IN THE SUPREME COURT OF NORTH CAROLINA
No. 86A23-2
Filed 14 August 2026
DOUG TURPIN and NICOLE TURPIN
v.
CHARLOTTE LATIN SCHOOLS, INC.; CHARLES D. BALDECCHI; TODD
BALLABAN; DENNY S. O’LEARY; MICHAEL D. FRENO; R. MITCHELL
WICKHAM; COURTNEY HYDER; IRM R. BELLAVIA; PHIL COLACO; JOHN D.
COMLY; MARY KATHERINE DUBOSE; ADAORA A. ERUCHALU; DEBBIE S.
FRAIL; DON S. GATELY; ISRAEL K. GORELICK; JOY M. KENEFICK; KARIM
LOKAS; JOHN T. MCCOY; KRISTIN M. MIDDENDORF; A. COY MONK IV; UMA
N. O’BRIEN; DAVID A. SHUFORD; MICHELLE A. THORNHILL; FLETCHER H.
GREGORY III; TARA LEBDA; and PAIGE FORD.
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 293 N.C. App. 330 (2024), affirming an order granting
defendants’ motion to dismiss plaintiffs’ complaint entered on 13 October 2022 by
Judge Lisa C. Bell in Superior Court, Mecklenburg County. Heard in the Supreme
Court on 29 October 2025.
Ward and Smith, P.A., by Christopher S. Edwards, Alex C. Dale, and
Alexandra E. Ferri; and Vogel Law Firm PLLC, by Jonathan A. Vogel, for
plaintiff-appellants.
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Kimberly M.
Marston, Jim W. Phillips Jr., Jennifer K. Van Zant, and William A. Robertson,
for defendant-appellees.
Dowling PLLC, by Troy D. Shelton, for Richard Hudson, Pat Harrigan, Brad
Overcash, Dana Jones, W. Ted Alexander, Amy S. Galey, David Willis, Celeste
C. Cairns, Grant L. Campbell, Brian Echevarria, Neal Jackson, Keith Kidwell,
Heather H. Rhyne, Coalition for Liberty, Moms for Liberty, American Center for
Education and Knowledge, Color Us United, Future Prep Educational Services,
TURPIN V. CHARLOTTE LATIN SCHOOLS, INC.
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National School Boards Leadership Council, New Tolerance Campaign, Our
Duty, The Palm Beach Freedom Institute, The Patriots Business Alliance,
United Families International, and Advocates for Faith & Freedom, amici
curiae.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Christopher
G. Smith, B. Davis Horne Jr., Michael W. Mitchell, and Jang H. Jo, for North
Carolina Association of Independent Schools and the Southern Association of
Independent Schools, amici curiae.
Troutman Pepper Locke LLP, by Joshua D. Davey, for the Roman Catholic
Diocese of Charlotte, North Carolina, amicus curiae.
DIETZ, Justice.
Once again, we are confronted with a case where the factual allegations
“concern matters that are controversial in contemporary politics” but where the legal
issues “are so time-tested that they border on mundane.” Kinsley v. Ace Speedway
Racing, Ltd., 386 N.C. 418, 420 (2024).
According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent
their children to a private school called Charlotte Latin School. Beginning in the
summer of 2020, the school began to change its curriculum to focus on politicized
issues of race and gender identity. At some point, the Turpins learned that the school
was teaching their sixth-grade child various polarizing concepts such as “Republicans
are white supremacists.” The school also required young students to read books on
sexuality and gender identity that were not age appropriate.
The Turpins started organizing with other parents to voice their concerns
about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting
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with school leadership. At the meeting, the school was not interested in discussing
the Turpins’ concerns. Instead, the school terminated the Turpins’ enrollment
contracts and expelled their children with no advance warning. The school also falsely
accused the Turpins of making racist comments about non-white students and
faculty. The Turpins responded by bringing this lawsuit, alleging a long list of claims
including breach of contract, fraud, unfair and deceptive trade practices, and
defamation.
The subject matter of this lawsuit no doubt touches on divisive topics in
contemporary social discourse. But none of those divisive topics have any bearing on
the legal issues before this Court today. Our task is to determine if the Turpins’
complaint satisfies the “notice pleading” standard that applies in civil cases. Pyco
Supply Co. v. Am. Centennial Ins. Co., 321 N.C. 435, 442 (1988). That well-settled
standard requires the complaint to contain a “short and plain statement” sufficient
to notify the defendants of “the events or transactions which produced the claim.” Id.
When reviewing a complaint under this standard, courts must take all the allegations
as true and cannot grant a motion to dismiss unless it “appears certain that plaintiffs
could prove no set of facts which would entitle them to relief.” Howell v. Cooper, 388
N.C. 71, 78 (2025).
Applying that standard here, the Turpins have alleged a number of claims that
meet the notice pleading requirements and cannot be dismissed at this early stage of
the case. Now, to be fair, the Turpins’ complaint is far from a “short and plain
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statement.” The sixty pages of allegations occasionally resemble a press release more
than a legal filing. This likely complicated the lower courts’ review because many
portions of the complaint assert claims or legal theories that are meritless as a matter
of law and were properly dismissed.
But, as explained in more detail below, when we take the allegations in the
complaint as true, the Turpins have alleged a narrow set of facts that, if proven,
properly state claims for breach of contract, fraud, unfair and deceptive trade
practices, and defamation. We therefore reverse the decision of the Court of Appeals
and remand the case so that the Turpins can proceed on this more limited set of
properly pleaded claims.
Facts and Procedural History
Our factual discussion throughout this opinion is based on the allegations in
the complaint. Under the applicable standard of review, we must take these unproven
allegations as true for purposes of our review. Jones v. J. Kim Hatcher Ins. Agencies,
Inc., 387 N.C. 489, 492 (2025).
Plaintiffs Doug Turpin and Nicole Turpin have two children who attended
Charlotte Latin School for a number of years. Until the 2020–2021 school year,
Charlotte Latin offered a traditional, “apolitical” curriculum focused on classical
education.
That changed after the death of George Floyd and the racial justice movement
that followed in the summer of 2020. At that point, the school began to focus its
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attention and curriculum on the “continued marginalization of Black Americans” and
the need to “prioritize racial equity.” School leaders suggested that the school had
roots in racism and sent a letter to parents stating that it had heard “about injustices
experienced by students of color and about the shame felt by white students.”
The Turpins saw the effects of these changes in the classroom. In a sixth-grade
humanities class, the teacher taught students that “Republicans are white
supremacists” and pressured the Turpins’ child to believe “what Republicans stand
for is racial suppression and white supremacy in action.”
The new curriculum also expanded beyond the intense focus on divisive racial
issues. Students of every age were told to choose their preferred pronouns, and even
young children were required to read books and poems about “homosexuality and
transgenderism that were pornographic and/or not age appropriate.”
Eventually, a group of concerned parents formed “Refocus Latin,” an informal
organization to push for changes to the school curriculum. The Turpins were founding
members of Refocus Latin. The group asked to make a presentation to Charlotte
Latin’s Board of Trustees. The board agreed to meet with ten parents from the group
and listen to their concerns. Before and during the meeting, members of the board
repeatedly assured the group that “no parent who raises concerns about Latin’s
curriculum and culture will be subjected to retaliation and that any parent who
participates in the presentation would be even more protected from being subjected
to retaliation.” The ten parents, including Doug Turpin, then gave the presentation,
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which described “specific and serious concerns that Latin had changed its curriculum
and culture to comport with views associated with a political agenda.”
Immediately after the presentation, Charlotte Latin told the group of parents
that neither the Board of Trustees nor the school’s administrators would have any
further discussions with the group about the matters raised in the presentation.
Instead, the school said parents must meet individually with school administrators
to discuss any concerns with their children’s education.
The Turpins later emailed school administrators requesting a meeting to
discuss specific concerns with their sixth-grader’s humanities class. In the email, the
Turpins explained that they did not want their child to experience “any possible
blowback because of what we are bringing to your attention.” A school administrator
responded that “there will be no blowback, I assure you.”
A few days later, Doug Turpin went to Charlotte Latin to meet with school
leadership. Defendant Charles Baldecchi, Charlotte Latin’s “Head of School,” and
Defendant Todd Ballaban, Charlotte Latin’s “Head of Middle School,” attended the
meeting. After allowing Turpin to briefly discuss concerns about the sixth-grade
humanities class, Baldecchi accused Turpin and the other Refocus Latin parents of
displaying a PowerPoint document that included the racist statement that students
and faculty of color at Charlotte Latin are “not up to the merit of the school.” The
PowerPoint presentation did not contain this statement.
Baldecchi then took out copies of the children’s enrollment agreements and told
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Turpin that Charlotte Latin was terminating the children’s enrollment and expelling
them effective immediately. Baldecchi told Turpin that the children must leave
Charlotte Latin by the end of the day and were prohibited from ever returning.
Several days later, Charlotte Latin sent an email to all parents, students,
faculty, and staff accusing the Turpins and the other parents involved in the Refocus
Latin presentation of making racist statements that “diverse students and faculty
have not earned their positions and honors at Latin.” Neither Turpin nor any other
parent made these statements at the meeting, and the presentation itself did not
include those statements.
The Turpins later brought this action against Charlotte Latin, Baldecchi,
Ballaban, and the members of the school’s board of trustees. The complaint alleged
breach of contract, fraud, unfair and deceptive trade practices, defamation, and a
number of other related claims. The defendants moved to dismiss all claims under
Rule 12(b)(6) for failure to state a claim on which relief can be granted.
The trial court granted the motion with respect to every claim except breach of
the implied covenant of good faith and fair dealing. The Turpins then voluntarily
dismissed that sole surviving claim and appealed the trial court’s order.
On appeal, a divided panel at the Court of Appeals affirmed the trial court’s
order. Turpin v. Charlotte Latin Schs., Inc., 293 N.C. App. 330 (2024). The Turpins
filed a notice of appeal based on the dissent, and we allowed discretionary review to
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examine additional issues that were not the basis for the dissenting opinion.1
Analysis
I. Standard of review
We begin our analysis with the standard of review. This case is before us on
Charlotte Latin’s motion to dismiss under Rule 12(b)(6) of the Rules of Civil
Procedure. N.C.G.S. § 1A-1, Rule 12(b)(6) (2025). In that motion, Charlotte Latin
argued that the Turpins’ lengthy, multi-count complaint failed to state any claim on
which relief can be granted. We therefore start our discussion with the pleading
requirements necessary to satisfy Rule 12(b)(6).
Under the Rules of Civil Procedure, a complaint must contain a “short and
plain statement of the claim sufficiently particular to give the court and the parties
notice of the transactions, occurrences, or series of transactions or occurrences,
intended to be proved showing that the pleader is entitled to relief.” Id. Rule 8(a)(1).
Courts refer to this as the “notice pleading” standard. Pyco, 321 N.C. at 442.
