# Appendix — North Carolina School Board Association, Inc. v. Ripellino (Nos. 06-1399, 06-1511)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

App. 1

TABLE OF CONTENTS
Appendix Page

Opinion of
The Supreme Court of North Carolina
Fb, ea TES App. 1

Opinion of
The Court of Appeals of North Carolina
Se II i IIIs. cdc hctinniaienaniannte stint oneten App. 4

Opinion of
The Court of Appeals of North Carolina
NII Se SII seins cindevedsecdebesenencousseousinn App. 42

Order of
The Honorable Knox V. Jenkins, Jr.
Re: Granting Summary Judgment
fk een App. 58

Order of
The Supreme Court of North Carolina
Re: Allowing Trust Defendants’ Petition for

Discretionary Review
I I a al ns pakaaadal App. 60

Order of
The Supreme Court of North Carolina
Re: Allowing Defendant Johnston County Board of
Education’s Petition for Discretionary Review
EE I is SEED eonssdevitecssovecesvennevadegosetsenes App. 63

Order of
The Honorable Knox V. Jenkins, Jr.
Re: Granting Summary Judgment and
Judgment on the Pleadings for Trust Defendants
tiled September $, 2604.....0.00..0..0000.. App. 67

App. i

Order of
The Honorable Knox V. Jenkins, Jr.
Re: Granting Summary Judgment and
Judgment on the Pleadings for Defendant
Johnston County Board of Education
filed September 3, 2004.00... eee App. 71

Order of
The Supreme Court of North Carolina
Re: Denying Plaintiffs’ Petition for
Discretionary Review
Ted Feuruary G, ZOOS ......ccccccseccsvescevesesenesss App. 74

Order of
The Honorable Knox V. Jenkins, Jr.
Re: Granting Summary Judgment Hearing

RG USE Bi, TIN oven ce veandisvesorsis eetcrereccneans App. 76
First Amended Complaint

BOGE SI IE Sierdsishescussinccicnveanensaien App. 79
Answer of Trust Defendants

NE FT a wisiiseirscscsurpsscrtintetg elt App. 103
Answer of Defendant
Johnston County Board of Education

| 8: ee anne me rae App. 117

Supplemental Responses of Defendants the North
Carolina School Boards Association
filed November 12, 2001.00.00... eee App. 132

Plaintiffs’ Notice of Appeal
SOO GEE BD TO ie xsiccnteinicsinesastentedeate App. 137

App. i

Motion for Summary Judgment on the
Pleadings of Defendant
Johnston County Board of Education

I, IID cocccscccescevcsrecssessereseorsosee App.

Motion for Summary Judgment on the
Pleadings of Trust Defendants

ES MEN ccc soscoseceesscovevessiesesvserens App.
Plaintiffs’ Notice of Appeal
I I ones conccseccreescosesvcosecovees App.

Notice of Appeal and Petition for
Discretionary Review of Defendant
Johnston County Board of Education

NS App.

Notice of Appeal and Petition for
Discretionary Review of Trust Defendants

EE BE BID vc crcsevexsccoesesssoorecesveneneses App.
NT ci vcccceserocovserorveonevscerersovseecores App.
NI. TEEW covovccsscovecevessrsssosesessvescvovees App.
seas ivstsetercesssvecscsseesoesececspserece App.
EE, © BOS ee crcvcccecececossesovevessesseeeeees App.

I IEEE © BEG IOEG .. .ccccvcccceseecsssovevevecceeneeees App.

139

142

146

148

196

219

220

222

223

226

App. 1

MICHAEL G._- RIPELLINO, LOUISE A.
RIPELLINO, and NICOLE RIPELLINO v. THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1986 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED ERRORS AND
OMISSIONS/GENERAL LIABILITY TRUST FUND,
a division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/INLAND MARINE TRUST FUND, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; and THE
JOHNSTON COUNTY BOARD OF EDUCATION

No. 180A06

FILED: 26 JANUARY 2007

Appeal pursuant to N.C.G.S. § 7A-30(2) from
the decision of a divided panel of the Court of
Appeals, 176 N.C. App. 627 S.E.2d 225 (2006),

4apPprucsnys &A@*ava

reversing and remanding orders entered 3

App. 2

September 2004 and 9 September 2004 by Judge
Knox V. Jenkins, Jr. in Superior Court, Johnston
County, granting summary judgment and judgment
on the pleadings in favor of all defendants. On 29
June 2006, the Supreme Court allowed defendants’
petitions for discretionary review of additional

issues. Heard in the Supreme Court 8 January
2007. |

Mast, Schulz, Mast, Mills, Johnson & Wells,
P.A., by Bradley N. Schulz, for plaintiff-
appellees.

Yates, McLamb & Weyher, L.L.P., by Barbara
B. Weyher, for defendant-appellants North
Carolina School Boards Association, Inc.,
North Carolina School Boards Trust, 1982
North Carolina School Boards Association
Self-Funded Trust Fund, 1986 North Carolina
School Boards Association Self-Funded Errors
and Omissions/ General Liability Trust Fund,
and 1997 North Carolina School Boards
Association Self-Funded Auto/Inland Marine
Trust Fund.

Cranfill, Sumner & Hartzog, L.L.P., by Rachel
B. Esposito and Meredith T. Black, for
defendant-appellant Johnston County Board
of Education.

Roberts & Stevens, P.A., by Christopher Z.
Campbell and K. Dean Shatley, II, for North
Carolina Council of School Attorneys, amicus
curiae.

App. 3

PER CURIAM.

As to the appeal of right based on the
dissenting opinion, the members of the Court are
equally divided. Therefore, those portions of the
Court of Appeals opinion are affirmed without
precedential value. See, e.g., Barham v. Hawk, 360
N.C. 358, 625 S.E.2d 778 (2006). The Court,
however, unanimously concludes that the Court of
Appeals erred in remanding the case to the trial
court for entry of summary judgment in favor of
plaintiffs on their non-constitutional claims.
Accordingly, we reverse the Court of Appeals and
remand to that Court for remand to the trial court
for further proceedings on _ plaintiffs’ non-
constitutional claims. As to additional issues,
discretionary review was improvidently allowed.

AFFIRMED IN PART; REVERSED IN PART
AND REMANDED; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED IN PART.

Justice HUDSON did not participate in the
consideration or decision of this case.

App. 4

NO. COA04-1681
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006

MICHAEL G._ RIPELLINO, LOUISE A.
RIPELLINO, AND NICOLE RIPELLINO

Plaintiffs-Appellants

We

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, A
DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1982 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1986 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
ERRORS AND OMISSIONS/GENERAL LIABILITY
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/JINLAND MARINE TRUST FUND, A

App. 5

DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; AND THE JOHNSTON
COUNTY BOARD OF EDUCATION,

Defendants-Appellees

Appeal by plaintiffs from orders entered 3
September 2004 and 8 September 2004 by Judge
Knox V. Jenkins, Jr., in Johnston County Superior
Court. Heard in the Court of Appeals 23 August
2005.

Mast, Schulz, Mast, Mills, Johnson & Wells,
P.A., by Bradley N. Schulz and Don R. Wells, for
plaintiffs-appellants. __

Cranfill, Sumner & Hartzog, L.L.P., by
Stephanie Hutchins Autry and Rachel B. Esposito,
for defendant-appellee Johnston County Board of
Education.

Yates, McLamb & Weyher, L.L.P., by Barbara
B. Weyher, for defendants-appellees Trust
Defendants.

CALABRIA, Judge.

Michael G. Ripellino, Louise A. Ripellino, and
Nicole Ripellino (collectively “plaintiffs”) appeal from
orders granting summary judgment and judgment
on the pleadings to the Johnston County Board of
Education (“the Board”) and to the North Carolina

App. 6

School Boards Association, Inc.; the North Carolina
School Boards Trust; 1982 North Carolina School
Boards Association Self-Funded Trust Fund; 1986
North Carolina School Boards Association Self-
Funded Errors and Omissions/General Liability
Trust Fund; and the 1997 North Carolina School
Boards Association Self-Funded Auto/Inland Marine
Trust Fund (collectively “Trust Defendants”). We
reverse and remand.

A summary of the facts in this case are set out
in Ripellino v. North Carolina School Board
Association, Inc., 158 N.C. App. 423, 425, 581 S.E.2d
88, 90 (2003) (“*Ripellino I”) as follows:

At the end of classes on 9 March 1998,
[Nicole Ripellino (“Nicole”)] was
departing from Clayton High School in
Johnston County in her parent(s’)
vehicle. A traffic control gate owned by
the Johnston County Board of
Education (“the Board”) swung closed,
struck the vehicle, and injured Nicole.
In October 1998, the Ripellinos were
paid $2,153.18 for property damage.
The Board refused to pay medical
expenses or other compensation.

On 26 March 2001... plaintiffs
filed suit against the Board, and [the
Trust Defendants]. Plaintiffs alleged
(1) a negligent personal injury claim
against the Board on the part of Nicole,
(2) a medical expenses claim on thé part
of Nicole’s parents against the Board,

App. 7

(3) declaratory judgment that immunity
had been waived through (a)
participation in the trust and (b) the
payment of property damages, (4)
unfair and deceptive trade practices
against all defendants, (5) 42 U.S.C. §
1983 claim .. . and constitutional
claims against all defendants, and (6)
punitive damages.

Upon motion of the Board, the
trial court bifurcated the trial allowing
the issues of whether the Board was
immune from suit and whether the
Board had waived sovereign immunity
to be resolved while the other claims
were stayed. ... ([T)he trial court
granted summary judgment in favor of
all defendants on all claims. Plaintiffs
appealled.]...

In Ripellino I, this Court held, inter alia: (1) the
Board waived sovereign immunity to the extent that
its insurance policies covered claims in excess of
$100,000 and less than $1,000,000; (2) the Board
could not use sovereign immunity as a defense
against constitutional and 42 U.S.C. § 1983 claims;
and (3) the Board was immune from punitive
damages claims because it is a governmental entity.

Id.

On remand to the trial court after Ripellino I,
the Board and the Trust Defendants filed motions

for summary indgment for all non-constitutional

oe _—_ v

claims and judgment on the pleadings for claims

App. 8

under 42 U.S.C. § 1983 and the North Carolina
Constitution. The trial court entered orders for
summary judgment and judgment on the pleadings.
Plaintiffs appeal.

I. Summary Judgment as to the Non-
Constitutional Claims

Plaintiffs argue the trial court erred by
granting the Board’s and the Trust Defendants’
motions for summary judgment regarding the non-
constitutional claims. Summary judgment is
appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of
law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “In
ruling on such motion, the trial court must view all
evidence in the light most favorable to the non-
movant, taking the non-movant’s asserted facts as
true, and drawing all reasonable inferences in her
favor.” Glenn-Robinson v. Acker, 140 N.C. App. 606,
611, 538 S.E.2d 601, 607 (2000). On appeal, we
review the granting of a summary judgment motion
de novo. Granville Farms, Inc. v. County of
Granville, __ N.C. App. __, __, 612 S.E.2d 156,
158 (2005).

Plaintiffs specifically argue that the trial court
erred by granting the Board’s and the Trust
Defendants’ motions for summary judgment
regarding the non-constitutional claims because the
plaintiffs presented evidence on all the elements of a
negligence claim and sovereign immunity is waived

App. 9

to the extent the Board’s insurance policy provides
coverage for claims in excess of $100,000 and less
than $1,000,000. Plaintiffs additionally contend that
their claim is within this monetary range and
included in the broad wording of the Trust
Agreement, which provides coverage for:

all or part of a Claim made or any civil
judgment entered against any of its
members . . . when such Claim is made
or such judgment is rendered as
Damages on account of any act done or
omission made... in the scope of their
duties as members of the local board of
education or as employees.

The Board responds the trial court properly
granted summary judgment because Exclusion
Number 18 in the Coverage Agreement excludes
coverage for “any Claim arising out of the ownership,
maintenance, operation, use, loading or unloading of
any Automobile” and Nicole was hit by a gate while
driving an automobile. Plaintiffs contend, however,
that the malfunctioning of the gate could have
occurred even if Nicole had not been driving a car
and the gate would have injured her even if she had
been walking or riding a bicycle. We agree with
plaintiffs and reverse because the forecast of
evidence leaves no material dispute over the fact
that plaintiffs’ injuries did not “arise out of” the use
of an automobile.

Our Supreme Court has held that “the
standard of causation applicable to the ambiguous
‘arising out of language ... is one of proximate

App. 10

cause. State Capital Ins. Co. v. Nationwide Mut. Ins.
Co., 318 N.C. 534, 547, 350 S.E.2d 66, 74 (1986).
“Proximate cause is a cause that produced the result
in continuous sequence and without which it would
not have occurred, and one from which any man of
ordinary prudence could have foreseen that such a
result was probable under all the facts as they
existed.” Mattingly v. North Carolina R.R., 253 N.C.
746, 750, 117 S.E.2d 844, 847 (1961). Viewing the
evidence in the light most favorable to defendants,
no material dispute exists as to the proximate cause
of plaintiffs’ injury. Although defendants argue that
plaintiff traveled in a car at the time of the incident,
they have failed to show an automobile proximate
cause, i.e., any action or omission by plaintiffs’
automobile that would have resulted in a person of
ordinary prudence foreseeing plaintiffs’ injuries.
Since there is no automobile proximate cause on
these facts, plaintiffs’ injury did not fall within the
language of Exclusion 18, and we reverse the
summary judgment in favor of the Board and
remand for entry of summary judgment in favor of
plaintiffs. Likewise, because the trial court erred in
granting summary judgment in the Board’s favor, it
also erred in granting summary judgment in the
Trust Defendants’ favor, whose liability is derivative
to the Board’s liability. Accordingly, we reverse
summary judgment in favor of the Trust Defendants
and remand for entry of summary judgment in favor
of plaintiffs.

App. 11

Il. Judgment on the Pleadings as to the
Constitutional Claims

Plaintiffs argue that the trial court erred in
granting judgment on the pleadings in favor of
defendants regarding the state constitutional claims
and United States constitutional claims under 42
U.S.C. § 1983. “The granting of judgment on the
pleadings is proper when there does not exist a
genuine issue of material fact, and the only issues to
be resolved are issues of law. In reviewing a motion
for judgment on the pleadings, [this] court must
consider the evidence in the light most favorable to
the non-moving party, accepting as true the factual
allegations as pled by the non-moving party.” Davis
v. Durham Mental Health/ Dev.
Disabilities/Substance Abuse Area Auth., 165 N.C.
App. 100, 105, 598 S.E.2d 237, 241 (2004) (citations
omitted). Moreover, when reviewing a trial court’s
granting of a Rule 12(c) motion, this Court considers,
“only the pleadings and exhibits which are attached
and incorporated into the pleadings[.]” See id., 165
N.C. App. at 104, 598 S.E.2d at 240 (citations
omitted).

Plaintiffs argue that their equal protection
and due process rights have been violated under our
federal and state constitution.

Plaintiffs seek to use 42 U.S.C. § 1983 to enforce
their federal constitutional rights. See Gonzaga
University v. Doe, 536 U.S. 273, 285, 153 L. Ed. 2d
309, 322 (2002) (“Section 1983 ... provides a
mechanism for enforcing individual rights ‘secured’
elsewhere ie. rights independently secured by the
Constitution and laws of the United States”).

App. 12

Plaintiffs’ claims are based on their contentions that:
(1) the Board has a “policy and custom of paying
some claims but not paying others, when immunity
could be raised in each one,” and (2) the Board has
“paid the property damage, but [has] asserted
immunity in the remaining portion of Plaintiffs
claim[.]”

They also seek to remedy these alleged
deprivations directly under our state constitution,
which states:

No person shall be taken, imprisoned,
or disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in
any manner deprived of his life, liberty,
or property, but by the law of the land.
No person shall be denied the equal
protection of the laws; nor shall any
person be subjected to discrimination by
the State because of race, color,
religion, or national origin.

N.C. Const. art. I, § 19.
Plaintiffs specifically allege, in pertinent part:

15. Upon information and belief, in
the past, the Association, Trust
Defendants, and The Johnston County
Board of Education could have raised
the doctrine of immunity on many tort
claims, but chose instead, for various
reasons that will be proven at trial, to
pay claims even in light of the

App. 13

immunity defense. Upon information
and belief, the Association and Trust
Defendants, in conjunction with The
Johnston County Board of Education,
would examine each claim to see if the
immunity doctrine could be raised...
but thereafter some claims were
nevertheless paid. This disparate
treatment of claimholders is prohibited
by the United States and North
Carolina Constitutions, as well as 42
U.S.C. § 1983....

44. At all times pertinent hereto,
[defendants] .. . in claiming immunity
as to the Plaintiffs’ claims for personal
injury and medical expenses, . . . have
subjected these Plaintiffs to the
deprivation of their equal protection
and substantive due process rights
under the United States Constitution,
as enforced by 42 U.S.C. § 1983, and
Article 1, [§) 19 of the North Carolina
Constitution.

45. These Plaintiffs have been denied
due process and equal protection of the
law as the Defendants have paid the
property damage, but have asserted
immunity in the remaining portion of
Plaintiffs’ claim, but have, upon
information and belief, customarily
waived it for. similarly situated
individuals who have been compensated
for tort damages.

App. 14

46. [Defendants’] policy and custom
of paying some claims but not paying
others, when immunity could be raised
in each one, has played a part in the
violation of federal and state law.
Additionally, the Defendants’ conduct
in this case, of paying the property
damage, and assuming liability for the
claim, and then refusing to pay the
personal injury and medical expense
portion of the claim, is a violation of
Plaintiffs’ federal and state
constitutional rights, as a matter of
law.

47. Upon information and belief, the
[Defendants] have what amounts to be
unbridled discretion to resolve claims
filed with the local board of education.

48. As a result of the conduct of
these Defendants, the Plaintiffs have
been deprived of their right to recover
for the bodily injury and medical
expenses portion of the Ripellino claim.

49. The Fourteenth Amendment to
the United States Constitution, Article
I, {8} 19 of the North Carolina
Constitution, and 42 U.S.C. § 1983
protect these Plaintiffs against
intentional and arbitrary
discrimination, being the conduct of the
[defendants] as to these Plaintiffs.

App. 15

50. Asa proximate result of the Fifth
and Fourteenth Amendments to the
United States Constitution, Article 1.
[$] 19 of the Constitution of the State of
North Carolina, and 42 U.S.C. § 1983
violations by [defendants], the Plaintiffs
are entitled to recover damages.

These allegations amount to more than “conclusory,
unwarranted deductions of fact, or unreasonable
inferences,” Good Hope Hosp., Inc. v. N.C. Dep’t. of
Health and Human Serv.,___—-N.C. App.___,__, 620
S.E.2d 873, 880 (2005) (citations omitted), and
comply with the liberal standard of notice pleading
applied in this State, under which “a claim is
adequate if it gives sufficient notice of the events or
transactions which produced the claim to enable the
adverse party to understand its nature and basis
and to file a responsive pleading.” Mullis uv.
Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724
(1998) (citations omitted).

In regard to the judgment on the pleadings as
to the claims under 42 U.S.C. § 1983, we consider an
issue of first impression, whether a school board is a
person within the meaning of 42 U.S.C. § 1983.

By federal statute,

Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District at Columbia, suhiects, or

causes to be subjected, any citizen of

App. 16

the United States or other person
within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress...

42 U.S.C. § 1983 (2005).

The Board argues that the trial court properly
granted judgment on the pleadings because it is
well-settled that neither the State of North Carolina
nor its respective agencies are “persons” within the
meaning of § 1983 when the remedy sought is
monetary damages. In Will v. Michigan Dep't. of
State Police, the United States Supreme Court held
that states are not “persons” within the meaning of §
1983 and further noted that “in deciphering
congressional intent as to the scope of § 1983, the
scope of the Eleventh Amendment is a
consideration[.]” 491 U.S. 58, 66-67, 105 L. Ed. 2d
45, 55 (1989). In Howlett v. Rose, the Supreme Court
reemphasized that “the State and arms of the State,
which have traditionally enjoyed Eleventh
Amendment immunity are not subject to suit under
§ 1983 in either federal court or state court.” 496
U.S. 356, 365, 110 L. Ed. 2d 332, 346 (1990). The
opinion clarified which law applies: “[T]he elements
of, and the defenses to, a federal cause of action
[such as § 1983] are defined by federal lawl[,]” id.,
496 U.S. at 372, 110 L. Ed. 2d at 352, and “[t]o the
extent that the [state] law of sovereign immunity
reflects a substantive disagreement with the extent

App. 17

to which governmental entities should be held liable
for their constitutional violations, that disagreement
cannot override the dictates of federal law.” IJd., 496
U.S. at 377-78, 110 L. Ed. 2d at 354. Accordingly,
we apply federal law to determine whether our local
school boards should be considered “persons” within
the meaning of § 1983.

In Mt. Healthy City School Dist. Bd. of Educ.
vu. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977), the
United States Supreme Court considered “whether
{an Ohio city’s] Board of Education [was] to be
treated as an arm of the State partaking of the
State’s Eleventh Amendment immunity, or [was]
instead to be treated as a municipal corporation or
other political subdivision to which the Eleventh
Amendment does not extend.” Jd., 429 U.S. at 280,
50 L. Ed. 2d at 479. The Court noted that, “the
answer depends, at least in part, upon the nature of
the entity created by state law.” Jd. The Court
considered that under Ohio law the “State” did not
include “political subdivisions.” Local school boards
were expressly considered part of “political
subdivisions,” and therefore, were not part of the
State. The Court also found significant that even
though the local school boards received money and
guidance from the State, they could also issue bonds
and levy taxes. These facts lead the Supreme Court
to conclude that the Ohio local school board was
“more like a county or city than it is like an arm of
the State.” Id.

Although we recognize that Eleventh
Amendment immunity is a separate inquiry from
whether or not a given entity is a “person” within the

App. 18

meaning of § 1983, Eleventh Amendment immunity
is, nonetheless, a consideration in determining
congressional intent under § 1983. See Will, supra.
We, therefore, consider the nature of the local school
boards under North Carolina law. See Mt. Healthy,
supra.

There is conflicting authority from our
Supreme Court about whether local school boards
are considered local entities or part of the State.
Our Supreme Court has most recently held, “County
and city boards of education serve very important,
though purely local functions. The State contributes
to the school fund, but the local boards select and
hire the teachers, other employees and operating
personnel. The local boards run the schools.”
Turner v. Gastonia City Bd. of Educ., 250 N.C. 456,
463, 109 S.E.2d 211, 216 (1959). In Turner, our
Supreme Court also held that the Tort Claims Act
does not apply to local school boards, except as
amended by N.C. Gen. Stat. § 143-300.1, because
“liln no sense may we consider the Gastonia City
Board of Education in the same category as the State
Board of Education and the State Highway & Public
Works Commission.” Id. See also Crump v. Bd. of
Educ. of Hickory Admin. Sch. Unit., 326 N.C. 603,
392 S.E.2d 579 (1990) (applying § 1983 to remedy a
due process violation by a local school board when it
is not clear if the issue of a local school board being
“a person” within the meaning of § 1983 was raised
by the parties).

However, in an earlier decision, our Supreme
Court said:

App. 19

The public school system, including all
its units, is under the exclusive control
of the State, organized and established
as its instrumentality in discharging an
obligation which has always been
considered direct, primary and
inevitable. When functioning within
this sphere, the units of the public
school system do not exercise derived
powers such as are given to a
municipality for local government, so
general as to require appropriate
limitations on their exercise; they
express the immediate power of the
State, as its agencies for the
performance of a special mandatory
duty resting upon it under the
Constitution and under its direct
delegation.

Bridges v. Charlotte, 221 N.C. 472, 478, 20 S.E.2d
825, 830 (1942). See also Rowan County Bd. of
Educ. v. U.S. Gypsum Co., 332 N.C. 1, 10-11, 418
S.E.2d 648, 655 (1992) (holding that the doctrine of
nullum tempus applied to a local school board
because it was “acting as an arm of the State and
pursuing the governmental function of constructing
and maintaining its schools.” (Emphasis added)).

Since precedent is unclear whether school
boards are considered part of the State, we consider
the underlying structure of our school system. The
North Carolina Constitution emphasizes’ the
importance of education in our state: “Religion,
morality, and knowledge being necessary to geod

App. 20

government and the happiness of mankind, schools,
libraries, and the means of education shall forever be
encouraged.” N.C. Const. art. IX, § 1. Our
forefathers further provided: “The General Assembly
shall provide by taxation and otherwise for a general
and uniform system of free public schools, which
shall be maintained at least nine months in every
year, and wherein equal opportunities shall be
provided for all students.” N.C. Const., art. IX, §
2(1). _

Pursuant to these constitutional mandates,
our General Assembly has enacted legislation for “[a]
general and uniform system of free public schools...
throughout the State.” N.C. Gen. Stat. § 115C-1.
The State Board of Education is vested with the
powers to oversee “general supervision and
administration of the free public school system.”
N.C. Gen. Stat. § 115C-12. Local boards of education
responsibilities include the duty “to provide
adequate school systems within their respective local
school administrative units.” N.C. Gen. Stat. §
115C-47(1). By statute, local boards are corporate
bodies that can sue and be sued. N.C. Gen. Stat. §
115C-40. Yet, the fact that our local school boards
are corporate bodies “does not mean that the
Legislature has waived immunity from liability for
torts for such boards.” Fields v. Durham City Bd. of
Educ., 251 N.C. 699, 111 S.E.2d 910 (1960). It is
noteworthy, however, that whether an entity has
sovereign immunity under state law is not
determinative of whether that entity is part of the
State for purposes of federal law. For instance,
entities, such as counties, have sovereign immunity
under state law but are not part of the State under

App. 21

federal law. See Herring v. Winston-Salem/Forsyth
County Bd. of Educ., 137 N.C. App. 680, 683, 529
S.E.2d 458, 461 (“As a general rule, the doctrine of
governmental, or sovereign immunity bars actions
against, inter alia, the state, its counties, and its
public officials sued in their official capacity. The
doctrine applies when the entity is being sued for the
performance of a governmental function. But it does
not apply when the entity is performing a
ministerial or proprietary function”). But cf. Monell
v. Dept. of Social Serv. of New York, 436 U.S. 658,
690, 56 L. Ed. 2d 611, 635 (1978) (“Our analysis of
the legislative history of the Civil Rights Act of 1871
compels the conclusion that Congress did intend
municipalities and other local government units to
be included among those persons to whom § 1983
applies”).

