Reep v Beck, (03-961-2) 01/03/2006

Appeal by plaintiff from judgment entered 27 February 2003 by Judge Evelyn Werth Hill in Wake County Superior Court. Originally heard in the NC Court of Appeals 22 April 2004. A unanimous panel of this Court reversed and remanded the order of the trial court. See Reep v. Beck, 164 N.C. App. 779, 556 S.E.2d 906 (2004). Now on remand from the North Carolina Supreme Court, opinion filed 7 October 2005, for consideration of the plaintiff's remaining assignments of error. See Reep v. Beck, __ N.C. __, 619 S.E.2d 497 (2005).

N.C. Prisoner Legal Services, Inc., by Susan H. Pollitt and James W. Carter, for 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 Jamie Reep appeals from an order granting defendants' motion for judgment on the pleadings, and dismissing plaintiff's class action claim. We affirm.
    On 10 August 1999 plaintiff pled guilty to felony assault with a dangerous weapon inflicting serious injury. He was sentenced to an active prison term of forty to fifty-seven months, with credit for 255 days of pretrial incarceration in county jail. While in prison, plaintiff accumulated 148 days “earned time” credit, and 111 days “meritorious time” credit, for a total of 259 days of sentence reduction credit. In applying these sentence reduction credits to the calculation of plaintiff's release date, the DOC followed N.C. Gen. Stat. § 15A-1340.13(d) (2003), which provides in relevant part that:
        An offender sentenced to an active punishment shall serve the minimum term imposed. The maximum term may be reduced to, but not below, the minimum term by earned time credits awarded to an offender by the Department of Correction[.]

Accordingly, the Department of Correction (DOC) applied only 245 of the 259 days credit that plaintiff had earned, because application of the remaining fourteen days would have resulted in plaintiff's serving a sentence shorter than the minimum term imposed.
    Plaintiff was released from prison and placed on post-release supervision on 27 March 2002. His post-release supervision was revoked 20 July 2002, and plaintiff was returned to prison to serve the remaining nine months of his original sentence. Upon reincarceration, plaintiff asked the DOC to “apply the previously unapplied fourteen days of sentence reduction credit to his ninemonth term. DOC refused, explaining later that for administrative purposes, it treats the time a defendant must serve when returned to custody . . . 'as an additional, stand-alone sentence[,]' [and that] . . . plaintiff would be entitled only to credits earned during his reimprisonment.” Reep v. Beck, __ N.C. __, __, 619 S.E.2d 497, 498 (2005).
    On 20 December 2002 plaintiff filed a class action complaint against defendants, alleging that his statutory and constitutional rights were violated by the DOC's refusal to apply plaintiff's unapplied sentence reduction credits towards determination of his release date from the reincarceration period of nine months. Plaintiff sought injunctive and declaratory relief, as well as leave to represent the class of “similarly situated” prison inmates. Also on 20 December 2002, plaintiff filed a motion for class certification, pursuant to N.C. Gen. Stat. § 1A-1, Rule 23 (2003). In their answer, defendants acknowledged that, for purposes of calculating the date of release, the DOC treats an inmate's reincarceration following revocation of post-release supervision as a new sentence, and does not apply sentence reduction credits earned during the prisoner's earlier incarceration.
    On 9 January 2003 plaintiff pled guilty to felony larceny, and was sentenced to sixteen to twenty months imprisonment, to be served concurrently with the nine months plaintiff was already serving. Plaintiff's release date from the new sentence was 5 March 2003. Defendants' answer asserted that, because plaintiff'sreincarceration sentence of nine months was completely subsumed within the concurrent sentence of sixteen to twenty-seven months, there was no longer a justiciable case or controversy.
    On 30 January 2003 defendants moved for judgment on the pleadings, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) (2003). The motion was heard on 18 February 2003. On 27 February 2003 the trial court entered an order granting defendant's motion and dismissing plaintiff's class action complaint. The trial court did not rule on plaintiff's motion for class certification. From the order dismissing his complaint, plaintiff timely appealed.

