Full Opinion

SECOND DIVISION DOYLE, P. J., DAVIS and WHITAKER, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 30, 2026 In the Court of Appeals of Georgia A26A1076. OLIVEIRA v. EFFINGHAM COUNTY BOARD OF EDUCATION et al. DAVIS, Judge. In late 2018, teenagers Mary Frances Crocker and her brother Elwyn Crocker, Jr. were tragically found dead and buried behind their family home in Effingham County, Georgia. As part of the fallout from that tragedy, Amanda Oliveira, acting as the administrator of Mary’s estate, filed this lawsuit against the Effingham County Board of Education and various school officials, alleging that they failed to properly report evidence of abuse against Elwyn to law enforcement. The trial court dismissed the claims against the school officials on official and sovereign immunity grounds, and the Estate now appeals, arguing that the trial court erred in concluding that the individual school officials had official immunity. For the reasons that follow, we vacate the trial court’s dismissal of the claims against two defendants and remand for the trial court to apply the proper standard to their motion for judgment on the pleadings. We reverse the dismissal of the claims against two others because we conclude that the duty to report the abuse to law enforcement was a ministerial duty. The record shows that, in 2017, Elwyn and Mary were school-aged children living in Effingham County.1 In March 2017, a school social worker received a report from an Effingham County High School student who had witnessed Elwyn being beaten with a belt by his grandmother. The high school’s counselor, Kate Keith, received the report of the abuse and submitted a “Child Protective Services Mandated Reporter Form” to the Department of Family and Children Services (“DFCS”). DFCS acknowledged receipt of the report and declined to investigate. Elwyn went missing sometime prior to the March 2017 report, and after Mary also went missing in October 2018, an investigation ensued that revealed that the children had suffered severe, traumatic abuse by their family, culminating in the discovery of Mary and Elwyn’s bodies buried behind the family house in December 2018. Elwyn allegedly had already passed away by the time the March 2017 report of abuse had been made. 1 According to the record, Mary attended Rincon Elementary School while Elwyn was reportedly being home schooled. 2 Mary’s estate brought the instant lawsuit against the Effingham County School District, Effingham County Board of Education, Effingham County School District Superintendent Yancey Ford, and former Superintendent Randy Shearouse, both in their individual and official capacities.2 The Estate alleged that the initial complaint of child abuse was improperly reported because school district policy required any report of child abuse to be submitted to both DFCS and “the local police or sheriff’s department,” and the abuse was only reported to DFCS. The Estate further alleged that the School District, Board of Education, and the superintendents failed to properly train the school employees on their reporting requirements. The Estate alleged that this failure to properly follow the reporting procedure ultimately caused Mary’s death because any investigation done in response to the March 2017 report of abuse would have led to a discovery of Elwyn’s death and the severe abuse that Mary was also suffering at the time, which may have led to an intervention that could have prevented Mary’s death. 2 The complaint also named as defendants F. Lamar Allen, the chairman of the Effingham County Board of Education as well as fictitious John/Jane Doe school employees. 3 Shearouse and Ford, along with the School District and the Board, filed a motion for judgment on the pleadings under OCGA § 9-11-12(c) based on sovereign and official immunity. The same group of defendants also filed a motion for a protective order staying discovery until the question of immunity was resolved. The trial court granted the motion and stayed all discovery against them until it ruled on the motion for judgment on the pleadings. The Estate filed a motion seeking limited discovery on the questions of whether the Effingham County Sherriff’s Office had received the report of the abuse, whether or not school personnel had been trained on how to report abuse, and the identity of the personnel who reported the abuse. The Estate then filed a second amended complaint, which named Keith and Effingham County High School principal William Hughes as additional defendants. The previous defendants renewed their motion for judgment on the pleadings, and Keith and Hughes filed motions to dismiss for lack of subject-matter jurisdiction under OCGA § 9-11-12(b)(1), also raising the defenses of sovereign immunity and official immunity. 4 The trial court ultimately granted all the motions to dismiss and dismissed all claims against all parties. As relevant to this appeal,3 the trial court concluded that the individual defendants were entitled to official immunity because the policy requiring the report of child abuse allegations to law enforcement was a discretionary duty, and there was no evidence that the defendants acted with malice. The trial court further concluded that the policy did not impose any mandatory duty on Shearouse or Ford to either report the abuse or train the School District’s employees. The trial court also denied the Estate’s motion for limited discovery as moot. This appeal followed. 