Also relevant to our discussion is the manner
chosen by our General Assembly to select members
of local boards of education. The members are
elected in local elections. N.C. Gen. Stat. § 115C-
37(b). However, there is some authority from our
Supreme Court that members of local boards of
education hold a public office under the State. See
Edwards v. Bd. of Educ. of Yancey County, 235 N.C.
345, 70 S.E.2d 170 (1952) (holding a “member of the
county board of education holds a public office under
the State”). But see Turner, supra.

The financing of the public school system is
provided by State, local, and federal governments.
Our General Assembly propounded a state policy “to
provide from State revenue sources the instructional
expenses for current operations of the_public school

App. 22

system as defined in the standard course of study.”
N.C. Gen. Stat. § 115C-408 (2005). Another
constitutional provision provides that the General
Assembly has authority to require local governments
to contribute to the costs of education. N.C. Const.
art. EX, § 2). In accordance with this
Constitutional provision, our legislature has said, “It
is the policy of the State of North Carolina that the
facilities requirements for a public education system
will be met by county governments.” N.C. Gen. Stat.
§ 115C-408. Moreover, local school boards have
authority to have taxes “levied on [their] behalf as a
school supplemental tax” by the county. N.C. Gen.
Stat. § 115-511. However, “[t]he board of county
commissioners may approve or disapprove of this
request in whole or in part,” id., although local
school boards can bring suit to enforce a county’s
obligation to raise funds. N.C. Gen. Stat. § 115C-
431.

In considering the Eleventh Amendment for
purposes of determining congressional intent under
§ 1983, we are mindful of the “twin reasons” for the
amendment’s adoption: (1) “the States’ fears that
‘federal courts would force them to pay their
Revolutionary War debts, leading to their financial
ruin,” and (2) “the integrity retained by each State
in our federal system,” which includes the States’
sovereignty from suit. Hess v. Port Auth. Trans-
Hudson Corp., 513 U.S. 30, 39, 130 L. Ed. 2d 245,
255 (1994) (quotations and citations omitted).

Although both state and local governments
contribute to our school systems, there is no
argument before us that any recovery in this matter

App. 23

would come directly from our State treasury.
Rather, the local school board is a corporate entity
that can sue and be sued, N.C. Gen. Stat. §§ 115C-
40, and our legislature has empowered local boards
to waive sovereign immunity by obtaining insuranc: ,
N.C. Gen. Stat. § 115C-42 (2005), which the
Johnston County board has done in this case.
Moreover, as to the issue of maintaining the
integrity of North Carolina within the federal
system, we are convinced that suit against a local
school board that performs “very important, though
purely local functions,” see Turner, supra, and that is
its own corporate body separately liable from the
State will not hinder our State's integrity within the
federal system. Accordingly, we hold that a local
school board is a “person” within the meaning of §
1983.

In regard to the state constitutional claims,
the Board argues that plaintiffs cannot seek redress
under the state constitution because “plaintiffs have
an adequate state remedy. But for the Board’s
assertion of immunity, plaintiffs’ cause of action in
negligence would redress the complained of injury.”
Our Supreme Court has said, “[I]n the absence of an
adequate state remedy, one whose _ state
constitutional rights have been abridged has a direct
claim against the State under our Constitution.”
Corum v. Univ. of N.C., 330 N.C. 761, 782, 413
S.E.2d 276, 289 (1992). In considering whether an
adequate state remedy exists, we consider whether,
if any state remedy, if successful, would compensate
a plaintiff for the same injury alleged in the direct
constitutional claim. Rousselo v. Starling, 128 N.C.
App. 439, 447, 495 S.E.2d 725, 731 (1998).

i ai a i

|
App. 24

The Board’s argument confuses the issues
presented. Plaintiffs have claimed damages for both
negligence and “intentional and _ arbitrary
discrimination” by the Board against the tort claim.
Plaintiffs seek to remedy the injury incurred by the
alleged arbitrary and unequal application of the
Board’s immunity. There is no adequate remedy for
such conduct in a negligence action or in any other
state law cause of action. Accordingly, we hold that
plaintiffs have no adequate state remedy and may
proceed directly under the State constitution.

|

Having determined that a local school board is
a person within the meaning of § 1983 and that
plaintiffs have no adequate state remedy preventing
them from proceeding under the State constitution,
we consider whether judgment on the pleadings was
otherwise appropriate. In Dobrowolska v. Wall, this 4
Court held that summary judgment’ was
inappropriate where there was no evidence in the
record that the City of Greensboro applied a set
criteria in deciding when to settle claims. 138 N.C.
App. 1, 18, 530 S.E.2d 590, 602 (2000). Similarly, in
this case, viewing the evidence in the light most
favorable to the plaintiffs, there is a material issue of
fact as to whether the Board applied a reasonable
criteria to its evaluation of claims. See Dobrowolska,
supra. Accordingly, judgment on the pleadings was
inappropriate as to the constitutional claims. See
Davis, supra (“The granting of judgment on the
pleadings is [only] proper when there does not exist
a genuine issue of material fact, and the only issues
to be resolved are issues of law”).

App. 25

We additionally address the dissent’s reliance
on Clayton v. Branson, __ N.C. App. __, 613 S.E.2d
259 (2005). Branson, in pertinent part, dealt with
the issue of whether a trial court properly denied a
defendant’s motion for JNOV regarding claims
arising under 42 U.S.C. § 1983. This Court held that
on the Branson facts the trial court erred in denying
the defendant’s motion for JNOV. The standard of
review for a motion for JNOV and a motion for
judgment on the pleadings are _ substantially
different. When considering a motion for JNOV:

all the evidence must be considered in
the light most favourable to the
nonmoving party. The nonmovant is
given the benefit of every reasonable
inference .. . from the evidence and all
contradictions are resolved in the
nonmovant’s favor. If there is more
than a scintilla of evidence supporting
each element of the nonmovant’s case,

the motion for . . . judgment
notwithstanding the verdict should be
denied.

Branson, __ N.C. App. __, 613 S.E.2d at 263-64

(citations omitted). As we have previously stated,
however, judgment on the pleadings is only proper
when there are no genuine issues of material fact,
and the only issues to be resolved are issues of law.
Davis, supra. In this case, judgment on the
pleadings was inappropriate because there are
genuine issues of material fact presented by the
pleadings as to whether defendants applied an
appropriate, non-arbitrary criteria on an equal basis

App. 26

to all claimants. Accordingly, we remand this issue
to the trial court.

Reversed and remanded.
Judge HUDSON concurs.

Judge LEVINSON concurs in part and dissents in
part with a separate opinion.

App. 27

NO. COA04-1681
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006

MICHAEL G.- RIPELLINO, LOUISE A.
RIPELLINO, AND NICOLE RIPELLINO

Plaintiffs,
Vv.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department oof, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1982 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
TRUST FUND, a division and/or department of,
created and administered by, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1986 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
ERRORS AND OMISSIONS/GENERAL LIABILITY
TRUST FUND, a division and/or department of,
created and administered by, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/INLAND MARINE TRUST FUND, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS

App. 28

ASSOCIATION, INCORPORATED; and THE
JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

LEVINSON, Judge concurring in part and
dissenting in part.

I concur with the conclusion of the majority
opinion that plaintiffs injuries did not fall within
Exclusion 18 of the Coverage Agreement, and that
the trial court’s order must be reversed and
remanded for entry of summary judgment in favor of
defenants in this respect. However, I disagree with
the conclusion that the constitutional claims
survived defendants’ Rule 12(c) motions, and
therefore respectfully dissent from these portions of
the majority opinion. Because it is unnecessary to
do so, I make no comment on whether a local school
board is a “person” within the meaning of 42 U.S.C. §
1983 (2005).

Unlike the majority, I conclude the trial court
correctly granted defendants’ N.C. Gen. Stat. § 1A-1,
Rule 12(c) (2005) motion for judgment on the
pleadings with respect to the constitutional claims,
and would therefore affirm the trial court’s order in
this respect.

“A meotien for judgment on the pleadings is
the proper precedure when all the material
allegations of fact are admitted in the pleadings and
only questions of law remain.” Daniels v.
Montgomery Mut. Ins. Co., 320 N.C. 669, 682, 360
S.E.2d 772, 780 (1987) (quoting Ragsdale v.

App. 29

Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499
(1974)). “When a motion for judgment on the
pleadings is made, the trial court is required to view
the facts and permissible inferences in the light most
favorable to the non-moving party, and all well
pleaded factual allegations in the non-moving party’s

pleadings must be taken as true.” Burton v. Kenyon,
46 N.C. App. 309, 310, 264 S.E.2d 808, 809 (1980).

A motion for judgment on the pleadings has
some similarities to motions for dismissal for failure
to state a claim for relief, under N.C. Gen. Stat. §
1A-1, Rule 12(b)(6) (2005), and summary judgment
under N.C. Gen. Stat. § 1A-1, Rule 54 (2005). See
Floraday v. Don Galloway Homes, 340 N.C. 223, 224,
456 S.E.2d 303, 304 (1995) (“[P]ursuant to Rule 12(c)
of the North Carolina Rules of Civil Procedure,
defendant filed a motion for judgment on the
pleadings, requesting dismissal of the action on the
grounds that the complaint failed to state a claim
upon which relief could be granted.”); Kessing uv.
Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823,
829 (1971) (“Motions under Rules 12(b)(6) and 12(c)
can be treated as summary judgment motions, the
difference being that under Rules 12(b)(6) and 12(c)
the motion is decided on the pleadings alone, while
under Rule 56 the court may receive and consider
various kinds of evidence.”). “The principal
difference .. . is that a motion under Rule 12(c) . . . is
properly made after the pleadings are closed while a
motion under Rule 12(b)(6) must be made prior to or
contemporaneously with the filing of the responsive

pleading. Robertson v. Boyd, 88 N.C. App. 437, 440,
362 S.E.2d 672, 675 (1988) Additionally, in

i _——— —y-. a

addressing a Rule 12(c) motion, the trial court “may

App. 30

consider .. . ‘only the pleadings and exhibits which
are attached and incorporated into the pleadings|.]”
Davis v. Durham Mental Health/Dev. Disabilities
Area Auth., 165 N.C. App. 100, 104, 598 S.E.2d 237,
240 (2004) (quoting Helms v. Holland, 124 N.C. App.
629, 633, 478 S.E.2d 513, 516 (1996)) (citation
omitted).

Plaintiffs herein sought damages “pursuant to
42 U.S.C. §§ 1983, 1988, the Fifth, the Fourteenth
Amendments to the United States Constitution and
Article I, [§] 19, of the Constitution of the State of
North Carolina.” I conclude that their complaint
fails to set forth facts that, accepted as true and
allowing all reasonable inferences from those facts,
would entitle them to relief under any legal theory,
or would demonstrate a genuine issue of material
fact.

In reaching this conclusion, I am mindful that
in considering a Rule 12(c) motion, “[w]Je are not
required .. . to accept as true allegations that are
merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” Good Hope Hosp. uv.
Dept. of Health, 174 N.C. App. 266, 274, 620 S.E.2d
873, 880 (2005) (quoting Veney v. Wyche, 293 F.3d
726, 730 (4th Cir. 2002)). “Though the trial court is
obligated to take all of the allegations of the
complaint as true in ruling upon the motion, it is
elementary that the trial court must draw its own
legal conclusions from those facts, and that it may
draw conclusions which may differ from those
advocated by plaintiffs.” Affordable Care, Inc. v.
N.C. State Bd. of Dental Exam’rs, 153 N.C. App. 527,
532, 571 S.E.2d 52, 57 (2002). See also, Lewis v.

App. 31

College, 23 N.C. App. 122, 127, 208 S.E.2d 404, 407
(1974) (upholding dismissal under Rule 12(b)(6)
where alleged facts did not state ground for relief
and “[o]ther portions of the complaint also contain
allegations which, in our view, amount to no more
than plaintiffs own unwarranted deductions or
conclusions of law”).

