Tall v. Board of School Com'rs of Baltimore City

• Decision Date: 01 September 1997
• Docket Number: No. 1102,1102
• Citation: 706 A.2d 659,120 Md.App. 236
• Parties: , 124 Ed. Law Rep. 616 William L. TALL, as Parent and Next Friend of William L. Tall, Jr. v. BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY. ,
• Court: Court of Special Appeals of Maryland

Page 236

120 Md.App. 236

706 A.2d 659, 124 Ed. Law Rep. 616

William L. TALL, as Parent and Next Friend of William L. Tall, Jr. v. BOARD OF SCHOOL COMMISSIONERS OF BALTIMORE CITY.

No. 1102, Sept. Term, 1997.

Court of Special Appeals of Maryland.

March 4, 1998.

Jonathon P. Kagan (Mary C. Baldwin and Brassel & Baldwin, P.A. on the brief), Annapolis, for appellant

William R. Phelan, Jr., Principal Counsel (Frank C. Derr, Deputy City Solicitor and Sandra Holmes, Assistant Solicitor on the brief), Baltimore, for appellee.

Argued before HOLLANDER, THIEME and KENNEY, JJ.

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"), appellee, 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 Later that same day, the Talls 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.

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.

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 Corporal punishment usually happens when a teacher, principal, or other school employee hits students as a way of disciplining them.

"Supplement"), which contained a section entitled "Corporal Punishment." It stated:

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, 506.04 ).

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 handwrote 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 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.

students. This is particularly so as this employee was a teacher specifically instructed not to use corporal punishment.

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.

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)(1) 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)(1)(C), we shall, in the exercise of our discretion, "enter a final judgment on our own initiative, treat 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...