Notice pleading is a “liberal” rule, not a “hyper-technical” one. Howell, 388 N.C.
at 77. “At the Rule 12(b)(6) stage, a court must take the allegations in the complaint
as true and draw all reasonable inferences in the plaintiff’s favor.” Jones, 387 N.C. at
492 (cleaned up). Treating those allegations as true, a complaint “complies with the
rule if it gives sufficient notice of the events or transactions which produced the claim
1 The Turpins filed their notice of appeal
before the repeal of N.C.G.S. § 7A-30(2)
(2023), which authorized an appeal by right based on a dissenting opinion at the Court of Appeals. See Durham Green Flea Market v. City of Durham, 388 N.C. 543, 548 (2025).
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to enable the adverse party to understand the nature of it and the basis for it, to file
a responsive pleading, and—by using the rules provided for obtaining pretrial
discovery—to get any additional information he may need to prepare for trial.”
Howell, 388 N.C. at 77 (cleaned up).
“To that end, a plaintiff does not have to prove his case at the pleading stage,
and few complaints fail to survive a motion to dismiss under Rule 12(b)(6).” Id. at 78
(cleaned up). “Dismissal under Rule 12(b)(6) is warranted only when (1) it appears
certain that plaintiffs could prove no set of facts which would entitle them to relief
under some legal theory; (2) no law exists to support the claim made; or (3) the
complaint on its face discloses facts that necessarily defeat the claim.” Id.
This notice pleading standard is nothing new; it is so well-settled in our state’s
jurisprudence that repeating it in full, as we have done above, can feel excessive. But
one portion of the rule, although well-settled in Court of Appeals jurisprudence, has
never been expressly endorsed by this Court. That portion concerns what constitutes
the “complaint” for purposes of review under Rule 12(b)(6). As noted above, the
“function of a motion to dismiss is to test the law of a claim, not the facts which support
it.” Id. For this reason, review at the Rule 12(b)(6) stage is typically limited to the socalled “four corners” of the complaint. Blue v. Bhiro, 381 N.C. 1, 3 (2022). If, in a Rule
12(b)(6) motion, the movant includes evidence outside the four corners of the
complaint, and that evidence is not excluded by the court, the motion is converted
into a summary judgment filing and must comply with Rule 56. N.C.G.S. § 1A-1, Rule
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12(b); see also Blue, 381 N.C. at 6.
But this Court has long held that the “four corners” of the complaint can extend
beyond the limits of the complaint itself and reach documents that are “central to the
claim” and “attached to the complaint and incorporated therein by reference.” Mauck
v. Cherry Oil Co., Inc., 388 N.C. 325, 332–33 (2025) (cleaned up). In Mauck, it was a
contract attached to the complaint. But we have acknowledged the same is true for
other documents central to an asserted claim, including wills and other instruments,
and copies of legal filings from other lawsuits. See, e.g., Ladd v. Est. of Kellenberger,
314 N.C. 477, 480, 482 (1985); Stanback v. Stanback, 297 N.C. 181, 205 (1979). Simply
put, we have long held that if a document is central to a claim and is attached to the
complaint, it can be considered as part of the “four corners” of the complaint for
purposes of Rule 12(b)(6).
This is straightforward enough, but it raises a follow-up question: What if a
document is central to a claim, referenced in the allegations, but not attached to the
complaint? The Court of Appeals has long held that these documents, too, are
properly considered under Rule 12(b)(6). See Oberlin Cap., L.P. v. Slavin, 147 N.C.
App. 52, 60–61 (2001). So long as the document’s authenticity is not disputed, “a court
may properly consider documents which are the subject of a plaintiff’s complaint and
to which the complaint specifically refers even though they are presented by the
defendant.” Id.; see also Holton v. Holton, 258 N.C. App. 408, 419 (2018); Robertson v.
Boyd, 88 N.C. App. 437, 441 (1988); Coley v. N.C. Nat’l Bank, 41 N.C. App. 121, 126
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(1979).
This accords with the approach in the federal courts. “Under the incorporationby-reference doctrine, a court may consider evidence attached to a motion to dismiss
without converting the motion into one for summary judgment if (1) the plaintiff
refers to certain documents in the complaint, (2) those documents are central to the
plaintiff’s claim, and (3) the documents’ contents are undisputed.” Baker v. City of
Madison, 67 F.4th 1268, 1276 (11th Cir. 2023) (cleaned up); see also Friedman v.
AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017); Berneike v. CitiMortgage, Inc., 708
F.3d 1141, 1146 (10th Cir. 2013). This means that, so long as the document is
“integral to the complaint and there is no dispute about the document’s authenticity,”
a court can examine the document at the Rule 12(b)(6) stage and even “credit the
document over conflicting allegations in the complaint.” Doriety ex rel. Est. of
Crenshaw v. Sletten, 109 F.4th 670, 679 (4th Cir. 2024) (cleaned up).
We take this opportunity to expressly endorse this incorporation-by-reference
rule long followed by our Court of Appeals and federal courts. Under the North
Carolina Rules of Civil Procedure, a court reviewing a motion to dismiss under Rule
12(b)(6) may consider a document submitted by the movant if (1) the document is
referenced in the complaint; (2) the document is central to the factual allegations or
the claims asserted; and (3) there is no dispute about the document’s authenticity.
With this standard of review in mind, we now turn to the lengthy list of claims
asserted in this complaint.
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II. Breach of contract
We begin with the Turpins’ breach of contract claim. The pleading
requirements for a contract claim are among the most well-settled in the entire body
of state common law. A complaint sufficiently states a claim for breach of contract if
it alleges “(1) the existence of a contract between plaintiff and defendant, (2) the
specific provisions breached, (3) the facts constituting the breach, and (4) the amount
of damages resulting to plaintiff from such breach.” Intersal, Inc. v. Hamilton, 373
N.C. 89, 108–09 (2019) (cleaned up).
Here, the crux of this contract claim is a termination clause permitting
Charlotte Latin to end enrollment if one of two contractual criteria is satisfied. As
noted above, because the Turpins alleged the existence of a written contract, that
contract is incorporated into the complaint and can be considered at the pleading
stage when reviewing a Rule 12(b)(6) motion to dismiss. Oberlin Cap., 147 N.C. App.
at 60.
The termination provision permits Charlotte Latin to “discontinue enrollment”
whenever it determines that one of two criteria is satisfied: (1) a parent’s actions
make a “positive, collaborative working relationship” with the school impossible or
(2) the parent’s actions “seriously interfere” with the school’s mission:
A positive, collaborative working relationship between the
School and a student’s parent/guardians is essential to the
fulfillment of the School’s mission. Therefore, the School
reserves the right to discontinue enrollment if it concludes
that the actions of a parent/guardian make such a
relationship impossible or seriously interfere with the
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School’s mission.
The Turpins allege that the school violated this termination provision and, as
a result, breached the contract. Their factual allegations are straightforward:
Charlotte Latin claimed to be expelling the students under this termination clause
because the Turpins made a collaborative relationship impossible or were seriously
interfering with the school’s mission. But, according to the complaint, Charlotte Latin
didn’t actually believe that. The Turpins allege that the school decided to expel their
children for reasons that were not permitted by the contract and then used the
contractual grounds as a false pretext.
Importantly, even Charlotte Latin concedes that, if this were true—that is, if
the school acted under a false pretext—it would be a breach of the contract. In their
briefing, the school acknowledged that the Turpins could state a claim based on
“allegations of some improper pretext on Latin’s part—such as an attempt to get out
of a bad deal.” And at oral argument, Charlotte Latin again conceded that the
termination clause “may not be invoked with a pretext or in bad faith.”
This is precisely what the complaint alleges. The Turpins contend that the
school acted under a false pretext and knew that the termination criteria were not
actually satisfied. That is the core factual theme of the Turpins’ lengthy complaint—
they allege that Charlotte Latin knew the Turpins were being collaborative and
respectful and knew that their views did not interfere with the mission of a school
whose very name invokes a focus on the classical traditions of discourse, rationality,
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and critical thinking. But, the Turpins allege, the school was determined to retaliate
against them for other reasons and used the contractual grounds as the false pretext
to do so.
Notably, these are not stray remarks that might be overlooked by a reader.
Indeed, 18 times throughout the complaint, the Turpins allege that Charlotte Latin’s
purported basis for expelling the children was “pretextual” or a “pretext” and not
based on the grounds set out in the contract. It is the entire focus of the complaint.
The Turpins support it with specific factual allegations about their respectful
conduct, the school’s history and values, its more recent embrace of what the
complaint labels “cancel culture,” and various other facts from which the possible
wrongful motives of school leadership can be inferred.
Thus, under the “notice pleading” standard described above, the Turpins have
stated a claim that moves past the pleading stage. Pyco, 321 N.C. at 442. We can
dismiss the complaint only if it “appears certain that plaintiffs could prove no set of
facts which would entitle them to relief.” Howell, 388 N.C. at 78. Here, if the Turpins
prove the school acted under a false pretext, they will prevail on their claim. Thus,
they have satisfied the notice pleading requirements.
This is where both the Court of Appeals majority and our dissenting colleagues
reach an inflection point with the well-settled notice pleading standard. They are
compelled to demand more of the Turpins than is required for any other claimant.
Take, for example, the dissent’s insistence that “neither the complaint nor the
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majority is clear what impermissible reason the alleged pretext masked.”
Of course, the Turpins cannot yet know the real reason behind the pretext.
How could they? Are they mind-readers? Or does the dissent truly believe the only
way this sort of claim moves forward is if the school said: “We’re expelling your kids
under the contract but that’s just a false pretext. Here’s the real reason for you to
include in your lawsuit.”
This is precisely why these types of factual allegations, concerning something
in the mind of the defendant, cannot be fully explained at the pleading stage. See
N.C.G.S. § 1A-1, Rule 9(b). Instead, “intent, knowledge, and other condition of mind
of a person may be averred generally.” Id. That is what the Turpins did here.
It is worth noting, as well, that the complaint does contain many possible
explanations for the false pretext. At this point, these are all reasonable inferences
from the allegations because, again, the Turpins cannot know for certain the true
reasons in the minds of the defendants (nor are they expected to). See id. But to point
out just one obvious explanation contained in the complaint, look to its introduction.
The Turpins allege that the school was infected by “what has come to be known in
American society as ‘cancel culture.’” They further allege that they chose to stand up
to that “cancel culture” movement and formed the Refocus Latin group to challenge
it. One can readily infer from the complaint that one possible reason for the school’s
pretext was that leadership had to “cancel” the Turpins, as they allege, because school
officials were fearful that if they didn’t find a way to cancel the Turpins, they might
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be canceled themselves.
