Brady v. Charlotte-Mecklenburg Bd. of Educ.

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-603

Filed 2 July 2025

Mecklenburg County, No. 21 CVS 007227-590

JON AND ALICIA BRADY, individually and as the Natural Parents and Legal Guardians of V.B., a minor, Plaintiffs,

v.

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, PLAYSPANISH, LLC, RICARDO L. MATA, PEGGY H. HEY, in her individual capacity, PHILLIP GOODMAN, in his individual capacity, and CYNTHIA MARRERO, in her individual capacity, Defendants.

Appeal by Defendants from order entered 2 April 2024 by Judge Karen Eady-

Williams in Mecklenburg County Superior Court. Heard in the Court of Appeals 27

February 2025.

Wallace Law Firm PLLC, by Terry L. Wallace, for Defendants-Appellants Charlotte-Mecklenburg Board of Education, Peggy H. Hey, Phillip Goodman, and Cynthia Marrero.

Susan L. Sowell for Defendant-Appellant Phillip Goodman.

No brief filed for Defendant PlaySpanish, LLC.

James, McElroy, & Diehl, P.A., by Preston O. Odom, III, J. Alexander Heroy, and Jennifer M. Houti, for Plaintiffs-Appellees.

GRIFFIN, Judge.

Defendant Charlotte-Mecklenburg Board of Education (“Defendant CMS”) and

Defendants Peggy Hey, Phillip Goodman, and Cynthia Marrero appeal from the trial

Opinion of the Court

court’s order denying their motion to dismiss. Defendants claim they are immune

from suit under the doctrines of governmental immunity and public official immunity.

We hold they are not entitled to either defense and affirm the trial court’s order.

I. Factual and Procedural Background

Because this appeal comes to us from the denial of a motion to dismiss based

on Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil

Procedure, the following facts are taken from Plaintiffs’ amended complaint and

treated as true. Est. of Long by and through Long v. Fowler, 378 N.C. 138, 140–41,

861 S.E.2d 686, 690 (2021).

Defendant PlaySpanish is a limited liability company that has provided after-

school language programming to students in Mecklenburg County since 1997.

Defendant PlaySpanish ostensibly used public school facilities to conduct its business

through the Charlotte-Mecklenburg Community Use in Schools program (“CUS”);

however, Defendant CMS did not adhere to the CUS regulations and policies

governing the program when providing Defendant PlaySpanish access to its facilities.

CUS allows community organizations not affiliated with Defendant CMS to use its

facilities for various civic purposes. Defendants Marrero, Goodman, and Hey were

Defendant CMS’s manager of CUS, Director of Property Management within the

Facility Planning and Management section of the Operations Department, and

Executive Director of the Facility Planning, respectively. All served in their

respective positions during at least 2016, 2017, and 2018.

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Defendant Ricardo Mata and his wife are the sole owners and proprietors of

Defendant PlaySpanish. In October 2013, Defendant CMS received a report of

Defendant Mata sexually assaulting a child at an elementary school while he was

operating Defendant PlaySpanish. Defendant CMS requested its police division

conduct a criminal background check on Defendant Mata, which showed Defendant

Mata had been accused of multiple other assaults on both children and adult women

between 1993 and 2009. The background check also revealed Defendant Mata had

previously been extradited to Georgia because of an investigation for allegedly

sexually assaulting a child there.

Following the allegation in October 2013, Defendant Mata met with Defendant

CMS’s superintendent and denied the allegations via email. Defendant CMS then

closed its investigation of Defendant Mata and failed to inform its principals and

students’ parents about the results of their investigation and background check.

During the 2016–2017 and 2017–2018 school years, Plaintiffs enrolled their

daughter in Defendant PlaySpanish while she was a kindergarten and first grade

student. Defendant Mata sexually assaulted her numerous times during “lock-down

drills,” which he was not authorized to perform.

On 4 May 2021, Plaintiffs filed a complaint against Defendant PlaySpanish,

Defendant Mata, Defendant CMS, and Defendants Hey, Goodman, and Marrero

bringing numerous claims stemming from the assault on their daughter. On 29 July

2021, Plaintiffs amended their complaint. In part, Plaintiffs alleged Defendant CMS

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and Defendants Hey, Goodman, and Marrero were liable for intentional or reckless

infliction of emotional distress, negligent infliction of emotional distress, and

negligence or gross negligence.1 Plaintiffs also brought a claim against Defendant

CMS for premises liability and, in the alternative, under Article I, section 19 the

North Carolina State Constitution.

Defendant CMS and Defendants Hey, Goodman, and Marrero moved to

dismiss Plaintiffs’ amended complaint on 8 September 2021 pursuant to Rules

12(b)(1), (2), and (6), claiming Defendant CMS is entitled to governmental immunity

and Defendants Hey, Goodman, and Marrero are entitled to public official immunity.

Defendants attached affidavits and evidentiary exhibits in support of their motion.

Plaintiffs filed a memorandum of law opposing Defendants’ motion and also

submitted an affidavit and exhibits to the trial court.

On 23 June 2022, Defendants’ motion came on for hearing in Mecklenburg

County Superior Court. The trial court did not receive evidence during the hearing.

On 2 April 2024, the trial court dismissed Plaintiffs’ constitutional claim but denied

Defendants’ motion as to all other claims. Specifically, the trial court concluded

Plaintiffs’ allegations were sufficient to survive Defendants’ motion to dismiss, and

1 As this appeal only addresses Defendant CMS and Defendants Hey, Goodman, and

Marrero’s motion to dismiss, we do not list or discuss the remaining claims against Defendant PlaySpanish and Defendant Mata.

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the issue of whether Defendants were entitled to the respective immunities they

claimed required further factual development.

Defendants timely appeal.

II. Analysis

Defendants contend the trial court erred by denying their motion to dismiss on

Plaintiffs’ remaining claims. Specifically, Defendant CMS argues it is entitled to

governmental immunity because it was engaged in a governmental function when

allowing Defendant PlaySpanish to use its facilities and did not purchase liability

insurance waiving immunity. Taking the facts alleged in the amended complaint as

true, we hold Defendant CMS was engaged in a propriety function, thereby waiving

governmental immunity. Therefore, we do not reach the question of whether the

insurance policies at issue also had the same effect.

