Jonathan T. Garaas, Appellant
Cass County Joint Water Resource District, a political subdivision of the State of North Dakota, Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Debbie Gordon Kleven, Judge.
Jonathan T. Garaas, DeMores Office Park, 1314 23rd St. S.,
Fargo ND 58103-3796, appellant.
Christopher M. McShane (argued) and Andrew D. Cook (on
brief), 90113th Ave. E., P.O. Box 458, West Fargo, ND
58078-0458, for appellee.
1] Jonathan T. Garaas appeals after a district court entered
a judgment of dismissal for lack of subject matter
jurisdiction. Garaas argues the district court erred
dismissing his case because its subject matter jurisdiction
was invoked when he filed a notice of appeal in the district
court. We conclude the district court did not misapply the
law finding the case was not properly brought before the
court. The judgment dismissing the case is affirmed.
2] On May 14, 2015, the Cass County Joint Water District
("District") ordered the establishment of an
assessment district to fund the development, operation and
maintenance of a Fargo-Moorhead flood risk management project
under N.D.C.C. ch. 61-16.1. On June 12, 2015, Garaas filed
with the district court a notice of appeal from the decision
of a local governing body under N.D.C.C. § 28-34-01. On
June 16, 2015, a Cass County deputy sheriff served
Garaas' notice of appeal on the District's
secretary-treasurer, Carol Harbeke Lewis. Lewis is not a
member of the District's governing board. On June 18,
2015, attorneys from Ohnstad Twichell, P.C., served Garaas a
notice of appearance in the case. On June 25, 2015, the
deputy sheriff's return was served on the District's
attorneys and filed in the district court.
3] On July 2, 2015, the District moved to dismiss the case
for lack of jurisdiction. On July 16, 2015, a Cass County
deputy sheriff served Garaas' notice of appeal on
District board member, Mark Brodshaug. On November 24, 2015,
the district court dismissed Garaas' claim for lack of
subject matter jurisdiction, finding he failed to perfect his
appeal by properly serving the notice of appeal on a board
member as required by N.D.C.C. § 28-34-01. Garaas
appeals the district court's judgment of dismissal.
4] Garaas argues the district court acquired subject matter
jurisdiction when he timely filed the notice of appeal.
"As a prerequisite to issuing a valid order or judgment,
a court must have both subject matter and personal
jurisdiction." Trottier v. Bird, 2001 ND 177,
¶ 5, 635 N.W.2d 157. "Subject-matter jurisdiction
is the court's power to hear and determine the general
subject involved in the action...." Albrecht v.
Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d
583. "Issues involving subject matter jurisdiction
cannot be waived and can be raised sua sponte at any
time." Earnest v. Garcia, 1999 ND 196, ¶
7, 601 N.W.2d 260.
5] "For subject-matter jurisdiction to attach, 'the
particular issue to be determined must be properly brought
before the court in the particular proceeding.'"
Albrecht, 1998 ND 132, ¶ 11, 580 N.W.2d 583.
North Dakota Rule of Civil Procedure 12(h)(3) compels the
district court to dismiss an action whenever it appears the
court lacks jurisdiction of the subject matter. In this case,
the district court dismissed the appeal finding subject
matter jurisdiction did not attach because Garaas failed to
properly bring the action before the court according to the
provisions in N.D.C.C. § 28-34-01.
6] "When jurisdictional facts are not disputed, the
issue of subject matter jurisdiction is a question of law,
which we review de novo." In re Estate of
Vaage, 2016 ND 32, ¶ 14, 875 N.W.2d 527. Section
28-34-01, N.D.C.C., provides in relevant part:
"Appeals from local governing bodies--Procedures.
This section, to the extent that it is not inconsistent with
procedural rules adopted by the North Dakota supreme court,
governs any appeal provided by statute from the decision of a
local governing body, except those court reviews provided
under sections 2-04-11 and 40-51.2-15. For the purposes of
this section, 'local governing body' includes any
officer, board, commission, resource or ...