IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36642
In the Matter of the License of: )
Timothy Williams, License No. CGA-193. ) Boise, August 2010 Term
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TIMOTHY WILLIAMS, ) 2010 Opinion No. 97
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Petitioner-Appellant, ) Filed: September 7, 2010
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v. ) Stephen W. Kenyon, Clerk
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STATE OF IDAHO, BOARD OF REAL )
ESTATE APPRAISERS, a department within )
the State of Idaho, )
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Respondent. )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, in and for Ada County. The Hon. D. Duff McKee, District Judge.
The judgment of the district court is vacated.
Trout Jones Gledhill Fuhrman, P.A., Boise, for appellant. Kimbell D. Gourley
argued.
Naylor & Hales, P.C., for respondent. James R. Stoll argued.
EISMANN, Chief Justice.
This is an appeal from the district court’s decision on a petition for judicial review
affirming an administrative order denying appellant’s motion to dismiss the administrative
proceedings instituted against him. Because there is no final order in the administrative
proceedings, we vacate the decision of the district court and dismiss this appeal.
I. FACTS AND PROCEDURAL HISTORY
In 1990, the legislature enacted the Idaho Real Estate Appraisers Act, Idaho Code §§ 54-
4101 to 54-4119. When doing so, it created the Real Estate Appraiser Board (Board) to
administer the Act’s provisions. Idaho Code § 54-4106(1). The Act empowered the Board to
investigate the actions of any state certified real estate appraiser and to suspend or revoke the
appraiser’s certification for specified reasons. Idaho Code § 54-4107(1). The Act also granted
the Board the power to “authorize, by written agreement, the bureau of occupational licenses to
act as its agent in its interest.” Idaho Code § 54-4106(2)(a). Pursuant to that authority, on
October 18, 2004, the Board entered into a written agreement with the Bureau of Occupational
Licenses (Bureau). That agreement included a provision stating that the Bureau “shall conduct
investigations of complaints within the Board’s authority.”
On January 20, 2005, the Bureau received a letter alleging misconduct by Timothy
Williams, a licensed real estate appraiser. The Bureau conducted an investigation and then filed
a complaint with the Board alleging nine counts of wrongful conduct by Williams. Williams
moved to dismiss those allegations in the complaint that arose from the investigation prompted
by the letter. The motion did not specify which allegations should be dismissed, but during oral
argument on appeal Williams’s counsel stated it would be seven of the nine counts. At the time
the investigation was commenced, the Act provided that the Board “shall upon a written sworn
complaint or may upon its own motion investigate the actions of any state certified real estate
appraiser.” Ch. 82, § 1, 1990 Idaho Sess. Laws 164, 168 (current version at Idaho Code § 54-
4107(1)).1 Williams contended that any counts based upon an investigation that was not
prompted by either a sworn complaint or a formal motion and vote by the Board must be
dismissed. The Board’s hearing officer recommended that the motion to dismiss be denied. The
Board issued an order adopting that recommendation and stating that it was a final order.
On November 21, 2008, Williams filed a petition for judicial review asking the district
court to dismiss with prejudice all claims alleged against him by the Board on the ground that the
investigation into his alleged misconduct had not been initiated according to law. The district
court held that the Board had properly delegated to the Bureau the discretion to initiate
investigations. It affirmed the denial of Williams’s motion to dismiss, and he then timely
appealed to this Court.
1
The statute was amended in 2008 to provide, “The board may refuse to issue, refuse to renew or may suspend,
revoke or otherwise sanction any license or certificate issued under this chapter for any of the following: . . . .” Ch.
108, § 1, 2008 Idaho Sess. Laws 305, 306.
2
II. ANALYSIS
The controlling issue on this appeal is whether the Board’s order denying Williams’s
motion to dismiss is an appealable order. The Board has not moved to dismiss the appeal or
otherwise raised the issue. “[S]ince the question is jurisdictional (in a procedural sense) it is one
which we must act upon whenever and however it comes to our attention.” State ex rel. State
Bd. of Medicine v. Smith, 80 Idaho 267, 268, 328 P.2d 581, 581 (1958). This Court will, sua
sponte, dismiss for lack of jurisdiction an appeal that is taken from a non-appealable order.
Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008).
The Board is an “agency” under the Idaho Administrative Procedure Act (IAPA). Idaho
Code § 67-5201(2). Judicial review of agency action is governed by IAPA unless there is
another provision of law applicable to the particular matter. Idaho Code § 67-5270(1). No one
contends that there is some other provision of law granting the right to judicial review in this
case.
Williams is seeking judicial review of the Board’s order denying his motion to dismiss.
That order stated, “This is the Final Order of the Board.” It also stated, “Pursuant to Idaho Code
Sections 67-5270 and 57-5272, any party aggrieved by this Final Order . . . may appeal this Final
Order . . . to district court by filing a petition in the district court . . . .” An order is not a final
order merely because the agency states that it is. Erickson v. Idaho Bd. of Registration of Prof’l
Eng’rs and Prof’l Land Surveyors, 146 Idaho 852, 854, 203 P.3d 1251, 1253 (2009). “The real
character of a written instrument is to be judged by its contents and substance, not by its title.”
Swinehart v. Turner, 36 Idaho 450, 452, 211 P. 558, 559 (1922). Idaho Code § 67-5270(1)
provides, “Judicial review of agency action shall be governed by the provisions of this chapter . .