Defendants Hey, Goodman, and Marrero argue they enjoy public official

immunity and are therefore also immune from liability. We similarly hold that

Defendants Hey, Goodman, and Marrero were not acting as public officials and are

therefore not entitled to its protections.

A. Jurisdiction

Defendants moved to dismiss Plaintiffs’ claims under Rules 12(b)(1), (2), and

(6) of the North Carolina Rules of Civil Procedure. Generally, a trial court’s decision

to deny a Rule 12 motion to dismiss is interlocutory and not immediately appealable.

Can Am S., LLC v. State, 234 N.C. App. 119, 122, 759 S.E.2d 304, 307 (2014) (citing

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Reid v. Cole, 187 N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007)). However, an

immediate right of appeal exists where the order affects a substantial right or is an

adverse ruling on personal jurisdiction. Can Am S., 234 N.C. App. at 122, 759 S.E.2d

at 307.

Being so, an order denying a motion to dismiss made pursuant to Rule 12(b)(6)

because of governmental immunity is immediately appealable as it affects a

substantial right; governmental immunity “is an immunity from suit rather than a

mere defense to liability; and . . . it is effectively lost if a case is erroneously permitted

to go to trial.” Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334,

337–38, 678 S.E.2d 351, 354 (2009); see also State ex rel. Stein v. Kinston Charter

Acad., 379 N.C. 560, 571, 866 S.E.2d 647, 655 (2021) (“[A] municipal corporation may

assert governmental immunity[] as a complete defense to a civil lawsuit at the

pleading stage.”); Can Am, 234 N.C. at 122, 759 S.E.2d at 307 (“Had defendants

moved to dismiss based on the defense of sovereign immunity pursuant to Rule

12(b)(6), we would be bound by the longstanding rule that the denial of such a motion

affects a substantial right and is immediately appealable under section 1-277(a).”

(citations omitted)).

Similar to a Rule 12(b)(6) dismissal based on sovereign immunity, we have

consistently held “denial of a Rule 12(b)(2) motion premised on sovereign immunity

constitutes an adverse ruling on personal jurisdiction and is therefore immediately

appealable under section 1-277(b).” Green v. Howell, 274 N.C. App. 158, 164, 851

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S.E.2d 673, 678 (2020) (citation and internal marks omitted); see also Torres v. City

of Raleigh, 288 N.C. App. 617, 620, 887 S.E.2d 429, 433 (2023) (“This Court has

consistently stated that a denial of governmental immunity should be classified as an

issue of personal jurisdiction under Rule 12(b)(2).”); Can Am, 234 N.C. App. at 123–

24, 759 S.E.2d at 308 (“[T]his Court has consistently held that: (1) the defense of

sovereign immunity presents a question of personal, not subject matter, jurisdiction,

and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient

to trigger immediate appeal under section 1-277(b).”).

Like governmental and sovereign immunity, public official immunity “is more

than a mere affirmative defense to liability—it shields a defendant entirely from

having to answer for its conduct in a civil suit for damages.” Est. of Graham v.

Lambert, 385 N.C. 644, 651, 898 S.E.2d 888, 895 (2024) (citations omitted). Because

public official immunity provides a defendant a complete shield, a trial court’s ruling

denying a Rule 12(b)(6) motion to dismiss based upon public official immunity is also

immediately appealable as affecting a substantial right because “‘it is effectively lost

if a case is erroneously permitted to go to trial.’” Craig, 363 N.C. at 337–38, 678

S.E.2d at 354 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L.

Ed. 2d 411, 425 (1985)); see also Bartley v. City of High Point, 381 N.C. 287, 293, 873

S.E.2d 525, 532 (2022) (“The denial of summary judgment on the ground of public

official immunity is immediately appealable because it affects a substantial right.”).

We will not, however, review whether the trial court properly denied

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Defendants’ motion on the basis of Rule 12(b)(1) as “that motion does not support an

interlocutory appeal.” Murray v. Univ. of N.C. at Chapel Hill, 246 N.C. App. 86, 93,

782 S.E.2d 531, 536 (2016) (citation omitted); Green v. Kearney, 203 N.C. App. 260,

265–66, 690 S.E.2d 755, 760 (2010) (“Nevertheless, this Court has declined to address

interlocutory appeals of a lower court’s denial of a Rule 12(b)(1) motion to dismiss

despite the movant’s reliance upon the doctrine of sovereign immunity.”).

In sum, the issues of whether the trial court properly denied Defendants’

motion to dismiss because of governmental immunity and public official immunity

are properly before this Court as an adverse ruling on personal jurisdiction and as

affecting a substantial right.

B. Defendant CMS

Defendant CMS contends the trial court erred by denying its motion to dismiss

because it is protected by governmental immunity from lawsuits alleging tortious or

negligent conduct. Plaintiffs argue Defendant CMS does not benefit from the

protections provided by governmental immunity for two reasons: (1) Defendant CMS

was engaging in a proprietary function when it allowed Defendant PlaySpanish to

use its facilities; and (2) Defendant CMS waived governmental immunity by

purchasing insurance which covers Plaintiffs’ claims. Either ground provides an

adequate basis for affirming the trial court’s order because Defendant CMS is subject

to the court’s personal jurisdiction if not protected by governmental immunity. We

agree with Plaintiffs that Defendant CMS was engaged in a proprietary function

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when allowing Defendant PlaySpanish on school property and therefore do not reach

the issue of whether Defendant CMS waived governmental immunity through

purchasing insurance.

“This Court has consistently stated that a denial of governmental immunity

should be classified as an issue of personal jurisdiction under Rule 12(b)(2).” Torres,

288 N.C. App. at 620, 887 S.E.2d at 433 (2023). “The standard of review to be applied

by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural

context confronting the court.” Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc.,

169 N.C. App. 690, 693, 611 S.E.2d 179, 182 (2005). Three postures are typical: “(1)

the defendant makes a motion to dismiss without submitting any opposing evidence;

(2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does

not file any opposing evidence; or (3) both the defendant and the plaintiff submit

affidavits addressing the personal jurisdiction issues.” Id; Torres, 288 N.C. App. at

620–21, 887 S.E.2d at 433 (stating the same).

In the third posture, such as here, “the court may hear the matter on affidavits

presented by the respective parties, or the court may direct that the matter be heard

wholly or partly on oral testimony or depositions.” Banc of Am. Sec., 169 N.C. App.

at 694, 611 S.E.2d at 183 (citation modified). Because the trial court here did not

receive evidence at the hearing but decided the motion based upon the pleadings and

affidavits alone, it acted much like a juror by “‘determin[ing] the weight and

sufficiency of the evidence[.]’” Id. (quoting Fungaroli v. Fungaroli, 51 N.C. App. 363,

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367, 276 S.E.2d 521, 524 (1981)). Our review in this context is to determine “only

‘whether the findings of fact by the trial court are supported by competent evidence

in the record; if so, this Court must affirm the order of the trial court.’” Banc of Am.

Sec., 169 N.C. App. at 694, 611 S.E.2d at 183 (quoting Replacements, Ltd. v.

MidweSterling, 133 N.C. App. 139, 140–41, 515 S.E.2d 46, 48 (1999)). But, a trial

court “is not required to make specific findings of fact unless a party so requests.”

McCullers v. Lewis, 265 N.C. App. 216, 220, 828 S.E.2d 524, 530–31 (2019) (citations

omitted). When the record does not indicate a party requested “the trial court make

specific findings of fact, and the order appealed from contains no findings, we

presume that the trial court made factual findings sufficient to support its ruling[,]”

and we determine from a review of the record whether there is evidence “that would

support the trial court’s legal conclusions[,]” which are reviewed de novo. Id.

(citations omitted).

Here, the trial court’s order did not contain findings of fact, nor did either party

request them, so we “presume that the trial court found facts sufficient to support its

ruling, if such findings may be made from the record evidence.” Torres, 288 N.C. App.

at 622–23, 887 S.E.2d at 434 (citing Cameron-Brown Co. v. Daves, 83 N.C. App. 281,

285, 350 S.E.2d 111, 114 (1986)). In sum, we review the record to determine whether

there was adequate evidence to support the trial court’s conclusions of law, which we

then review de novo. Id.

Sovereign immunity is a common law doctrine which “bars suits against the

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State ‘unless it has consented or waived its immunity.’” Graham, 385 N.C. at 651,

898 S.E.2d at 895 (quoting Kinston Charter Acad., 379 N.C. at 570, 866 S.E.2d at 655

(internal marks omitted)). Constituent units of the State—cities, counties, and other

localities such as school boards—are protected by governmental immunity, a “slice”

of sovereign immunity which “shields units of local government from suit for acts

committed in their governmental capacity.” Graham, 385 N.C. at 651, 898 S.E.2d at

895–96 (quoting Providence Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382

N.C. 199, 211–12, 876 S.E.2d 453 (2022) (internal marks omitted) (emphasis added));

see also Willet v. Chatham Cnty. Bd. of Educ., 176 N.C. App. 268, 269, 625 S.E.2d

900, 901 (“School boards enjoy the right of governmental immunity absent waiver or

a statute to the contrary.”); Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C.

App. 435, 437, 477 S.E.2d 179, 180 (1996) (“A local board of education is immune from

suit and may not be liable in a tort action unless the Board has duly waived its

governmental immunity.”).

Two ways a school board may waive governmental immunity are by purchasing

liability insurance, N.C. Gen. Stat. § 115C-42 (2023), or when engaging in a

proprietary¸ as opposed to governmental, function, Kinston Charter Acad., 379 N.C.

at 571, 866 S.E.2d at 655; see also Willett, 176 N.C. App. at 270, 625 S.E.2d at 902

(“Governmental immunity shields a state entity in the performance of governmental

functions, but not proprietary functions.” (citing Hickman v. Fuqua, 108 N.C. App.

80, 82–83, 422 S.E.2d 449, 451 (1992)).

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Our Supreme Court has explained the difference between governmental and

proprietary acts undertaken by localities as one in which the locality’s motivation,

and characteristics of the acts, are determinative:

[a]ny activity of a municipality which is discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State rather than for itself comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary.

Bynum v. Wilson Cnty., 367 N.C. 355, 358, 758 S.E.2d 643, 646 (2014) (quoting Britt

v. City of Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952)). Stated

differently, the protections of governmental immunity end where a unit of local

government “‘undertakes functions beyond its governmental and police powers and

engages in business in order to render a public service for the benefit of the

community for a profit, it [then] becomes subject to liability for contract and in tort

as in [the] case of private corporations.’” Providence, 382 N.C. at 212, 876 S.E.2d at

462 (quoting Kinston Charter Acad., 379 N.C. at 571, 866 S.E.2d at 655).

Our Supreme Court has “adopted a three-step method of analysis for use in

determining whether a [local unit of government’s] action was governmental or

proprietary in nature.” Providence 382 N.C. at 212–13, 876 S.E.2d at 462 (citing Est.

of Williams ex rel. Overton v. Pasoquotank Cnty. Parks & Recreation Dept., 366 N.C.

195, 200, 732 S.E.2d 137, 141 (2014)). The first step, and threshold inquiry, requires

us to consider “whether, and to what degree, the legislature has addressed the issue.”

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Williams, 366 N.C. at 200, 732 S.E.2d at 141–42.

If the legislature has not designated a function as governmental, we then

ascertain whether the act is one that “can only be provided by a governmental agency

or instrumentality[,]” because, if it is, then the act is necessarily a governmental

function. Bynum, 367 N.C. at 358–59, 758 S.E.2d at 646. This factor “has limitations

in our changing world [because] many services once thought to be the sole purview of

the public sector have been privatized in full or in part. Consequently, it is

increasingly difficult to identify services that can only be rendered by a governmental

entity.” Providence, 382 N.C. at 213, 876 S.E.2d at 462 (quoting Williams, 366 N.C.

at 202–03, 732 S.E.2d at 137 (citation modified)).

In light of this increasingly difficult reality, if neither of the first two inquiries

is dispositive, we then look to “a number of additional factors, of which no single factor

is dispositive.” Williams, 366 N.C. at 202, 732 S.E.2d at 143. Those factors include

“whether the service is traditionally a service provided by a governmental entity,

whether a substantial fee is charged for the service provided, and whether the fee

does more than simply cover the operating costs of the service provider.” Id. at 202–

03, 732 S.E.2d at 143 (citation omitted). When analyzing these factors, we focus on

“the governmental act or service that was allegedly done in a negligent manner.”

Bynum, 367 N.C. at 359, 758 S.E.2d at 646 (citing Williams, 366 N.C. at 199, 732

S.E.2d at 141). Moreover, “the distinctions between proprietary and governmental

functions are fluid” and our Supreme Court has cautioned “against overreliance on”

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the factors. Providence, 382 N.C. at 213, 876 S.E.2d at 462–63 (quoting Williams,

366 N.C. at 202–03, 732 S.E.2d at 143)).

At bottom, this analysis “is a fact intensive inquiry, turning on the facts alleged

in the complaint, and may differ from case to case.” Williams, 366 N.C. at 203, 732

S.E.2d at 143.

Here, Defendant CMS contends the trial court erred by failing to address this

factor in its order dismissing their 12(b)(2) motion. Regardless, Defendant CMS

argues the first factor of Williams is dispositive because the Community Schools Act

authorized Defendant CMS to provide for-profit businesses use of school facilities and

therefore the General Assembly has designated that a governmental function.

Specifically, Defendant cites to Bynum v. Wilson County and Bellows v. Asheville City

Board of Education as analogs in favor of their argument.

In Bynum, the plaintiff sued Wilson County for various tort claims after he fell

down the steps of a building housing the county government’s offices. 367 N.C. at

359–60, 758 S.E.2d at 646. In determining whether maintenance of the building was

a proprietary or governmental function, our Supreme Court relied on section 153A-

169, which stated “[t]he board of commissioners shall supervise the maintenance,

repair, and use of all county property.” Id. at 360, 758 S.E.2d at 646–47. Specifically,

the Court held that because the General Assembly “specifically assigned to the county

government the responsibilities of locating, supervising, and maintaining” the

building where the plaintiff fell, and because the building housed the offices for the

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county’s “discretionary, legislative, and public functions[,]” which could only be

provided by the government, the General Assembly had designated maintenance of

the building as governmental. Id. at 360–61, 758 S.E.2d at 646–47.

In Bellows, the plaintiff and her husband brought claims against the Asheville

City Board of Education for negligence after the plaintiff fell out of her wheelchair

and sustained injuries while at Asheville High School. 243 N.C. App. 229, 230, 777

S.E.2d 522, 523 (2015). Relying on Bynum, we held sections 115C-40 and 115C-

521(c), which both directed that school boards shall maintain and repair their

property, indicated the “General Assembly’s assignment” of these responsibilities was

dispositive to the question of whether property maintenance was a governmental or

proprietary function. Id. at 232, 777 S.E.2d at 524.

Because the test for whether a function is governmental or proprietary

requires a fact-intensive inquiry, we do not find these cases persuasive here for the

reasons below. Additionally, it is a well settled principle of law “‘that where the

language of a statute is clear and unambiguous, there is no room for judicial

construction and [we] must construe the statute using its plain meaning.’” Kinston

Charter Acad., 379 N.C. at 572, 866 S.E.2d at 656 (quoting In re Est. of Lunsford, 359

N.C. 382, 391–92, 610 S.E.2d 366 (2005)).

Here, the Community Schools Use Act (“The Act”) encourages “greater

community involvement in the public schools and greater community use of public

school facilities” and requires school boards to “[d]evelop programs and plans for

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increased use of public school facilities based upon policies and guidelines adopted by

the State Board of Education.” N.C. Gen. Stat. §§ 115C-204; 207(2) (2023). The Act

also requires school boards to “[e]stablish rules governing the implementation of such

programs and plans in its public schools and submit these rules along with adopted

programs and plans to the State Board of Education for approval” by the same. N.C.

Gen. Stat. § 115C-207(3). Notably, the Act includes allowing use of school facilities

for programs “including tutoring[.]” N.C. Gen. Stat. § 115C-206(2) (2023).

Per record evidence, Defendant CMS, pursuant to this authority, adopted

regulations providing for “Commercial Group[s]” to use CMS facilities “to engage in

a profit-making enterprise[.]” The regulations also provided that non-profit

organizations would be preferred over for-profit organizations during the approval

process, and the fee chart required higher payments by for-profit groups as well.

Additionally, Defendant CMS discouraged the use of school facilities by for-profit

groups.

This being the statutory and subsequent regulatory context, we do not agree

the General Assembly has addressed whether a school board’s renting of school

properties to for-profit businesses is a governmental or proprietary function. The Act

is a broad grant of authority and empowers school boards to allow community

organizations within their schools. However, the Act is silent about the use of school

facilities by for-profit businesses. In contrast, in both Bynum and Bellows, the

statutory mandates relied upon directly addressed the function at issue: maintenance

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of government property. Moreover, we read the Act’s explicit authorization for “[t]he

use of public school facilities by governmental, charitable, or civic organizations” to

be consistent with Defendant CMS’s own policy of preferring non-profit organizations

to use school facilities over for-profit organizations. This weighs against

characterizing the use of school facilities by for-profit businesses as a governmental

function because that section seemingly promotes use by non-profit organizations.

The Act does indicate that it is a policy of the State “[t]o assure maximum use

of public school facilities by the citizens of each community in this State[,]” which is

indicative of it being a governmental function for a school board to allow all kinds of

outside organizations to use school facilities. See Williams, 366 N.C. at 200, 732

S.E.2d at 141 (holding the following emphasized statutory language, “providing of

safe and sanitary dwelling accommodations for persons of low income are public uses

and purposes for which public money may be spent and private property acquired” to

be a “significant statutory indication” of a government function) (citation modified)).

Additionally, the Act requires that local school boards “[d]evelop policies and/or

procedures for approving the use of volunteer organizations and for approving the use

of individual volunteers[;]” and “[d]evelop programs and plans for increased

community use of public school facilities based upon policies and guidelines adopted

by the State Board of Education[;]” and “[e]stablish rules governing the

implementation of such programs and plans in its public schools[.]” N.C. Gen. Stat.

§ 115C-207(1)–(3).

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But, based on the record developed to this point, it is unclear whether

Defendant Mata was acting in the capacity of a volunteer under this authorization.

Our standard of review directs us to presume the trial court found sufficient facts to

support the conclusion that he was, and therefore Defendant CMS was negligent in

allowing him access to its facilities and young children. Regardless, these statutes

seemingly provide for the general conduct at issue and are indicative of a

governmental function—allowing outside organizations to operate in public school

facilities—but even if “the legislature has designated a general activity to be ‘a

governmental function by statute, the question remains whether the specific activity

at issue, in this case and under these circumstances, is a governmental function.”

Meinck v. City of Gastonia, 371 N.C. 497, 513–14, 819 S.E.2d 353, 364 (2018) (quoting

Williams, 366 N.C. at 201, 732 S.E.2d at 142). But we reiterate, in contrast to Bynum

and Bellows, these mandates do not directly address or require school boards to

engage in the specific activity and function at issue: allowing for-profit businesses to

use its facilities for profit making activities.

Defendant CMS also directs us to section 115C-524 of the North Carolina

General Statutes in support of it’s contention that the General Assembly has resolved

the question of whether allowing for-profit groups to use school facilities is a

governmental or proprietary function. Section 115C-524, “Repair of school property;

use of buildings for other than school purposes[,]” allows local school boards to enter

into agreements “permitting non-school groups to use school real and personal

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property [] for other than school purposes so long as such use is consistent with the

proper preservation and care of the public school property.” N.C. Gen. Stat. § 115C-

524(c) (2023). The statute then goes on to say, and Defendant emphasizes, “[n]o

liability shall attach to any board of education or to any individual board member for

personal injury suffered by reason of the use of such school property pursuant to such

agreements.” Id.

We do not read that language to be a legislative insulation of liability from

injury suffered by all uses of school facilities. Rather, reading the statute in totality,

the plain language of the statute refers to injuries caused by use of property; not

injuries caused by a business proprietor conducting their business on the property.

See Henderson v. Charlotte-Mecklenburg Bd. of Educ., 253 N.C. App. 416, 421, 801

S.E.2d 145, 149 (2017) (holding the defendant maintained statutory immunity

pursuant to section 115C-524(c) where an individual fell down because of a property

defect while present on the property pursuant to an agreement made under the

statute).

Additionally, section 115C-524(c) provides for school boards to enter into

agreements with businesses, and thus represents a legislative intent to have an

executed contract on file prior to facility use. This cuts against Defendant CMS’s

argument in that Defendant CMS did not require an executed contract before

allowing Defendant PlaySpanish to use school facilities. Moreover, had the General

Assembly intended what Defendant CMS argues, it would have an included a section

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to such effect in the Act pursuant to which Defendant PlaySpanish operated under.

Instead, the Act seemingly contemplates lawsuits of this kind. Specifically, in the

section discussing the maintenance of volunteer records, meaning “[a]n individual

who provides services to a local board of education without expectation of

compensation and with the understanding that the local board of education is under

no obligation to continue accepting those services or to compensate the volunteer for

them[,]” the Act states volunteer records should be kept confidential except for

inspection by “[a] party to a lawsuit, by authority of a subpoena or proper court

order[.]” N.C. Gen. Stat. § 115C-209.1(e)(1), (a)(5) (2023). This language, in contrast

to that above, is indicative of the General Assembly’s intent that activities provided

under the Act would not benefit from governmental immunity.

So, the General Assembly “has not directly resolved whether” the activity here

is a governmental function and we proceed to the second factor of the analysis.

Williams, 366 N.C. at 202, 732 S.E.2d at 142.

The second factor requires determination of whether the activity “is

necessarily governmental in nature [because] it can only be provided by a

governmental agency or instrumentality.” Id. “[T]his principle has limitations”

because many services that were traditionally provided by the government have been

privatized and can now be offered by commercial businesses. Id. at 202, 732 S.E.2d

at 143. This being the case, if a “particular service can be performed both privately

and publicly, the inquiry involves consideration” of additional factors, none of which

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are dispositive. Id.

Defendant contends the activity here is governmental in nature because only

the government can make school property available for public use. We disagree with

this characterization and hold that, in this context, public school facilities are a subset

of government owned real property placed into the commercial market by Defendant

CMS allowing businesses to use them for profit making activities.

In Kiddie Korner, the owners and operators of day care centers in Charlotte

filed suit bringing numerous claims against the Charlotte-Mecklenburg School Board

after the school board adopted a proposal made by its superintendent for an after-

school program at Dilworth Elementary School. 55 N.C. App. 134, 135–36, 285 S.E.2d

110, 112 (1981). There, the school board established a committee comprised of “a

representative from the Dilworth staff, parents, and the Dilworth Ministerial

Association,” which then implemented the proposal and administered the program.

Id. at 136, 285 S.E.2d at 112. We did not address the issue of governmental immunity

but characterized the program “in terms of an educational service operated by a school

sponsored committee.” Id. at 137, 285 S.E.2d at 113 (emphasis added).

