Tall v. Board of School Commissioners

²³⁹ HOLLANDER, Judge. In an amended complaint filed in the Circuit Court for Baltimore City, William L. Tall, as parent and next friend of William L. Tall, Jr. (“Roy”), appellant, sued the Board of School Commissioners of Baltimore City (the “Board”), appel-lee, and Robert Manning 1 for negligence (Count I), assault (Count II), battery (Count III), intentional infliction of emotional distress (Count IV), and violations of the Maryland Declaration of Rights (Count V). Appellee filed a motion to dismiss and, following a hearing, the court granted the motion. After the court granted appellant’s motion for final judgment, Tall noted his timely appeal.

He presents one question for our review, which we have rephrased slightly: Did the trial court err in granting appellee’s motion to dismiss? For the reasons set forth below, we shall affirm. FACTUAL SUMMARY Appellant’s son, Roy, suffers from Down’s syndrome. During the summer of 1995, when Roy was nine years old, he participated in a special educational program at School No. 304, Harbor View Elementary, sponsored by the Board.

During the course of the program, Manning, who was an employee of the Board, served as Roy’s teacher. While at school on July 18, 1995, Roy urinated in his pants. Manning responded by physically disciplining Roy; this included beating the child on his arms and legs with a ruler. When Roy arrived home that day, Gwyneth Tall, his mother, noticed that he was wearing a long-sleeved shirt and long ²⁴⁰ pants, which were different than the clothes he had worn to school that morning.

As she helped Roy change his clothes, Ms. Tall discovered raised welts and bruises on her son’s arms and legs. Consequently, she took Roy to the emergency room at Harbor Hospital Center, where Roy was x-rayed and treated for his injuries. Later that same day, the Tails reported the injuries to the Baltimore City Police, at the Southern District. An investigation of the matter culminated in criminal charges against Manning for child abuse, assault, and battery.

Subsequently, Manning pled guilty to assault, for which he received a five year suspended sentence and five years of supervised probation. He was also ordered not to engage in any activity as a teacher or supervisor of any individual under the age of twenty-one. On January 31, 1997, appellee filed a Motion to Dismiss First Amended Complaint. Attached to the motion was a copy of Maryland Code (1978, 1992 Repl.Vol., 1996 Supp.), § 7-305 of the Education Article (“E.A.”).

Section 7-305(a) 2 provided: (a) Corporal punishment prohibited. -Notwithstanding any bylaw, rule, or regulation made or approved by the State Board, a principal, vice-principal, or other employee may not administer corporal punishment to discipline a student in a public school in the State. Appellee also attached to the motion a copy of the “RULES OF THE BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY” (the “local rules”). Section 506.04 of the local rules provided: 506.04-Corporal Punishment Prohibited The schools shall be governed without corporal punishment. Additionally, appellee appended a document entitled “Informational Guide for Parents and Students, Fall 1996 ” (the ²⁴¹ “Supplement”), which contained a section entitled “Corporal Punishment.” It stated: Corporal punishment usually happens when a teacher, principal, or other school employee hits students as a way of disciplining them.

Corporal punishment is any deliberate striking, paddling, application of an object or body part against the body of a student, or any other physical punishment used as a corrective or retaliatory measure against a student. In the Baltimore City Public Schools, corporal punishment is forbidden (Rules of the Board of School Commissioners, 506. (U). There are circumstances and/or conditions under which [Baltimore City Public School] employees are permitted to touch students appropriately.

Maintaining a safe and orderly school environment, administering first aid, and attending to health needs are categories of these circumstances and/or conditions where touching students is permitted. Typical examples of these circumstances are as follows: • Intervening in fights • Preventing accidental injury • Protecting oneself • Providing appropriate care to disabled students • Moving through a crowd to address an emergency • Employing passive restraint with students with emotional disabilities (Italics in original; boldface added). Thereafter, the circuit court (Dancy, J.) conducted a hearing on the Board’s motion to dismiss and, by order dated February 18, 1997, granted appellee’s motion. Judge Dancy hand-wrote the following on the Order: The Complaint fails to state a cause of action as the conduct of the Board’s employee complained of is malicious and intentional and is outside the scope of his employment and not in furtherance of the Board’s business of educating ²⁴² students.

This is particularly so as this employee was a teacher specifically instructed not to use corporal punishment. Manning subsequently filed his answer to the amended complaint. Pursuant to Maryland Rule 2-602(b), the court granted appellant’s motion for final judgment with respect to the disposition of the claims asserted against appellee. We will include additional facts in our discussion.

DISCUSSION I. As a threshold matter, we must determine whether the trial court properly directed the entry of a final judgment. Absent a proper final order, of course, we have no jurisdiction to entertain this appeal, because the court’s ruling did not dispose of the case as to both parties. In a case involving multiple parties, Maryland Rule 2-602(b) permits a court to enter final judgment as to a particular party so long as “the court expressly determines in a written order that there is no just reason for delay.” Here, appellant filed a motion pursuant to Maryland Rule 2-602(b) stating, inter alia, that there was no just reason for delay with respect to the claims against the Board. The court’s written order granting appellant’s “Motion For Final Judgment” stated: Upon consideration of [appellant’s] Motion for Final Judgment, any responses and replies filed thereto, it is ...

ORDERED: 1. That [appellant’s] Motion for a Final Judgment is GRANTED; 2. That Final Judgment is entered with regard to Defendant Board of School Commissioners of Baltimore City as it relates to the Court’s Order dated February 18, 1997 dismissing [appellant’s] claim against [the Board] for failure to state a claim upon which relief can be granted. ²⁴³ It is clear that the court failed to comply with Rule 2-602(b), because it did not make an express determination in the written order that there was “no just reason for delay.” Consequently, the court’s order granting final judgment was ineffective, and there is no final appealable judgment in favor of the Board. Waters v. USF & G, 328 Md. 700, 707-09 , 616 A.2d 884 (1992); see Gindes v. Khan, 346 Md. 143, 150-51 , 695 A.2d 163 (1997).

This flaw does not necessarily conclude the matter, however. Maryland Rule 8-602(e)(l) provides: If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2-602(b), the appellate court may, as it finds appropriate, (A) dismiss the appeal, (B) remand the case for the lower court to decide whether to direct the entry of a final judgment, (C) enter a final judgment on its own initiative or (D) if a final judgment was entered by the lower court after the notice of appeal was filed, treat the notice of appeal as if filed on the same day as, but after, the entry of the judgment. (Emphasis added). To be sure, certification under Rule 2-602(b) “should be used sparingly so that piecemeal appeals and duplication of efforts and costs in cases involving multiple claims or multiple parties may be avoided.” Maryland-Nat’l Capital Park & Planning Comm’n v. Smith, 333 Md. 3, 7 , 633 A.2d 855 (1993); see Huber v. Nationwide Mut.

Ins. Co., 347 Md. 415, 423 , 701 A.2d 415 (1997). Nevertheless, the trial court certainly had discretion to enter a final judgment pursuant to Rule 2-602(b). Moreover, the court clearly intended to do so, and “would have accomplished such purpose if it had made the requisite written determination” that there was no just reason for delay.

Waters, 328 Md. at 709 , 616 A.2d 884 . Accordingly, pursuant to Md. Rule 8-602(e)(l)(C), we shall, in the exercise of our discretion, “enter a final judgment on our own initiative, treat ²⁴⁴ the notice of appeal as properly filed, and proceed with the case.” Waters, 328 Md. at 709-10 , 616 A.2d 884 ; see Shofer v. Hack Co., 324 Md. 92, 98 , 595 A.2d 1078 (1991), cert. denied, 502 U.S. 1096 , 112 S.Ct. 1174 , 117 L.Ed.2d 419 (1992); Kamin-A-Kalaw v. Dulic, 322 Md. 49, 54 , 585 A.2d 216 (1991); Quartertime Video v. Hanna, 321 Md. 59 , 63 n. 4, 580 A.2d 1073 (1990); Seat Pleasant Baptist Church Bd. of Trustees v. Long, 114 Md.App. 660, 674 , 691 A.2d 721 (1997).

II

We next address appellant’s contention that the circuit court improperly considered the local rules and the Supplement that appellee appended as an exhibit to its motion to dismiss. Appellant asserts that the court should not have considered the local rules and the Supplement because they were not supported by affidavit. Appellant’s claim is not preserved. We explain.

A party must lay the proper foundation for a document that is attached to a motion. See Diffendal v. Kash and Karry Serv. Corp., 74 Md.App. 170, 181 , 536 A.2d 1175 (1988). In their treatise, Niemeyer and Schuett explain: A document can be made part of the motion only through affidavit, deposition, or answers to interrogatories that adequately lay the proper foundation for the document’s admission into evidence.

Authenticity and relevancy of the document must be shown. Attaching documents to a motion for summary judgment without the necessary affidavit is no more acceptable than standing up in open court and attempting to offer the same documents into evidence without a witness or a stipulation. Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 332 (2d ed.1992); see Moura v. Randall, 119 Md.App. 632, 641-42 , 705 A.2d 334 (1998); see also Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs.