1. The Estate first argues that the trial court erred by addressing the defendants’ motions to dismiss under the framework of a motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1). We agree that the trial court applied the incorrect standard when addressing the motion for judgment on the pleadings that was filed by Shearouse and Ford, but we conclude that the trial court applied the correct standard when addressing the motions to dismiss filed by Keith and Hughes. 3 The Estate is only challenging on appeal the dismissal of the claims against the individual defendants in their personal capacities. Thus, our opinion today only addresses those claims, and we do not address the claims against the Board, the School District, or the claims against the individual defendants in their official capacities. 5 (a) Shearouse and Ford. As noted above, Shearouse and Ford, among other defendants not at issue in this appeal, raised their defenses of immunity through a motion for judgment on the pleadings under OCGA § 9-11-12(c). Nevertheless, the trial court applied the standard for a motion to dismiss for lack of subject matter jurisdiction to resolve their motion, concluding that it could consider evidence beyond the pleadings and make relevant fact findings and that it was the Estate’s burden to establish that jurisdiction exists. This was error. We have observed that “our courts [have not yet] voiced a prescribed procedural vehicle in which to advance an official immunity defense[,]” as we have entertained official immunity claims through motions to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1), motions to dismiss for failure to state a claim under OCGA § 9-11-12(b)(6),4 and motions for summary judgment. McCloud v. Lowndes County Bd. of Commrs., 369 Ga. App. 756, 758-59(1) (894 SE2d 505) (2023). The type of motion that is filed is critical to the review of an immunity claim 4 “Where[, as here,] the parties moving for judgment on the pleadings do not introduce affidavits, depositions, or interrogatories in support of their motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.” Rogers v. HHRM Self-Perform, LLC, 365 Ga. App. 862, 874(4) (880 SE2d 351) (2022). 6 because of the differing burdens of proof along with the different needs and considerations of evidence involved with each type of motion. Id. at 759(1). “[W]hen a defendant asserts a lack of subject-matter jurisdiction in a motion to dismiss, the plaintiff bears the burden of establishing that jurisdiction exists[.]” Simmons v. Solo Cup Operating Corp., 373 Ga. App. 69, 72(3) (907 SE2d 377) (2024) (quotation marks omitted). A motion to dismiss for lack of subject-matter jurisdiction under OCGA § 9-11-12(b)(1) can allege either a facial challenge, in which the court accepts as true the allegations on the face of the complaint or a factual challenge, which requires consideration of evidence beyond the face of the complaint. Such a motion may be heard and determined before trial. And at such a hearing, factual issues shall be determined by the trial court[.] Id. (punctuation omitted). “On the other hand, motions to dismiss for failure to state a claim pursuant to OCGA § 9-11-12(b)(6) and motions for summary judgment place the initial burden of proof [for establishing a defense of official immunity] on the defendant.” McCloud, 369 Ga. App. at 759(1). 7 [M]otions for summary judgment contemplate the submission of evidence and shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Conversely, only the pleadings — not evidence — are evaluated in a motion to dismiss pursuant to OCGA § 9-11-12(b)(6). Id. (punctuation omitted). Additionally, “[a] motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment. In reviewing such motions, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” Jones v. City of Atlanta, 320 Ga. 239, 245-46(II)(A) (908 SE2d 519) (2024). “The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiffs would not be entitled to relief under any state of facts which could be proved in support of their claim.” Rogers v. HHRM Self-Perform, LLC, 365 Ga. App. 862, 874(4) (880 SE2d 351) (2022). Here, the trial court applied the incorrect standard for a motion for a judgment on the pleadings in multiple ways. First, it made multiple findings of fact based on the evidence in the record, or the Estate’s failure to produce such evidence, despite the 8 fact that the trial court had issued a blanket protective order preventing the Estate from conducting any discovery against Shearouse or Ford. The trial court also shifted the burden to the Estate to prove that official immunity did not exist, and it did not view the allegations of the pleadings in the light most favorable to the Estate as the non-moving party. To the extent that the trial court converted the motion to a motion for summary judgment, or had the power to convert the motion for judgment on the pleadings to a motion to dismiss for lack of subject matter jurisdiction, given that a motion for judgment on the pleadings involves no evidence outside the pleadings but a motion to dismiss for lack of subject matter jurisdiction may involve such evidence, it could not do so without providing proper notice and an opportunity for the Estate to conduct at least some discovery on any necessary disputed jurisdictional facts, such as the defendants’ duties to report abuse or ensure that school employees are properly trained. See Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316, 318-19(1)(a) (785 SE2d 8) (2016) (trial court could not consider matters outside the pleadings on a motion to dismiss without providing the requisite notice that the motion was being converted to a motion for summary judgment). See also Austin v. Clark, 294 Ga. 773, 9 774-75 (755 SE2d 796) (2014) (noting that the “pivotal distinction” of a claim of official immunity “between a discretionary and a ministerial duty is highly fact- specific” and that questions about the existence of a public employee’s duties and discrete tasks or methods are “factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion”). Accordingly, we vacate the trial court’s dismissal of the claims against Shearouse and Ford and remand for it to reconsider the motion for judgment on the pleadings under the correct standard. (b) Keith and Hughes. As noted above, Keith and Hughes moved to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1), and so the trial court correctly applied the standard for those motions when ruling on those motions to dismiss. See Considine v. Murphy, 297 Ga. 164, 167(1) n.2 (773 SE2d 176) (2015) (concluding that the Court of Appeals “applied the correct standard” when it analyzed an official immunity claim under the standard for a motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1) because that was the type of motion that the defendant had filed). The Estate nevertheless argues that official immunity is not a matter of subject matter jurisdiction and that the trial court 10 therefore erred by addressing the motions to dismiss under that framework. We are bound by precedent to conclude that the trial court applied the correct standard. Subject matter jurisdiction refers to the authority of a court to hear a specific claim, and when a court “lacks subject matter jurisdiction to decide a question, it has no power to enter a judgment on the merits.” First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 885 (655 SE2d 605) (2008). “The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” Hall v. Acker, 367 Ga. App. 411, 414(1) (885 SE2d 266) (2023). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX(d). Although official immunity is intimately related to the doctrine of sovereign immunity, they “are not synonymous, but are separate, related doctrines.” Atlanta Pub. Sch. v. M. M., 378 Ga. App. 658, 660(1) (926 SE2d 859) (2026). While “sovereign immunity provides immunity to governmental entities and their employees sued in their official capacities[, in] contrast, the doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity.” Id. (quotation 11 marks omitted). Sovereign immunity is unquestionably a matter of subject matter jurisdiction. Id. In Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016), the Georgia Supreme Court was concerned with whether an interlocutory trial court order ruling on a sovereign immunity claim and a quasi-judicial immunity claim was directly appealable under the collateral order doctrine.5 Id. at 773-78. While answering this question, the Supreme Court stated broadly that “a defendant asserting an immunity defense may move to dismiss for lack of subject matter jurisdiction under OCGA § 9–11–12(b)(1), on consideration of which, the trial court may hear evidence and make relevant factual findings to decide the threshold issue.” Id. at 778. Following Rivera, however, the Supreme Court decided Spann v. Davis, 312 Ga. 843 (866 SE2d 371) (2021), wherein it concluded that a claim of judicial or quasi-judicial immunity is not a matter of subject-matter jurisdiction. In so doing, it acknowledged the “broadly stated” provision in Rivera concerning immunity defenses but instead concluded that judicial immunity was “an affirmative defense and not an issue that would divest the court of subject matter jurisdiction.” Id. at 850(2). After Spann was decided, we also 5 The Legislature subsequently amended the Appellate Practice Act to provide that such orders are now directly appealable. OCGA § 5-6-34(a)(15). 12 questioned whether official immunity was a matter of subject matter jurisdiction. McCloud, 369 Ga. App. at 758(1) n.6. However, we have since stated directly that “[a] motion to dismiss asserting official immunity is based upon the trial court’s lack of subject matter jurisdiction.” Garren v. Bryant, 377 Ga. App. 699, 699 (922 SE2d 902) (2025). Thus, we accordingly conclude that the trial court correctly applied the standard for a motion to dismiss for lack of subject matter jurisdiction when addressing Keith and Hughes’ motions based on official immunity. 2. Turning to the merits, the Estate argues that the trial court erred by concluding that the duty to report the child abuse to law enforcement was a discretionary duty, not a ministerial duty. Under the specific facts and circumstances of this case, we agree that the duty to report the abuse to law enforcement was ministerial. A public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight. Thus, the single 13 overriding factor is whether the specific act from which liability arises is discretionary or ministerial. Hall, 367 Ga. App. at 414(1). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX(d). A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. The important question in the context of official immunity is not merely whether the school administrators owed a duty of care, but rather, whether they owed a duty that is particularized and certain enough to render their duty a ministerial one. A ministerial duty can be established in a number of ways, including by written or unwritten policy, a supervisor’s directive, or statute. However, to establish a ministerial duty, the policy or directive — whether written or unwritten — must be clear, definite, and certain as to merely require the execution of a specific, simple, absolute, and definite duty, task, or action in a specified situation without any exercise of discretion. Accordingly, even when an administrator clearly owes a duty of care and is absolutely required to do something, unless she has been commanded — by law or by the policy or directive of her employer — to do a particular thing, she still is engaged in the performance of a discretionary function. 14 R. H. v. Wagner, 365 Ga. App. 534, 540(1) (879 SE2d 653) (2022). “[T]he determination of whether the action at issue is discretionary or ministerial is made on a case-by-case basis, and the dispositive issue is the character of the specific actions complained of, not the general nature of the job.” Garren, 377 Ga. App. at 704. Here, the Estate points to the School Board’s policy on reporting suspected physical abuse at the time of the report, which reads as follows: Any employee, teacher, administrator, or school volunteer having cause to believe that a child under the age of eighteen has had physical injury or injuries inflicted upon the child other than by accidental means by a parent or caretaker ... shall report observations to the school counselor. In the absence of the school counselor, the report should be made to the principal or his designee. The school counselor will gather all pertinent information available from the employee, teacher, administrator, or school volunteer regarding the possible abuse/neglect/exploitation. If the school counselor has reason to suspect that the child may have been abused/neglected/exploited, the school counselor will make an official report to the Department of Family and Children Services and any other appropriate agencies. An oral report must be made immediately, but in no case later than 24 hours from the time there is reasonable cause to believe a child has been abused. 15 Protocol to follow in Effingham County Schools 1. If abuse/neglect/exploitation is suspected, an immediate verbal report is to be made to the school counselor/principal. ... 2. The verbal report must be followed by the completion of the “Report to Investigating Authorities.” This form is also to be faxed to the local police or sheriff’s department (depending on the locations where the abuse/neglect/exploitation occurred). If additional information needs to be provided, an addendum can be included. A copy of this report is to be submitted to the school prinipal and the superintendent of schools. 3. Reporting child abuse is mandated and all information should be kept confidential between the reporter and investigative personnel. 4. Department of Family and Children Services personnel sign in with the school receptionist and report to the school counselor. ... ... All school personnel who have contact with students shall receive training in the identification and reporting of child abuse and neglect with annual updates in the form of memoranda, directives, handbooks, or other written information. (Emphasis supplied.) 16 We conclude that this policy sets out a simple ministerial duty to fax the child abuse report to the local law enforcement office. It is true that the policy sets out that a report of child abuse is to be made only if there is “reason to suspect that” abuse occurred, which may necessarily involve a discretionary determination that the abuse allegations are credible. But the specific act and duty that the Estate’s case hinges upon is not Keith’s underlying decision whether or not to report the abuse in the first place, nor does the Estate’s case depend on a challenge to Keith’s discretion in determining whether or not the abuse allegations were credible. Indeed, it is beyond arguable that there was “reason to suspect” abuse given that Keith reported the abuse to DFCS. See Melton v. McCarthan, 356 Ga. App. 676, 678(1) (848 SE2d 684) (2020) (policy directing deputy to report incidents of violence was a ministerial duty, despite possible discretion to determine whether an incident threatened any person’s safety or threatened the orderly control and security of the facility, when it was clearly established that the conditions requiring the creation of an incident report were met). Instead, the Estate alleges that Keith did not follow the proper procedure to report the abuse, which is a separate duty than the duty to determine whether to report in the first place. See Meagher v. Quick, 264 Ga. App. 639, 642-44(1) (594 SE2d 182) (2003) 17 (police officers had a ministerial duty to prepare and submit a family violence report whenever they investigated an incident of possible family violence, even though they had discretion to determine whether to investigate in the first place and to determine whether any crimes were actually committed). See also Happoldt v. Kutscher, 