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DuPaul v. North Dakota Dep't of Transportation12/23/2003
t in the particular proceeding.'" Trottier v. Bird, 2001 ND 177, 6, 635 N.W.2d 157 (quoting Albrecht v. Metro Area Ambulance, 1998 ND 132, 11, 580 N.W.2d 583). If a district court does not have subject-matter jurisdiction, it is compelled to dismiss the action. N.D.R.Civ.P. 12(h)(3).
[ ] A motorist may challenge an administrative ruling in one of two ways. The decision may be immediately appealed to a district court, under N.D.C.C. § 39-20-06. In the alternative, the motorist may file a petition for reconsideration with the Department under N.D.C.C. § 28-32-40(1). If the motorist files a petition for reconsideration, and such reconsideration is denied, the motorist may then appeal that ruling to the district court within thirty days after receiving notice of denial, under N.D.C.C. § 28-32-42(1).
[ ] After the Department received DuPaul's September 12, 2002, letter, the hearing officer sent notification to DuPaul informing him the Department had concluded DuPaul intended to request reconsideration under N.D.C.C. § 28-32-40(1). The hearing officer's notification also provided instructions regarding the reconsideration process. DuPaul did not correct the Department upon receipt of the notification of its interpretation of his request. DuPaul then participated in the reconsideration process. Upon receipt of the order denying reconsideration, DuPaul had thirty days to appeal the decision to the district court. See N.D.C.C. § 28-32-42(1). DuPaul failed to do so.
[ ] While DuPaul did contact the district court on October 30, 2002, this correspondence was not served on the Department. Even if DuPaul's October 30, 2002, correspondence could be considered notice of his appeal to the district court, the Department must also be given notice of such appeal before it is perfected. See N.D.C.C. § 28-32-42(4).
[ ] DuPaul's September 12, 2002, letter does not appear to request both reconsideration of the hearing officer's decision and an appeal to the district court. In fact, DuPaul requested an appeal "as a second choice" to reconsideration. DuPaul then continued with the reconsideration process after receiving the Department's clarifying letter. Even if DuPaul could successfully argue he requested both reconsideration and an appeal in his one document, there is nothing within our statutory scheme allowing a motorist to simultaneously request reconsideration and appeal the decision to the district court. There is also no prior case law indicating this type of action properly perfects an appeal to the district court.
[ ] The district court properly dismissed DuPaul's appeal for lack of subject-matter jurisdiction. We have considered the other issues DuPaul raised on appeal and find them without merit. Accordingly, we affirm.
[ ] William A. Neumann
Mary Muehlen Maring
Dale V. Sandstrom
Gordon O. Hoberg, S.J.
Gerald W. VandeWalle, C.J.
[ ] The Honorable Gordon O. Hoberg, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
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