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Stenstrom v. State12/20/1996
eing filed in district court. Where a petitioner has failed to first file with the Department of Administration, the district court lacks jurisdiction to review the matter. Cottonwood Hills, Inc. v. State Dep't of Labor (1989), 238 Mont. 404, 777 P.2d 1301 (dismissing a tort claim when brought with a petition for judicial review for failure to first file with the Department of Administration).
Stenstrom has presented no evidence that he filed his tort claim with the Department of Administration. Instead, he points out that the Department has 120 days in which to respond to a claim, and argues that if he had filed his claim with the Department before filing his petition for judicial review, he would not have been able to meet the alleged thirty-day deadline in which to perfect his judicial review. However, ยง 2-9-301(2), MCA, provides that the 120-day period tolls the statute of limitation for that time, and thus Stenstrom's thirty days would not begin to run until after the Department of Administration ruled on his claim or until the 120-day period expired.
Because Stenstrom failed to first file his tort claims with the Department of Administration, the District Court was correct in dismissing his tort claims and we need not address the issue of whether Stenstrom's tort claims should be dismissed for failure to join indispensable parties.
Conclusion
We reverse the District Court's dismissal of Stenstrom's Notice of Appeal of the ALJ's June 29, 1995 Order setting support. We reverse the District Court's dismissal of Stenstrom's request for immediate judicial review of the ALJ's May 1, 1995 Order. We affirm the District Court's dismissal of Stenstrom's tort claims in his "Complaint for Relief Jury Demand." We remand to the District Court for judicial review of both the June 29, 1995 Order and the May 1, 1995 Order of the ALJ in conformity with this decision.
JUSTICES TRIEWEILER, HUNT, NELSON and ERDMANN concur.
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