Cheek v. Clay Bulloch Construction Inc. ( 2016 )

2016 UT App 227THE UTAH COURT OF APPEALS
DENNIS CHEEK,
Appellant,
v.
CLAY BULLOCH CONSTRUCTION INC.
AND CLAY BULLOCH,
Appellees.
Opinion
No. 20150177-CA
Filed November 17, 2016
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.
Cheek v. Clay Bulloch Construction
BACKGROUND
¶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
20150177-CA 2 2016 UT App 227Cheek v. Clay Bulloch Construction
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)
20150177-CA 3 2016 UT App 227Cheek v. Clay Bulloch Construction
(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 not “make” him a “judge[] of the
receiving district.” 2
¶11 Dissatisfied, Cheek moved for reconsideration. Again,
Cheek did not invoke rule 63 or file a supporting affidavit. To
the contrary, Cheek pointed out that he had not filed a rule 63
motion and faulted Judge Lyman for mistakenly “engag[ing] in a
Rule 63(b) analysis” when interpreting Judge Eves’s recusal.
Cheek emphasized that Judge Eves had recused himself
voluntarily—without a motion being filed. Cheek asserted that
Judge Lyman, as an “‘acting’” Fifth District Court judge, was
under the same obligation to “self-polic[e]” his recusal
obligations, stating that “[t]his arrangement . . . arguably creates
the appearance [of a conflict] which the ethics opinion was
designed to address.”
1. Although rule 63 has since been amended, we cite the version
of the rule in effect in 2013, when Cheek’s Motion to Determine
Application of Existing Order was filed and ruled on by the trial
court.
2. Judge Lyman stated that his judicial assignment was issued on
December 11, 2012, pursuant to Utah Rule of Judicial
Administration 3-108. Although the ruling indicated that a copy
of the assignment was attached, no copy of the assignment
appears in the record.
20150177-CA 4 2016 UT App 227Cheek v. Clay Bulloch Construction
¶12 Judge Lyman was not persuaded. Noting that Cheek’s
motion was procedurally improper, Judge Lyman nevertheless
attempted to address its substance, concluding that Judge Eves’s
instruction was not an order and had been fulfilled when the
case was assigned to a judge outside the Fifth District; that Judge
Lyman was not a judge of the Fifth District; and that Judge
Lyman “ha[d] no working relationship” with the Clerk of the
Fifth District Court, rendering the informal ethics opinion
inapplicable. Judge Lyman expressed hope that his ruling
addressed Cheek’s concerns.
¶13 The case was eventually tried. Following a five-day bench
trial, Judge Lyman entered his findings of fact and conclusions
of law and dismissed all claims. Judge Lyman concluded, among
other things, that Cheek had failed to prove: that the building’s
intrusion onto adjacent property was Bulloch’s responsibility,
that the specifications at issue had been incorporated into the
parties’ agreement, that Bulloch had breached the parties’
agreement, and that Bulloch’s actions had caused damage to the
addition. Cheek appeals.
ISSUE AND STANDARD OF REVIEW
¶14 Cheek asserts that Judge Lyman erred by not voluntarily
recusing himself and not following the procedure set forth in
Utah Rule of Civil Procedure 63. “Whether a trial judge erred by
failing to recuse himself is a question of law that we review for
correctness.” Camco Constr., Inc. v. Utah Baseball Academy, Inc.,
2010 UT 63, ¶ 12, 243 P.3d 1269. 3
3. Cheek raises other issues, see infra ¶¶ 30–33, but our
conclusion that those issues are inadequately briefed obviates
the need to discuss in any detail the standards of review that
might apply to those issues.
20150177-CA 5 2016 UT App 227Cheek v. Clay Bulloch Construction
ANALYSIS
I. Recusal and Rule 63
¶15 Cheek first challenges the trial judge’s review and denial
of his Motion to Determine Application of Existing Order, which
questioned whether Judge Lyman should voluntarily recuse.
Cheek claims that because he raised the issue of recusal—albeit
without requesting external review or invoking rule 63 of the
Utah Rules of Civil Procedure—he may now challenge the
outcome at trial based on an alleged appearance of judicial bias
and failure to follow rule 63 procedures. We disagree.
