Appeal by plaintiff from judgment entered 11 December 1998 by
Judge L. Todd Burke in Superior Court, Forsyth County. Heard in
the Court of Appeals 15 February 2000.
David R. Tanis for plaintiff-appellant.
Attorney General Michael F. Easley, by Associate Attorney
General Kimberly P. Hunt, for defendant-appellee.
TIMMONS-GOODSON, Judge.
Michael Gray Cooke (“plaintiff”) appeals the dismissal of his
complaint pursuant to Rules 12(b)(1) and 12(b)(6) for lack of
subject matter jurisdiction and failure to state a claim upon which
relief could be granted.
Plaintiff was convicted of Driving While Impaired on 6 January
1988, 15 April 1988, and 6 July 1992. As a result of operating a
moped on 25 August 1993 while impaired, plaintiff was convicted of
Habitual Impaired Driving and his license was permanently revoked
pursuant to North Carolina General Statutes section 20-138.5.
Plaintiff filed suit against Janice Faulkner in her capacity as
Commissioner of the North Carolina Division of Motor Vehicles(“defendant”) seeking reinstatement of his license or a hearing to
consider reinstatement of his license. Defendant filed an answer
and motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6).
Following a hearing on defendant's motion, the trial court
made the following findings of fact:
1. [Plaintiff] was convicted of habitual
impaired driving pursuant to N.C. Gen. Stat. §
20-138.5.
2. As required by N.C. Gen. Stat. § 20-
138.5(d), [defendant] permanently revoked
[plaintiff's] license after receiving notice
of [plaintiff's] habitual impaired driving
conviction.
Based on its findings of fact, the trial court made the following
conclusions of law:
1. The revocation of [plaintiff's] license, in
accordance with N.C. Gen. Stat. § 20-138.5,
was mandatory.
2. Unlike other statutes in Chapter 20 which
specifically provide for the restoration of an
individual's license after a permanent
revocation, (i.e. N.C. Gen. Stat. § 20-19),
N.C. Gen. Stat. § 20-138.5 does not provide
for the restoration of an individual's license
who has been found guilty of habitual impaired
driving.
3. Therefore, the court lacks subject matter
jurisdiction on the above captioned action.
[Plaintiff] has no right for judicial review
of the mandatory revocation.
4. Because there is no statutory authority for
the restoration of a driver's license after a
permanent revocation under N.C. Gen. Stat. §
138.5, [plaintiff] has failed to state a claimupon which relief may be granted.
Based on its conclusions of law, the trial court entered an
order granting defendant's motion to dismiss for lack of subject
matter jurisdiction and failure to state a claim upon which relief
could be granted.
The dispositive issue on appeal is whether the trial court
lacked subject matter jurisdiction to hear plaintiff's claim.
Plaintiff contends that the trial court was vested with
subject matter jurisdiction over the action in that North Carolina
General Statutes section 20-25 provides:
Any person denied a license or whose
license has been canceled, suspended or
revoked by the Division, except where such
cancellation is mandatory under the provisions
of this Article, shall have a right to file a
petition within 30 days thereafter for a
hearing in the matter in the superior court
. . . or to the resident judge of the district
. . . and such court or judge is hereby vested
with jurisdiction and it shall be its or his
duty to set the matter for hearing upon 30
days' written notice to the Division, and
thereupon to take testimony and examine into
the facts of the case, and to determine
whether the petitioner is entitled to a
license or is subject to suspension,
cancellation or revocation of license under
the provisions of this Article.
N.C. Gen. Stat. § 20-25 (1999). We cannot agree.
The appellate court reviews
de novo an order of the trial
court allowing a motion to dismiss for lack of subject matter
jurisdiction, but the trial court's findings of fact are binding on
appeal if supported by competent evidence.
Smith v. Privette, 128
N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998). “A court has
jurisdiction over the subject matter if it has the power to hear
and determine cases of the general class to which the action in
question belongs.”
Balcon, Inc. v. Sadler, 36 N.C. App. 322, 324,
244 S.E.2d 164, 165 (1978).
Plaintiff's license was revoked pursuant to North CarolinaGeneral Statutes section 20-138.5 which provides: “A
person commits
the offense of habitual impaired driving if he drives while
impaired as defined in G.S. 20-138.1 and has been convicted of
three or more offenses involving impaired driving as defined in
G.S. 20-4.01(24a) within seven years of the date of this offense.”
N.C. Gen. Stat. § 20-138.5(a) (1999). “A person convicted [of
Habitual Impaired Driving] shall have his license permanently
revoked.” N.C.G.S. § 20-138.5(d) (1999).
Several statutory provisions which pertain to the permanent
revocation of a driver's license provide a mechanism for the
restoration of a driver's license.
See, e.g., N.C. Gen. Stat. §
20-28(c) (1999). In contrast, the statutory provision in issue,
section 20-138.5, does not provide such a mechanism. Following a
conviction for habitual impaired driving, permanent revocation is
mandatory and the trial court lacks the authority to provide
relief.
In
Palmer v. Wilkins, Com'r of Motor Vehicles, 73 N.C. App.
171, 325 S.E.2d 697 (1985), this Court held that where suspension
of a driver's license is mandated by statute, and the General
Assembly has not provided for any appeal from said suspension, then
the trial court lacks subject matter jurisdiction to review the
suspension. In
Palmer, the petitioner, who held a North Carolina
driver's license, failed to comply with a speeding citation issued
in a reciprocating state. The petitioner's license was suspendedpursuant to section 20-4.20(b): “[T]he Commissioner
shall forw
ith
suspend such person's license.” N.C. Gen. Stat. § 20-4.20(b)
(1999) (emphasis added).
Section 20-4.20 appears in Article 1B of Chapter 20. However,
like plaintiff in the present case, the petitioner in
Palmer argued
that he was entitled to a hearing pursuant to North Carolina
General Statutes section 20-25, which appears in Article 2. The
Palmer court held that section 20-25 “empowers courts only to
decide whether suspension under Article 2 is appropriate[.]”
Palmer, 73 N.C. App. at 173, 325 S.E.2d at 698. Noting that the
legislature did not provide for appeals from section 20-4.20, the
Palmer court concluded that the trial court lacked subject matter
jurisdiction to entertain petitioner's appeal.
We believe that the reasoning and holding in
Palmer are
applicable in the case at bar. As stated above, where a person has
been convicted of Habitual Impaired Driving, permanent revocation
of a driver's license is mandatory pursuant to section 20-138.5(d).
In its wisdom, the legislature did not provide a mechanism for the
restoration of a driver's license to an individual who is convicted
of Habitual Impaired Driving. As section 20-138.5 appears in
Article 3 rather than Article 2, section 20-25 creates no right to
appeal a revocation under section 20-138.5. We conclude that the
trial court did not err in finding that it lacked subject matter
jurisdiction to hear plaintiff's claim.
Having concluded that the trial court properly dismissed
plaintiff's claim for lack of subject matter jurisdiction, we donot need to address whether the trial court erred in finding that
plaintiff failed to state a claim on which relief could be granted
for purposes of Rule 12(b)(6).
For the foregoing reasons, we find that the trial court did
not err in dismissing plaintiff's claim on the merits based on lack
of subject matter jurisdiction.
Affirmed.
Judges GREENE and WALKER concur.
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