Ltd., 109 Md.App. 217, 264 , 674 A.2d 106 (1996) (stating that “a docu ²⁴⁵ ment, otherwise admissible, may be used to show the existence of a factual dispute”), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). Appellant complains that appellee failed to include an affidavit to support the documents. He asserts in his brief that he “objected to the court’s consideration of the rules in his Memorandum in Opposition to Appellee’s Motion to Dismiss.” Our review of the record indicates, however, that appellant filed an opposition only in connection with appellee’s motion to dismiss the original complaint; he never filed an opposition to the motion to dismiss the amended complaint. Moreover, in that opposition, he focused on the fact that appellee failed to attach the local rules and the Supplement, and that those documents were unsupported by affidavit.

Thereafter, when appellee filed its motion to dismiss the amended complaint, it attached the local rules and the Supplement. As noted, despite his original opposition, appellant then failed to file an opposition to the motion to dismiss the amended complaint. Moreover, at the hearing, appellant seems to have acquiesced to the court’s apparent consideration of the local rules and the Supplement, because he failed to challenge the attachments. Nor did he dispute either the relevancy or the authenticity of the documents.

Given appellant’s failure to renew his objection “to the lack of the prerequisite foundation, the objection is waived.” Niemeyer & Schuett, supra, at 332; see Md. Rule 8-131(a); see also Geisz v. Greater Baltimore Medical Ctr., 313 Md. 301, 332 , 545 A.2d 658 (1988). We must next resolve whether the court’s consideration of appellee’s attachments altered the character of the motion. When, as here, a court considers extrinsic material in connection with a motion to dismiss, the motion to dismiss is ordinarily transformed into a motion for summary judgment. Hrehorovich v. Harbor Hosp.

Ctr., Inc., 93 Md.App. 772, 783 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993); see also Md. Rule 2-322; Pope v. Board of Sch. Comm’rs, 106 Md.App. 578, 590 , 665 A.2d 713 (1995), cert. denied, 342 Md. 116 , 673 A.2d 707 (1996); Niemeyer & ²⁴⁶ Schuett, supra, at 333. In considering appellee’s attachments, we are satisfied that the court “transmuted appellee[’s] motion to dismiss to a motion for summary judgment.” Hrehorovich, 93 Md.App. at 783 , 614 A.2d 1021 . Therefore, we shall review the matter accordingly.

III

Maryland Rule 2-501, which governs summary judgment, contemplates a two-level inquiry; it requires that, in order to grant summary judgment, the trial court must determine that no genuine dispute exists as to any material fact, and that one party is entitled to judgment as matter of law. Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see also Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); Sachs v. Regal Savings Bank, FSB, 119 Md.App. 276, 277-78 , 705 A.2d 1 (1998); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. 557, 580-81 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992).

In its review of the motion, the court must consider the facts in the light most favorable to the non-moving party, Dobbins v. Washington Suburban Sanitary Com’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); King v. Bankerd, 303 Md. 98, 110-11 , 492 A.2d 608 (1985), and construe all inferences reasonably drawn from those facts in favor of the non-movant. Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 387 , 693 A.2d 370 (1997); Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . To defeat a motion for summary judgment, the non-moving party must establish that a genuine dispute exists as to a material fact. Moura, 119 Md.App. at 639-40 , 705 A.2d 334 .

A material fact is one that will somehow affect the outcome of the case. King, 303 Md. at 111 , 492 A.2d 608 . If a dispute exists as to a fact that is not material to the outcome of the case, the entry of summary judgment is not foreclosed. ²⁴⁷ Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994). Moreover, mere formal denials or general allegations are not necessarily sufficient to prevent the entry of summary judgment.

Shaffer v. Lohr, 264 Md. 397, 404 , 287 A.2d 42 (1972); Frush v. Brooks, 204 Md. 315, 320-21 , 104 A.2d 624 (1954). In the absence of a genuine dispute as to material fact, we must decide if the trial court reached the correct legal conclusion. Beatty, 330 Md. at 737 , 625 A.2d 1005 ; see also Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); King, 303 Md. at 111 , 492 A.2d 608 . Appellate courts ordinarily review the grant of summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Hoffman v. United Iron and Metal Co., Inc., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996).

With these principles in mind, we must determine whether there are any disputes of material fact. If not, we must then decide whether the trial court was legally correct in its decision. Appellant alleged in his amended complaint that Manning was “an agent, servant, and/or employee of the School Board acting within the scope of his employment while he was teaching ... Roy....” His claims against the Board are all premised on the doctrine of respondeat superior, 3 Under this doctrine, the Board, as employer, cannot be liable for Manning’s actions unless his conduct was within the scope of employment.

