District Court, Cedar City Department The Honorable Paul D.
Lyman No. 030500447
Bryan Jackson, Attorney for Appellant
Lowry Snow and W. Devin Snow, Attorneys for Appellees
Jill M. Pohlman authored this Opinion, in which Judges J.
Frederic Voros Jr. and Kate A. Toomey concurred.
This dispute arose more than a decade ago based on
allegations that certain buildings were constructed
improperly and partially on the wrong property. After years
of back-and-forth between the parties, the litigation
culminated in a bench trial, after which the trial court
rejected all claims and dismissed the case. This appeal
followed, raising two questions: (1) whether the trial judge
erred by hearing the case rather than voluntarily recusing or
certifying the question of recusal for review by another
judge, and (2) whether the trial court erred in dismissing
the claims. We affirm.
Dennis Cheek hired Clay Bulloch and Clay Bulloch Construction
Inc. (collectively, Bulloch) to construct a building in Cedar
City, Utah, referred to as the Sears building. Cheek later
rehired Bulloch to construct an addition to that building.
The parties had no comprehensive written construction
contract for either project.
After construction of the addition was completed, Cheek sued
Bulloch for breach of contract, loss of income, and attorney
fees. Cheek alleged that the Sears building encroached on
adjacent property Cheek did not own. Cheek also alleged that
neither structure was built according to specifications,
resulting in significant damage. Bulloch answered, contending
that the building and addition were built as instructed by
Cheek. Bulloch also counterclaimed, seeking to foreclose its
mechanic's lien and alleging, among other things, unjust
enrichment and breach of contract based on Cheek's
alleged failure to pay in full.
The case was initially assigned to Judge J. Philip Eves. But
Judge Eves voluntarily recused himself, stating that
"[t]he case will be referred to a judge outside of the
Fifth District." While Judge Eves did not explain his
recusal or referral, Cheek surmised that those steps were
taken because defendant Clay Bulloch was married to the Fifth
District Clerk of Court.
The case then was specially assigned to Judge Paul D. Lyman
of the Sixth District. Yet the case was pursued with so
little activity that in 2010, nearly seven years after it was
filed, Judge Lyman dismissed the matter for failure to
prosecute. On appeal this court reversed, stating that while
the case had "clearly [been] on the slow track, "
and concern over that snail's pace was understandable,
the evidence of correspondence between the parties and other
extrajudicial progress warranted a less aggressive action,
such as setting a "'drop dead' date by which
Cheek [would be] required to take specified actions on pain
of having the case dismissed." Cheek v. Clay Bulloch
Constr., Inc., 2011 UT App 418, ¶¶ 14, 18-19,
269 P.3d 964.
The case returned to the trial court where, again, little
visible progress was made. Cheek then filed a "Motion to
Determine Application of Existing Order" based on Judge
Eves's recusal and referral. Cheek stated that it had
"come to [his] attention" that Judge Lyman was
"now serving" as a judge within the Fifth District.
Cheek then asked for a determination whether "the
existing Order requires reassignment to a judge outside of
the Fifth District."
In support of his motion, Cheek submitted a copy of the Utah
State Court Directory for the Fifth District, which listed
Judge Lyman as a Fifth District Court judge and defendant
Clay Bulloch's wife as Clerk of Court for the Fifth
District and Juvenile Courts. Cheek asserted that, while
"not aware of the timing of the Honorable Paul Lyman
being designated or assigned as [a] sitting Judge in the
Fifth District[, ]" he "believe[d] it [was]
relatively recent and not a matter of years."
Cheek also attached an informal opinion of the Utah State Bar
Ethics Advisory Committee, which addressed disqualification
in proceedings involving judicial employees' relatives or
household members. See Utah State Bar Ethics
Advisory Committee, Informal Op. 98-14 (1998). In its
opinion, the Committee advised disqualification in
proceedings involving a member of a judicial employee's
immediate family or household, if that employee "has a
close working relationship with the judge." Id.
The Committee presumed that a judge would have a "close
working relationship" with "the judge's clerk,
bailiff, and reporter; the clerk of the court; and the trial
court executive." Id.
Cheek did not argue for Judge Lyman's recusal nor did
Cheek move to disqualify Judge Lyman under rule 63 of the
Utah Rules of Civil Procedure. See Utah R. Civ. P.
63(b)(1) (2013) (providing that a party may "file a
motion to disqualify a judge" and setting forth the
requirements for filing such a motion).Instead, Cheek remarked that Judge
Eves's recusal "appears consistent with and perhaps
driven by Informal Opinion 98-14."
Judge Lyman addressed Cheek's motion by concluding that
no "order" required the case to be heard by a judge
outside the Fifth District. Judge Lyman also explained that
he had been "assigned to handle the district court in
Beaver County and other domestic cases throughout the [Fifth
District] during 2013, " but that assignment did ...