In Schmidt, we relied upon Kiddie Korner in adjudicating a dispute where the

plaintiffs’ minor son suffered a head injury while attending an “after-school

enrichment program operated and controlled by Charlotte-Mecklenburg Board of

Education at the Idlewild Elementary School.” 134 N.C. App. 248, 250, 517 S.E.2d

171, 173 (1999) (citation modified). Plaintiffs claimed the school board was negligent

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in its operation of the after-school program and waived governmental immunity, in

part, by engaging in a proprietary function. Id. at 250–51, 517 S.E.2d at 173. We

determined the program in Kiddie Korner was indistinguishable from the program

there and held the Idlewild program was “an undertaking traditionally provided by

the local governmental units . . . and correctly classified as a supplemental

educational experience.” Id. at 254, 517 S.E.2d at 175 (citation modified).

Unlike the programs offered in Kiddie Korner and Schmidt, here record

evidence shows the educational service was operated by a private, for-profit

corporation—not by the school board or a constituent committee. This distinction

necessarily leads us to the conclusion that this “particular service[, providing

facilities to a for-profit tutoring business,] can be performed both privately and

publicly.” Williams, 366 N.C. at 202, 732 S.E.2d at 143. Because of this, we proceed

to analyze the remaining factors of whether: (1) “the service is traditionally a service

provided by a governmental entity[;]” (2) “a substantial fee is charged for the service

provided[;]” and (3) “the fee does more than simply cover the operating costs of the

service provider.” Id. at 202–03, 732 S.E.2d at 143. But, we remain cognizant that

our Supreme Court has cautioned against overreliance on these factors because the

distinction “between proprietary and governmental functions [is] fluid” and we

remain “advertent to changes in practice.” Id. at 203, 732 S.E.2d at 143. Additionally,

our Supreme Court has emphasized the following two principles important here:

First, although an activity may be classified in general as

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a governmental function, liability in tort may exist as to certain of its phases; and conversely, although classified in general as proprietary, certain phases may be considered exempt from liability. Second, it does not follow that a particular activity will be denoted a governmental function even though previous cases have held the identical activity to be of such a public necessity that the expenditure of funds in connection with it was for a public purpose.

Id. (quoting Sides v. Cabarrus Mem’l Hosp., Inc., 287 N.C. 14, 21–22, 213 S.E.2d 297,

302 (1975)).

Here, providing educational opportunities has traditionally been a service

provided by local government entities. Schmidt, 134 N.C. App. at 250, 517 S.E.2d at

173. However, in compliance with our duty to heed changes in practice, we also

recognize Defendant CMS still allows use of its properties for programs similar to

those at issue in Schmidt and Kiddie Korner through its After-School Enrichment

Program. See Before and After School Programs, https://www.cmsk12.org/asep (last

visited 8 May 2025); see also Williams, 366 N.C. at 203, 732 S.E.2d at 143 (“First,

although an activity may be classified in general as a governmental function, liability

in tort may exist as to certain of its phases[.]” (citation omitted)). The record indicates

Defendant PlaySpanish did not operate pursuant to such. Because of this reality, the

characterization we made over twenty years ago in Kiddie Korner holds significantly

less, if any, weight here.

Moreover, record evidence received by the trial court indicates Defendant CMS

generally charged higher fees when allowing for-profit entities to use its facilities.

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Defendant CMS’s policies state that the reason it charges for-profit applicants higher

fees is to “avoid unfair competition with other commercial enterprises.” Thus, by its

own characterization, Defendant CMS’s activity here was in the commercial, not

governmental, sphere because it was providing a service which could compete with

other commercial enterprises. See Britt, 236 N.C. 446, 451, 73 S.E.2d at 293

(describing a proprietary function as one that “any corporation, individual, or group

of individuals could do”). As such, Defendant CMS essentially stepped into the shoes

of a landlord renting property to a company when it allowed Defendant PlaySpanish

to operate its business on school property.

While Defendant CMS, as the Plaintiffs allege and the record indicates, waived

fees in excess of $35,000 for Defendant PlaySpanish during multiple years that

Defendant PlaySpanish operated on their property, this was because Defendant CMS

violated its own policies. This fact, and the argument Defendant CMS makes upon

it, misses the forest for the trees. Specifically, emails from Defendant Marrero reflect

Defendant CMS allowed Defendant PlaySpanish and other organizations to operate

within its facilities without a contract for years and, after the Community Use of

Schools Committee discovered this discrepancy, waived fees for subsequent years

until changes in their policies were approved.

Essentially, Defendant PlaySpanish should not have been allowed to operate

in the facilities during those years without a contract had Defendant CMS adhered

to its own policies. Like a business that offers a refund to a customer after making

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an error, the fee waiver came about from Defendant CMS’s own erroneous conduct.

Moreover, Defendant CMS planned on requiring Defendant PlaySpanish to obtain

approval and begin paying the fees moving forward despite Defendant PlaySpanish

not costing the district any additional expense. See Evans v. Housing Authority of

City of Raleigh, 359 N.C. 50, 54, 602 S.E.2d 668, 671 (“A fee suggests that an activity

is proprietary, particularly if a profit results.” (citation modified)). Had Defendant

CMS abided by its own policies, Defendant PlaySpanish would have been paying fees

for years despite Defendant CMS incurring no expense, thus making a profit. In

consequence, we do not consider the absence of profit here to be of significance.

We do note, however, the fact that Defendant CMS was not motivated by

making a profit, even though it would have had it abided by its policies, favors

characterizing the activity as a governmental function. See Meinck, 371 N.C. at 515,

819 S.E.2d at 365 (acknowledging the City of Gastonia did not seek to make a profit

when analyzing this factor).

In totality, Defendant CMS would have charged Defendant PlaySpanish a

substantial fee in relation to its expense had it not strayed from its own policies.

Moreover, the contrast between the programs operating pursuant to the After-School

Enrichment Program, which fit squarely within the holdings of Schmidt and Kiddie

Korner, and the program here operating for a profit without an executed contract also

show this was not the kind of activity that has been traditionally provided by

government entities. We hold Defendant CMS, based upon the facts developed and

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evidence received upon Defendants’ 12(b) motions, was engaged in a proprietary

function when it allowed a for-profit tutoring company to use its facilities when

conducting its business.

