 369 A.2d 82 (internal citations omitted). In applying these principles, we conclude that Rule 2-423 grants a trial court authority only to compel a party to submit to examination by a licensed physician.

“Where the words of the statute are clear and unambiguous, there usually is no need to go further in construing the statute.” Harris v. State, 331 Md. 137, 145-46, 626 A.2d 946 (1993) . We note that Rule 2^423 clearly and unambiguously provides: “the court may order the party to submit to a mental or physical examination by a physician.” Moreover, “[t]he canons and rules of construction that guide the interpretation of statutes apply equally when interpreting rules of procedure.” State v. Montgomery, 334 Md. 20, 637 A.2d 1193 (1994) . Consequently, had the Court of Appeals intended that Rule 2-423 be more expansively applied, it would not simply have approved the use of the term “physician.”

As Rule 2-423’s language is clear and unambiguous, ordinarily our inquiry would end here. Under the circumstances now before us, however, we will consider the history and context of Rule 2-4423. When approving the proposed revision of Rule 2-423, the Court of Appeals no doubt considered both its language and its scope.

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Bluebook (online)
693 A.2d 357, 115 Md. App. 353, 1997 Md. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerpelman-v-smith-somerville-case-llc-mdctspecapp-1997.