256 Ga. App. 96, 99(1) (567 SE2d 380) (2002) (“[T]he single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.”) (emphasis supplied). And those procedures are listed in the school district’s policy in the form of a clear and definite ministerial duty: when submitting a “Report to Investigating Authorities” form to DFCS, the form “is also to be faxed to the local police or sheriff’s department[.]” See Meagher, 264 Ga. App. at 644(1) (“These acts as simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty, are ministerial, that is, if the condition “A,” then the required response “B.”). The school policy therefore leaves no wiggle room or discretion to be exercised by the individual reporter in this respect — the form must also be sent to the police after a report is made to DFCS. See Hall, 367 Ga. App. at 415(1) (policy requiring a school security officer to flush out the eyes of a student after using pepper spray was ministerial because it “[did] not leave any 18 room for thought or discretion or the weighing of various factors and circumstances as to what task to perform”). Thus, the policy “merely require[d] the execution of a specific, simple, absolute, and definite duty, task, or action in a specified situation without any exercise of discretion[.]” Barnett v. Caldwell, 302 Ga. 845, 848 (II) (809 SE2d 813) (2018). In determining that the duty to report was discretionary, the trial court also focused on the fact that the policy requires the reporter to send the report to the “local police or sheriff’s department (depending on the locations where the abuse/neglect/exploitation occurred),” which the trial court reasoned required some degree of discretion to determine which law enforcement office is the correct one to submit the report. But the determination of which department would have jurisdiction over the location where the abuse occurred merely requires the reporter to look up information to complete the task, not to exercise discretion. See Smith v. McDowell, 292 Ga. App. 731, 733-34 (666 SE2d 94) (2008), aff’d, McDowell v. Smith, 285 Ga. 592 (678 SE2d 922) (2009) (holding school receptionist had a ministerial duty to check a student’s information card to confirm the authority of a person attempting to retrieve 19 a student for early release and rejecting the argument that “gathering facts” rendered a ministerial duty discretionary). Thus, the Estate has shown that the School District’s policy provided a ministerial duty to report the abuse to “the local police or sheriff’s department.” Keith argues that we should nevertheless affirm the trial court’s dismissal order on the grounds that she complied with the policy requiring her to report any abuse to law enforcement because she sent the report to the school’s resource officer.6 To support this argument, Keith cites to evidence she submitted in the form of her email where she sent the abuse reporting form to various individuals. The email on its own, however, does not indicate that any of the recipients of the abuse report were school resource officers or employees of “the local police or sheriff’s department,” and Keith does not point us to any other supporting evidence to fill in this evidentiary gap.7 We therefore cannot affirm on this basis at this point in the proceedings. 6 “In each public school system in this state, school security personnel employed by the board of education of a county or an independent board of education of a municipality for the various public schools thereof ... shall have the same law enforcement powers on school property, including the power of arrest, as law enforcement officers of that respective county or municipality.” OCGA § 20-8-5(a). 7 We cannot rely on Keith’s assertion in her brief that one of the recipients of her report was the school resource officer and an employee of the local police 20 Accordingly, we conclude that the trial court erred by concluding that the alleged policy that was violated was a discretionary duty and that it therefore erred by dismissing the Estate’s claims on that basis. 3. In light of our conclusion in Division 2, we do not reach the parties’ remaining arguments at this time. We take time to caution that our decision today only concludes that the alleged breach of the duty to report child abuse to law enforcement was an alleged breach of a ministerial duty and not a discretionary duty. Our opinion does not make any legal or factual conclusions that the School District or any of its employees acted inappropriately or that any alleged acts or non-acts by the school employees caused or contributed to the Crocker children’s deaths. We only conclude that the Estate has pled a claim that the alleged failure to report the abuse to law enforcement was a violation of a ministerial duty. Thus, we vacate the trial court’s dismissal of the claims against Shearouse and Ford and remand for it to reconsider their motion for judgment department because “[f]actual assertions contained in a party’s brief are not evidence unless supported by the record.” Dukes v. Munoz, 346 Ga. App. 319, 322(1) n.3 (816 SE2d 164) (2018). 21 on the pleadings under the correct standard. We reverse the trial court’s dismissal of the claims against Keith and Hughes on official immunity grounds. Judgment reversed in part, vacated in part, and case remanded. Doyle, P. J., and Whitaker, J., concur. 22