The impossible mind-reading demanded from our dissenting colleagues is not
the only bizarre part of their reasoning. Take, for example, the dissent’s insistence
that “the contract did not prohibit pretextual termination, as long as Charlotte Latin
believed in its sole discretion that the parent-school relationship was untenable.” If
the school believed the relationship was untenable, then that reason isn’t pretextual,
it’s an actual, permissible reason.
This weird, circular logic gets at another fallacy. Both the Court of Appeals
majority and our dissenting colleagues are convinced that Charlotte Latin had a right
to “unilateral termination” essentially whenever the school wanted and should never
have to prove the contractual grounds existed. We have acknowledged that parties
can include this type of unilateral provision in a contract. Canteen v. Charlotte Metro
Credit Union, 386 N.C. 18, 25 (2024). In Canteen, for example, the contract permitted
the defendant to “change the terms of this Agreement” at any time. Id. at 20. No
strings attached. Charlotte Latin could have included a similar termination clause in
the enrollment contract. It didn’t. Instead, the contract limits the school’s “unilateral”
ability to terminate to situations where one of the two contract conditions is satisfied.
The Turpins are entitled to the benefit of that bargain. See Fulcher v. Nelson, 273
N.C. 221, 224 (1968).
All of this is a rather long way of saying that this claim boils down to a single
straightforward allegation. As Charlotte Latin conceded in open court, the school’s
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right to terminate the Enrollment Agreement “may not be invoked with a pretext or
in bad faith.” In the complaint, the Turpins expressly alleged that the school invoked
those grounds as a pretext and provided factual allegations to support many possible
inferences about the school’s true motives behind the false pretext. That is enough to
state a claim for breach of contract. At this stage of the case, we must “construe the
complaint liberally” and “treat the complaint’s factual allegations as true.” Howell,
388 N.C. at 78. Taking as true the Turpins’ allegation that the school was acting
under a false pretext, the complaint adequately alleges that Charlotte Latin breached
the plain terms of the contract. See Intersal, 373 N.C. at 108–09.
In addition to this pretext theory, the complaint also alleges other contract
theories that do not state a claim on which relief can be granted. These include the
theories that the Turpins had a “contractually-protected right to respectfully
communicate” with the school and had a contractual right to “notice” or “an
opportunity to be heard” before the school expelled their children.
The contract does not contain these rights. By its plain terms, the contract
permits Charlotte Latin to terminate enrollment whenever the school determines
that a parent’s actions make a positive, collaborative working relationship impossible
or seriously interfere with the school’s mission. It is not limited to parental actions
that are disrespectful and does not require the school to offer any advance notice or
process before terminating enrollment. These are certainly contract terms that could
be bargained for and included in a private school enrollment agreement. They are not
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terms in this contract.
In sum, the Turpins have stated a valid claim for breach of contract based on
the theory that Charlotte Latin’s motives were pretextual. As the case progresses, the
Turpins will, of course, have to put forth evidence that Charlotte Latin’s motives were
pretextual. They cannot rest on allegations alone. But that is a question for another
day, after the parties have an opportunity to conduct discovery. At this early stage of
the case, the Turpins have satisfied the requirement to plead a claim on which relief
could be granted, and the Court of Appeals erred by holding otherwise. See Howell,
388 N.C. at 78.
III. Fraud
Next, we examine the Turpins’ fraud claim. Again, the pleading requirements
for common law fraud are well-settled in this state. To bring a claim for fraud, a
plaintiff must allege a “(1) false representation or concealment of a material fact, (2)
reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in
fact deceive, (5) resulting in damage to the injured party.” Forbis v. Neal, 361 N.C.
519, 526–27 (2007) (cleaned up). Rule 9 of the Rules of Civil Procedure also imposes
special “particularity” pleading requirements for fraud claims. N.C.G.S. § 1A-1, Rule
9(b). The “particularity requirement is met by alleging time, place and content of the
fraudulent representation, identity of the person making the representation and
what was obtained as a result of the fraudulent acts or representations.” Value Health
Sols., Inc. v. Pharm. Rsch. Assocs., Inc., 385 N.C. 250, 263 (2023).
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Here, the complaint alleges that Charlotte Latin promised the Turpins there
would be no “blowback” or “retaliation” against them or their children if they met
with school leadership to discuss their concerns; that this promise was false and, from
the beginning, Charlotte Latin intended to deceive the Turpins and lure them to the
meeting in order to create a pretext for expelling the children; that the Turpins
believed Charlotte Latin’s promise and spoke openly about their concerns because
they believed the school would not use those discussions as the pretextual grounds to
expel the children; that the school, in that same meeting, expelled the children, as
they intended from the outset, despite promising the Turpins they would not do so;
and that the school’s deceit caused significant damage to the Turpins.
Again, as with the contract claim, these allegations on their face satisfy the
requirements of notice pleading. They cover each of the essential elements of the
claim and meet the particularity requirements of a fraud claim by alleging who made
the fraudulent statement, when it was made, where it was made, how it was
reasonably calculated to deceive, why the Turpins reasonably relied on it, and the
harm that resulted. See id. at 263.
But, much like the contract claim, the Court of Appeals held that the claim was
subject to dismissal by looking beyond the pleadings. Specifically, the Court of
Appeals examined the emails that contained the allegedly fraudulent statements. As
noted above, because those emails form the basis of the fraud claim and are expressly
referenced in the complaint, the emails are incorporated by reference into the
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complaint and can be examined at the pleadings stage when reviewing a Rule 12(b)(6)
motion to dismiss. Oberlin Cap., 147 N.C. App. at 60.
The Court of Appeals held that facts disclosed in the emails necessarily
defeated the fraud claim. The court explained that the allegedly fraudulent statement
is contained in a series of emails where the Turpins asked to meet school leadership
to discuss the curriculum for one of their children’s classes. Turpin, 293 N.C. App. at
344. The allegedly false statement is this sentence in a response email from Charlotte
Latin to the Turpins: “Our teachers do not retaliate and there will be no blowback, I
assure you.”
This statement, according to the Court of Appeals, only promised no “blowback
from the teacher towards plaintiffs’ child.” Id. (emphasis added). That blowback from
the teacher did not occur, the court reasoned, because the child’s “removal from the
school was an ancillary effect of the termination of the enrollment contract between
plaintiffs and defendants,” not a retaliatory action by “a teacher.” Id. at 344–45.
This reasoning turns the standard of review on its head. “When reviewing a
Rule 12(b)(6) motion, we treat the complaint’s factual allegations as true and view
them in the light most favorable to the plaintiff.” Howell, 388 N.C. at 78. Viewed in
the light most favorable to the Turpins, the promise of no “blowback” contained in the
email is not nearly as narrow as the Court of Appeals interpreted it. Instead, that
promise of “no blowback” plainly included a promise not to terminate the Turpins’
enrollment contract and kick the child out of school.
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This discussion began with the Turpins emailing school leadership about one
of their children, a sixth grader taking a humanities class. The Turpins explained
that the humanities teacher taught the students that “Republicans are white
supremacists” and that “what Republicans stand for is racial suppression and white
supremacy in action.” The Turpins also recounted many other “left wing progressive”
topics in the course that they believed were wrongly politicized and inappropriate for
a sixth grader. When asking to meet with school leadership to discuss their concerns,
the Turpins emphasized that they did not want their child “to experience any possible
blowback because of what we are bringing to your attention”:
I wanted to discuss with you a situation that is of serious
concern to Nicole and I at your convenience. I would prefer
that we discuss this situation on a call, before you address
this with the teacher I am referencing in this email. We do
not want [our child] to experience any possible blowback
because of what we are bringing to your attention.
In response to this email, the school stated that its teachers “do not retaliate” and
that “there will be no blowback, I assure you”:
Thank you for the email. You make some serious claims
that I need to investigate with the teacher, which is only
fair so she can provide context. Our teachers do not
retaliate and there will be no blowback, I assure you.
Please give me a day or two to look into it and will get back
to you shortly.
It is entirely reasonable to view the meaning of the term “no blowback” in this
context to mean more than just retaliation by the teacher in the classroom. After all,
the school’s email expressly assured the Turpins both that there would be no
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retaliation from the teacher and that there would be no blowback, which a reasonable
person certainly could interpret as being two separate things. But even more
fundamentally, in ordinary English usage, when parents want to discuss a sensitive
topic with school administrators but caution that they do not want their child to
“experience any possible blowback because of what we are bringing to your attention,”
and the school administrator responds with “there will be no blowback, I assure you,”
it is quite reasonable to understand the assurance of “no blowback” to include
terminating the child’s enrollment at school. Thus, when we properly apply the
standard of review and view this allegation and all its reasonable inferences in the
Turpins’ favor, not the school’s, the assurance went beyond a promise of no blowback
from the teacher alone. See id.
It is worth noting here that proving the elements of this claim will be a
daunting task. The Turpins allege that the school falsely promised them no blowback
“in order to lure” the Turpins to the meeting where they could use the Turpins’
discussion as the pretext to justify an expulsion decision that the school had already
made.
But from the other allegations in the complaint, there were already many
actions by the Turpins that could have functioned as that alleged “pretext,” such as
the Refocus Latin presentation or the Turpins’ emails to administrators. It is quite
odd that the school would find these other grounds insufficient; that, instead, the
school would feel compelled to construct an elaborate lie to “lure” the Turpins to a
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meeting where they could obtain the necessary pretext for the decision to expel the
children.
Our dissenting colleagues fixate on this issue, pointing out Doug Turpin could
not have relied on their fraud “since Charlotte Latin could terminate his children’s
enrollments regardless of whether he attended the meeting.” But again, the Turpins
allege otherwise; they contend that the school did not have any sincere grounds to
terminate the contract when they lured the Turpins to the meeting to create the false
pretext.
This is where the standard of review comes into perhaps its starkest focus. In
federal court, this fraud claim might well be dismissed. Two decades ago, the federal
courts moved away from the notice pleading test we use in state court today—in
particular, the principle that a claim survives a Rule 12(b)(6) motion unless “it
appears certain that plaintiffs could prove no set of facts which would entitle them to
relief under some legal theory.” See Howell, 388 N.C. at 78. Instead, federal courts
use what is often called the Twombly/Iqbal standard, named for the cases adopting
the test. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556
U.S. 662 (2009). That test requires the plaintiff to plead “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The allegations must
“permit the court to infer more than the mere possibility of misconduct” based on the
court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679. “At bottom, a
plaintiff must nudge its claims across the line from conceivable to plausible to resist
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dismissal.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (cleaned
up).
The Turpins’ fraud claim might fail this test. Is it conceivable that the Turpins
will prove Charlotte Latin needed this complicated fraud to manufacture the
necessary pretext? Yes, it is conceivable. But it is incredibly unlikely and thus may
not be enough to nudge the claim across the line to plausibility. See id. So, if this
claim were filed in federal court, it might be dismissed.
