Strate v. Labor Commission

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Strate v. Labor Commission, Case No. 20010610-CA, Filed October 18, 2001, 2001 UT App 301 IN THE UTAH COURT OF APPEALS

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Walther W. Strate,
Petitioner,

v.

Labor Commission;
Steve Strate Crane Service, Inc.;
and Employers' Reinsurance Fund,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010610-CA

F I L E D
October 18, 2001 2001 UT App 301 -----

Original Proceeding in this Court

Attorneys:
Virginius Dabney, St. George, for Petitioner
Alan L. Hennebold, Salt Lake City, for Respondent Labor Commission
Edwin C. Barnes, Walter A. Romney, Jr., and Sherry Hayashi, Salt Lake City, for Respondent Employers' Reinsurance Fund -----

Before Judges Greenwood, Jackson, and Bench.

PER CURIAM:

This matter is before the court on a sua sponte motion for summary dismissal pursuant to Rule 10 of the Utah Rules of Appellate Procedure. Petitioner seeks review of an agency order disqualifying his counsel and remanding the matter for further findings on other issues. However, the order issued by the agency is not final agency action subject to review by this court. See Barker v. Public Serv. Comm'n, 970 P.2d 702 (Utah 1998);Barney v. Div. of Occupational & Prof'l Licensing, 828 P.2d 542, 543-44 (Utah Ct. App. 1992) (per curiam); Sloan v. Bd. of Review, 781 P.2d 462 (Utah Ct. App. 1989) (per curiam).

In Barker, the Utah Supreme Court concluded that an order that is "preliminary, preparatory, procedural, or intermediate" is not a final order. Id. 970 P.2d at 706. An order disqualifying counsel is not determinative of the dispute. Disqualification of counsel actually assists in resolving the issue in dispute, specifically, whether Employers' Reinsurance Fund knew or should have known the injured worker had died prior to settlement because former counsel could testify about the issue. Moreover, the order of remand in this case is similar to the agency order in Sloan, which sought review of an agency order remanding a case to an administrative law judge for further proceedings. See Sloan, 781 P.2d at 464. The order was not considered to be a final agency action for purposes of judicial review. The order denying review and remanding for proceedings is procedural and does not finally resolve any issue pending in the case. Therefore, this court does not have jurisdiction to address the claim. Rule 5 of the Utah Rules of Appellate Procedure addresses appeals from interlocutory orders. However, Rule 18 states that all rules are applicable to agency orders "except that Rules 3 through 8 are not applicable."

The petition for review is dismissed, without prejudice to a timely petition for review filed after entry of an order constituting final agency action.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge