Borchers v. Hrychuk, 821
Citation | 126 Md. App. 10,727 A.2d 388 |
Decision Date | 07 April 1999 |
Docket Number | No. 821,821 |
Parties | Dale BORCHERS v. Ronald HRYCHUK, et al. |
Court | Court of Special Appeals of Maryland |
Robert N. Levin (Levin & Tepper, on the brief), Bethesda, for appellant.
Deborah M. Whelihan (David B. Stratton and Jordan, Coyne & Savits, LLP, on the brief), Washington, DC, for Hyrchuk. Lauri E. Cleary (Stanley J. Reed, J. Bradford McCulloch and Lerch, Early & Brewer, Chartered, on the brief), Bethesda, for Potomac Conference of Seventh-Day Adventists.
Argued before EYLER, KENNEY, and PAUL E. ALPERT (Ret., specially assigned), JJ.
PAUL E. ALPERT, Judge (Ret., specially assigned).
Appellant, Dale Borchers, sued appellees, Ronald Hyrchuk and Potomac Conference of the Seventh-Day Adventist Church ("Potomac Conference"), in the Circuit Court for Montgomery County for marital counseling malpractice, clergy malpractice, gross negligence, negligent hiring, intentional infliction of emotional distress, and breach of contract.1 Potomac Conference moved to dismiss the counts against it on the ground that they failed to state claims upon which relief could be granted. The circuit court granted the motion in part—dismissing the marital counseling malpractice and negligent hiring claims without prejudice, and dismissing all of the other claims with prejudice. Borchers then filed an amended complaint against both Hyrchuk and Potomac Conference which asserted a single claim for marital counseling malpractice. Potomac Conference moved to dismiss the amended complaint for failure to state a claim, and Hyrchuk moved for summary judgment on the amended complaint. The circuit court granted those motions, and this appeal followed.
Potomac Conference raises a threshold issue, which we rephrase:
I. Whether Borchers abandoned the claims in her initial complaint, other than the one for marital counseling malpractice, when she filed her amended complaint?
Borchers, in turn, raises five issues, which we rephrase:
II. Whether the circuit court erred when it dismissed her claim for intentional infliction of emotional distress?
III. Whether the circuit court erred when it dismissed her marital counseling malpractice claim?
IV. Whether the circuit court erred when it dismissed her clergy malpractice claim?
V. Whether the circuit court erred when it dismissed her gross negligence claim?
VI. Whether the circuit court erred when it found that there was no vicarious liability on the part of Potomac Conference?
This case arises out of a sexual relationship that occurred in the summer of 1994 between Borchers, who was then an employee at a camp operated by Potomac Conference, and Hyrchuk, who was a pastor at that camp. Borchers claims that she was having marital difficulties at the time, and that when she sought advice from Hyrchuk, he exploited his position to initiate a sexual relationship with her.
Additional facts will be presented in the discussion of the issues.
Potomac Conference argues that when Borchers filed her amended complaint, which stated only a cause of action for marital counseling malpractice and did not refer back to the initial complaint, she abandoned all of the claims in her initial complaint, other than the one for marital counseling malpractice. The problem with this assertion is that when the circuit court granted Potomac Conference's motion to dismiss the first complaint, it did so with prejudice for all but two of the counts in that complaint; the only claims in the initial complaint for which Borchers was given leave to amend were the ones for marital counseling malpractice and negligent hiring. In a situation like this, only those claims for which leave to amend was granted should be restated in an amended complaint; the failure to assert in the amended complaint the claims that were dismissed with prejudice does not constitute a waiver or abandonment of those claims on appeal. See Thomas v. Ford Motor Credit Company, 48 Md.App. 617, 628, 429 A.2d 277 (1981)
(. ) Accordingly, by filing her amended complaint, Borchers only waived the negligent hiring claim,2 the dismissal of which she does not contest in this appeal; but she clearly did not abandon the other claims asserted in her initial complaint.
Borchers argues that the circuit court erred when it dismissed her intentional infliction of emotional distress count on the ground that it failed to state a claim upon which relief could be granted. We disagree.
In reviewing a grant of a motion to dismiss for failure to state a claim, "we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings[,]" and then determine the legal sufficiency of those allegations. Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d 69 (1991) (quoting Sharrow v. State Farm Mutual Automobile Insurance Company, 306 Md. 754, 768, 511 A.2d 492 (1986)). In our performance of this review, "any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader." Id.
With respect to the tort of intentional infliction of emotional distress, Borchers alleged the following:
* * *
To sustain a claim for intentional infliction of emotional distress, a plaintiff must establish that: 1) the defendant's conduct was intentional or reckless; 2) his conduct was extreme and outrageous; 3) there was a causal connection between the defendant's wrongful conduct and the emotional distress suffered; and 4) the emotional distress was severe. Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977). In this case, there is no question that the allegations of the complaint satisfy the requirements of intentional conduct, a causal connection, and severe emotional distress. The only question is whether Hyrchuk's alleged conduct—having sex with Borchers after she approached him for help with her marital problems—was extreme and outrageous.
In determining whether Hyrchuk's alleged conduct was extreme and outrageous, we note initially that, in order to meet the requirements of the tort, the defendant's...
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