It is strange that both federal law and state law use almost exactly the same
language in their pleading rules but there could be such a stark difference in
outcomes. Compare Fed. R. Civ. P. 8, 12, with N.C.G.S. § 1A-1, Rules 8, 12. In an
appropriate case, this Court might examine the resulting tension and whether our
state law should evolve to avoid this outcome in the future. But defendants did not
ask us to do so here, nor did the defendants in other recent cases where we have
restated the familiar “no set of facts” standard. See Howell, 388 N.C. at 78. We must
therefore apply that existing standard here. Doing so, the Turpins have pleaded facts
that, if proven, satisfy all the elements of a fraud claim. See id.
We emphasize, as we did with the breach of contract claim, that the Turpins
ultimately will have to put forth evidence for these allegations, including evidence
that the school was lying from the beginning, that it lured the Turpins to the meeting
to create the necessary pretext to cover up its wrongful motives, and so on. But at
this early stage of the case, the Turpins have satisfied the requirement to plead facts
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that, if proven, support a claim on which relief could be granted. See id.
In its briefing, Charlotte Latin also raises an alternative argument not
embraced by the Court of Appeals. The school contends that, even if the “no blowback”
statement encompasses termination of the child’s enrollment at the school, that
statement was a “forward-looking statement about the future that is not a
‘misrepresentation’ of an existing fact.”
Charlotte Latin is correct that forward-looking statements often cannot
constitute fraud. “As a general rule, a mere promissory representation will not be
sufficient to support an action for fraud.” Johnson v. Phoenix Mut. Life Ins. Co., 300
N.C. 247, 255 (1980). This sort of forward-looking statement becomes fraudulent only
if “the promisor, at the time of making it, has no intent to comply.” Id.
But again, this is precisely what the Turpins allege here. They allege that
school administrators knew the “no blowback” promise was false when they made it.
That misrepresentation, according to the Turpins, was part of “creating a pretext.” It
was designed to lure the Turpins to the meeting and induce them to discuss their
concerns, so that the school could use those discussions as a sort of pretextual cover
story to justify a decision the school had already made for improper reasons. Taking
these allegations as true, the Turpins properly pleaded a claim on which relief can be
granted.
Charlotte Latin also makes a few other pleading arguments not addressed by
the Court of Appeals. First, the school argues that the Turpins inadvertently “plead
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themselves out of showing reliance” by alleging that they “had already requested the
meeting” with school administrators before receiving the false assurance that there
would be no blowback. Second, the school argues that the complaint fails to allege
“that the meeting itself or anything that happened during the meeting gave rise to
the termination of the Enrollment Agreements.”
These arguments, once again, do not view the complaint in the light most
favorable to the Turpins. With respect to the request to meet with school leadership,
Charlotte Latin ignores that the Turpins expressed reservations about potential
“blowback” in the same email requesting a meeting. The complaint alleges that the
Turpins only agreed to attend the meeting after receiving the school’s assurance that
there would be no blowback.
Likewise, with respect to the argument that nothing in the meeting gave rise
to terminating the children’s enrollment, the complaint alleges that the school lured
the Turpins to that meeting to create a pretext for terminating the agreement and
that the children would not have been expelled had the Turpins not been deceived
into attending.
At the risk of tedious repetition, we emphasize—once again—that at this stage
of the proceeding we must take these allegations as true. Howell, 388 N.C. at 78.
When we do so, the Turpins have properly pleaded with particularity all the essential
elements of a fraud claim. We therefore reverse the decision of the Court of Appeals
with respect to this claim and remand for further proceedings.
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IV. Unfair and deceptive trade practices
We turn next to the unfair and deceptive trade practices claim under Chapter
75 of the General Statutes. This is a statutory claim and, as with its common law
counterparts, it has a solid body of case law establishing its pleading requirements.
To plead a valid claim, “a plaintiff must show: (1) defendant committed an unfair or
deceptive act or practice, (2) the action in question was in or affecting commerce, and
(3) the act proximately caused injury to the plaintiff.” SciGrip, Inc. v. Osae, 373 N.C.
409, 426 (2020).
When reviewing an unfair and deceptive trade practices claim, the complaint
“must first establish that defendants’ conduct was ‘in or affecting commerce’ before
the question of unfairness or deception arises.” HAJMM Co. v. House of Raeford
Farms, Inc., 328 N.C. 578, 592 (1991). Here, neither the lower courts nor Charlotte
Latin assert that the alleged conduct was not “in or affecting commerce.” This is
because the statute broadly defines “commerce” as “all business activities.” N.C.G.S.
§ 75–1.1(b). “Business activities” are an organization’s “regular, day-to-day activities,
or affairs” and include the activities of non-profits that charge fees for a service.
HAJMM, 328 N.C. at 594; see Davis Lake Cmty. Ass’n, Inc. v. Feldmann, 138 N.C.
App. 292, 296 (2000). Thus, the allegations in the complaint, which concern the
regular activities of a private school that charges fees in exchange for its educational
services, are “in or affecting commerce” under the statutory definition. Id.
Next, we examine whether the complaint alleges an “unfair or deceptive act or
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practice.” SciGrip, 373 N.C. at 426. This is a question of law for the court. Ellis v.
Northern Star Co., 326 N.C. 219, 226 (1990). A practice is “unfair” if it “offends
established public policy” or is “immoral, unethical, oppressive, unscrupulous, or
substantially injurious to consumers.” Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81,
91 (2013). A practice is “deceptive” if it “has the capacity or tendency to deceive.” Id.
Importantly, fraud claims “necessarily constitute a violation of the prohibition
against unfair and deceptive acts.” Bhatti v. Buckland, 328 N.C. 240, 243 (1991).
Thus, a complaint that properly pleads a fraud claim automatically satisfies the
unfair or deceptive element of this statutory claim. See id. Because the Turpins
properly pleaded a fraud claim, they have pleaded this element of the unfair and
deceptive trade practices claim as well.
The Turpins also allege that Charlotte Latin engaged in an unfair and
deceptive practice when it “retaliated” against the Turpins for exercising their
“contractually-protected right to respectfully communicate” and offered a “false,
pretextual, and improper reason” for terminating the enrollment contracts. These
allegations concern the parties’ obligations under the contract, which we discussed in
more detail above.
Conduct that amounts to a breach of contract is an unfair or deceptive practice
only if there are “substantial aggravating circumstances.” SciGrip, 373 N.C. at 426.
We have taken a strict approach to evaluating substantial aggravating circumstances
to prevent litigants from “repackaging” their breach of contract claims as unfair and
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deceptive trade practice claims. Value Health Sols., 385 N.C. at 277. This strict
approach is necessary to prevent Chapter 75 of the General Statutes from
inadvertently merging contract law into tort law. See id.
Here, the Turpins attempt to do what this Court has long prohibited. The only
breach-of-contract theory on which relief can be granted is that Charlotte Latin used
a false and pretextual ground to terminate the enrollment contracts. This means the
use of that false and pretextual ground cannot be a “substantial aggravating
circumstance” because the contract cannot be breached without that circumstance.
SciGrip, 373 N.C. at 426. A breach of contract “standing alone, simply does not suffice
to support the assertion of an unfair and deceptive trade practices claim.” Id. at 427.
Thus, although the Turpins have properly pleaded unfair and deceptive practices
based on their fraud allegations, they have not done so for their other, contractrelated allegations in the complaint.
Finally, the Turpins properly alleged that the unfair and deceptive acts
proximately caused them injury and neither the lower courts nor Charlotte Latin
have suggested otherwise. Accordingly, because the Turpins properly pleaded all the
essential elements of a claim for unfair and deceptive trade practices, we reverse the
Court of Appeals and remand for further proceedings on this claim.
V. Negligent misrepresentation
Next, we examine the Turpins’ negligent misrepresentation claim. “The tort of
negligent misrepresentation occurs when a party justifiably relies to his detriment
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on information prepared without reasonable care by one who owed the relying party
a duty of care.” Cummings v. Carroll, 379 N.C. 347, 366 (2021). In other words, the
claim arises when the defendant makes a statement that is false and, in the exercise
of ordinary care, should have known it was false at the time. Id. Thus, “negligent
misrepresentation is closely akin to fraud, differing primarily in the requisite state
of mind of the purported actor.” Value Health Sols., Inc., 385 N.C. at 266 (cleaned up).
Here, the Turpins’ negligent misrepresentation claim closely mirrors the fraud
claim, relying on essentially the same allegations concerning the “no blowback” email
discussed above. This similarity creates an insurmountable problem for the negligent
misrepresentation claim, however. As discussed above, the allegations are based on
a forward-looking promise that there would be no blowback—a promise that the
Turpins allege was false when it was made.
This type of forward-looking promise cannot be the basis of a negligent
misrepresentation claim. See Rhodes, Inc. v. Morrow, 937 F. Supp. 1202, 1215
(M.D.N.C. 1996). As explained by the Tenth Circuit in a similar circumstance, the
problem is that, for a forward-looking statement to be false when it is made, the
speaker must act intentionally, not negligently:
A promise cannot serve as the predicate for a negligentmisrepresentation claim. . . . This is not some obscure
technical rule. It is a natural consequence of the meanings
of the terms negligent and misrepresentation. A
misrepresentation conveys “false information” . . . that is,
it must be a false statement of fact. But a promise in itself
contains no assertion of fact other than the implied
representation that the speaker intends to perform the
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promise. . . . The misrepresentation must therefore be that
the promissor is falsely declaring that he has the intent to
perform. If the promissor intends not to perform, however,
the misrepresentation (that the promissor intends to
perform) is not negligent; it is, rather, knowing and
intentional.
Alpine Bank v. Hubbell, 555 F.3d 1097, 1107 (10th Cir. 2009) (cleaned up). Put
another way, if the Turpins prove that Charlotte Latin and Ballaban knew the “no
blowback” assurance was false at the time they made it, it is fraud. If the Turpins
cannot prove the statement was false at the time, that statement cannot be fraud or
negligence. Accordingly, we affirm the dismissal of the negligent misrepresentation
claim.
VI. Defamation
Next, we address the Turpins’ defamation per quod claims. To plead a claim
for defamation per quod, the plaintiff must allege that the defendant “caused injury
to the plaintiff by making false, defamatory statements of or concerning the plaintiff,
which were published to a third person.” Desmond v. News & Observer Publ’g Co.,
375 N.C. 21, 41 (2020) (cleaned up). In a defamation per quod claim, the “defamatory
statement” is one that is “not obviously defamatory but when considered with
innuendo, colloquium, and explanatory circumstances” becomes defamatory. Arnold
v. Sharpe, 296 N.C. 533, 537 (1979). A defamatory statement is “false” if “the
substance, the gist, the sting” of the statement is untrue. Desmond, 375 N.C. at 67.
