Cheek v. Clay Bulloch Construction, Inc.
269 P.3d 964
Utah Ct. App.2011Background
- Cheek sued Bulloch Construction for breach of a 2008 contract, alleging erection partly on another's property and defective construction.
- Bulloch counterclaimed to foreclose its mechanic's lien and asserted breach of contract and unjust enrichment for Cheek's alleged nonpayment.
- Discovery and communications stretched over six-plus years with intermittent activity and extensive delays.
- From March 2005 to late 2009 Cheek failed to obtain a scheduling order or consistent court-directed progress, while Bulloch intermittently engaged or delayed filing actions.
- In December 2009 Bulloch signaled a dismissal for failure to prosecute; Cheek filed a scheduling conference in January 2010; Bulloch moved to dismiss and the court granted, triggering an appeal.
- The Utah Court of Appeals reverses, finding abuse of discretion under the Westinghouse five-factor test and remands for trial or other appropriate proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court abuse discretion under Westinghouse in dismissing for failure to prosecute? | Cheek argues dismissal was premature given ongoing but slow progress. | Bulloch asserts prolonged inactivity and lack of prosecutorial effort justify dismissal. | No; the court abused its discretion. |
| Is Bulloch's counterclaim status relevant to Cheek's prosecution of the main claim? | Cheek contends Bulloch's counterclaim should not dictate Cheek's prosecution pace. | Bulloch claims its counterclaim collaboration affected overall prosecution. | Irrelevant to Cheek's prosecution; reversal warranted. |
Key Cases Cited
- Hartford Leasing Corp. v. State, 888 P.2d 694 (Utah Ct.App.1994) (review of dismissal for failure to prosecute favors trial court discretion)
- Meadow Fresh Farms, Inc. v. Utah State Univ., 813 P.2d 1216 (Utah Ct.App.1991) (five-factor Westinghouse test applied)
- Westinghouse Elec. Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975) (origin of Westinghouse factors for dismissal for failure to prosecute)
- PDC Consulting, Inc. v. Porter, 196 P.3d 626 (Utah App. 2008) (inactivity contributing to delays; defendant's participation limited)
- Country Meadows Convalescent Ctr. v. Utah Dep't of Health, 851 P.2d 1212 (Utah Ct.App.1993) (plaintiff bears primary responsibility to move case forward)
- Maxfield v. Rushton, 779 P.2d 237 (Utah Ct.App.) (caution against outright dismissal after long inactivity)