concurring specially:
I concur with the majority opinion’s affirming the trial court’s dismissal of the complaint filed by the appellants. However, I disagree with this Court’s proviso that, “The dismissal will be without prejudice to the filing of a petition for review by the district court or complaint for damages, or both, after the Palmers have exhausted their administrative remedies.”
My basic disagreement with the Court’s opinion is with the opening description that, “This is a zoning case.” The attorney for the plaintiff appellants emphatically denied before the trial court that the complaint which he filed was a petition for review of a zoning decision. Rather, the plaintiff argued that this was a tort claim action filed against the county for its negligent handling of the plaintiffs’ building permit. Our cases have uniformly held that parties are bound by the theories to which they presented the case in the trial court. Ross v. Coleman, 114 Idaho 817, 761 P.2d 1169 (1988); Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983); Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406 (1941); Aetna Casualty & Surety Co. v. Wedgwood, 57 Idaho 682, 69 P.2d 128 (1937); Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 776, 22 P.2d 147, 150 (1933) (“[T]he parties to an action are bound by the theories on which they try it.”). Since the plaintiff clearly advised the trial court that his action was in tort, and was not a petition for review of a zoning decision, this Court ought to review only one issue on appeal, and that is whether or not the trial court properly granted summary judgment because there was no evidence to support a tort claim against the county.
The majority affirms the trial court’s dismissal, but on the basis that the Palmers did not exhaust their administrative zoning remedies before bringing the action, which in effect is treating plaintiffs’ complaint as a petition for review of an administrative zoning decision under Administrative Procedures Act, I.C. § 67-6519; I.C. § 67-5215(b)-(g). However, since appellants took the position in the trial court that their complaint was asserting a tort claim, and was not a petition for review of a zoning decision, the trial court did not err in dismissing with prejudice the only claim that was before it, i.e., the tort claim against the county.