Thus, this Court’s analysis of whether the
trial court erred by dismissing plaintiffs’ complaint
requires us to distinguish between factual
allegations and conclusions of law. “Findings of fact
are statements of what happened in space and time.”
State ex rel. Utilities Comm. v. Eddleman, 320 N.C.
344, 351, 358 S.E.2d 339, 346 (1987). “Matters of
judgment are not factual; they are conclusory and
based ultimately on various factual considerations. .
... [Facts] can be objectively ascertained by one or
more of the five senses or by mathematical
calculation.” State ex rel. Utilities Comm. v. Public
Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988).

The majority cites the following allegations of
plaintiffs’ complaint in support of its conclusion that
the trial court erred by dismissing plaintiffs’ claim:

15. Upon information and belief, in the
past, the Association, Trust Defendants and the
Johnston County Board of Education could have
raised the doctrine of immunity on many tort claims,
but chose instead, for various reasons that will be
proven at trial, to pay claims even in light of the
immunity defense. Upon information and belief, the
Association, Trust Defendants, in conjunction with
the Johnston County Board of Education, would

App. 32

examine each claim to see if the immunity doctrine
could be raised. Upon information and belief, if the
immunity doctrine would be raised, it was raised,
but thereafter some claims were nevertheless paid.
This disparate treatment of claimholders is
prohibited by the United States and North Carolina
Constitutions, as well as 42 U.S.C. § 1983.

44. At all times. pertinent hereto,
[defendants] . . . in claiming immunity
as to the Plaintiffs’ claims for personal
injury and medical expenses, .. . have
subjected these Plaintiffs to the
deprivation of their equal protection
and substantive due process rights
under the United States Constitution,
as enforced by 42 U.S.C. § 1983, and
Article I, [§] 19 of the North Carolina
Constitution.

45. These Plaintiffs have been denied due
process and equal protection of the law
as the Defendants have paid the
property damage, but have asserted
immunity in the remaining portion of
Plaintiffs’ claim, but have, upon
information and belief, customarily
waived it for similarly situated
individuals who have been compensated
for tort damages.

46. [Defendants’] policy and custom of
paying some claims but not paying

47.

48.

49.

50.

App. 33

others, when immunity could be raised
in each one, has played a part in the
violation of federal and state law.
Additionally, the Defendants’ conduct
in this case, of paying the property
damage, and assuming liability for the
claim, and then refusing to pay the
personal injury and medical expense
portion of the claim, is a violation of
Plaintiffs’ federal and state
constitutional rights, as a matter of
law.

Upun information and belief, the
[Defendants] have what amounts to be
unbridled discretion to resolve claims
filed with the local board of education.

As a result of the conduct of these
Defendants, the Plaintiffs have been
deprived of their right to recover for the
bodily injury and medical expenses
portion of the Ripellino claim.

The Fourteenth Amendment to the
United States Constitution, Article I, [§]
19 of the North Carolina Constitution,
and 42 U.S.C. § 1983 protect these
Plaintiffs against intentional and
arbitrary discrimination, being the
conduct of the [defendants] as to these
Plaintiffs.

As a proximate result of the Fifth and
Fourteenth Amendments to the United

App. 34

States Constitution, Article I, [§] 19 of
the Constitution of the State of North
Carolina, and 42 U.S.C. § 1983
violations by [defendants], Plaintiffs are
entitled to recover damages|.]

In reviewing the trial court’s dismissal under
Rule 12(c), I rely in part on this Court’s recent
opinion in Clayton v. Branson, 170 N.C. App. 438,
613 S.E.2d 259 (2005), disc. review denied, 360 N.C.
174, _ S.E.2d _ (filed 1 December 2005). The
opinion in Branson sets out a comprehensive legal
“roadmap” for review of constitutional claims based
on a governmental unit’s settlement policies and
practices. Although (1) the instant case involves a
Rule 12(c) motion while Branson reviewed the trial
court’s ruling on a motion for JNOV, and (2)
different facts are present in each case, I conclude
that Branson resolves certain legal issues raised in
both cases.

Plaintiffs’ factual allegations, considered
singly or together, in conjunction with inferences
logically drawn from these facts, do not state a claim
for relief. Plaintiffs assert in paragraph No. 15 that
defendants examined each claim to determine if the
defense of governmental immunity would be
available. Plaintiffs allege, in paragraphs Nos. 15,
45, and 46, that plaintiffs have paid damages to
certain tort claimants, but would not pay plaintiffs’
claim. And, in paragraphs Nos. 45 and 46, plaintiffs
allege that defendants paid part of their claim, but
did not pay all of it. These factual allegations, taken
as true, do not give rise to liability as discussed
below.

App. 35

Plaintiffs further allege that by settling some
claims defendants thereby “waived” the defense of
governmental immunity, and that by refusing to
offer plaintiffs a settlement, defendants were
“raising” the defense of governmental immunity.
Plaintiffs’ characterization of defendants’ actions is a
conclusion of law, which the court is not required to
accept as true, and is, in any event, simply an
erroneous conclusion of law.

Branson observed that, as an affirmative
defense, “governmental immunity cannot, by
definition, be raised until there is a lawsuit to defend
against.” Id. at__, 613 S.E.2d at 268. On this basis,
Branson held that “the execution of settlement
contracts between a municipality and tort claimants
do not constitute waivers of the affirmative defense
of governmental immunity.” Jd. This reasoning is
applicable to the instant case. Accordingly,
plaintiffs’ allegation, that defendants may have
compensated other tort claimants, does not support
an inference that defendants raised the defense of
immunity in response to a lawsuit, nor that they
subsequently waived the defense.

Plaintiffs herein also state that defendants
have “unbridled discretion” to decide whether to
settle claims. In other words, plaintiffs complain
that defendants’ authority over tort claims is not
subject to regulation, and is constrained only by
state and federal constitutional prohibitions on
discrimination. Plaintiffs further assert that
defendants’ “unbridled discretion” violates their
constitutional right to substantive and procedural

App. 36

due process. Again, this is not a statement of fact,
but is a legal conclusion that need not be accepted at
face value.

Plaintiffs’ position, that defendants’ freedom
to decide when to compensate claimants violates
their constitutional rights, rests on the premise that
there is a right to recover damages that cannot be
abrogated without procedural due process, and that
such right must be administered according to
definite objective criteria. “However, § 1983 does not
create constitutional rights, and is available only to
enforce constitutional rights whose source may be
identified[.)” Jd. at _, 613 S.E.2d at 269.
Consequently, plaintiffs’ statement that defendants
enjoy the discretion to decide when to settle claims
does not support recovery unless plaintiffs also
allege facts supporting an inference that they have a
constitutionally protected legal right at issue.

As discussed in Branson, the right to
procedural due process arises only upon the
existence of a constitutionally protected property
right and, absent a valid waiver of governmental
immunity, a plaintiff has no “right” to recover
damages from a governmental defendant. Therefore,
plaintiffs clearly have no protected property right
that would give rise to procedural due process rights:

Plaintiff herein claims a
constitutionally protected property
interest in his right to recover damages
from the city..... As discussed above,
absent a waiver of governmental
immunity by the purchase of liability

App. 37

insurance, plaintiff is barred from
maintaining a lawsuit against the city.
As plaintiff has no right to maintain a
suit against the city, under the facts set
forth in this opinion, he cannot have a
“constitutionally protected” property
right to do so.

Id. at __, 613 S.E.2d at 270. Inasmuch as plaintiffs
have no constitutionally protected right to recover
from defendants, and therefore have no procedural
due process rights, defendants’ freedom to exercise
discretion does not support an inference that
plaintiffs rights to procedural due process are being
violated:

[I]t is undisputed that settlement offers,
if any, are in the discretion of the city.
Simple logic dictates that a party
cannot have a right or entitlement to a
benefit whose dispensation rests
entirely in the discretion of the city[.] . .
Accordingly, the city’s discretion to
choose whether to settle with a
claimant is not a_ constitutional
violation of procedural due process|.]

Id.

Moreover, defendants’ payment of damages to
certain tort claimants does not constitute the
granting of a “right” akin to a person’s right to, e.g.,
a license issued by a government zoning board or the
receipt of welfare benefits. In each of these
circumstances a governmental unit, although not

App. 38

constitutionally required to do so, has extended a
right to its citizens, subject to conditions articulated
by statute or ordinance. However, in the present
case, no “right” to compensation is identified. Where
the existence of a right is clearly established, its
administration may not depend on the whim or
unlimited discretion of a government official.
Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d
590 (2000). However, Dobrowolska did not hold that,
whenever a state or local governmental employee
takes any action, makes a decision, or compensates a
citizen for any loss, that a new “right” is thereby
established, or that such decisions are per se
unconstitutional if they are discretionary decisions
by a government employee.

In the instant case, I conclude that plaintiffs
failed to allege facts that would support an inference
that they enjoyed a constitutionally protected right
to compensation by defendants. The factual
allegations of plaintiffs’ compiaint, reduced to their
essentials, are that:

1. Defendants examine tort claims against
them to ascertain the applicability of
the affirmative defense of governmental
immunity to the facts of the case.

2. Defendants customarily pay damages to
some tort claimants, but not to all of
them.

3. Defendants have the power to decide if
and how they will offer a settlement to
a tort claimant.

App. 39

4. Defendants paid part of the damages
asserted by plaintiffs, but not the whole
claim.

These facts do not give rise to liability, and the
remaining paragraphs from plaintiffs’ complaint
cited above consist of unwarranted legal conclusions
that plaintiffs attempt to draw from these facts. For
example, plaintiffs make the conclusory statements
that defendants’ conduct violates their rights to
substantive due process, and that defendants
violated their rights under the Equal Protection
Clause by denying their claim but paying damages to
“similarly situated” claimants.

It is true that appropriate factual allegations
can support a claim of violation of Equal Protection
rights, based on disparate treatment of similarly
situated individuals:

[Mjost laws differentiate in some
fashion between classes of persons. The
Equal Protection Clause . . . simply
keeps governmental decisionmakers
from treating differently persons who
are in all relevant respects alike.

Branson, __ N.C. App. __, 613 S.E.2d at 272 (quoting
Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1,
12 (1992)). However, in the instant case, as in
Branson, plaintiffs “[did) not identify any
classification upon which [they were] denied equal
protection|[,] . . . [or allege] the use of any inherently
suspect criteria, such as race, religion, or disability
status.” Branson, id. Indeed, plaintitts wholly faii to

App. 40

indicate, even in the most general terms, the kind of
discrimination they allege, or the nature of the
“relevant respects” in which other tort claimants
were allegedly “similarly situated.” Consequently,
the allegations of their complaint provide no notice
to defendants as to what actions or transactions are
allegedly discriminatory. Do plaintiffs mean to
suggest that defendants only compensate tort
claimants if they are from a particular part of the
county; are school employees; belong to a particular
political party; are of a certain race or gender; go to
church with a school board member; or only if the
damages claimed are below a certain amount?
Because plaintiffs fail to allege any facts, there is no
way to know.

The standard for sufficiency of a complaint
under our theory of “notice pleading” has been stated
as follows:

In order for plaintiffs’ complaint to have
withstood defendant’s motion to
dismiss, the complaint must .. . provide
defendant sufficient notice of the

conduct on which the claim is based to
enable defendant to respond and
prepare for trial[.|... For the purpose

of ruling on a motion to dismiss...
conclusions of law or unwarranted
deductions of fact are not admitted.
Under the notice theory of pleadings, a
statement of claim is adequate if it
gives sufficient notice of the claim
asserted to enable the adverse party to
answer and prepare for triall.

App. 41

Hill v. Perkins, 84 N.C. App. 644, 647, 353 S.E.2d
686, 688 (1987) (emphasis added) (citations omitted).
“In reviewing a dismissal of a complaint for failure
to state a claim, the appellate court must determine
whether the complaint alleges the substantive
elements of a legally recognized claim and whether it
gives sufficient notice of the events which produced
the claim to enable the adverse party to prepare for
trial.” Toomer v. Garrett, 155 N.C. App. 462, 468,
574 S.E.2d 76, 83 (2002) (quoting Brandis v.
Lightmotive Fatman, Inc., 115 N.C. App. 59, 62, 443
S.E.2d 887, 888 (1994)).

In the instant case, the “fallacy with plaintiffs’
. complaint, is that statements of law...
substitute for alleging sufficient facts from which it
may be determined what liability forming conduct is
being complained of and what injury piaintiffs have
suffered.” Hill, 84 N.C. App. at 648, 353 S.E.2d at
689. I conclude that plaintiffs failed to state a claim
for violation of their equal protection rights, even
under the liberal standards of notice pleading.

Finally, I respectfully observe that the
majority opinion’s statement that the “allegations [in
the complaint] amount to more than ‘conclusory,
unwarranted deductions of fact, or unreasonable
inferences” fails to meet the legal implications of
Branson. I conclude that, under Branson and cases
cited therein, plaintiffs failed to allege facts that, if
proved, would entitle them to relief under their
constitutional claims. Accordingly, I would uphold
the trial court’s dismissal of plaintiffs’ constitutional
claims.

App. 42

COURT OF APPEALS OF NORTH CAROLINA
NO. COA02-1309
Filed: 17 June 2003

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO
AND NICOLE RIPELLINO, Plaintiffs v. THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1986 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED ERRORS AND
OMISSIONS/GENERAL LIABILITY TRUST FUND,
a division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/JINLAND MARINE TRUST FUND, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED, and THE
JOHNSTON COUNTY BOARD OF EDUCATION,
Defendants

App. 43

Z, Discovery--deposition of witness--motion for
continuance

The trial court did not err in a personal injury
case by denying plaintiffs’ motion for a continuance
to depose a witness, because plaintiffs failed to show
that new information relevant to the limited issue
presented in the summary judgment hearing
regarding immunity and waiver of immunity would
be discovered.

z Immunity--sovereign--local school
board--purchase of insurance--waiver

Although the trial court did not err in a
personal injury case by granting summary judgment
in favor of defendants on the ground of sovereign
immunity for claims less than $100,000 and greater
than $1,000,000 based on the fact that defendant
local school board’s participation in the North
Carolina School Boards Trust (NCSBT) did not
qualify as a purchase of insurance under N.C.G:S. §
115C-42 causing defendant to waive its immunity,
the trial court crred by granting summary judgment
for claims in excess of $100,000 and under
$1,000,000 pursuant to excess insurance coverage
purchased by defendant local board of education.

3. Immunity--sovereign--local school
board--estoppel

Defendant local beard of education is not
estopped from claiming sovereign immunity in a
personal injury case even though defendant paid
plaintiffs for property damage, because: (i) ihe

App. 44

General Assembly determines when and under what
circumstances the State and its political subdivisions
may be sued; and (2) the concept of sovereign
immunity is so firmly established that it should not
and cannot be waived by indirection or by procedural
rule.

4, Civil Rights--section 1983 claim--
sovereign immunity defense inapplicable

The trial court erred in a personal injury case
by granting summary judgment in favor of
defendant local board of education on plaintiffs’ §
1983 claim, because defendant may not assert a
defense of sovereign immunity against plaintiffs’
constitutional § 1983 claim even though plaintiffs
may not be entitled to monetary relief under this
section against defendant on grounds other than
sovereign immunity.

5. Damages and Remedies--punitive
damages--governmental entity immune

Defendant local board of education is immune
from a claim for punitive damages because the board
is a governmental entity.

6. Civil Procedure--summary judgment--
contingent upon claims against other defendants

The trial court did not err in a personal injury
case by granting summary judgment in favor of the
trust defendants when those defendants did not
move for summary judgment and did not participate
in the summary judgment hearing because plaintiffs’

App. 45

claims against those defendants are related to and
contingent upon the claims against defendant local
board of education.

Appeal by plaintiffs from judgment entered 15
March 2002 by Judge Knox V. Jenkins, Jr. in
Johnston County Superior Court. Heard in the
Court of Appeals 15 May 2003.

Mast, Schulz, Mast, Mills, Stem & Johnson,
P.A., by Bradley N. Schulz and Don R. Wells,
for plaintiffs.

Yates, McLamb & Weyher, LLP, by Barbara B.
Weyher, for the Trust defendants.

Cranfill, Sumner & Hartzog, LLP, by
Stephanie Hutchins Autry, for Johnston
County Board of Education.

Brooks, Pierce, McLendon, Humphrey &
Leonard, L.L.P., by Jill R. Wilson, for North
Carolina Council of School Attorneys, amicus
curiae.

Ferguson Stein Chambers Wallas Adkins
Gresham & Sumter, P.A., by S. Luke Largess,
for North Carolina Academy of Trial Lawyers,
amicus curiae.

TYSON, Judge.

Michael G. Ripellino, Louise A. Ripellino, and
Nicole Ripellino (“Nicole”) (collectively “plaintiffs”)
appeal from an entry of summary judgment in favor

App. 46

of all defendants. We affirm in part, reverse in part,
and remand.

I. Background

At the end of classes on 9 March 1998, Nicole
was departing from Clayton High School in Johnston
County in her parent’s vehicle. A traffic control gate
owned by the Johnston County Board of Education
(“Board”) swung closed, struck the vehicle, and
injured Nicole. In October 1998, the Ripellinos were
paid $2,153.18 for property damage. The Board
refused to pay medical expenses or other
compensation.

On 26 March 2001 and amended on 6 April
2001, plaintiffs filed suit against the Board, and The
North Carolina School Boards Association, Inc., and
The North Carolina School Board Trust and its self-
funded trusts (“trust defendants”). Plaintiffs alleged
(1) a negligent personal injury claim against the
Board on the part of Nicole, (2) a medical expenses
claim on the part of Nicole’s parents against the
Board, (3) declaratory judgment that immunity had
been waived through (a) participation in the trust
and (b) the payment of property damages, (4) unfair
and deceptive trade practices against all defendants,
(5) 42 U.S.C. § 1983 claim (“§ 1983 claim”) and
constitutional claims against all defendants, and (6)
punitive damages.

Upon motion of the Board, the trial court
bifurcated the trial allowing the issues of whether
the Board was immune from suit and whether the
Board had waived sovereign immunity to be resolved

App. 47

while the other claims were stayed. Based upon
discovery affidavits, plaintiffs requested the
deposition of Tom Davis.

On 19 February 2002, the trial court held a
hearing regarding plaintiffs’ request to depose Davis.
At the end of the hearing, the trial court orally ruled
that because the trial was bifurcated and there was
nothing new to which Davis would be able to testify
regarding immunity, plaintiffs would not be
permitted to depose Davis.

The hearing on the Board’s motion for
summary judgment was continued until 8 March
2002. After the hearing, the trial court granted
summary judgment in favor of all defendants on all
claims. Plaintiffs appeal from both the denial of the
request for deposition of Davis and the grant of
summary judgment to all defendants on all issues.

II. Issues

Plaintiffs contend the trial court erred in (1)
preventing plaintiffs from deposing Davis, (2)
granting summary judgment to the Board when the
Board waived immunity by purchasing insurance, (3)
granting summary judgment for the Board when the
Board was estopped from denying payment of the
claim, (4) granting summary judgment on the
constitutional issues and the § 1983 claims, and (5)
granting summary judgment to the _ Trust
defendants.

App. 48

II. Deposition of Davi

[1] Plaintiffs contend the trial court erred in
denying their request to depose Davis. We disagree.

Rule 56 of the Rules of Civil Procedure
provides:

(f) When affidavits are unavailable.
-- Should it appear from the affidavits
of a party opposing the motion that he
cannot for reasons stated present by
affidavit facts essential to justify his
opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such
other order as is just.

N.C. Gen. Stat. § 1A-1, Rule 56(f). To prevail on a
Rule 56(f) motion, the moving party has the burden
of showing why additional discovery is necessary and
how that discovery will create a genuine issue of
material fact. See e.g., Becerra v. Asher, 105 F.3d
1042, 1048, cert. denied, 522 U.S. 824, 139 L. Ed. 2d
40 (1997).

Because of the previously bifurcated discovery
and trial, the only issues open for discovery and the
summary judgment hearing were immunity and
waiver of immunity. On appeal, plaintiffs contend
that “Davis’ deposition is necessary to determine the
nature of the Board’s interaction with Trust
Defendants, as well as the arbitrary payment by the

App. 49

Board of claims.” The Board had already provided
through discovery a list of claims paid by the Board
and that no claims had been paid by the Trust. The
trial court did not err in denying plaintiffs’ motion
for a continuance to depose Davis when they failed to
show that new information relevant to the limited
issue presented in the summary judgment hearing
would be discovered. This assignment of error is
overruled.

A. Mem Cemetintionsd Ciel

“As a general rule, the doctrine of
governmental, or sovereign immunity bars action
against, inter alia, the state, its counties, and its
public officials sued in their official capacity.”
Herring ex rel. Marshall v. Winston-Salem/Forsyth
Bd. of Educ., 137 N.C. App. 680, 683, 529 S.E.2d
458, 461, disc. rev. denied, 352 N.C. 673, 545 S.E.2d
423 (2000) (citations omitted). “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.” Hallman v. Charlotte-
Mecklenburg Bd. Of Educ., 124 N.C. App. 435, 437,
477 S.E.2d 179, 180 (1996). The General Assembly
has provided a means for a local board of education
to waive immunity through N.C. Gen. Stat. § 115C-
42 (2001), which provides in part:

Any local board of education, by
securing liability insurance as
hereinafter provided. is hereby
authorized and empowered to waive its

App. 50

governmental immunity from liability
for damage by reason of death or injury
to person or property caused by the
negligence or tort of any agent or
employee of such board of education
when acting within the scope of his
authority or within the course of his
employment. Such immunity shall be
deemed to have been waived by the act
of obtaining such insurance, but such
immunity is waived only to the extent
that said board of education is
indemnified by insurance for such
negligence or tort.

The statute expressly defines how a local board may
procure insurance and from whom it may be
procured:

Any contract of insurance purchased
pursuant to this section shall be issued
by a@ company or corporation duly
licensed and authorized to execute
insurance contracts in this State or by a
qualified insurer as determined by the
Department of Insurance and shall by
its terms adequately insure the local
board of education against liability for
damages by reason of death or injury to
person or property proximately caused
by the negligent act or torts of the
agents and employees of said board of
education or the agents and employees
of a particular school in a _ local

App. 51

administrative unit when acting within
the scope of their authority.

(Emphasis supplied). N.C. Gen. Stat. § 115C-42.

N.C. Gen. Stat. § 115C-42 is the exclusive
means of a local board of education to waive
immunity. Lucas v. Swain County Bd. of Educ., 154
N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002). “The
Courts of North Carolina have applied a rule of strict
construction to statutes authorizing waiver of
sovereign immunity.” Hallman, 124 N.C. App. at
438, 477 S.E.2d at 181. As a local board of
education, the Board is immune from suit in a tort
action unless it waived immunity.

1. Participation in the Trust

[2] Plaintiffs argue the Board’s participation
in the North Carolina School Boards Trust
(“NCSBT”) qualified as a purchase of insurance
under N.C. Gen. Stat. § 115C-42 and waived the
Board’s immunity. We disagree.

Our Court has recently determined that “the
only way a plaintiff can establish that a board has
waived its immunity is by showing the contract of
insurance was issued by (1) an entity licensed and
authorized to execute insurance contracts in this
State; or (2) a qualified insurer as determined by the
Department of Insurance.” Lucas, 154 N.C. App. at
361, 573 S.E.2d at 541. Plaintiffs have failed to
forecast evidence that NCSBT meets either of these
requirements.

App. 52

The NCSBT provides:

local boards of education’ the
opportunity to budget funds for the
purpose of paying all or part of a Claim
made or any civil judgment entered
against any of its members or
employees or former members or
employees, when such a Claim is made
or such judgment is rendered as
Damages on account of any act done or
omission made, or any act allegedly
done or omission allegedly made, in the
scope or their duties as members of the
local board of education or as
employees. NCSBT does not provide
any coverage for any Claim which could
not be paid by a local board of education
pursuant to G.S.115C-43(b) or successor
statute. The NCSBT Coverage
Agreement is not a contract of
insurance by a company or corporation
duly licensed and authorized to execute
insurance contracts in this State or by a
qualified insurer as determined by the
Department of Insurance. Therefore,
the NCSBT Coverage Agreement
expressly is not considered a waiver of
governmental immunity as provided in
G.S.115C-42.

The policy states that the fund provides general
liability coverage and errors and omissions coverage
of $100,000 for each claim made and excess
insurance limits of $900,000 for each claim made

App. 53

totaling $1,000,000 coverage. Excess insurance is
defined as “insurance purchased by NCSBT that
provides coverage over and above the Fund limits as
shown in the Declarations.” To the extent the excess
insurance policy provides coverage, the Board
waived immunity.

The trial court erred in granting summary
judgment on the grounds of sovereign immunity for
claims in excess of $100,000 and under $1,000,000
pursuant to the excess insurance coverage. The trial
court did not err in granting summary judgment in
favor of the Board for claims less than $100,000 and

2. Estoppel

[3] Plaintiffs contend the Board is estopped
from claiming governmental immunity when the
Board paid plaintiffs for property damage. We
disagree.

A waiver of sovereign immunity must be
established by the General Assembly. Wood uv. N.C.
State Univ., 147 N.C. App. 336, 338, 556 S.E.2d 38,
40 (2001). “Our Supreme Court has stated that ‘it is
for the General Assembly to determine when and
under what circumstances the State [and its political
subdivisions] may be sued.” Jd. (quoting Guthrie,
307 N.C. at 534, 299 S.E.2d at 625). “The concept of
sovereign immunity is so firmly established that it —
should not and cannot be waived by indirection or by
procedural rule. Any such change should be by
plain, unmistakable mandate of the lawmaking
body.” Id.

App. 54

If a court could estop the Board from asserting
an otherwise valid defense of sovereign immunity,
“then, effectively, that court, rather than the
General Assembly, would be waiving [the Board’s]
sovereign immunity.” Id. at 347, 556 S.E.2d at 45.