In this context, the protections provided by governmental immunity do not

deprive the trial court of personal jurisdiction over Defendant CMS. See Providence,

382 N.C. at 231, 876 S.E.2d at 474 (“When a governmental entity exercises

proprietary functions without the requisite integrity, shielding it in immunity

produces a serious injustice.” (Barringer, J., concurring in part and dissenting in

part)). Accordingly, we affirm the trial court’s order denying Defendant CMS’s

12(b)(2) motion to dismiss. Because Defendant CMS waiving the protections of

governmental immunity through engaging in a proprietary function is sufficient to

uphold the trial court’s order on Defendants’ 12(b) motion, we do not reach the

question of whether governmental immunity was also waived through the purchasing

of insurance.

C. Defendants Hey, Goodman, and Marrero

Defendants Hey, Goodman, and Marrero contend the trial court erred by

failing to grant their motion to dismiss because they are public officials immune from

liability for acts of negligence. Plaintiffs argue Defendants Hey, Goodman, and

Marrero are merely public employees and therefore not entitled to immunity. We

agree with Plaintiffs and affirm the trial court’s order denying Defendant Hey,

Goodman, and Marrero’s 12(b)(6) motion to dismiss.

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We review a trial court’s decision on a Rule 12(b)(6) motion de novo to

determine “whether the allegations of the complaint, if treated as true, are sufficient

to state a claim upon which relief can be granted under some legal theory.” Kinston

Charter Acad., 379 N.C. at 572, 866 S.E.2d at 656 (citation and internal marks

omitted). “‘Rule 12(b)(6) generally precludes dismissal except in those instances

where the face of the complaint discloses some insurmountable bar to recovery.’” Id.

(quoting Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618

S.E.2d 201, 203–04 (2005)). Public official immunity is one such insurmountable bar

because “it shields a defendant entirely from having to answer for its conduct in a

civil suit for damages.” Est. of Graham, 385 N.C. at 651, 898 S.E.2d at 895 (citations

omitted). Pursuant to de novo review, we “consider the matter anew and freely

substitute our judgment for that of the trial court.” Matter of K.S., 380 N.C. 60, 64,

868 S.E.2d 1, 4 (2022) (citation modified).

Plaintiffs sued Defendants Goodman, Hey, and Marrero in their individual

capacity because the complaint names them in their individual capacity and

Plaintiffs are seeking a monetary remedy. See Fowler, 378 N.C. at 144–45, 861 S.E.2d

at 692 (explaining the implication of these two factors when determining whether a

person has been sued in their individual or official capacity). Being so, Defendants

Hey, Goodman, and Marrero do not enjoy the protection of governmental immunity.

Graham, 385 N.C. at 654, 898 S.E.2d at 897. But, defendants sued in their individual

capacity “are not left unshielded—they may assert ‘personal immunity defenses.’” Id.

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(quoting Moore v. City of Greensboro, 345 N.C. 356, 368, 481 S.E.2d 14, 14 (1997)).

Public official “immunity is one such personal defense.” Id. Public official

immunity is a judicially created doctrine which “shields public officials from personal

liability for claims arising from discretionary acts or acts constituting mere

negligence, by virtue of their office, and within the scope of their governmental

duties.” Bartley, 381 N.C. at 294, 873 S.E.2d at 533 (2022). This immunity is founded

upon two societal concerns: first, it allows for “fearless, vigorous, and effective

administration of government policies[,]” and second, it encourages competent

individuals to assume the responsibilities of public office without fear of incurring

liability for actions taken when executing those duties. Id. (citations and internal

marks omitted). This doctrine does not, however, “immunize conduct at odds with

the protections afforded by it and that underlie its utility.” Graham, 385 N.C. at 654,

898 S.E.2d at 897–98 (citation modified). To this end, public officials are not immune

from liability if their “action was (1) outside the scope of official authority, (2) done

with malice, or (3) corrupt.” Bartley, at 294, 873 S.E.2d at 533 (citation and internal

marks omitted). But, we presume a public official discharges their duties in good

faith. Id. at 295, 873 S.E.2d at 533 (citation omitted).

In contrast to public officials, public employees may be held liable for

negligence. Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 887 (1997). Our State

recognizes three “basic distinctions between a public official and a public employee,

including: (1) a public office is a position created by the constitution or statutes; (2) a

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public official exercises a portion of the sovereign power; and (3) a public official

exercises discretion, while public employees perform ministerial duties.” Isenhour v.

Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999).

“A position is considered created by statute when the officer’s position has a

clear statutory basis or the officer has been delegated a statutory duty by a person or

organization created by statute or the Constitution.” Baker v. Smith, 224 N.C. App.

423, 428, 737 S.E.2d 144, 148 (2012) (citation modified). “[W]here a statute expressly

creates the authority to delegate a duty, a person or organization who is delegated

and performs the duty on behalf of the person or organization in whom the statute

vest the authority to delegate passes the first Isenhour factor.” McCullers, 265 N.C.

App. at 223, 828 S.E.2d at 532 (citing Baker, 224 N.C. App. at 428–30, 737 S.E.2d at

148–49). But, the delegation must be of “some portion of the sovereign power to the

position holder.” Hwang v. Cairns, __ N.C. __, __ S.E.2d __, 2025 WL 1479020, *4

(2025).

Ministerial duties “are absolute and involve merely the execution of a specific

duty arising from fixed and designated facts[,]” while discretionary duties “are those

requiring personal deliberation, decision and judgment.” Isenhour, 350 N.C. at 610,

517 S.E.2d at 127 (citation modified). “Courts applying this framework have recently

held that a defendant seeking to establish public official immunity must demonstrate

that all three of the Isenhour factors are present.” McCullers, 265 N.C. App. at 222–

23, 828 S.E.2d at 532 (citing Leonard v. Bell, 254 N.C. App. 694, 705, 803 S.E.2d 445,

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453 (2017)).

Defendants Hey, Goodman, and Marrero contend they are entitled to public

official immunity because their positions have “a clear statutory basis.” They cite to

the Act in support of their argument that they are “Community Schools

Coordinators.”