The factual allegations in the Turpins’ complaint satisfy these pleading
requirements. The Turpins allege that Charlotte Latin and Baldecchi made false
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statements about the contents of the PowerPoint presentation—specifically, that the
PowerPoint contained the racist assertion that minority students and faculty at the
school “have not earned their positions and honors” and that those minority students
and faculty were “not up to the merit of the school” like the white students and
faculty; that those false statements were of and concerning the Turpins because
people understood the false statements as meaning the Turpins endorsed or
supported the false, racist statements; that the harmful character of these false
statements to the Turpins “does not appear on its face as a matter of general
acceptance, but rather becomes clear only in consequence of extrinsic, explanatory
facts showing its injurious effect”; and that Charlotte Latin and Baldecchi published
the false statements to third parties, causing special damages to the Turpins.
As with the earlier claims, the Court of Appeals did not take issue with the
sufficiency of these factual allegations on their face. Instead, the court looked beyond
the allegations in the complaint to affirm dismissal. Specifically, the court examined
the contents of the PowerPoint document that is the subject of the defamatory
statements. As noted above, a court may consider documents attached to a Rule
12(b)(6) motion without converting the motion into a summary judgment motion if (1)
the document is referenced in the complaint, (2) the document is central to the
allegations or claims asserted, and (3) there is no dispute about the document’s
authenticity. See Doriety, 109 F.4th at 679.
That is the case here. The Turpins allege that both defamatory statements
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falsely claimed the PowerPoint document contained racist remarks about minority
faculty and students at Charlotte Latin. Because the contents of that PowerPoint are
central to this claim and no party disputes the document’s authenticity, the document
properly can be considered when reviewing this Rule 12(b)(6) motion although it was
not attached to the complaint.
After examining the PowerPoint document, the Court of Appeals concluded
that the defendants’ statements were not “materially false.” See Turpin, 293 N.C.
App. at 352–53. The court first observed that the presentation expressed concern over
how “weighting of DEI and Critical Theory on a ‘culturally responsive education’
eventually erodes the quality of student, quality of curriculum, quality of teacher and
the academic rigor at the school.” Id. The court then pointed to portions of the
PowerPoint document stating that “admissions is weighting diversity over academic
excellence,” that Charlotte Latin was “moving away from educational meritocracy in
line with progressive concepts of restorative justice and equity,” and that “DEI goals”
are “superseding optimizing evaluations for admitting most qualified students and
hiring most qualified faculty.” Id. (cleaned up).
Then, the Court of Appeals held that the alleged defamatory statements—that
minority students and faculty at Charlotte Latin “have not earned their positions and
honors” at the school and that those minority students and faculty “were not up to
the merit” of their white counterparts at the school—“accurately characterize the ‘gist
or sting’ of the Refocus Latin PowerPoint presentation.” Id.
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In other words, the Court of Appeals held as a matter of law that critiques of
using “Critical Theory” in education, or establishing “DEI goals,” or applying raceconscious criteria to hiring or admissions are the legal equivalent of racist comments
that no minority candidate earned their position or no minority candidate is up to the
standards of their white counterparts.
We reject this errant holding. The defamatory statements by Charlotte Latin
do not accurately characterize the “gist” or “sting” of the PowerPoint discussion. See
Desmond, 375 N.C. at 67. First, the only portion of the presentation referencing how
the school’s approach “erodes the quality of student” and the “quality of teacher”
expressly addresses all students and faculty, regardless of color. That section of the
presentation asserted that the excessive focus on “DEI and Critical Theory” was
shifting the school away from a classical education teaching “objectivity,” “science,”
“canonical reading,” and so on, to instead embrace a “political and ideological
agenda.” When a school that was long focused on the importance of a classical
education instead shifts toward a partisan, politicized curriculum, as the PowerPoint
claimed, that shift impacts every student and every teacher equally. Nothing in these
statements suggests the school’s changed curriculum or ideological agenda negatively
impacted minority students and faculty but not their white counterparts.
The remaining portions of the PowerPoint examined by the Court of Appeals
are critiques of non-merit-based hiring or admissions practices and a pitch to return
to a “meritocracy.” Importantly, none of these statements refer to the quality or merit
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of particular students or groups of students. The statements simply assert that the
school should commit to a meritocracy where the driving goal is “academic
excellence.” Were we to adopt the Court of Appeals’ reasoning with respect to these
statements, it would mean any statement criticizing non-merit-based hiring or
admissions practices is, as a matter of law, a statement that people who benefited
from those practices would not otherwise qualify based on merit. This is a fallacy.
Someone who benefits from a non-merit-based factor can still be qualified based on
merit alone. The presence of that additional factor says nothing about the merit-based
qualifications of the candidate.
Simply put, criticizing so-called “DEI goals” or other race-conscious criteria in
hiring and admissions, and urging a return to a “meritocracy,” is not the equivalent
of claiming that minority students and faculty have not earned their positions and
honors or are not up to the merit of other students. We do not agree that “the gist” or
“the sting” of these two categories of comments are the same as a matter of law. The
latter—statements focused on the purported inferiority of minority students or
faculty—are pernicious and racist. They are the sort of offensive statements that, if
heard by others, can damage one’s reputation and good name. Accordingly, in
appropriate contexts, claiming that someone made this kind of offensive statement
when they did not can be defamatory. See id. Taking as true all the allegations in the
complaint, this is one of those cases.
Our dissenting colleagues again take issue with our analysis. To them,
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“allegations of racism, like many subjective viewpoints, are in the eye of the beholder
and do not squarely fit into the falsity test.” This is a faulty equivalence. The school
did not make a subjective statement of opinion such as “the Turpins are racists.” The
school told its entire community of students, parents, and faculty that the Turpins
said a specific racist thing. That claim has an objective answer: the Turpins either
said it or they didn’t. The correct analogy is not claiming someone is a racist, as in
the cases the dissent cites, but claiming someone used a racial epithet. If that is a lie,
it is defamatory. Desmond, 375 N.C. at 67.
As we have done with respect to other factual allegations in this divisive case,
we again point out that there may be more going on factually than what is alleged in
the complaint. For example, we do not yet know what the presenters said as they
displayed the PowerPoint document. At this stage of the case, we can look only at the
document itself. Both the school’s email and Baldecchi’s statements may, in full
context, have been addressing matters beyond the PowerPoint document.
Courts cannot seek out this sort of full context at the pleadings stage. That is
the purpose of fact discovery. See Sutton v. Duke, 277 N.C. 94, 106 (1970). At this
early stage of the case, we take the allegations in the complaint as true and draw all
reasonable inferences in favor of the Turpins. Jones, 387 N.C. at 492. Doing so here,
the Turpins have sufficiently alleged that defendants made materially false
statements. We therefore reject the reasoning of the Court of Appeals with respect to
falsity.
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Charlotte Latin also argues that, even if the Turpins adequately pleaded
materially false statements, the defamation claims were properly dismissed because
those defamatory statements were not “of and concerning” the Turpins. But once
again, this argument fails because Charlotte Latin ignores the actual allegations in
the complaint. As noted repeatedly above, we must view those allegations in the light
most favorable to the Turpins and make every reasonable inference in the Turpins’
favor. Id. Doing so here, the complaint properly alleges that the defamatory
statements concern the Turpins.
First, the complaint alleges that Charlotte Latin made materially false
statements about the content of a PowerPoint presentation. Second, the complaint
alleges that a group of parents known as “Refocus Latin,” including the Turpins,
prepared the PowerPoint presentation. Third, the complaint alleges that Charlotte
Latin knew the Turpins were part of Refocus Latin and prepared the PowerPoint
presentation. Finally, the complaint alleges that, by making false statements about
the content of the PowerPoint presentation, Charlotte Latin also conveyed that the
Turpins themselves said or believed those false statements.
When “a statement defames a small group or class of persons in its entirety . . .
any member of that class may pursue an action for defamation, despite the fact that
the statement fails to specifically identify that particular individual.” Boyce & Isley,
PLLC v. Cooper, 153 N.C. App. 25, 33 (2002) (cleaned up); see also Restatement
(Second) of Torts § 564A (A.L.I. 1976). So, for example, a juror can bring a defamation
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claim based on a statement that asserted all but one member of a twelve-person jury
had been bribed. See Carter v. King, 174 N.C. 549, 553 (1917). Likewise, each member
of a four-person law firm could bring defamation claims based on a statement that
the law firm committed unethical business practices. Boyce & Isley, 153 N.C. App. at
33.
Here, the complaint alleges a sufficiently small group of people to invoke this
precedent. The Turpins allege that they formed Refocus Latin, a group of concerned
parents known to the school, and that as members of that group the Turpins either
prepared or presented the PowerPoint document. Again—as we have repeated many
times—the Turpins will need to prove these allegations. But at this stage, they have
sufficiently alleged that the statements were of and concerning them because they
are members of the Refocus Latin group that prepared and presented the PowerPoint
document.
Charlotte Latin also argues that, even if the complaint alleges that the school
knew the Turpins were part of the group that prepared the PowerPoint document,
the complaint does not allege that any recipients of the defamatory statements knew
of the Turpins’ involvement.
This gets at an issue inherent in this type of “per quod” claim. The false
statements in this case concern the contents of a document. Documents are not
defamed; people are. So the allegation in the complaint is not that the false
statements are defamatory per se, but that the defamatory nature “becomes clear
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only in consequence of extrinsic, explanatory facts showing its injurious effect.”
Specifically, the complaint alleges that there are extrinsic facts showing that the
recipients of the false, racist statements about the PowerPoint would believe that the
Turpins, as the creators of the document, endorsed those racist views.
We agree with Charlotte Latin that, to prove this claim, the Turpins will need
to present far more evidence than is contained in the allegations in the complaint.
But the complaint’s failure to allege all of these extrinsic facts with particularity is
not a pleading deficiency. Rule 9 of the Rules of Civil Procedure creates special
pleading requirements for defamation per quod claims and requires only that a
plaintiff allege the defamatory statement was “published or spoken concerning the
plaintiff”:
In an action for libel or slander it is not necessary to state
in the complaint any extrinsic facts for the purpose of
showing the application to the plaintiff of the defamatory
matter out of which the claim for relief arose, but it is
sufficient to state generally that the same was published or
spoken concerning the plaintiff, and if such allegation is
controverted, the plaintiff is bound to establish on trial that
it was so published or spoken.
N.C.G.S. § 1A-1, Rule 9(i)(1).
As noted above, the Turpins included allegations that the defamatory
statements were published concerning them. The extrinsic facts needed to prove the
truth of this allegation need not be pleaded; that is a matter for summary judgment
or trial. Id.
We close by noting that we allowed discretionary review of the Turpins’
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Opinion of the Court
defamation claims primarily to address the errant Court of Appeals reasoning
concerning falsity. We therefore limit our review to that issue, and to the additional
“of and concerning” issue expressly raised by Charlotte Latin in its briefing. We
acknowledge that the Turpins’ defamation per quod claims involve a number of
complex legal issues and the law of per quod claims is not well-developed in our
jurisprudence. Our opinion addresses only the issues presented to us by the parties
or examined by the lower courts and should be understood as limited to those issues.