Appellant argues that, merely because Manning’s acts were intentional, this does not compel the conclusion that his conduct was beyond the scope of employment. Instead, appellant avers that he presented disputed questions of material fact that should have been resolved by the jury. ²⁴⁸ He argues: “A school board may be held vicariously hable for such [intentional] acts and it should be left to the fact finder to determine whether or not the acts were committed within the scope of employment.” Therefore, in his view, the circuit court erred in deciding, as a matter of law, that Manning’s conduct was outside the scope of employment. Appellant’s argument is founded on the assertion that Manning’s conduct was incidental to conduct authorized by the Board for educating special needs children, it was foreseeable, and it was in furtherance of appellee’s objective of educating these children. According to appellant, Manning’s physical contact with Roy was foreseeable because, as a result of Roy’s disability, Manning was required to give him special attention, which included “clothing, touching, and cleaning” Roy.

In addition, appellant observes that the Supplement “contemplate[d] that a teacher may touch a student to provide appropriate care for disabled students with emotional disabilities.” Appellant states: It is a fair and reasonable inference that Defendant Manning’s responsibilities included taking Roy and other such disabled students to the bathroom and that his duties included helping the students with their clothing, touching and cleaning them, and disciplining them if they misbehaved or failed to listen. It was during the carrying out of these duties and responsibilities by the teacher that the alleged misconduct occurred. (Emphasis added). Therefore, appellant claims Manning’s actions were arguably within the scope of employment. ■Various statutory provisions are relevant here.

Maryland Code (1978, 1997 Repl.Vol.), E.A. § 4-105 provides for county board immunity in certain situations. A “County board” includes “the Board of School Commissioners of Baltimore City.” E.A. § 101(d). 4 At the relevant time, E.A. § 4-105(d) provided: “A county board shall have the immunity from ²⁴⁹ liability described under § 5-353 of the Courts and Judicial Proceedings Article.” Maryland Code (1974, 1995 RepLVoL), § 5-353 of the Courts and Judicial Proceedings Article (“C.J.”) 5 provided, in part: (d) Parties in tort claims; separate litigation of issues.— (1) The county board shall be joined as a party to an action against a county board employee or volunteer that alleges damages resulting from a tortious act or omission committed by the employee in the scope of employment or by the volunteer within the scope of the volunteer’s service or duties. (2) The issue of whether the county board employee acted within the scope of employment may be litigated separately. (e) Employees. — A county board employee acting within the scope of employment, without malice and gross negligence, is not personally liable for damages resulting from a tortious act or omission for which a limitation of liability is provided for the county board under subsection (b) of this section, including damages that exceed the limitation on the county board’s liability.

(g) Judgment levied against board. — Except as provided in subsection (e) or (f) of this section, a judgment in tort for damages against a county board employee acting within the scope of employment or a volunteer acting within the scope of the volunteer’s services or duties shall be levied against the county board only and may not be executed against the county board employee or the volunteer personally. (Boldface added). Appellant relies on C.J. § 5-353 to support his claim that the intentional character of Manning’s conduct is not disposi- ²⁵⁰ tive of appellee’s liability. He points out that C.J. § 5-353 did not provide that “if a teacher acts with malice or gross negligence that the school board is automatically immune and absolved of all liability.” Rather, he observes that it provided that “the plaintiff may seek recovery from both the school board and the teacher.” Further, appellant contends that the language of the Local Government Tort Claims Act, codified in C.J. §§ 5-401 through 5-404, 6 supports his position that an intentional act does not necessarily foreclose appellee’s liability. 7 C.J. § 5-403(b)(1) provided: Except as provided in subsection (c)[ 8 ] of this section, a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.

Appellant also looks to C.J. § 5-402(b), which stated: (b) Immunity; exceptions.-(l) Except as provided in paragraph (2) of this subsection, a person may not execute against an employee on a judgment rendered for tortious acts or omissions committed by the employee within the scope of employment with a local government. (2)(i) An employee shall be fully liable for all damages awarded in an action in which it is found that the employee acted with actual malice. (ii) In such circumstances the judgment may be executed against the employee and the local government may seek indemnification for any sums it is required to pay under § 5-403(b)(l) of this subtitle. ²⁵¹ Thus, appellant argues that “the [Legislature considered factual scenarios under which a local government may be liable for the intentional acts, even acts committed with ‘actual malice,’ by one of its employees within the scope of employment.” In those cases, however, local governments may seek indemnification from the employee. He posits that the Board’s immunity under C.J. § 5-353 should be interpreted in the same way. “Contrary to the lower court ruling in this case,” appellant maintains that “there should not be an automatic bar to suits against the board for vicarious liability when the alleged