. .” (Emphasis added.) Thus, regardless of whether the agency states that a particular order is
subject to judicial review, it is reviewable by a district court under IAPA only if that Act so
provides.
The Board stated that its order was appealable pursuant to “Idaho Code Sections 67-5270
and 57-5272.” Because there is no section 57-5272 in the Idaho Code, it undoubtedly intended
section 67-5272. That statute governs the venue of petitions for judicial review; it does not
specify what agency actions are reviewable. Thus, the issue is whether Idaho Code § 67-5270
authorizes judicial review of the Board’s order.
3
The proceedings against Williams were a “contested case” under IAPA. Idaho Code §
67-5240. Under Idaho Code § 67-5270(3), a party can obtain judicial review of “a final order in
a contested case.” An “order” is defined as “an agency action of particular applicability that
determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or
more specific persons.” Idaho Code § 67-5201(12). Assuming that the order denying
Williams’s motion to dismiss would constitute an “order” under this definition, it was not a final
order.
IAPA does not expressly define what constitutes a final order for the purposes of judicial
review. However, Idaho Code § 67-5271 provides guidance. Subsection (1) states, “A person is
not entitled to judicial review of an agency action2 until that person has exhausted all
administrative remedies required in this chapter.” Under this subsection, a final order must be
one that is not subject to further administrative review. Subsection (2) states, “A preliminary,
procedural, or intermediate agency action or ruling is immediately reviewable if review of the
final agency action would not provide an adequate remedy.” This subsection distinguishes
between a “preliminary, procedural, or intermediate agency action or ruling” and “final agency
action.” In this context, “intermediate” has the same meaning as “interlocutory.” The definition
of “interlocutory order” is “[a]n order that relates to some intermediate matter in the case; any
order other than a final order.” Black’s Law Dictionary 1123 (7th ed. 1999). Likewise, in
Newell v. Newell, 77 Idaho 355, 362, 293 P.2d 663, 667 (1956), we stated, “Interlocutory means
provisional, only temporary, not final; not a final decision of the whole controversy; made or
done during the progress of an action: intermediate order.”
In Evans State Bank v. Skeen, 30 Idaho 703, 705, 167 P. 1165, 1166 (1917), we explained
the difference between a final judgment and an interlocutory or intermediate order as follows:
A final judgment has been defined to be one which disposes of the
subject-matter of the controversy or determines the litigation between the parties
on its merits. A judgment, order, or decree which is intermediate or incomplete
and, while it settles some of the rights of the parties, leaves something remaining
to be done in the adjudication of their substantial rights in the case by the court
entertaining jurisdiction of the same, is interlocutory.
2
“Agency action” includes an order. Idaho Code § 67-5201(3)(a).
4
We have held, “As a general rule, a final judgment is an order or judgment that ends the
lawsuit, adjudicates the subject matter of the controversy, and represents a final determination of
the rights of the parties.” Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 867, 55 P.3d 304,
321 (2002). The same requirement applies to a final order under Idaho Code § 67-5270(3). A
final order would be one that resolves all issues, or the last unresolved issue, presented in the
contested case so that it constitutes a final determination of the rights of the parties. If issues
necessary for a final determination of the parties’ rights remain unresolved, there is no final
order. Matter of Nagle, 126 Idaho 139, 140, 879 P.2d 602, 603 (1994).
An order simply denying a motion to dismiss is not a final order. Systems Assocs., Inc. v.
Motorola Communications and Electronics, Inc., 116 Idaho 615, 617, 778 P.2d 737, 739 (1989).
The order denying Williams’s motion to dismiss was not a final order because it did not
determine or dismiss the issues of misconduct alleged in the complaint. Jensen v. Pillsbury Co.,
121 Idaho 127, 823 P.2d 161 (1992). In fact, it did not determine any of those issues. See
Thornton v. Hickox, 126 Idaho 474, 475, 886 P.2d 779, 780 (1994) (“[T]he denial of the motion
to dismiss did not dispose of any claim.”). The order would only be reviewable in connection
with a petition for judicial review of the final order ultimately entered.3 Blaha v. Eagle City
Council, 134 Idaho 768, 770, 9 P.3d 1234, 1236 (2000).
There is a reason why a petition for judicial review cannot be granted with respect to any
intermediate order that the agency decides to label as final. Over 100 years ago, we explained
the adverse consequence of the view that all interlocutory orders of the district court should be
immediately appealable to this Court. “If that view prevailed, there would be no such thing as
reaching a final judgment in a trial court in a contested case in any reasonable length of time.”
Utah Ass’n of Credit Men v. Budge, 16 Idaho 751, 757-58, 102 P. 390, 392 (1909). That
reasoning also applies to orders issued in contested administrative proceedings. The Board
issued its order November 6, 2008. Had it not attempted to make that order a final order so that
Williams would be required to appeal if he wanted to preserve the issue, this matter would
probably already be resolved. The Board’s action has simply delayed the resolution of the
allegations against Williams.
3
There is no indication that review of the final order ultimately entered would not provide Williams with an
adequate remedy. Idaho Code § 67-5271(2).
5
Because the district court did not have jurisdiction to hear the petition for judicial review,
we vacate its decision. We likewise do not have jurisdiction to decide the issues raised and must
dismiss this appeal. We therefore do not address any of the issues raised by the parties on
appeal.
III. CONCLUSION
We vacate the decision of the district court and dismiss this appeal. We remand this case
to the district court with instructions to dismiss the petition for judicial review without prejudice.
We do not award costs or attorney fees on appeal.
Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.
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