VII. Negligent infliction of emotional distress and negligent retention
Finally, we turn to the Turpins’ claims of negligent infliction of emotional
distress and negligent retention. The Court of Appeals affirmed dismissal of these
two claims for failure to state a claim on which relief can be granted. Turpin, 293
N.C. App. at 351, 354. The Court of Appeals’ analysis with respect to these two claims
was among the lengthy list of issues presented in the Turpins’ petition for
discretionary review. We allowed the petition in its entirety to ensure that we had
jurisdiction over the many matters warranting discretionary review in this multiclaim case.
Upon further review of these two specific claims, we agree with Charlotte Latin
that they fail to state a claim on which relief can be granted for a number of reasons
that are well-settled in this state’s tort jurisprudence. Those claims also do not
involve documents not attached to the complaint or the incorporation-by-reference
doctrine that we adopted above. Thus, we are not persuaded that these claims involve
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Opinion of the Court
matters where there is any conflict in our jurisprudence, or where there are issues
sufficiently significant to meet the standard for discretionary review. We therefore
dismiss our review of these issues as improvidently allowed without addressing or
endorsing the reasoning of the Court of Appeals decision.
Conclusion
We reverse the decision of the Court of Appeals in part as to the properly
pleaded claims for breach of contract, fraud, unfair and deceptive trade practices, and
defamation, and we remand for further proceedings on those claims. We conclude that
discretionary review was improvidently allowed as to the remaining issues.
REVERSED AND REMANDED IN PART; DISCRETIONARY REVIEW
IMPROVIDENTLY ALLOWED IN PART.
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Riggs, J., concurring in part and dissenting in part
Justice RIGGS concurring in part and dissenting in part.
North Carolina, like much of the country, is currently hosting vigorous debate
on the role of private schools in educating our children and the need to address
diversity and inclusion in our schools. While this case does not invite us to dive into
either of those debates, we must ensure that the rules that emerge from this Court
are applied uniformly, no matter the kind of private schools at issue. As the Roman
Catholic Diocese of Charlotte and the North Carolina Association of Independent
Schools and Southern Association of Independent Schools pointed out in their amicus
briefs, the result the plaintiffs seek here would open the door to litigation against all
private schools. I doubt that is the majority’s intent, but while the rule emerging
from this Court today is erroneous, it will need to be applied evenhandedly: schools
with different ideologies cannot be treated differently than Charlotte Latin here.
I agree with the majority’s dismissal of the negligent misrepresentation claim
and dismissal of review of the negligent infliction of emotional distress and negligent
retention claims as improvidently allowed. However, we should have also affirmed
the dismissal of the breach of contract, fraud, and defamation claims. Therefore, I
respectfully dissent.
I. The breach of contract and fraud claims do not survive Charlotte
Latin’s 12(b)(6) motion to dismiss because the Turpins’ arguments
relating to pretext fail as a matter of law.
Addressing the breach claim first, to state a claim for breach of contract, the
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Riggs, J., concurring in part and dissenting in part
plaintiff must allege “(1) the existence of a contract between plaintiff and defendant,
(2) the specific provisions breached, (3) the facts constituting the breach, and (4) the
amount of damages resulting to plaintiff from such breach.” Intersal, Inc. v.
Hamilton, 373 N.C. 89, 108–09 (2019) (cleaned up). When deciding cases arising from
a 12(b)(6) motion to dismiss, “we must take the complaint’s factual allegations as
true.” Morris v. Rodeberg, 385 N.C. 405, 406 (2023) (citing Blue v. Bhiro, 381 N.C. 1,
2 (2022)). Here, even taking all facts in the complaint as true, the Turpins failed to
sufficiently allege facts constituting breach of contract as a matter of law.
As a preliminary matter, I agree with the majority’s treatment of the materials
outside of the four corners of the complaint. See majority supra Parts I, II. The
majority correctly concludes that both the Enrollment Agreement (EA) and the
Parent-School Partnership (PSP) can be incorporated by reference in the
consideration of a motion to dismiss. However, while the majority goes on to then
interpret the contract as a part of its 12(b)(6) analysis, it misreads the documents,
particularly the termination provision in the PSP. The EA provides that “I
understand that a student’s attending the School is a privilege and not a right, and
that, in all cases, the School retains the right to determine, in its sole discretion,
whether or not to select a student for admission or to re-enroll a student.” The PSP,
incorporated into the EA, allows Charlotte Latin to terminate a student’s enrollment
at any time, in its discretion, based on parental behavior. The termination provision
reads:
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Riggs, J., concurring in part and dissenting in part
A positive, collaborative working relationship between the
School and a student’s parent/guardians is essential to the
fulfillment of the School’s mission. Therefore, the School
reserves the right to discontinue enrollment if it concludes
that the actions of a parent/guardian make such a
relationship impossible or seriously interfere with the
School’s mission.
Under both provisions, Charlotte Latin has broad, and indeed, near unfettered
discretion to terminate a student’s enrollment.
Obviously, any school enrollment contracts that vest the schools with such
unfettered rights are still subject to controlling state and federal law. See, e.g.,
N.C.G.S. § 115C-556 (2025) (requiring “qualified nonpublic” schools to abide by
certain health and safety regulations); id. § 115C-548 (requiring religious private
schools to abide by certain health and safety regulations); 42 U.S.C. § 2000d
(prohibiting racial discrimination in private schools receiving federal funding). But,
unlike public schools, private schools enter into contractual agreements with parents
that set out terms for a child’s enrollment. In forming these contractual
relationships, parents and schools enjoy the freedom of contract. See, e.g., Hlasnick
v. Federated Mut. Ins. Co., 353 N.C. 240, 243 (2000) (“Indeed, our state’s legal
landscape recognizes that, unless contrary to public policy or prohibited by statute,
freedom of contract is a fundamental constitutional right.”); Am. Tours, Inc. v. Liberty
Mut. Ins. Co., 315 N.C. 341, 350 (1986). Parents may negotiate for different terms,
including narrower termination clauses, and private schools have the right to
establish their own set of rules. Teeter v. Horner Mil. Sch., 165 N.C. 564, 568 (1914)
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Riggs, J., concurring in part and dissenting in part
(reasoning that a private school “had the undoubted power to adopt and enforce
suitable rules and regulations for the government and management of the school”);
see Canteen v. Charlotte Metro Credit Union, 386 N.C. 18, 25 n.5 (2024) (“While lay
consumers may not understand every legal intricacy involved in the contractual
process with companies, the market provides a way for consumers to respond to
policies with which they disagree. As needs arise, competitor companies can provide
alternatives for consumers, forcing improvements or updates to products or services
. . . .”).1 Parents are under no obligation to enroll their children at a particular private
school—they may choose to accept the private school’s contractual terms (and enroll
their children) or reject the terms (and enroll their children elsewhere). See Brenner
v. Little Red Sch. House, Ltd., 302 N.C. 207, 213 (1981) (reasoning that “[t]here was
no inequality of bargaining power” between parents and a private school because
“Plaintiff was not forced to accept defendant’s terms, for there were other private and
public schools available to educate the child”).
The reality is that private schools, founded on the freedom to contract and
1 In Canteen, the majority rejected the dissent’s argument that “unrestricted unilateral amendment clauses,” where a credit union could make whatever changes to a consumer contract it saw fit under the expansive rights it reserved for itself, would render that contract illusory. 386 N.C. at 26–27. Here, although acknowledging the rule from Canteen, the majority fails to adequately distinguish Charlotte Latin’s termination clause from the permissible unilateral change provision in Canteen. The majority here just asserts without explanation that the unilateral power reserved by Charlotte Latin is different than the unilateral power reserved by Charlotte Metro Credit Union. It cannot be correct, under contract law, that defendant private schools are somehow bound to treat the consumers of their product better or more generously than defendant credit unions are required to treat their customers.
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associate, are allowed to not tolerate differing viewpoints or independent thought. As
long as they do not violate state or federal law or seek to enforce contracts in
convention of public policy, private schools may terminate enrollments based on
political ideology—and if parents are unhappy, they may exercise the right to contract
with a different school that better aligns with their preferences or send their children
to public schools, where the freedom to contract does not vest the school
administrators with such unfettered discretion.2 To the extent that the complaint
alleges that any reason Charlotte Latin gave for the termination was pretext, and
that the children’s enrollment was terminated because of “cancel culture,” Charlotte
Latin was allowed to do exactly that under the broad discretion it retained under the
contract.
The PSP and EA expressly provided for unilateral termination at Charlotte
Latin’s sole discretion, whenever Charlotte Latin determined that the parent-school
relationship was untenable. The majority concedes that exactly this sort of unilateral
clause is permissible under Canteen. See majority supra Part II. Per the plain
language of both the PSP and the EA, the determination of the unworkability of the
parent-school relationship is entirely the school’s decision to make—despite the
majority’s cursory attempt to distinguish Canteen, this is the same sort of unilateral
authority retained by one of the contracting parties. The Turpins exercised the right
2 That private schools retain the right to enforce orthodoxy with their viewpoints is
one of the central policy arguments against public funding of private schools.
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Riggs, J., concurring in part and dissenting in part
to contract and agreed to abide by the termination clause in the contract when they
chose to enroll their children at Charlotte Latin. In doing so, they agreed to give
Charlotte Latin broad discretion over whether, when, and why to terminate their
children’s enrollment. The Turpins could have negotiated for a clause limiting
Charlotte Latin’s unilateral ability to terminate the enrollment agreement. They did
not. Instead, Charlotte Latin retained the unilateral discretion to terminate the
children’s enrollment whenever it decided the relationship was untenable—including
if it believed the Turpins’ political beliefs were inconsistent with the school’s values.
The Turpins allege that the EA obligated Charlotte Latin to educate their
children and comply with the PSP in exchange for the Turpins paying tuition and
complying with the PSP. They claim that Charlotte Latin breached this contract in
three ways: (1) expelling their children in violation of Charlotte Latin’s promise to
educate them, (2) expelling the children without procedural protections in violation
of an alleged promise to “uphold and enforce rules and policies detailed in the Family
Handbook in a fair, appropriate and equitable manner,” and (3) expelling the children
in retaliation for the Turpins’ communications in violation of Charlotte Latin’s
promises involving communication. The majority rightly rejects the alleged
contractual rights to procedural protections and communication but should have also
rejected the Turpins’ first breach theory. See majority supra Part II. Even from the
face of the complaint and taking as true all the facts alleged, Charlotte Latin retained
the sole and entire discretion to determine that the relationship could not continue.