B. Constitutional Claims

[4] Plaintiffs contends the trial court erred in
granting summary judgment in favor of the Board on
the § 1983 claim. We agree.

Section 1983 provides “Every person who,
under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding to redress.” 42
U.S.C. § 1983 (2000). Our Supreme Court has held
that the State of North Carolina and its agencies are
not “persons” within the meaning of section 1983
and could not be sued for monetary damages under
that statute. Corum v. University of North Carolina,
330 N.C. 761, 789, 413 S.E.2d 276, 293, cert. denied,
506 U.S. 985, 121 L. Ed. 2d 431 (1992).
Municipalities are considered persons and subject to
suit under § 1983 for monetary damages.

The United States Supreme Court has held
that the legislature intended for “municipalities and
other local government units to be included among

App. 55

those persons to whom § 1983 applies.” Monell v.
Department of Social Servs., 436 U.S. 658, 690, 56 L.
Ed. 2d 611, 635 (1978). “Local governing bodies ...
can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where ... the action
that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by
that body’s officers.” Jd.

“A county may not claim sovereign immunity
as a defense to a section 1983 claim if the violation of
federal rights is caused by the county’s official policy,
such as the implementation of an ordinance or a
decision officially adopted by the board of county
commissioners.” Peverall v. County of Alamance,
154 N.C. App. 426, 432, 573 S.E.2d 517, 521 (2002).

Plaintiffs alleged that the Board, the local
governing body for the school system, has
unconstitutionally paid some claims while asserting
immunity on others in violation of plaintiffs’ equal
protection and due process rights. Plaintiffs showed
through discovery that claims had been paid by the
Board, including partial payment to plaintiffs.

The Board may not assert a defense of
sovereign immunity against plaintiffs’ constitutional
§ 1983 claims. We note that plaintiffs may not be
entitled to monetary relief pursuant to section 1983
against defendant on grounds other than sovereign
immunity. Id. (citing Messick v. Catawba County,
110 N.C. App. 707, 713-14, 431 S.E.2d 489, 493, disc.
rev. denied, 334 N.C. 621, 4285 S.E.2d 336 (1993)
(holding that, because a county is not a “person” for

App. 56

purposes of a section 1983 claim, it cannot be sued
where the remedy sought is monetary damages)). As
this appeal is limited to issues of sovereign
immunity, we do not address the merits of such an
argument. The trial court erred in granting
summary judgment in favor of defendants on the §
1983 and constitutional claim.

C. Punitive Damages

[5] Plaintiffs asserted a claim of punitive
damages against defendants. “Punitive damages by
definition are not intended to compensate the
injured party, but rather to punish the tortfeasor
whose wrongful action was intentional or malicious,
and to deter him and others from similar extreme
conduct.” Long v. City of Charlotte, 306 N.C. 187,
207, 293 S.E.2d 101, 114 (1982). Usually, the
individual wrongdoer himself is made to suffer for
his conduct. Here, it is the governmental entity. /d.

In Long, our Supreme Court held that public
policy, in the absence of statutory provisions to the
contrary, provides that municipal corporations are
immune from punitive damages. Id. We find the
rational in Long persuasive, and hold that the
Board, as a governmental entity, is immune from
punitive damages.

V. Trust Defendants

[6] Plaintiffs contend the trial court erred in
granting summary judgment to the trust defendants
when the trust defendants did not move for

App. 57

summary judgment and did not participate in the
summary judgment hearing.

Plaintiffs’ claims against the trust defendants
are related to and contingent upon the claims
against the Board. To the extent the trial court
properly granted summary judgment in favor of the
Board, the claims against the trust defendants were
also properly granted.

VII. Conclusion

The trial court erred in granting summary
judgment on the grounds of immunity as to the
constitutional claims against all defendants and as
to the non-constitutional claims to the extent there
was excess liability insurance for claims between
$100,000 to $1,000,000 dollars. The trial court
properly granted summary judgment to defendants
on claims of less than $100,000 and for punitive
damages.

Affirmed in part, reversed in part and
remanded.

Judges MCGEE and CALABRIA concur.

App. 58

STATE OF NORTH CAROLINA
JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
01 CVS 609

[FILED March 15, 2002]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO
AND NICOLE RIPELLINO,

Plaintiffs,

vs.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL -»BOARDS
ASSOCIATION, INCORPORATED; 1986 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED ERRORS AND
OMISSIONS/GENERAL LIABILITY TRUST FUND,
a division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED

App. 59

AUTOANLAND MARINE TRUST FUND, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED, and THE
JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

THIS CAUSE COMING ON TO BE HEARD
upon motion of the defendant, The Johnston County
Board of Education; and it appearing to the Court
from the pleadings, Answers to Interrogatories,
Request for Production of Documents and Request
for Admissions, and the briefs and other materials
presented to the Court, together with the arguments
of counsel and the issues raised by counsel during
argument, that there is no genuine issue as to any
material fact and that the defendants are entitled to
judgment as a matter of law as to all claims against
them;

IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the plaintiffs’ claims against
the defendants be, and they therefore are, dismissed.

This the /15/ day of March, 2002.

/s/Knox V. Jenkins, Jr.
The Honorable Knox V. Jenkins, Jr.

Superior Court Judge Presiding

App. 60

No. 180A06 ELEVEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
(Ripellino v Board of Education)

MICHAEL G._ RIPELLINO, LOUISE A.
RIPELLINO, AND NICOLE RIPELLINO

Vv

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, A
DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1982 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1986 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
ERRORS AND OMISSIONS/GENERAL LIABILITY
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/JINLAND MARINE TRUST FUND, A
DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH

App. 6]

CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPOF “ED; AND THE JOHNSTON
COUNTY Bu 2D OF EDUCATION

From NC Court of Appeals
(COA04-1681)
From Johnston
(01CVS609)

ORDER

Upon consideration of the petition for
discretionary review, filed by Defendant (N.C. School
Boards Association, et al.) on the 11th day of April
2006 in this matter pursuant to G.S. 7A-31 and the
Appellate Rule 16(b) as to issues in addition to those
presented as the basis for the dissenting opinion in
the Court of Appeals, the following order was
entered and is hereby certified to the North Carolina
Court of Appeals: the petition for discretionary
review as to additional issues is

"Allowed by order of the Court in
conference, this the 29th day of
June 2006.

s/ Timmons-Goodson, J.
For the Court"

Accordingly, the new brief of the Defendant
(N.C. School Boards Association, et al.) shall be filed
with this Court not more than 30 days from the date
of certification of this order.

App. 62

No. 180A06 ELEVEN-B DISTRICT

WITNESS my hand and the seal of the
Supreme Court of North Carolina, this the 30th day
of June 2006.

/s/ Christie Speir Cameron
Christie Speir Cameron
Clerk, Supreme Court of North Carolina

Copy to:

North Carolina Court of Appeals

Mr. Ralph A. White, Appellate Reporter (By E-Mail)
Ms. Stephanie H. Autry, Attorney at Law, For
Johnston County Bd. of Ed.

Ms. Rachel B. Esposito, Attorney at Law, for
Johnston County Bd. of Ed.

Ms. Meredith T. Black, Attorney at Law, for
Johnston County Bd. of Ed.

Mr. James R. Lawrence, Jr., Attorney at Law, For
Johnston County Bd. of Ed. (by E-Mail)

Mr. Bradley N. Schulz, Attorney at Law, For
Michael Ripellino, et al (by E-Mail)

Ms. Barbara B. Weyher, Attorney at Law, For School
Boards Asso., et al (by E-Mail)

Mr. T. Carlton Younger, III, Attorney at Law, for
School Boards, et al

West Publishing Company (By E-mail)

Lexis-Nexis (By E-mail)

LOIS Law (By E-mail)

App. 63

No. 180A06 ELEVEN-B DISTRICT
SUPREME COURT OF NORTH CAROLINA
[FILED June 30, 2006]

(Ripellino v Board of Education)

MICHAEL G. RIPELLINO, LOUISE A.
RIPELLINO, AND NICOLE RIPELLINO

Vv

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, A
DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1982 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1986 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
ERRORS AND OMISSIONS/GENERAL LIABILITY
TRUST FUND, A_ DIVISION AND/OR
DEPARTMENT OF, CREATED AND
ADMINISTERED BY, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-FUNDED
AUTO/INLAND MARINE TRUST FUND, A

App. 64

DIVISION AND/OR DEPARTMENT OF, CREATED
AND ADMINISTERED BY, THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION,
INCORPORATED; AND THE JOHNSTON
COUNTY BOARD OF EDUCATION

From NC Court of Appeals
(COA04-1681)
From Johnston
(01CVS609)

ORDER

Upon consideration of the notice of appeal
from the North Carolina Court of Appeals, filed by
Defendant (Johnston County Board of Education) on
the 6th day of April 2006 in this matter pursuant to
G.S. 7A-30 (substantial constitutional question), the
following order was entered and is hereby certified to
the North Carolina Court of Appeals: the notice of
appeal is

"Dismissed Ex Mero Motu by order of
the Court in conference, this the 29th
day of June 2006.

s/ Timmons-Goodson, J.
For the Court"

Upon consideration of the petition for
discretionary review, filed by Defendant (Johnston
County Board of Education) on the 6th day of April
2006 in this matter pursuant to G.S. 7A-31 and the
Appellate Rule 16(b) as to issues in addition to those
presented as the basis for the dissenting opinion in

App. 65

the Court of Appeals, the following order was
entered and is hereby certified to the North Carolina
Court of Appeals: the petition for discretionary
review as to additional issues is

"Allowed by order of the Court in
conference, this the 29th day of June
2006.

s/, J.
For the Court"

Accordingly, the new brief of the Defendant
(Johnsto1 County Board uf Education) shall be filed
with this Court not more than 30 days from the date
of certification of this order.

App. 66

No. 180A06 ELEVEN-B DISTRICT

WITNESS my hand and the seal of the
Supreme Court of North Carolina, this the 30th day
of June 2006.

s/CHRISTIE S CAMERON
Christie Speir Cameron
Clerk, Supreme Court of North Carolina

Copy to:

North Carolina Court of Appeals

Mr. Ralph A. White, Appellate Reporter (By E-Mail)
Ms. Stephanie H. Autry, Attorney at Law, For
Johnston County Bd. of Ed.

Ms. Rachel B. Esposito, Attorney at Law, for
Johnston County Bd. of Ed.

Ms. Meredith T. Black, Attorney at Law, for
Johnston County Bd. of Ed.

Mr. James R. Lawrence, Jr., Attorney at Law, For
Johnston County Bd. of Ed. (by E-Mail)

Mr. Bradley N. Schulz, Attorney at Law, For
Michael Rlpellino, et al (by E-Mail)

Ms. Barbara B. Weyher, Attorney at Law, For School
Boards Asso., et al (by E-Mail)

Mr. T. Carlton Younger, III, Attorney at Law, for
School Boards, et al

West Publishing Company (By E-mail)

Lexis-Nexis (By E-mail)

LOIS Law (By E-mail)

App. 67

STATE OF NORTH CAROLINA
JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
01 CVS 609

[FILED September 9, 2004]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO
AND NICOLE RIPELLINO,

Plaintiffs,

vs.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF- FUNDED TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1986 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED ERRORS AND
OMISSIONS/GENERAL LIABILITY TRUST FUND,
a division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1997 NORTH CAROLINA

App. 68

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/INLAND MARINE TRUST FUND, a division

and/or department of, created and administered

by, THENORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,
Defendants.

ORDER GRANTING SUMMARY JUDGMENT
AND JUDGMENT ON THE PLEADINGS FOR
TRUST DEFENDANTS

THIS CAUSE COMING ON TO BE HEARD
upon motion of the defendants denominated in the
Complaint as, "The North Carolina School Boards
Association, Incorporated; North Carolina School
Boards Trust, a division and/or Department of,
created and administered by, The North Carolina
School Boards Association, Incorporated; 1982 North
Carolina School Boards Association Self-Funded
Trust Fund, a division and/or department of, created
and administered by, The North Carolina School
Boards Association, Incorporated; 1986 North
Carolina School Boards Association Self-Funded
Errors and Omissions/General Liability Trust Fund,
a division and/or department of, created and
Administered by, The North Carolina School Boards
Association, Incorporated; 1997 North Carolina
School Boards Association Self-Funded Auto/Inland
Marine Trust Fund, a division and/or department of,
created and administered by, The North Carolina
School Boards Association, Incorporated"
(collectively "Trust Defendants"), for summary
judgment pursuant to Rule 56 of the North Carolina
Rules of Civil Procedures as to all non-constitutional

App. 69

claims and for judgment on the pleadings pursuant
to Rule 12 (c) of the North Carolina Rules of Civil
Procedures as to all claims arising under 42 U.S.C. §
1983 and the North Carolina Constitution
(hereinafter, "the constitutional claims");

AND IT APPEARING to the Court from the
entire record, including the pleadings, discovery,
affidavits, and the briefs and other materials
presented to the Court, together with the arguments
of counsel and the issues raised by counsel during
argument, that there is no genuine issue as to any
material fact as to the non-constitutional claims and
that the Trust Defendants are entitled to judgment
as a matter of law as to all non-constitutional claims
against them pursuant to Rule 56;

AND IT FURTHER APPEARING to the Court
from the pleadings and the briefs and arguments of
counsel that there is no genuine issue as to any
material fact as to the constitutional claims and that
the Trust Defendants are entitled to judgment on
the pleadings as a matter of law as to the
constitutional claims against them pursuant to Rule

12 (c);

IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the plaintiffs' non-constitutional
claims against the Trust Defendants be, and they
therefore are, dismissed with prejudice pursuant to
Rule 56 of the North Carolina Rules of Civil
Procedure and that the plaintiffs’ constitutional
claims against the Trust Defendants be, and they
therefore are, dismissed with prejudice pursuant to

App. 70

Rule 12 (c) of the North Carolina Rules of Civil
Procedure.