    Plaintiff appeals from an order granting a motion for judgment on the pleadings under Rule 12(c). “A Rule 12(c) motion should be granted only when 'the movant clearly establishes that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law.'” Groves v. Community Hous. Corp., 144 N.C. App. 79, 86-87, 548 S.E.2d 535, 540 (2001) (quoting Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867 (1984)). Moreover, in ruling on a motion for judgment on the pleadings, the court “is to consider only the pleadings and any attached exhibits, which become part of the pleadings.” Minor, 70 N.C. App. at 78, 318 S.E.2d at 867 (citations omitted).
    On appeal, “[t]his court reviews de novo rulings on motions made pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) and (c).” Toomer v. Branch Banking & Trust Co., __ N.C. App. __, __, 614 S.E.2d 328, 335 (citing Garrett v. Winfree, 120 N.C. App. 689, 691,463 S.E.2d 411, 413 (1995)), disc. review denied, __ N.C. __, __ S.E.2d __ (filed October 6, 2005) (other citation omitted). We also note that findings of fact are not required in an order ruling on a motion for judgment on the pleadings:
        In its judgment on the pleadings the trial court made findings of fact and conclusions of law. The court is not required to find facts in a judgment on the pleadings since the facts determining disposition are those alleged in the pleadings[.] . . . “A motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c) should not be granted unless 'the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'”

J. F. Wilkerson Contracting Co. v. Rowland, 29 N.C. App. 722, 725, 225 S.E.2d 840, 842 (1976) (quoting Trust Co. v. Elzey, 26 N.C. App. 29, 32, 214 S.E.2d 800, 802 (1975), and citing Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974)). In the instant case, the critical facts are not in dispute. Accordingly, the case was proper for resolution by judgment on the pleadings. We next consider whether the trial court properly granted defendants' motion for dismissal.
    We first clarify the issues presented on appeal. Plaintiff gave notice of appeal on 31 March 2003, and argued on appeal that the trial court erred by entering a dispositive order dismissing his complaint before ruling on his motion for class certification. On 15 June 2004 this Court issued an unpublished opinion reversing and remanding for entry of a ruling on plaintiff's motion for class certification. However, this Court was reversed by the North Carolina Supreme Court in Reep v. Beck, __ N.C. __, __, 619 S.E.2d497, 498 (2005), in an opinion holding that the issue of the proper sequence of rulings by the trial court had not been preserved for appellate review:
        [W]hile plaintiff contended that he met the requirements for class certification . . . nowhere did he argue that the trial court was required to rule on his motion for class certification prior to addressing defendants' motion for judgment on the pleadings. . . . Accordingly, the trial court was not afforded an opportunity to consider and rule on questions regarding the sequence in which it should take up the pending motions. Plaintiff's failure to preserve this issue for appellate review resulted in waiver of the purported error.

Reep, __ N.C. at __, 619 S.E.2d at 500 (citing N.C.R. App. P. 10(b)(1)). In light of the holding in Reep, id., we do not address the issue of the proper sequence of rulings by the trial court. Moreover, because plaintiff characterizes as “dispositive” the trial court's order dismissing his complaint, we will assume that, after dismissal of plaintiff's complaint, his motion for class certification was no longer before the trial court.
    Accordingly, the sole issue presented is whether the trial court erred by dismissing plaintiff's complaint as moot. In this regard, it is undisputed that plaintiff's release date was determined, not by the calculation of sentence reduction credits as applied to the nine month reincarceration, but by the twenty month concurrent sentence imposed 9 January 2003. We conclude the trial court did not err by dismissing plaintiff's complaint as moot.     For the reasons discussed above, we conclude that the trial court did not err in entering an order of dismissal, and that its order should be
    Affirmed.
    Judges HUDSON and McCULLOUGH concur.
    Report per Rule 30(e).

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