¶16 Relying on an informal opinion of the Utah State Bar
Ethics Advisory Committee, which offered guidance regarding
the interpretation of the Utah Code of Judicial Conduct, Cheek
asserts Judge Lyman was required to recuse himself. Cheek does
not assert any actual prejudice, but claims an appearance of bias
such that Judge Lyman’s impartiality might reasonably have
been questioned. Cheek also asserts that, under rule 63 of the
Utah Rules of Civil Procedure, the question of recusal should
have been referred for “review and consideration by the
Presiding Judge.” But Cheek admits he never filed a motion
under rule 63. Indeed, Cheek affirmatively represented to Judge
Lyman that he had not filed a rule 63 motion and was appealing
to the judge’s “self-policing” duty to recuse.
¶17 A party may move for judicial disqualification under rule
63, which provides for precisely the type of external review
Cheek claims should have been afforded him in the trial court.
Under rule 63, a party may move for disqualification “after
commencement of the action, but not later than 20 days after . . .
the moving party learns or with the exercise of reasonable
diligence should have learned of the grounds upon which the
motion is based.” Utah R. Civ. P. 63(b)(1)(A), (B). The motion
“shall be accompanied by a certificate” of good faith and
“supported by an affidavit stating facts sufficient to show bias,
20150177-CA 6 2016 UT App 227Cheek v. Clay Bulloch Construction
prejudice or conflict of interest.” Id. R. 63(b)(1)(A). “The judge
against whom the motion and affidavit are directed shall,
without further hearing, enter an order granting the motion or
certifying the motion and affidavit” for review by another judge.
Id. R. 63(b)(2). As part of that process, the reviewing judge may
seek additional information from the subject judge relevant to
the alleged bias or conflict of interest. Id. R. 63(b)(3)(B); see also In
re Affidavit of Bias, 947 P.2d 1152, 1154–55 (Utah 1997)
(Zimmerman, J., sitting alone) (discussing the process of
directing the subject judge to provide additional evidence before
ruling on the affidavit filed in support of a rule 63 motion to
disqualify).
¶18 In those proceedings, an appearance of partiality may
result in disqualification. See, e.g., Dahl v. Dahl, 2015 UT 79, ¶ 49
(“A judge should be disqualified when circumstances arise in
which the judge’s impartiality might reasonably be questioned.”
(citation and internal quotation marks omitted)); Department of
Human Services v. Oddone, 2004 UT 8, ¶ 3, 84 P.3d 1170 (“The
moving party must only show a reasonable appearance of bias to
be entitled to recusal of the judge at issue.”); Madsen v. Prudential
Fed. Sav. & Loan Ass’n, 767 P.2d 538, 544 n.5 (Utah 1988) (“An
appearance of bias or prejudice is sufficient for disqualification
. . . .”); State v. West, 2001 UT App 275, ¶¶ 2–3, 34 P.3d 234 (per
curiam) (directing the reviewing judge to assess whether the
subject judge’s impartiality might reasonably be questioned).
¶19 And provisions in the Utah Code of Judicial Conduct, as
well as advisory opinions interpreting those ethical standards,
may provide guidance on disqualification issues. See, e.g.,
Oddone, 2004 UT 8, ¶ 3 (citing the Code of Judicial Conduct as
support for the “reasonable appearance of bias” disqualification
standard); Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252,
254–57 (Utah 1992) (looking to an informal ethics opinion for
guidance when interpreting a canon of the Code of Judicial
Conduct as a basis for disqualification); Madsen, 767 P.2d at 544
(“[The Code of Judicial Conduct] not only regulates judicial
20150177-CA 7 2016 UT App 227Cheek v. Clay Bulloch Construction
conduct, but it also seeks to avoid unfairness by insuring each
litigant an impartial judge.”); Gardner v. Madsen, 949 P.2d 785,
791–92 (Utah Ct. App. 1997) (reviewing whether the trial judge
erred in failing to recuse himself based in part on the Code of
Judicial Conduct standard of whether the judge’s “impartiality
might reasonably be questioned” (citation and internal quotation
marks omitted)); American Rural Cellular, Inc. v. Systems Commc’n
Corp., 939 P.2d 185, 195 n.12 (Utah Ct. App. 1997) (“The Utah
Supreme Court has found the provisions of the Code of Judicial
Conduct to have legal force.”).