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Riggs, J., concurring in part and dissenting in part
The Turpins made no allegations that Charlotte Latin’s decision to terminate
enrollment was based on a prohibited discriminatory basis.3 Instead, Charlotte Latin
exercised its discretion under the express terms of the contract when it terminated
the children’s enrollment. The Turpins failed to demonstrate any facts evincing
breach, so the breach of contract claim should have been dismissed.
For both the fraud and the breach of contract claims, the Turpins argue that
Charlotte Latin provided pretextual reasons to terminate their children’s enrollment.
However, the contract did not prohibit pretextual termination, as long as Charlotte
Latin believed in its sole discretion that the parent-school relationship was
untenable. This is true even if the relationship was untenable because of “cancel
culture.” So, even taking the facts in the complaint as true and assuming that
Charlotte Latin did terminate the children’s enrollments for pretextual reasons, the
Turpins fail to plead illegal grounds for termination and therefore establish neither
fraud nor breach of contract.
Put another way, as the majority references, the Turpins’ complaint repeatedly
invokes the term “pretext,” but neither the complaint nor the majority is clear what
impermissible reason the alleged pretext masked. See majority supra Part II (“But,
the Turpins allege, the school was determined to retaliate against them for other
reasons and used the contractual grounds as the false pretext to do so.”). What were
3 For example, if private schools receive federal funding, they cannot discriminate on
the basis of race, color, or national origin. 42 U.S.C. § 2000d.
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Riggs, J., concurring in part and dissenting in part
the other reasons? Those reasons matter—the term “pretext” is not some shibboleth
that automatically guarantees survival of a 12(b)(6) motion.
Whether Charlotte Latin terminated the children’s enrollment because it did
not like how the Turpins were communicating with the school, it disagreed with how
the Turpins sought to shape curriculum to match their political beliefs, or for any
other reason not prohibited by anti-discrimination laws, both the EA and PSP allowed
the children’s enrollment to be terminated in Charlotte Latin’s sole discretion, based
on Charlotte Latin’s sole perception of the future tenability of the parent-school
relationship.4 Charlotte Latin was permitted to terminate the contract whenever it
decided a positive, collaborative working relationship was impossible, and it did so
here, regardless of whether its proffered reason of communication was pretext for
simply disliking the Turpins’ views. Charlotte Latin was entitled to determine that
either reason was sufficient to discontinue enrollment.
4 To the extent that Charlotte Latin conceded in oral argument that it could not terminate the children’s enrollment in bad faith, as a matter of law, what was alleged in the complaint did not establish any kind of bad faith action prohibited by the contract. For example, the majority points out that Charlotte Latin explained in briefing that it could not discontinue enrollment if it just wanted to get out of a “bad deal.” See majority supra Part II. But Charlotte Latin’s point was that the complaint did not allege that Charlotte Latin just wanted to get out of a bad deal, or charge the Turpins more, or anything that would actually be impermissible under the contract. Despite invoking the term “pretext” frequently, the Turpins did not allege that Charlotte Latin terminated the children’s enrollment for any reason other than its sole determination that a positive relationship with the Turpins was “impossible.” That the term “impossible” was not defined in the contract does not give more weight to the unexplained and vague accusations of “pretext.” Even if Charlotte Latin determined the relationship was untenable because it disagreed with the method of the Turpins’ communication, or as the Turpins might think, because the school did not like the Turpins’ views, the school’s decision was fully permitted by the termination clause in either case and, thus, the termination could not be made in bad faith for those reasons.
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“Dismissal under Rule 12(b)(6) is warranted only when (1) it appears certain
that plaintiffs could prove no set of facts which would entitle them to relief under
some legal theory; (2) no law exists to support the claim made; or (3) the complaint
on its face discloses facts that necessarily defeat the claim.” Howell v. Cooper, 388
N.C. 71, 78 (2025) (emphasis omitted). Here, because the supposed pretext was not
prohibited by law or the contract itself, even assuming arguendo that Charlotte Latin
terminated the children’s enrollment for pretextual reasons, “no law exists” to
support the Turpins’ breach of contract claim. Id. Further, since the EA and PSP
are incorporated by reference into the complaint and contain termination clauses that
justify termination in Charlotte Latin’s sole discretion, the complaint by reference
discloses facts that necessarily defeat the Turpins’ breach of contract claim. For those
reasons, the Turpins’ breach of contract claim was properly dismissed under 12(b)(6),
and the majority should have affirmed the Court of Appeals’ holding.
Similarly, the Turpins’ claim that the termination was fraudulent because it
was pretextual is meritless. To state a claim for fraud, the complaint must allege:
“(1) [f]alse representation or concealment of a material fact, (2) reasonably calculated
to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting
in damage to the injured party.” Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2,
9 (2018). Additionally, fraud has a heightened pleading standard, requiring that “the
circumstances constituting fraud . . . shall be stated with particularity,” N.C.G.S.
§ 1A-1, Rule 9(b) (2025), including “time, place and content of the fraudulent
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representation, identity of the person making the representation and what was
obtained as a result of the fraudulent acts or representations.” Value Health Sols.,
Inc. v. Pharm. Rsch. Assocs., Inc., 385 N.C. 250, 263 (2023) (quoting Terry v. Terry,
302 N.C. 77, 85 (1981)).
The Turpins allege that Charlotte Latin committed fraud by concealing
material facts and making false representations, specifically that teachers would not
retaliate against the children and that a 10 September 2021 meeting to discuss the
Turpins’ son’s curriculum would be an opportunity for school officials to “answer
and/or address” the Turpins’ concerns. The Turpins claim that
[T]he September 10, 2021 meeting was designed by
Baldecchi and Ballaban to provoke Mr. and Mrs. Turpin
into saying or doing something that would violate the
Parent-School Partnership and, thus, justify Baldecchi
expelling their children and/or to falsely accuse them of
having violated the Parent-School Partnership in the past.
As part of that plan, the Turpins allege that Charlotte Latin officials sought to deceive
the Turpins and “lure” them into the meeting:
In actuality, Baldecchi and Ballaban scheduled the [10
September 2021] meeting in order to lure Mr. and Mrs.
Turpin into a meeting that had the objective of
intentionally agitating Mr. and Mrs. Turpin to the point
that Baldecchi could justify expelling their two children
and/or to falsely accuse them of having violated the ParentSchool Partnership in the past.
The Turpins claim that Mr. Turpin attended the meeting in reliance on the false
representations and concealed facts. The complaint further alleges that he
“communicated with Ballaban [at the meeting] with respect, courtesy, and dignity
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Riggs, J., concurring in part and dissenting in part
throughout Ballaban’s response to Mr. and Mrs. Turpin’s concerns regarding their
son’s education, in the spirit of a positive, collaborative working relationship as is
consistent with Latin’s Mission” and that his words, tone of voice, and volume were
“professional and civil.”
The Turpins allege that despite Mr. Turpin’s civility at the meeting,5 a
Charlotte Latin official expelled the children “because he disliked the manner in
which Mr. Turpin had communicated to Latin about Mr. and Mrs. Turpin’s concerns
about their children’s education, including Latin’s recent change in curriculum and
culture and its focus on a political agenda.” The Turpins allege that this stated reason
was “false, pretexual, and improper” because “respectfully communicating with Latin
is contractually-protected activity under the Parent-School Partnership,” so the
expulsions were actually retaliation for the Turpins’ “exercise of their contractuallyprotected right to respectfully communicate with Latin about their children’s
education.”
However, while the Turpins’ fraud claim relies on the notion that Charlotte
Latin’s stated reason for terminating the children’s enrollment must be pretextual
because the Turpins had a contractual right to communicate, the majority is clear
and correct that “[t]he contract does not contain [this] right[ ].” See majority supra
Part II. Without the contractual right to communicate, the Turpins’ fraud claim
5 The Turpins’ fraud claims have a logical inconsistency: they allege they were provoked to become agitated and to act in a manner that would violate the PSP, but then the Turpins claim to have acted with civility. Both cannot be true.
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Riggs, J., concurring in part and dissenting in part
collapses—Charlotte Latin’s claim that it terminated the children’s enrollment
because the Turpins’ communication made the relationship untenable is squarely
within the bounds of the termination clause. Charlotte Latin did not need a
pretextual reason to terminate the agreement, since the contract expressly permitted
it to terminate the children’s enrollment in its sole discretion when it decided the
relationship was untenable, as the Turpins admit it did here. Rather than creating
an unnecessary and fraudulent pretext to terminate the children’s enrollment,
Charlotte Latin simply exercised its contractual rights.
Even assuming arguendo that Charlotte Latin terminated the children’s
enrollment because its administrators found the Turpins’ viewpoints on diversity and
equity to be loathsome, rather than finding how the Turpins communicated to be in
violation of the PSP, it matters not: either reason is an acceptable reason under the
contract for Charlotte Latin to terminate its relationship with the Turpins and their
children. And even assuming Charlotte Latin did intend to terminate the enrollment
agreement for pretextual reasons, under the terms of the contract, there is no reason
why Charlotte Latin would not be able to do so. Under the terms of the EA and PSP,
incorporated by reference into the complaint, Charlotte Latin did not need to
manufacture permission to terminate the children’s enrollment. Even with a
pretextual reason for the 10 September meeting, Charlotte Latin was fully within its
rights to terminate the agreement if it believed the relationship was “impossible,”
and such termination could not have been fraudulent under any interpretation of the
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Riggs, J., concurring in part and dissenting in part
facts. Charlotte Latin’s reservation of its rights in the contract was that expansive.
Additionally, the Turpins claim that Mr. Turpin attended the meeting and was
unprepared to address Charlotte Latin’s allegation that his conduct violated the PSP,
so he relied on the alleged misrepresentation and was therefore harmed when
Charlotte Latin terminated his children’s enrollment. However, even taking as true
that Mr. Turpin attended a meeting for which he was unprepared, such reliance does
not prove fraud, since Charlotte Latin could terminate his children’s enrollment
regardless of whether he attended the meeting, rebutted any claims, or even violated
the PSP. See Arnesen v. Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440, 452
(2015) (affirming dismissal of several claims including fraud because plaintiffs failed
to allege actual reliance and defendant’s action was not the proximate cause of the
alleged injury); Sullivan v. Mebane Packaging Grp., Inc., 158 N.C. App. 19, 32 (2003)
(rejecting fraud claim because, even if concealed information had been disclosed, it
“would not have been material” to plaintiff’s outcome). Under the terms of the
contract, Charlotte Latin could terminate the enrollments without a meeting, or
without regard to Mr. Turpin’s civility at a single meeting, if it believed in its sole
discretion the relationship had become untenable. Since Charlotte Latin could
unilaterally terminate the enrollment agreement, regardless of whether Mr. Turpin
relied on the allegedly pretextual justification for the meeting, he has only alleged
that Charlotte Latin exercised its contractual rights, not that it committed fraud.
