Cheek v. Clay Bulloch Construction Inc.
387 P.3d 611
Utah Ct. App.2016Background
- Cheek hired Bulloch (and Bulloch Construction) to build a Sears building and later an addition; there was no comprehensive written construction contract.
- Cheek sued alleging breach of contract, construction defects, encroachment onto adjacent property, loss of income, and sought attorney fees; Bulloch counterclaimed to foreclose a mechanic’s lien and for unpaid contract sums.
- The case was initially assigned to Judge Eves, who voluntarily recused and said the case would be assigned outside the Fifth District; later the case was assigned to Judge Paul Lyman, who had been assigned to work in the Fifth District by administrative order.
- Cheek filed a Motion to Determine Application of Existing Order asserting Judge Lyman should not hear the case because the defendant’s wife was Clerk of the Fifth District Court and citing an ethics advisory opinion suggesting disqualification when a judge has a close working relationship with a court employee’s family member.
- Cheek did not move to disqualify under Utah R. Civ. P. 63, did not file the required affidavit or certificate of good faith, and waited months after learning of the assignment; Judge Lyman denied relief.
- After a five-day bench trial, Judge Lyman found for Bulloch and dismissed Cheek’s claims; Cheek appealed arguing (1) error in judge’s failure to recuse/follow Rule 63 and (2) errors in dismissing breach-of-contract claims.
Issues
| Issue | Plaintiff's Argument (Cheek) | Defendant's Argument (Bulloch) | Held |
|---|---|---|---|
| Whether the trial judge erred by not recusing or certifying the recusal question under Utah R. Civ. P. 63 | Cheek argued appearance of partiality because judge served in the Fifth District where defendant’s wife was clerk and cited ethics opinion; asked judge to self-recuse | Bulloch argued Cheek failed to invoke Rule 63, failed to file affidavit/certificate, and waived the issue | Court held Cheek waived Rule 63 protections by not timely moving for disqualification and not filing required affidavit/certificate; no substantive review granted |
| Whether the judge’s impartiality might reasonably be questioned based on administrative assignment and the ethics advisory opinion | Cheek relied on Informal Op. 98-14 (disqualification where judge has close working relationship with employee’s family/household member) to argue recusal was required | Bulloch (and court) noted the advisory opinion is not dispositive and that factual record was insufficient to show the judge’s impartiality could reasonably be questioned | Court declined de novo review absent a preserved Rule 63 motion and factual record; judges are presumed qualified and appellant bears burden to show disqualification |
| Whether the trial court erred in dismissing Cheek’s breach-of-contract and related claims | Cheek asserted various contract theories (implied-in-fact, incorporated specifications, integrated contract) and complained about how trial court considered evidence and proposed findings | Bulloch relied on trial court’s factual findings rejecting Cheek’s proofs and on appellant’s failure to properly brief errors on appeal | Court refused to consider substantive contract claims because Cheek’s appellate brief inadequately developed legal argumentation and failed to challenge specific findings |
| Whether any extraordinary or plain-error exception preserved Cheek’s unpreserved recusal claim | Cheek suggested appearance-based error and reliance on ethics guidance might justify review despite procedural defects | Bulloch argued normal waiver rules should apply and no extraordinary circumstances justified bypassing Rule 63 | Court noted exceptions exist but appellant did not argue plain error or extraordinary circumstances; thus waiver stands |
Key Cases Cited
- Camco Constr., Inc. v. Utah Baseball Academy, Inc., 243 P.3d 1269 (Utah 2010) (motions for disqualification are governed by Rule 63 and timeliness/requirements cannot be bypassed by relabeling motions)
- In re Affidavit of Bias, 947 P.2d 1152 (Utah 1997) (procedure for seeking additional information from subject judge in disqualification proceedings)
- Madsen v. Prudential Fed. Sav. & Loan Ass’n, 767 P.2d 538 (Utah 1988) (appearance of bias suffices for disqualification and parties must not manipulate recusal rules for tactical advantage)
- Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992) (Code of Judicial Conduct and ethics opinions inform disqualification analyses)
- Gardner v. Madsen, 949 P.2d 785 (Utah Ct. App. 1997) (trial judge’s only options on a proper affidavit are to grant disqualification or certify it for review)