This the /8/ day of /September/, 2004.

/s/Knox V. Jenkins, Jr.

The Honorable Knox V. Jenkins, Jr.
Superior Court Judge Presiding

App. 71

STATE OF NORTH CAROLINA
JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
01 CVS 609

[FILED September 3, 2004]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO
AND NICOLE RIPELLINO,

Plaintiffs,
vs.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a division
and/or department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION SELF-
FUNDED TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1986 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION SELF-
FUNDED ERRORS AND OMISSIONS/GENERAL
LIABILITY TRUST FUND, a division and/or
department of, created and administered by, THE
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1997 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION SELF-

App. 72

FUNDED AUTO/INLAND MARINE TRUST FUND, a
division and/or department of, created and
administered by, THE NORTH CAROLINA SCHOOL
BOARDS ASSOCIATION, INCORPORATED, and THE
JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT
AND JUDGMENT ON THE PLEADINGS FOR

DEFENDANT JOHNSTON COUNTY
BOARD OF EDUCATION

THIS CAUSE COMING ON TO BE
HEARD upon motion of the defendant, The
Johnston County Board of Education, for summary
judgment pursuant to Rule 56 as to all non-
constitutional claims and for judgment on the
pleadings pursuant to Rule 12 (c) as to all claims
arising under 42 U.S.C. § 1983 and the North
Carolina Constitution (hereinafter, “the
constitutional claims”);

AND IT APPEARING to the Court from the
entire record, including the pleadings, answers to
discovery, and the briefs, affidavits and other
materials presented to the Court, together with the
arguments of counsel and the issues raised by
counsel during “argument, that there is no genuine
issue as to any material fact as to the non-
constitutional claims and that the defendant,
Johnston County Board of Education, is entitled to
judgment as a matter of law as to all non-
constitutional claims against it pursuant to Rule 56;

App. 73

AND IT FURTHER APPEARING to the
Court from the pleadings and the briefs and
arguments of counsel that there is no genuine issue
as to any material fact as to the constitutional
claims and that the defendant, Johnston County
Board of Education, is entitled to judgment on the
pleadings as a matter of law as to the constitutional
claims against it pursuant to Rule 12 (c);

IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the plaintiffs’ non-
constitutional claims against the defendant,
Johnston County Board of Education be, and they
therefore are, dismissed with prejudice pursuant to
Rule 56 and that the plaintiffs’ constitutional claims
against the defendant, Johnston County Board of
Education be, and they therefore are, dismissed with
prejudice pursuant to Rule 12 (c).

This the /3"/ day of /Sept/, 2004.

/s/Knox V. Jenkins, Jr.
The Honorable Know V. Jenkins, Jr.

Superior Court Judge Presiding

App. 74

Supreme Court of North Carolina
No. 526P03.
[FILED] Feb. 5, 2004.

Michael G. Ripellino, Louise A. Ripellino, and
Nicole Ripellino

Ve

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, Incorporated; North Carolina
School Boards Trust, a division and/or department
of, created and administered by, the North Carolina
School Boards Association, Incorporated; 1982 North
Carolina School Boards Association Self-Funded
Trust Fund, a division and/or department of, created
and administered by, the North Carolina School
Boards Association, Incorporated; 1986 North
Carolina School Boards Association Self-Funded
Errors and Omissions/General Liability Trust Fund,
a division and/or department of, created and
administered by, the North Carolina School Boards
Association, Incorporated; 1997 North Carolina
School Boards Association Self-Funded Auto/Inland
Marine Trust Fund, a division and/or department of,
created and administered by, ihe North Carolina
School Boards Association, Incorporated; and the
Johnston County Board of Education.

ORDER

Upon consideration of the petition filed by Plaintiffs
on the 18th day of September 2003 1n this matter for

App. 75

a writ of certiorari to review the decision of the North
Carolina Court of Appeals, the following order was
entered and is hereby certified to the North Carolina
Court of Appeals: "Denied by order of the Court in
_conference, this the 5th day of February 2004."

Upon consideration of the petition filed by Plaintiffs
on the 27th day of October 2003 in this matter for a
writ of certiorari to review the decision of the North
Carolina Court of Appeals, the following order was
entered and is hereby certified to the North Carolina
Court of Appeals:

"Denied by order of the Court in conference, this the
5th day of February 2004."

App. 76

NORTH CAROLINA
JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO: 01 CVS 609

[FILED April 11, 2002]

MICHAEL G.- RIPELLINO, LOUISE A.
RIPELLINO, and NICOLE RIPELLINO,

Plaintiff,
vs.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATIONS, INCORPORATED, NORTH
CAROLINA SCHOOL BOARDS TRUST, a
division and/or department of created administered
by THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED 1982 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED ERRORS AND OMISSIONS/
GENERAL LIABILITY TRUST FUND, a division
and/or department of, created and administered by
THE NORTH CAROLINA SCHOOLS BOARDS
ASSOCIATION, INCORPORATED; 1997 NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION
SELF-FUNDED AUTO-INLAND MARINE
TRUST FUND, a division and/or department of
created and administered by by THE NORTH
CAROLINA SCHOOL BOARDS ASSOCIATION

App. 77

INCORPORATED, and THE JOHNSTON
COUNTY BOARD OF EDUCATION,

Defendants.

ORDER
(OTHR)

THIS CAUSE, coming on to be heard and
being heard before the undersigned Honorable
Superior Judge presiding over the February 19, 2002
term of the Superior Court of Johnston County on
plaintiffs Motion To Continue the Summary
Judgment hearing, so as to be allowed to take the
deposition of Tom Davis; the plaintiffs were present
in court represented by their attorney of record,
Bradley N. Schulz; the Johnston County Board of
Education was represented by its attorneys of record
Stephanie Autry and James Lawrence;

And the court after hearing arguments from
counsel indicated to counsel that the undersigned
was heavily involved with the redistricting matter;
the court also heard arguments from plaintiffs that
the Affidavit of Tom Davis had been filed in support
of the School Board’s Motion For Summary
Judgment, and due to the allegations as contained in
paragraphs 7 & 8, the plaintiffs would like to take
his deposition pursuant to Rule 56; after reviewing
the file and hearing arguments of counsel, the court
determined that the Summary Judgment Hearing
should be continued and that the plaintiffs should
not be allowed to take the deposition of Mr. Tom
Davis

App. 78

IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED that the Johnston County Board of
Education’s Motion For Summary Judgment shall be
heard by the undersigned on Friday, March 8, 2002,
at 10:00 a.m., and that the plaintiffs are prohibited
from taking the deposition of Mr Tom Davis.

Entered in open court the 19" day of February,
2002, and signed this the /11/ day of April, 2002.

/s/Knox V. Jenkins, Jr.

Hon. Knox V. Jenkins, Jr.
Superior Court Judge Presiding

App. 79

STATE OF NORTH CAROLINA
JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO.: 01 CVS 609

[FILED April 6, 2001]

MICHAEL G. RIPELLINO, LOUISE A.
RIPELLINO AND NICOLE RIPELLINO,

Plaintiffs,

Vs.

THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; NORTH
CAROLINA SCHOOL BOARDS TRUST, a
division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED; 1982 NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION SELF-
FUNDED TRUST FUND, a division and/or
department of, created and administered by,
THE NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1986
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION SELF-FUNDED ERRORS AND
OMISSIONS/GENERAL LIABILITY TRUST
FUND, a division and/or department of,
created and administered by, TILE NCRTH

App. 80

CAROLINA SCHOOL BOARDS
ASSOCIATION, INCORPORATED; 1997
NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION SELF-FUNDED
AUTO/JINLAND MARINE TRUST FUND, a
division and/or department of, created and
administered by, THE NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION,
INCORPORATED, and THE JOHNSTON
COUNTY BOARD OF EDUCATION,

Defendants.
PLAINTIFF’S FIRST AMENDED COMPLAINT

NOW COME Plaintiffs, by and through
counsel, and pursuant to Rule 15 of the North
Carolina Rules of Civil Procedure, and prior to the
filing of any responsive pleading by any defendant,
file herewith their First Amended Complaint and
allege and state as follows:

1. The Plaintiffs, Michael G. Ripellino,
Louise A. Ripellino, and Nicole Ripellino are citizens
and residents of Johnston County, North Carolina,
and were citizens and residents of the county at the
times complained of herein.

2. The Defendant, the Johnston County
Board of Education, is a separate body politic, in the
County of Johnston, charged with the statutory duty
of constructing schools, maintaining schools and
providing a safe environment for the education of
children, and their travel to and from the school
facility. The Johnston County Board of Education

App. 81

operates a facility known as Clayton High School in
Clayton, North Carolina, and specifically built,
erected and maintains the gates located at the
western exit of the school, High School Drive, the
general area where the accident involving Nicole
Ripellino took place.

3. The North Carolina School Boards
Association, Incorporated (hereinafter
“Association”), is a North Carolina not-for-profit
corporation authorized by the North Carolina
Secretary of State, with its principal office located in
Raleigh, Wake County, North Carolina: Its members
include many local school boards, including the
Defendant, the Johnston County Board of
Education. ‘

4. In or about 1982, The North Carolina
School Boards Association, Incorporated,
implemented a division and/or entity known as the
Defendant, North Carolina School Boards Trust,
which provided workers’ compensation and other
coverage, through a self-funded trust fund protected
by excess insurance. This Defendant is a division
and/or department of, created and administered by,
The North Carolina School Boards Association,
Incorporated, and is involved with funding and
administering the 1982, 1986 and 1997 Self-Funded
Trusts referenced below.

5. The Defendant, 1982 North Carolina
School Boards Association Self-Funded Trust Fund,
was created by The North Carolina School Boards
Association, Incorporated, in or about 1982, as its
first self-funded trust fund, established to provide

App. 82

workers’ compensation coverage for locally and
federally funded school employees through a self-
funded trust fund protected by excess insurance.
Upon information and belief, this Defendant is a
division and/or department of, created and
administered by, The North Carolina School Boards
Association, Incorporated.

6. The Defendant, 1986 North Carolina
School Boards Association Self-Funded Errors and
Omissions/General Liability Trust Fund was created
by The North Carolina School Boards Association,
Incorporated, in or about 1986, as its second self-
funded trust fund, established to provide errors and
omissions and general liability coverage for school
districts, local boards of education, school board
members, school employees, and school volunteers.
Upon information and belief, this Defendant is a
division and/or department of, created and
administered by, The North Carolina School Boards |
Association, Incorporated.

ce The Defendant, 1997 North Carolina
School Boards Association Self-Funded Auto/Inland
Marine Trust Fund is the third fund established by
the Defendant, The North Carolina School Boards
Association, Incorporated, and was established to
provide coverage for, among other things, school-
owned vehicles, including coverage for yellow school
buses for exposures not covered by the State Tort
Claims Act. Upon information and belief, this
Defendant is a division and/or department of,
created and administered by, The North Carolina
School Boards Association, Incorporated.

App. 83

8. The four trust defendants, as alleged in
the previous paragraphs 4-7, have the purpose to
provide payment to claimants, such asthe Plaintiffs
herein, for damages caused while on the premises of
the local school boards, and will hereinafter be
referred to collectively as the “Trust Defendants.”

9. The Defendant, The Johnston County
Board of Education, participates in all four trusts
through The North Carolina School Boards
Association, Incorporated.

10. As is more fully set forth below,
Defendant, The Johnston County Board of
Education is involved with the payment of claims by
the Association, as claims are normally reported to
the school board, communicated by the Board to the
Association, and the negotiation and settlement of
claims handled by these entities is a joint effort of
all Defendants involved in this litigation.

11. The Association and the four Trust
Defendants are not governmental risk-pools, as the
same are prohibited by N.C.G.S. § 115C-142, and the
interpreting case law.

