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.
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.
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
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,
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
his 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,
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-
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.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).