An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-961


Filed: 15 June 2004

JAMIE REEP, on his own behalf,
and on behalf of all those
similarly situated,

v .                                 Wake County
                                    No. 02 CVS 16880
THEODIS BECK, Secretary of
the North Carolina Department
of Correction, and JUDY SILLS,
Manager, Combined Records
Section of the Department of
Correction, in their official

    Appeal by plaintiff from judgment entered 27 February 2003 by Judge Evelyn Werth Hill in Wake County Superior Court. Heard in the Court of Appeals 22 April 2004.

    N.C. Prisoner Legal Services, Inc., by Susan H. Pollitt and James W. Carter, for the plaintiff-appellant.

    Attorney General Roy Cooper, by Special Deputy Attorney General James Peeler Smith and Assistant Attorney General Elizabeth F. Parsons, for the State.

    LEVINSON, Judge.

    Plaintiff appeals from a superior court order granting defendants' motion for judgment on the pleadings and dismissing plaintiff's class action complaint. We reverse and remand.
    In August 1999, plaintiff (Jamie Reep) pled guilty to one count of assault with a dangerous weapon inflicting serious injury. A superior court judge sentenced plaintiff to imprisonment in thecustody of the Department of Correction (DOC) for a minimum term of forty months and a maximum term of fifty-seven months; plaintiff was given credit for 255 days of pre-trial confinement. During his incarceration, plaintiff received 148 days of earned time sentence reduction credit and was awarded 111 days of meritorious time reduction credit against his maximum term. On 27 March 2002 plaintiff was released on post-release supervision by DOC. Not all of the 148 days of earned time and 111 days of merit time were applied to calculate plaintiff's release date; fourteen days had not been credited to plaintiff due to the statutory requirement that an inmate serve not less than his minimum sentence, minus any jail credit.
    On 20 July 2002, plaintiff's post-release supervision was revoked, and he was returned to DOC to serve an additional nine months of the sentence imposed for his August 1999 assault conviction. Plaintiff requested that DOC use the uncredited fourteen days of earned and/or merit time to determine his new release date. This request was denied because, pursuant to DOC's policy, time to be served by an inmate following post-release supervision is treated as an additional, stand alone sentence such that previously earned credits may not be applied.
    On 20 December 2002, plaintiff filed a class action complaint, on behalf of himself and other inmates similarly situated, seeking a declaration of the right to have previously earned sentence reduction credits applied to the term of re-imprisonment following a revocation of post release supervision. Plaintiff alleged thatDOC was requiring him to serve more than his maximum sentence by refusing to apply credits previously earned in service of the same sentence in calculating the release date from re-incarceration following revoked post-release supervision. Plaintiff moved to have the case proceed as a class action on behalf of all inmates with earned and/or merit time sentence reduction credits that have not been used to reduce the maximum active prison term upon revocation of post-release supervision and re-incarceration. A response to discovery from DOC revealed that, on 4 February 2003, thirty-four inmates were members of this proposed class.
    On 9 January 2003, during the pendency of this claim in superior court, plaintiff pled guilty to felony larceny in Gaston County, whereupon a superior court judge sentenced plaintiff to imprisonment in the custody of DOC for a minimum term of sixteen months and a maximum term of twenty months. This sentence ran concurrently with plaintiff's term of imprisonment following revocation of his post-release supervision, and the minimum term of the larceny sentence entirely subsumed the remaining time plaintiff would have to serve during his re-incarceration following revocation of his post-release supervision.
    On 29 January 2003, defendants filed an answer to plaintiff's class action complaint, and on 30 January 2003, defendants filed a motion for judgment on the pleadings. In support of their motion, defendants argued that plaintiff's claim was moot because his nine- month term of incarceration following revocation of post-release supervision was entirely subsumed within the sixteen-month minimumterm of incarceration to which he was sentenced for felony larceny. Following a hearing, the trial court issued an order granting defendants' motion for judgment on the pleadings and containing the following pertinent conclusions of law:
        3.    The Plaintiff's claim as presented in the Class Action Complain is moot as a matter of fact and a matter of law.