12. In regard to the Ripellino claim,
further described below, the Association, the four
Trust Defendants, and The Johnston County Board
of Education were agents of each other for handling
of this claim, acted in concert, and also acted in a
joint enterprise to handle the claim. Specifically.
the claim was first reported to The Johnston County
Board of Education and thereafter, medical records
and bills were torwarded to Mr. James Causby,

App. 84

Superintendent of the Board of Education. Upon
information and belief, Superintendent Causby or
his designee(s) forwarded these bills and records to
agents or employees of the Association or the Trust
Defendants and communicated with them regarding
the same. Additionally, the Association has
established a website on the Internet, where
authorized members of the Association, including
employees of The Johnston County Board of
Education, can log in for purposes of the evaluation
and handling of claims.

13. Upon information, and belief, the
Association and Trust Defendants have
approximately thirteen claims handlers in Raleigh,
and service claims throughout the State. Upon
information and belief, due to the small number of
claims handlers, the Association and _ Trust
Defendants must rely heavily on local input relating
to the evaluation and payment of claims, including
the involvement of various agents or employees of
The Johnston County Board of Education in the
Ripellino claim.

14. At all times pertinent to this matter,
Superintendent Causby was an agent of, or acting
in concert with, with the Association, Trust
Defendants and the Johnston County Board of
Education in regard to the Ripellino claim.

15. Upon information and belief, in the
past, the Association, Trust Defendants, and The
Johnston County Board of Education could have
raised the doctrine of immunity on many tort
claims, but chose instead, for various reasons that

App. 85

will be proven at trial, to pay claims even in light of
the immunity defense. Upon information and belief,
the Association and MTrust Defendants, in
conjunction with The Johnston County Board of
Education, would examine each claim to see if the
immunity doctrine could be _ raised. Upon
information and belief, if the immunity doctrine
could be raised, it was raised, but thereafter some
claims were nevertheless paid. This disparate
treatment of claimholders is prohibited by the
United States and North Carolina Constitutions, as
well as 42 U.S.C. § 1983.

16. At ail times relevant hereto, Defendant,
The Johnston County Board of Education, did
operate and maintain Clayton High School, a high
school educational facility in Johnston County. The
Johnston County Board of Education further
maintained High School Drive, which is a private
vehicular area located on the western portion of the
Clayton High School property, said vehicle area
being an area of ingress/egress to the high school for
vehicular traffic. High School Drive is controlled by
gates constructed by, erected by, and maintained by
The Johnston County Board of Education to control
traffic access on High School Drive. The Johnston
County Board of Education has a duty to regularly
inspect and maintain the gates at issue.

17. At all times relevant hereto, the gates
at issue are of a two-piece construction, attached to
poles each holding one portion of the gate, and said
poles were placed inside the curb line on the main
travel portion of High School Drive.

App. 86

18. At all times relevant hereto, when the
gates were in an open position, The Johnston
County Board of Education provided no means by
which to hold or secure the gates in this open
position, substantially increasing the risk that either
of the two gates would swing closed unexpectedly, by
wind or any other type cause.

19. Prior to and at the time of the accident
herein alleged, the gates on High School Drive were
in a state of disrepair, with their poles being
pitched too much to the inside, creating a hazard
that the gate would close into the path of a vehicle;
the risk of the gates closing unexpectedly was
enhanced by the fact that the gates were not secured
while in an open position.

20. At all times relevant hereto, the
Plaintiff Nicole Ripellino was an invitee on the
premises of Clayton High School on High School
Drive, being an enrolled student at Clayton High
School in good standing.

FIRST CLAIM FOR RELIEF - NEGLIGENCE

21. The allegations of all preceding
paragraphs are incorporated by reference as though
fully alleged herein.

22. Onor about Monday, March 9, 1998, at
approximately 3:14 p.m., the Plaintiff, Nicole
Ripellino, was attempting to depart Clayton High
School at the end of classes for the day. At the time
in question, Nicole Ripellino was operating a 1989
Plymouth four-door vehicle, owned by Michael G.

App. 87

Ripellino, Nicole’s father, and provided by him for
family member use, including Nicole. Nicole
Ripellino was traveling at the time alleged in a
westerly direction along High School Drive, on the
property of Clayton High School. Johnston County
Board of Education, when one of the traffic control
gates unexpectedly and without warning swung
closed, crashing through the windshield of the
Ripellino vehicle, striking the Plaintiff and throwing
her about the vehicle. The gate at issue was owned
by The Johnston County Board of Education.

23. The sole cause of Plaintiffs injury was
the closing of the gate.

24. Asa result of this defective gate, said
area was dangerous to the public, as well as to all
students such as Nicole and all faculty who were
attempting to enter or leave the high school
property. The Johnston County Board of Education,
through its agents and/or employees, knew or
should have known of the above-described condition
and of the attendant danger to the public and
students and faculty and had time to have corrected
or taken other action regarding said dangerous
condition prior to the accident herein alleged. Upon
information and belief, vehicles had struck the gates
in the past, due to the fact that they were not
secured and would close unexpectedly.

25. The Johnston County Board of
Education was on actual and/or constructive notice
about the gates and their defective condition, and
although on notice of problems, and as a result of
this accident, has done nothing further to correct

App. 88

this dangerous condition. The gates continue to
remain open at many times, unattended, and not
secured in the open position. Although chains and a
lock have since the accident been added to the gates,
the chains are not latched, the locks are not
secured, and vehicles have hit the same.

26. The Defendant, The Johnston County
Board of Education, through its agents and/or
employees, was negligent in that:

a. it failed to keep and maintain
the gates on High School Drive at Clayton
High School, in a reasonably safe condition;

b. it failed to keep and maintain the
gates at issue in a manner consistent with
various safety and design guidelines for gates
such as the gates at issue;

c. it created and/or maintained a
dangerous condition and obstruction on High
School Drive by the placement of the poles
within the curb line and the specific gates at
issue, when it knew or should have known
that said dangerous condition and
obstruction existed;

d. it failed to exercise reasonable
care in the design, construction, maintenance
and/or repair of said gates on High School
Drive, Clayton High School;

e. it failed to give any warning to
the pubiic, or to the Plaintiff or any other

App. 89

similarly situated whatsoever of the
dangerous conditions existing with said

gates;

f. it failed to reasonably inspect
said gates and correct the dangerous
condition;

g. it failed to take reasonable action

regarding the dangerous condition existing
there and to keep High School Drive free of
unnecessary and dangerous conditions;

h. it failed to correct the pitch of the poles
securing the gates at issue, and said pitch
encourages the gates to release themselves into a
closed position;

i. it failed to construct and
maintain gates that would open away from
vehicles departing Clayton High School, on
High School Drive, which would have
prevented a gate from going through the
windshield as it did in this case;

j. it constructed and maintained
gates with a sharp end, rather than a blunt
end, which allowed the gate in question to
become a spear, piercing through the
windshield at issue;

k. it constructed, implemented and
maintained gates that were too high to prevent
striking a windshield rather than at a height where
the bumper area of a vehicle would be struck;

trial.

App. 90

l. it failed to provide any type of
adequate warning signs or stripes on the gate
or the roadway, which would have advised a
pedestrian or operator of a motor vehicle that
the gate existed.

m. it failed to maintain and utilize a
stop check on the top of the gate, which would
have prevented the gate from moving more
than 45 degrees to a closed position, and
would have prevented the spearing of the
vehicle that took place in this case;

n. it designed and implemented a
dangerous gate system whereby the latch
system of the gate extended across the only
sidewalk on High School Drive, encouraging
the latch not to be utilized or to be vandalized,
so that pedestrians could pass;

0. after adequate notice of this
accident and other collisions, which will be
proven at trial, The Johnston County Board
of Education has failed to correct this
dangerous condition or to warn students,
faculty and the public of the condition; and

p. in other respects as shall be shown at

27. Asa proximate result of the negligence
of The Johnston County Board of Education, the
Plaintiff, Nicole Ripellino received serious, painful
and permanent bodily injuries and the Plaintiff

App. 91

underwent severe pain and suffering, both of body
and mind, some of which continue at the time of the
filing of this action. Plaintiff has incurred hospital
and medical expenses and _ has incurred
transportation costs by reason of said injuries and
the treatment thereof. The Plaintiff believes that her
injuries may be permanent and that she may have
decreased earning capacity, pain and suffering,
both physical and mental, in the future, additional
medical expenses, and loss of profits and wages by
reason of the injuries sustained as hereinabove set
forth.

28. The negligence of the Defendant, The
Johnston County Board of Education, as set out
above, was a proximate cause of the Plaintiff's
injuries and damages.

29. In approximately October, 1998, The
Johnston County Board of Education, the
Association and Trust Defendants paid the property
damage portion of the Ripellino claim in the amount
of $2,153.18, thereby waiving any immunity for the
injuries and damages as sustained by the Ripellino
family as set forth in this Complaint. The
defendants should be estopped from claiming
immunity for the remaining portions of the
Ripellino claim, by reason of their voluntary
payment and admission of liability, by payment
thereof.

30. Additionally, and in the alternative,
The Johnston County Board of Education’s
participation with the Association and Defendant

App. 92

Trusts as outlined above, amounts to a waiver of
governmental immunity under N.C.G:S. § 115C-142.

31. Through the negligence of the agents
and employees of the Defendant, The Johnston
County Board of Education, the Plaintiff Nicole
Ripellino is entitled to recover damages in excess of
$10,000, as set by the Jury, for her personal
injuries.

SECOND CLAIM FOR RELIEF -
PARENTS’ MEDICAL EXPENSE CLAIM

32. The allegations of all preceding
paragraphs are incorporated by reference as though
fully alleged herein.

33. At the time of the accident, Nicole
Ripellino was 16 years of age, being a minor. The
Plaintiffs, Louise A. Ripellino and Michael G.
Ripellino, her parents, incurred and _ were
responsible for her medical expenses relating to the
accident in question, until such time as Nicole
reached 18 years of age. As a proximate result of
the negligence of the employees and agents of The
Johnston County Board of Education, Louise A.
Ripellino and Michael G. Ripellino, parents of
Nicole, have incurred on her behalf in excess of
$10,000 in medical expenses, causally related to the
accident in question, and therefore seek to and are
entitled to recover an amount, as set by the Jury, in
excess of $10,000 for Nicole Ripellino’s medical
expenses while she was a minor.

App. 93

THIRD CLAIM FOR RELIEF -
DECLARATORY JUDGMENT

34. The allegations of all preceding
paragraphs are incorporated by reference as though
fully alleged herein.

35. Pursuant to Rule 57 of the North
Carolina Rules of Civil Procedure, the Plaintiffs
would request a declaratory judgment as to the
coverage for Plaintiffs’ damages provided by the
defendants. Specifically, N.C.G.S. § 115C-142
provides for a board of education to waive
governmental immunity by purchase of liability
insurance. By statute and case law, a local board of
education is not permitted to participate in a
governmental risk-pool. Under § 115C-142, a local
board of education can choose to purchase liability
insurance as a waiver of immunity, or can claim
governmental immunity. There is no allowance, in
the statute, for a board of education to participate
with the Association or Trust Defendants in the
trusts described above. The trust documents at issue
in this case shall be presented to the Court, after
discovery, and it is respectfully requested that the
Court should construe The Johnston County Board
of Education’s arrangement with the Association and
the Trust Defendants as policies of liability
insurance, as any other construction of the
documents and arrangement would require a
finding that The Johnston County Board of
Education has acted illegally in participating in the
Trusts. Additionally, the Plaintiffs ask the Court for
its declaratory judgment that the defendants have
waived immunity for the remaining portion ot

App. 94

Plaintiffs’ claim, by reason of their payment of the
property damage, and acceptance of liability.

FOURTH CLAIM FOR RELIEF ~
CHAPTER 75 CLAIM

36. The allegations of all preceding
paragraphs are incorporated by reference as though
fully alleged herein.

37. The actions of The Johnston County
Board of Education, the Association, and the four
Trust Defendants, in “waiving the flag” of immunity
in many claims, and then voluntarily paying some
of the claims through resources of these defendants,
is an unfair and deceptive act or practice.

38. The reporting of claims, evaluation of
claims, and use of telephone and fax lines to
perpetuate the same, are all business activities in
or affecting commerce as anticipated by N.C.G.S. §
75-1.1(b).

39. Additionally, should the Court
construe the activities of the Defendants as actions
involving policies of insurance, these same
Defendants have violated various subsections of
N.C.G.S. § 58-63-15(11), specifically but not limited
to the following:

a. have misrepresented pertinent
facts relating to coverages at issue;

App. 95

b. have failed to acknowledge and
to act reasonably promptly upon
communications with respect to claims;

c. failed to adopt and implement
reasonable standards for the prompt
investigation of claims;

d. refusing to pay claims without
conducting a reasonable investigation;

e. not attempting in good faith to
effectuate prompt, fair and _ equitable
settlements of claims:

f. compelled insureds, such as the
present Plaintiffs, to institute litigation to
recover amount

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2459%3A2. Public record. Not legal advice.