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Cheek v. Clay Bulloch Construction Inc.

Court of Appeals of Utah

November 17, 2016

Dennis Cheek, Appellant,
Clay Bulloch Construction Inc. and Clay Bulloch, Appellees.

         Fifth District Court, Cedar City Department The Honorable Paul D. Lyman No. 030500447

          J. Bryan Jackson, Attorney for Appellant

          V. Lowry Snow and W. Devin Snow, Attorneys for Appellees

          Judge Jill M. Pohlman authored this Opinion, in which Judges J. Frederic Voros Jr. and Kate A. Toomey concurred.


          POHLMAN, Judge

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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."

         ¶7 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."

         ¶8 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.

         ¶9 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).[1]Instead, Cheek remarked that Judge Eves's recusal "appears consistent with and perhaps driven by Informal Opinion 98-14."

         ¶10 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 ...

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