Therefore, the fraud claim was properly dismissed below, and the majority should
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Riggs, J., concurring in part and dissenting in part
have affirmed the Court of Appeals’ decision.6
II. The defamation claim does not survive Charlotte Latin’s 12(b)(6) motion
to dismiss because the Turpins failed to adequately allege falsity.
In their complaint, the Turpins allege that Charlotte Latin committed
defamation per quod by making statements indicating that the Refocus Latin
presentation,7 in which the Turpins participated, contained statements that “the
school accepts students and hires faculty because of their color” and that those
students and faculty “are also not up to the merit of the school.” The Turpins also
claim that Charlotte Latin sent an email to all families, faculty, and staff with the
allegedly defamatory statement that “Furthermore, the Board categorically rejects
the assertion that diverse students and faculty have not earned their positions and
honors at Latin and that diversity comes at the expense of excellence.”
To adequately allege a claim for defamation per quod, “a plaintiff generally
must show that the defendant caused injury to the plaintiff by making false,
defamatory statements of or concerning the plaintiff, which were published to a third
person.” Desmond v. News & Observer Publ’g Co., 375 N.C. 21, 41 (2020) (cleaned
up). Unlike defamation per se, defamation per quod involves statements “which are
6 As to the unfair and deceptive trade practices (UDTPA) claim, the majority is correct
that if a plaintiff has sufficiently alleged fraud, the UDTPA claim should survive. However,
if a plaintiff’s breach of contract claim survives, the substantial aggravating factors pleading
requirement should be treated as generously as the notice pleading requirement. Since
neither the fraud claim nor the breach claim are adequately pleaded here, the majority should
have affirmed the dismissal of the UDTPA claim.
7 The majority correctly incorporates the PowerPoint presentation by reference into
the complaint.
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Riggs, J., concurring in part and dissenting in part
not obviously defamatory, but which become so when considered in connection with
innuendo, colloquium and explanatory circumstances.” Ellis v. N. Star Co., 326 N.C.
219, 223 (1990) (quoting Flake v. Greensboro News Co., 212 N.C. 780, 785 (1938)).
Here, the Turpins failed to adequately allege that Charlotte Latin’s statements were
false. And, while the majority limits its opinion to the issues of falsity and whether
the statements were “of and concerning” the Turpins, the complaint’s allegation of
publication also raises questions of how to defend against defamation claims at the
12(b)(6) stage.
The Turpins allege that Charlotte Latin made known false statements
characterizing the Refocus Latin presentation as stating that minority faculty and
students at Charlotte Latin were not qualified for their roles, were hired or admitted
based on racial preferences, and that Charlotte Latin conducts hiring and admissions
in violation of federal law. The majority claims that Charlotte Latin’s statements
mischaracterize the PowerPoint document, and that “[t]he school also falsely accused
the Turpins of making racist comments about non-white students and faculty.” See
majority supra Introduction, Part VI. Plaintiffs “must establish that ‘the sting,’ the
aspect causing injury to plaintiff’s reputation, is materially false.” Desmond, 375 N.C.
at 67. “[T]he issue of falsity relates to the defamatory facts implied by a statement.”
Id. (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.7 (1990)). Here, the
core of the defamatory statements, and the “sting” allegedly harming the Turpins’
reputation, is that they made racist statements during the Refocus Latin
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presentation.
The majority argues that the Turpins adequately alleged that Charlotte Latin’s
statements, asserting that the Turpins made racist statements, were false. See
majority supra Part VI. However, allegations of racism, like many subjective
viewpoints, are in the eye of the beholder and do not squarely fit into the falsity test.
How could a plaintiff prove that a statement alleging he expressed a particular
viewpoint is false? How can a defendant prove that it is true?
“[A] statement of . . . public concern which does not contain a provably false
factual connotation will receive full constitutional protection.” Milkovich, 497 U.S. at
20. Consider the examples in Milkovich: while a statement like, “In my opinion
Mayor Jones is a liar,” is provable and therefore not protected, a statement that is
not provable, such as, “In my opinion Mayor Jones shows his abysmal ignorance by
accepting the teachings of Marx and Lenin,” is not capable of truth or falsity, so
“would not be actionable.” Id. In the marketplace of ideas, where First Amendment
doctrine seeks to ensure that “debate on public issues remains ‘uninhibited, robust,
and wide-open,’ ” statements that cannot be proven false are protected. Id. (quoting
New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).
While this Court has not established the contours of opinion statements that
cannot be proven and thus are not actionable in defamation cases, both the Court of
Appeals and the Fourth Circuit have held that opinions are protected speech that
cannot support a defamation claim and identified examples thereof. See Daniels v.
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Metro Mag. Holding Co., L.L.C., 179 N.C. App. 533, 539 (2006) (“Rhetorical hyperbole
and expressions of opinion not asserting provable facts are protected speech”); Lewis
v. Rapp, 220 N.C. App. 299, 305 (2012) (determining whether a statement “was
merely an opinion on a matter of public concern” because “[i]f it was, then defendant
is not liable for defamation and the inquiry ends”); Snyder v. Phelps, 580 F.3d 206,
218 (4th Cir. 2009) (stating that “although there is no categorical constitutional
defense for statements of opinion, the First Amendment will fully protect statements
that cannot reasonably be interpreted as stating actual facts about an individual”
(cleaned up)). And while caselaw is scarce and “there appears to be no North Carolina
court expressly addressing this issue, many courts in other jurisdictions that have
faced the issue of defamation claims based on accusations of bigotry or racism have
held the statements to be nonactionable statements of opinion.” Squitieri v. Piedmont
Airlines, Inc., No. 3:17CV441, 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018) (not
reported) (“Statements indicating that Plaintiff is racist are clearly expressions of
opinion that cannot be proven as verifiably true or false.”).
The Turpins make the conclusory statement that Charlotte Latin’s statements
are false, but they do not explain how Charlotte Latin’s subjective interpretation that
the Refocus Latin presentation was racist could be false. The majority fails to analyze
whether the alleged defamatory statement is a fact, which can be false, or an opinion,
which cannot. Charlotte Latin’s email, about which the Turpins complain and that
they infer is made in reference to them, states that parents complained “that diverse
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students and faculty have not earned their positions and honors at Latin and that
diversity comes at the expense of excellence.” Complaint at 22, Turpin v. Charlotte
Latin Schools, Inc., No. 22-CVS-6443 (N.C. Super. Ct. April 25, 2022). It is a faulty
equivalence to suggest this actual statement, a reflection of values and opinion that
the school rejected, is more like “claiming someone used a racial epithet” than
“claiming someone is a racist.” See majority supra Part VI.8 Instead, the crux of the
Turpins’ defamation claim is that Charlotte Latin, in characterizing the Refocus
Latin presentation, portrayed them in a negative light. This is an entirely subjective
inference, which does not lend itself to the falsity analysis. Even with the low notice
pleading standard, the Turpins must state a legally cognizable claim—which they
cannot do if the alleged defamatory statement is an opinion incapable of falsity.
As a matter of law, allegations of racism should be treated as unprovable
opinion, not fact, as they are in other jurisdictions. See, e.g., Stevens v. Tilman, 855
F.2d 394, 402 (7th Cir. 1988) (holding that an allegation of racism “is not actionable
unless it implies the existence of undisclosed, defamatory facts”); Murphy v. Rosen,
329 A.3d 913, 916 (Conn. 2025) (joining “numerous other jurisdictions” to hold that
an allegation a person was a “white supremacist” was “not objectively verifiable” so
was a non-actionable opinion); Cousins v. Goodier, 283 A.3d 1140, 1157–58 (Del. 2022)
8 The majority’s reliance on Desmond v. News & Observer Publ’g Co., 375 N.C. 21
(2020), does not actually advance its cause. Desmond was a much more nuanced case than the instant one, coming after a jury trial. The Desmond Court found no error in jury instructions, “considered and reviewed in their entirety,” in a situation where plaintiff alleged falsity in both attribution and the underlying statement. Id. at 66–67.
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(holding that an allegation of racism was not “provably false” and that “the First
Amendment is clear that [determining what it means to be racist] would be the
opposite of our role”); Liam H. McMillin, Proving Racism: Gibson Bros. Inc. v. Oberlin
College and the Implications on Defamation Law, 90 U. Cin. L. Rev. 1021, 1030–36
(2022). The majority entirely fails to engage with the enormous body of law and
literature around the First Amendment implications of permitting defamation claims
for allegations of racism. The Turpins have not adequately alleged falsity here
because they cannot do so—opinions can be neither true nor false. Instead, as
protected speech, a subjective opinion that another person expressed a racist
viewpoint cannot form the basis of a defamation claim. Without an allegation whose
truth or falsity is capable of proof, the Turpins have not alleged defamation, and the
claim should have been dismissed. I fear this superficial treatment of the limitations
on the use of state defamation law to constrain free speech will have significant
chilling effects on important public discourse and will fling open the courthouse doors
to disputes that should be settled in open, public conversations, not by judges.
Further, while the majority limits its opinion to only falsity and whether the
statement was “of and concerning” the Turpins, I am also skeptical that the
complaint’s publication allegation survives as a matter of law. The Turpins
separately allege slander per quod and libel per quod. For slander per quod, the
Turpins claim that the allegedly defamatory statement was “uttered on September
10, 2021 in the physical presence of Ballaban, a third party” and that “[u]pon
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information and belief, Baldecchi’s Defamatory Statement was uttered between
September 10, 2021 and September 14, 2021 to one or more of the other Board
Defendants, who are third parties.” Even assuming that the falsity and “of and
concerning” prongs are satisfied, and they are not, the allegation in the slander per
quod claim that the statement was made to an unspecified someone over a multi-day
span is unacceptably vague and should not form the basis for publication. It is not
clear how a defendant could ever succeed at the 12(b)(6) stage if all a plaintiff needs
to do is allege that a statement was made somewhere, to someone.9 Under the notice
pleading standard, we must take this factual allegation as true, even as vague as it
is. Morris, 385 N.C. at 406. But how vague is too vague to survive under Rule
12(b)(6)? Do we permit every vague statement, merely because we must assume that
it is true? How would defendants put on a defense if they are not on notice of the
identity of the person or persons to whom they allegedly published the defamatory
statement? While publication may be met here on other grounds, the broader
allegations present a serious issue for defendants seeking to dismiss vague and
meritless claims at the 12(b)(6) stage, and this Court should clarify specificity under
the notice pleading requirements.
Because I would have affirmed the dismissal of the breach of contract, fraud,
9 If the publication allegation is simply that the statement was made in the presence
of Mr. Ballaban, then this one prong of the test may be satisfied. See Bouvier v. Porter, 386 N.C. 1, 10 (2024) (listing as an element of defamation that a plaintiff must prove the defendant’s defamatory statements “were published to a third person”).
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and defamation claims, I respectfully dissent.
Justice EARLS joins in this concurring in part and dissenting in part opinion.
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