An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1359

NORTH CAROLINA COURT OF APPEALS

Filed: 19 July 2005

EDWARD LEE WALKER,
    Plaintiff,

v .                         Anson County
                            No. 04 CVS 243
LYNDO TIPPETT, SECRETARY
OF THE NORTH CAROLINA DIVISION
OF MOTOR VEHICLES, and THE NORTH
CAROLINA DEPARTMENT OF
TRANSPORTATION,
    Defendant.

    Appeal by plaintiff from judgment entered 22 July 2004 by Judge Christopher M. Collier in Anson County Superior Court. Heard in the Court of Appeals 19 May 2005.

    Henry T. Drake for plaintiff-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    TIMMONS-GOODSON, Judge.

    Edward Lee Walker (“plaintiff”) appeals the dismissal of his complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the North Carolina Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. For reasons stated herein, we affirm the trial court's order and judgment.
    Plaintiff's driving record reflects multiple convictions for driving under the influence and multiple convictions for driving while license revoked. His record reveals five convictions forhabitual impaired driving. The last conviction for habitual impaired driving occurred on 10 August 1999 for which his driving privilege was permanently revoked.
    Plaintiff filed suit against Lyndo Tippett, Secretary of the North Carolina Division of Motor Vehicles and the North Carolina Department of Transportation   (See footnote 1)  (“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) of the North Carolina Rules of Civil Procedure. Following a hearing on defendant's motion, the trial court dismissed the action for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Plaintiff appeals.

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    The dispositive issue presented on appeal is whether the trial court erred in finding that it lacked subject matter jurisdiction to hear plaintiff's claim for restoration of his driving privileges.
    Plaintiff asserts that the suspension of his license was a mandatory revocation under N.C. Gen. Stat. § 20-17(a)(3) for any felony in the commission of which a motor vehicle was used and as such the trial court had jurisdiction to consider whether he isentitled to a license restoration hearing pursuant to N.C. Gen. Stat. § 20-19. We disagree.
     “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). “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.” Cooke v. Faulkner, 137 N.C. App. 755, 757, 529 S.E.2d 512, 513-14 (2000).
    In the instant case, the trial court made the following pertinent finding of fact: “1. The Petitioner's driving privilege has been permanently revoked pursuant to G.S. § 20-138.5(d) for multiple convictions of habitual impaired driving.” Although plaintiff contends his license was revoked pursuant to N.C. Gen. Stat. § 20-17(a)(3), the trial court found as a fact that plaintiff's license had been revoked pursuant to N.C. Gen. Stat. § 20-138.5(d) for multiple convictions of habitual impaired driving. "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) (2003). Plaintiff's driver's license record shows he was convicted more than three times for driving while impaired during the seven yearspreceding his 1999 conviction. Plaintiff had three prior convictions for habitual impaired driving. The records of the Division of Motor Vehicles indicate plaintiff's driving privilege was permanently revoked based on a conviction for habitual impaired driving pursuant to N.C. Gen. Stat. § 20-138.5. We hold the trial court's finding is supported by competent evidence and therefore, it is binding on this Court.
    "A person convicted [of habitual impaired driving] shall have his license permanently revoked." N.C. Gen. Stat. § 20-138.5(d) (2003). Permanent revocation of a driver's license is mandatory under the statute. In Cooke, this Court held that where a person has been convicted of habitual impaired driving pursuant to N.C. Gen. Stat. § 20-138.5, the trial court lacks subject matter jurisdiction to hear plaintiff's claim for restoration or a restoration hearing. Thus, the trial court properly concluded it lacked subject matter jurisdiction.
    Plaintiff next contends the trial court erred in failing to consider plaintiff's claims that his constitutional rights were violated by defendant's failure to provide a restoration hearing pursuant to N.C. Gen. Stat. § 20-19(e). We conclude that plaintiff is without standing to assert any constitutional violations.
    “Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction.” Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878 (2002). Generally speaking, our courts use the term “standing” to refer to a party's right to have a court decide the merits of a dispute. Neuse River Foundation,Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002). “Standing most often turns on whether the party has alleged 'injury in fact' in light of the applicable statutes or case law.” Id. In the case sub judice, once the trial court found plaintiff's license was revoked pursuant to N.C. Gen. Stat. § 20- 138.5, plaintiff lacked standing to pursue the constitutional issues raised in his complaint concerning N.C. Gen. Stat. § 20- 19(e).
    We conclude that the trial court did not err in concluding 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 do not 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 hold that the trial court did not err in dismissing plaintiff's claim on the merits based on lack of subject matter jurisdiction.
    Affirmed.
    Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).


Footnote: 1
    Plaintiff filed suit against Lyndo Tippett as Secretary of the Division of Motor Vehicles and the North Carolina Department of Transportation. There is no secretary of the Department of Motor Vehicles. Lyndo Tippett's official capacity and designation is Secretary of the North Carolina Department of Transportation.

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