        4.    There is no recognized exception to the Mootness Rule in this case.

The order did not make any findings of fact or conclusions of law regarding plaintiff's motion for class certification. From this order, plaintiff appeals contending, inter alia, that the trial court erred in considering a dispositive motion on mootness prior to ruling on plaintiff's motion for class certification. We agree with this contention.
    This Court recently decided a case in which it ruled that a trial court should not consider a dispositive motion before ruling on a motion for class certification:
        Dispositive motions . . . are not properly considered by the trial court until after ruling on a motion for class certification. See 2 [Newberg on] Class Actions § 7.15, at 7-51 [3d ed. 1992] (noting recent decisions in several jurisdictions have held that “class certification issues should be addressed before consideration of a dispositive motion”). In addition to promoting judicial economy, the rationale for this rule is that, should a class be certified, the class would have an opportunity to provide a substitute class representative for any claims disposed of as to the individual plaintiff. See 59 Am. Jur. 2d Parties § 79, at 499 (1987) (“certification of class is to be undertaken with no consideration of the merits of the [named] plaintiffs' claims”); 59 Am. Jur. 2d Parties § 58 at 466, § 87, at 508-09 (properclass representative may be substituted if the named class representative is no longer a proper representative because of her conduct or her interests).

Pitts v. Am. Sec. Ins. Co., 144 N.C. App. 1, 19, 550 S.E.2d 179, 193 (2001), aff'd per curium by an equally divided court, 356 N.C. 292-93, 569 S.E.2d 647-48, reconsideration denied, 356 N.C. 439, 572 S.E.2d 161 (2002). Because Pitts was affirmed by an equally divided Supreme Court, it was left undisturbed but “stands without precedential value.” Pitts v. Am. Sec. Ins. Co., 356 N.C. 292-93, 569 S.E.2d 647-48 (2002).
    After the Supreme Court's order affirming Pitts by an equally divided court was filed, this Court filed an opinion citing and distinguishing Pitts. Gaynoe v. First Union Corp., 153 N.C. App. 750, 756, 571 S.E.2d 24, 27 (2002), disc. review denied, 356 N.C. 671, 577 S.E.2d 118 (2003). Specifically, this court drew a distinction between a case, such as Pitts, where a “plaintiff's motion for class certification was filed at the time the action was filed[,]” and a case where a “plaintiff moved for class certification some [nineteen] months after the action was filed and at a time when all discovery necessary to determine the merits of plaintiff's claim had taken place.” Id. In the latter situation, Pitts does not “preclud[e] the trial court from considering a summary judgment motion prior to a ruling on a class certification motion where. . . the parties . . . stipulate[] that both motions c[an] be considered simultaneously and when judicial economy is best served by allowing the trial court discretion in addressing summary judgment prior to class certification.” Id. at 756, 571S.E.2d at 28. Under such circumstances we considered it “apparent that plaintiff would not want to be burdened with the time and expense of class certification if his claims could not survive summary judgment.” Id.
    Though we are not bound by the Pitts decision, we are persuaded that the rule it sets forth, which was implicitly reaffirmed in Gaynoe, ought to be applied. We conclude that the present case is governed by the principles established in Pitts and that the exception established in Gaynoe is inapplicable on these facts. Plaintiff initiated this lawsuit by filing a class action complaint and a motion for class certification, and it is apparent that plaintiff is willing to bear the burden of representing a class. However, the trial court did not rule on plaintiff's motion for class certification, and instead entered an order granting defendants' motion to dismiss plaintiff's claim as moot. The trial court erred in considering this dispositive motion before ruling on plaintiff's motion for class certification, and its order must, therefore, be reversed. On remand, the trial court shall rule upon plaintiff's motion for class certification before addressing any motions respecting mootness; should the issue of mootness arise on remand, the trial court should be mindful of appellate precedent regarding well-established exceptions to the mootness doctrine.
    As plaintiff has obtained the appellate relief he seeks by virtue of the foregoing discussion, we need not address plaintiff's remaining arguments on appeal.
    Reversed and remanded.    Judges McCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

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