Hampton v. Utah Ins. Dept.

----ooOoo----

Glen R. Hampton
and GRH Holdings Insurance Agency,
Petitioners,

v.

Utah Insurance Department,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000796-CA

F I L E D
March 8, 2001 2001 UT App 76 -----

Original Proceeding in this Court

Attorneys:
Jeffrey B. Brown, Salt Lake City, for Petitioners
Mark L. Shurtleff, Bryce H. Petty, and Perri Ann Babalis, Salt Lake City, for Respondent

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Before Judges Jackson, Bench, and Davis.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal and on a motion for summary disposition filed by the respondent Utah Insurance Department ("Department").

The Order on Review, dated August 14, 2000, stated, in bold type: This order constitutes a final order of the Commissioner in the proceeding and any party aggrieved by the order may seek judicial review by filing a petition for judicial review with the appropriate appellate court within thirty days after the date the order is issued. Petitioners filed a Petition for Review in this court on September 14, 2000, thirty-one days after the date of the order.

Judicial review of the final agency action is governed by the Utah Administrative Procedures Act. Utah Code Ann. § 63-46b-14(3)(a) (1997) states an aggrieved party "shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued." The Department's notice of appeal rights incorporated this language. See Utah R. App. P. 14(a) (establishing a 30-day period for filing a petition for judicial review).

Petitioners contend that because "issued" is not defined by statute or rule, it should be equated with "mailed." They further argue they should be allowed an additional three days after mailing in which to file a petition for review. The Utah Supreme Court rejected this interpretation in Dusty's, Inc. v. Utah State Tax Comm'n, 842 P.2d 868 (Utah 1992) (per curiam), holding that "[f]or the guidance of all those who petition for judicial review, the date the order constituting the final agency action issues is the date the order bears on its face." Id. at 870; see also Bonded Bicycle Couriers v. Department of Employment Sec., 844 P.2d 358, 360 (Utah Ct. App. 1992) (per curiam) (stating Dusty's overruled case law from this court defining "issued" as "mailed"). Contrary to the Department's arguments, Rule 4 of the Utah Rules of Appellate Procedure does not apply. See Utah R. App. P. 18 (stating Rules 3 through 8 do not apply to agency cases); see also Utah Code Ann. § 63-46b-1(9) (1997) (precluding extension of time for filing a petition seeking judicial review of final agency action).

Both appellate courts have "strictly honored the statutory time limitation for filing a petition for judicial review of a final agency action under subsection 63-46b-14(3)(a)." Union Pac. R.R. Co. v. Utah State Tax Comm'n, 2000 UT 40,¶23, 393 Utah Adv. Rep. 31. Case law defines the date a decision "issues" as the date on the face of the order. There is no dispute that petitioners received notice from the agency that the time for filing a petition commenced on the date the order was "issued," incorporating the statutory language. The petition for review was not filed within the time allowed under section 63-46b-14(3)(a), and therefore this court lacks jurisdiction to consider the petition.

We dismiss the petition for review.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge