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Wilson v. N.B.S.3/1/2000
sal of the party's action, for failure to submit to a court ordered physical or mental examination. Rather, it prescribed the type of case in which an order for physical or mental examination could be requested, the means by which a party could go about requesting such an order, the good cause requirement for such an order, the information that the court was required to include in the order, and provisions that the court could make in the order. Maryland Rule 420 incorporated the language of Discovery Rule 5. As we have explained, Rule 420 was the predecessor to Rule 2-423.
At no time has Rule 2-423 contained, or did Rule 420 or Discovery Rule 5 contain, language purporting to limit the inherent power of the trial court to take action, including its authority to impose sanctions, upon the failure of a party to comply with an order to submit to a physical or mental examination. The inherent power of the trial court to impose sanctions upon a party for the failure to comply with an order to submit to a mental or physical examination, as recognized by the Court of Appeals in the early part of the last century, was not disturbed by the adoption of those rules. Under its inherent authority to supervise and control discovery, the circuit court may impose sanctions upon a party, including the ultimate sanction of dismissal, for failure to comply with an order to submit to a physical or mental examination under Rule 2-423. Cf. Parker v. Housing Authority, 129 Md. App. 482, 487 (1999), cert. denied, No. 607 (Md. Feb. 10, 2000)(circuit court has authority to condition an expert's testimony on the examination of a non-party, even though Rule 2-423 does not authorize the circuit court to order an examination of a non-party).
In addition, Rule 1-202(a) provides:
These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. When a rule, by the word "shall" or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or by statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.
See also Schaller v. Castle Dev. Corp., 347 Md. 90, 96, (1997). Although Rule 2-423 does not itself mandate or prohibit conduct, it elevates to a rule the court's inherent power to order mental and physical examinations as part of pre-trial discovery in appropriate civil cases, and grants the court the power under that rule to issue an order that is mandatory. It does not prescribe, however, the consequences of noncompliance. If the totality of the circumstances of the case and the purpose of the rule warrant it, the court may exercise its inherent authority to dismiss an action with prejudice for failure to comply with an order for examination under Rule 2-423.
For the reasons we have explained, the circuit court had the inherent power to dismiss Angel's cause of action for her failure to comply with its order for examination. We will not address the question whether the court abused its discretion in doing so (the third question presented on appeal), because we agree with Angel that the court erred in dismissing her case with prejudice without affording her a hearing.
Rule 2-311, entitled "Motions," provides, in relevant part:
(a) Generally. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be in writing, and shall set forth the relief or order sought.
(b) Response. Except as otherwise provided
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