Manning v. Utah

----ooOoo----

Carolyn R. Manning,
Petitioner,

vs.

Utah Department of Commerce, State of Utah,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990122-CA

F I L E D
April 15, 1999

1999 UT App 122 -----

Original Proceeding in this Court

Attorneys:
Carolyn R. Manning, Salt Lake City, Petitioner Pro Se
Jan Graham and Tony R. Patterson, Salt Lake City, for Respondent

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

This matter is before the court on respondent's motion for summary disposition. We grant the motion and affirm the Department of Commerce (hereinafter the "agency.")

Petitioner seeks reversal of an order of the agency denying her request for agency review of an order of the Real Estate Commission. The agency denied her request on the ground that the request was not timely filed pursuant to Utah Code Ann. § 63-46b-14 (1997), that no good cause for the delay was demonstrated, and that the agency, therefore, lacked jurisdiction to entertain the request.

The law regarding time limits for invoking review of agency action is set forth in the Utah Administrative Procedures Act. The time periods set forth therein are strictly construed. Dusty's Inc. v. Auditing Div., 842 P.2d 868, 870 (Utah 1992). Section 63-46b-12 provides that a request for agency review must be filed within 30 days after the issuance of the order sought to be reviewed. The 30 day period may be extended upon a showing of good cause. Maverik Country Stores v. Industrial Comm'n, 860 P.2d 944, 950 (Utah Ct. App. 1993). See also Utah Code Ann. § 63-46b-1(9) (1997) (aggrieved party may request agency to extend time periods prescribed in the Act). Absent a showing of good cause for an extension, the request must be delivered to the agency within the thirty day time limit in order for the agency to take jurisdiction over the request. Maverik, 860 P.2d at 950.

"[T]he date the order constituting the final agency action issues is the date the order bears on its face." Dusty's Inc., 842 P.2d at 870 (emphasis in original). See also Buczynski v. Industrial Comm'n, 917 P.2d 552, 554 (Utah 1996) (agency's determination of issue date as date on face of order is binding). Moreover, "filing" requires actual delivery to the agency. Maverik, 860 P.2d at 950. In the case at hand, the order sought to be reviewed issued on December 9, 1998. The request for review was not delivered to the agency until January 11, 1999, more than thirty days after the issuance of the order. Accordingly, the agency did not err in determining that the request was untimely and that it lacked jurisdiction to hear the request. Moreover, the agency did not act unreasonably in refusing to extend the filing deadline in light of petitioner's complete failure to explain the delay.(1)See Maverik, 860 P.2d at 950 (dismissal proper where petitioner filed request for review with agency one day late and failed to articulate any facts on which to base a good cause determination for extending the deadline). Indeed, there was nothing in the record before the agency to support a finding of good cause for an extension.

Based upon the foregoing, we affirm the order of the agency denying petitioner's request for review.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Norman H. Jackson, Judge

1. In her petition for judicial review and her docketing statement, petitioner attempts to set forth facts to support a finding of good cause to excuse her untimely filing and to support her assertion of irreparable harm. However, petitioner failed to raise these facts or arguments before the agency. "Issues not raised in proceedings before administrative agencies are not subject to judicial review except in exceptional circumstances." Brown & Root Indus. v. Industrial Comm'n, 947 P.2d 671, 672 (Utah 1997). No reason has been suggested why an exception should be made here.