The Act defines a “Community Schools Coordinator” as “an employee of a local

board of education whose responsibility it is to promote and direct maximum use of

the public schools and public school facilities as centers for community

development[,]” and states that local school boards “may provide for the . . .

employment of one or more [C]ommunity [S]chools [C]oordinators.” N.C. Gen. Stat.

§ 115C-205(2); 207 (2023). The Act also provides the duties of Community Schools

Coordinators:

Every local board of education may employ one or more [C]ommunity [S]chools [C]oordinators and shall establish the terms and conditions of their employment. Community [S]chools [C]oordinators shall be responsible for:

(1) Providing support to the [C]ommunity [S]chools [A]dvisory [C]ouncils and public school officials.

(2) Fostering cooperation between the local board of education and appropriate community agencies.

(3) Encouraging maximum use of community volunteers in the public schools.

(4) Performing any other duties as may be assigned by the local superintendent and the local board of education, consistent with the purposes of this Article.

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N.C. Gen. Stat. § 115C-209 (2023).

Here, whether Defendants Hey, Goodman, and Marrero were Community

Schools Coordinators as contemplated by the Act in their respective positions as

manager of Defendant CMS’s CUS program, Director of Property Management

within the Facility Planning and Management section of Defendant CMS’s

Operations Department, and Executive Director of the Facility Planning and

Management section of Defendant CMS’s Operations Department is unclear. See

McCullers, 265 N.C. App. at 223, 828 S.E.2d at 532 (“Defendants argue that their

positions are ‘created by’ [statute], but point to no language in our Constitution or

any statute expressly creating their positions.”). Their positions are not provided for

within the Act and the only references to their respective involvement with CUS are

the following allegations from Plaintiffs’ amended complaint:

31. From at least 2011 through 2017, [Defendant] Marrero was the manager of [Defendant] CMS’s CUS program. Upon information and belief, [Defendant] Marrero’s duties as an employee of CMS were to follow [Defendant] CMS policies, regulations, and procedures for the review and approval of applications from CUS participants, including [Defendant] PlaySpanish. [Defendant] Marrero did not have discretion to vary from those policies, regulations, and procedures.

32. Upon information and belief, in at least 2016, 2017, and 2018, [Defendant] Goodman was the Director of Property Management within the Facility Planning and Management section of [Defendant] CMS’s Operations Department, and [Defendant] Marrero’s direct boss. Upon further information and belief, [Defendant] Goodman provided oversight for the CUS program, but did not have

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discretion to vary from [Defendant] CMS’s policies, regulations, and procedures for the review and approval of applications from CUS participants.

33. Upon information and belief, in at least 2016, 2017, and 2018, [Defendant] Hey was the Executive Director of the Facility Planning and Management section of [Defendant] CMS’s Operations Department, and [Defendant] Goodman’s direct boss. Upon further information and belief, [Defendant] Hey was ultimately responsible for the CUS program, but did not have discretion to vary from [Defendant] CMS’s policies, regulations, and procedures for the review and approval of applications from CUS participants.

We cannot hold upon the record developed to this point that Defendants Hey,

Goodman, and Marrero are entitled to public official immunity solely because their

positions were created by statute. Even if their positions were created by statute, the

Act does not expressly provide for delegating power of the approval process to

Community Schools Coordinators. It does require school boards to develop policies

for approving organizations and volunteers, but then allows Community Schools

Advisory Councils—“a committee of citizens organized to advise community school

coordinators, administrators, and local boards of education in the involvement of

citizens in the educational process and in the use of public school facilities”— to assist

in the implementation of those procedures. N.C. Gen. Stat. § § 115C-205(1); -207–08

(2023). Community Schools Coordinators may provide support to Community Schools

Advisory Councils pursuant to section 115C-209(1), but it is unclear whether that

includes creating approval processes.

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Regardless, based on our reading, the Act delegates to school boards and

Community Schools Advisory Councils the power to develop and implement an

approval process for outside organizations; it does not “expressly create[] the

authority to delegate [the] duty” to Defendants Hey, Goodman, or Marrero as needed

to satisfy the first Isenhour factor. McCullers, 265 N.C. App. at 223, 828 S.E.2d at

532. Even if Defendants Hey, Goodman, and Marrero’s positions were created by

statute, or if they were entitled to exercise a portion of the sovereign power through

delegation, they have failed to show their duties are anything more than ministerial.

Plaintiffs adequately pled that Defendants Hey, Goodman, and Marrero are

not entitled “to vary from [Defendant] CMS’s policies, regulations, and procedures for

the review and approval of applications from CUS participants.” Defendants have

failed to rebut this through the evidence they provided. Specifically, Defendant

CMS’s regulations for the approval process provide that the Community Use

Assistant may deny an application for reasons such as: (1) being incomplete or

inaccurate; (2) failing to send an accompanying contract; (3) failing to provide a

certificate of insurance if needed; (4) prior violation of rules; (5) unavailability of the

requested facilities; or (6) the requested activity, in the opinion of school officials,

could cause damage to the facility. We consider these ministerial acts as they are

primarily binary decisions based upon the presence of a necessary condition. Thus,

we cannot say Defendants Goodman, Hey, and Marrero were required to exercise

their “personal deliberation, decision and judgment” in approving CUS applications.

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Isenhour, 350 N.C. at 610, 517 S.E.2d at 127.

Accordingly, because the record reflects that Defendants Hey, Goodman, and

Marrero are public employees and not public officers, they are not entitled to public

official immunity. Therefore, we hold the trial court properly denied their 12(b)(6)

motion to dismiss Plaintiffs’ amended complaint.

III. Conclusion

For the aforementioned reasons, we affirm the trial court’s order denying

Defendant CMS’s Rule 12(b)(2) motion to dismiss because of governmental immunity

and Defendants Hey, Goodman, and Marrero’s 12(b)(6) motion to dismiss because of

public official immunity.

AFFIRMED.

Judges STROUD and FLOOD concur.

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