¶20 Thus, had Cheek sought independent application of these
principles to the specifics of his case, he could have had it. All he
needed to do was move for disqualification in accordance with
rule 63. When presented with such a motion, “the judge has only
two options”—either grant the motion or certify it for review. See
Gardner, 949 P.2d at 791 n.4. However, failure to present such a
motion usually waives the issue. See, e.g., Campbell, Maack &
Sessions v. Debry, 2001 UT App 397, ¶ 24, 38 P.3d 984 (indicating
failure to comply with rule 63’s affidavit requirement waived the
issue of judicial bias, absent plain error or extraordinary
circumstances); Kleinert v. Kimball Elevator Co., 905 P.2d 297, 301
(Utah Ct. App. 1995) (“[Rule 63] requires that a party alleging
judicial bias or prejudice must first file an affidavit to that effect
in the trial court.” (citation and internal quotation marks
omitted)); Wade v. Stangl, 869 P.2d 9, 11 (Utah Ct. App. 1994)
(same).
¶21 To hold otherwise, as Cheek urges here, would create an
exception that would swallow the rule. Litigants could urge a
trial judge to recuse due to a suggested conflict of interest but
elect not to pursue a rule 63 motion for tactical reasons. They
could then simply wait and see. If they received an unfavorable
outcome, they could rush to appeal, asserting that while no
actual bias or prejudice existed, there was an appearance of
partiality and failure to follow rule 63 procedures. The Code of
Judicial Conduct is not “intended to be the basis for litigants to
20150177-CA 8 2016 UT App 227Cheek v. Clay Bulloch Construction
. . . obtain tactical advantages in proceedings before a court.”
Utah Code Jud. Conduct Scope [7] (2013). “A party who has a
reasonable basis for moving to disqualify a judge may not delay
in the hope of first obtaining a favorable ruling and then
complain only if the result is unfavorable. Not only is such a
tactic unfair,” it also unnecessarily disrupts “the judicial system
and [the] litigants.” Madsen, 767 P.2d at 542.
¶22 The Utah Supreme Court rejected a similar tactic in Camco
Construction, Inc. v. Utah Baseball Academy, Inc., 2010 UT 63, 243
P.3d 1269. In that case, a party waited “until long after it should
have known of possible grounds for disqualification” before
bringing the issue to the court’s attention. Id. ¶ 21. The party
then moved for disqualification, seeking judicial recusal but not
invoking rule 63. Id. ¶ 10. The subject judge denied the motion.
Id. That denial was appealed, but the Utah Supreme Court did
not reach the merits. Id. ¶ 15. The court held the motion untimely
under rule 63, which “governs motions for disqualification
whether the text of a party’s motion mentions the rule or not.”
Id. ¶¶ 15–16. As the supreme court pointed out, “parties cannot
file a motion for disqualification under another name to escape
rule 63’s” timeliness requirements. Id. ¶ 16 n.5.
¶23 The Utah Supreme Court thus declined to review the
motion to recuse or disqualify because, although not brought
under rule 63, the motion failed to meet the rule’s requirements.
Id. ¶¶ 16–22. Likewise, Cheek’s motion did not meet the
requirements of rule 63. There was no accompanying “certificate
that the motion [was] filed in good faith” nor a supporting
“affidavit stating facts sufficient to show bias, prejudice or
conflict of interest.” See Utah R. Civ. P. 63(b)(1)(A); cf. Rogers v.
M.O. Bitner Co., 738 P.2d 1029, 1035 (Utah 1987) (explaining that
rule 63 “requires . . . an affidavit stating the facts and the
reasons” underlying the claim of bias (internal quotation marks
omitted)). There were also unanswered questions regarding the
motion’s timeliness, which appears to have been filed more than
seven months after Judge Lyman was assigned to the Fifth
20150177-CA 9 2016 UT App 227Cheek v. Clay Bulloch Construction
District. See Utah R. Civ. P. 63(b)(1)(B) (requiring a party to move
for disqualification “not later than 20 days after . . . the moving
party learns or with the exercise of reasonable diligence should
have learned of the grounds upon which the motion is based”).
Cheek thus waived his claim of judicial bias. See supra ¶ 20; see
also Bagley v. KSM Guitars, Inc., 2012 UT App 257, ¶ 6 n.1, 290
P.3d 26 (noting that an appellant alleging judicial bias “never
filed a motion to disqualify . . . or took any other appropriate
action to preserve his claim for appeal”).
¶24 With regard to the lack of external review, Cheek’s waiver
was exacerbated when Cheek affirmatively represented that he
was not invoking rule 63, did not object to Judge Lyman ruling
on his motion, and never requested review of the recusal issue
by another judge. Thus, Cheek did not “present[] [the issue] to
the district court in such a manner that the court had a
meaningful opportunity to rule on it.” See Dahl v. Dahl, 2015 UT
79, ¶ 207 (citation and internal quotation marks omitted). 4
¶25 We acknowledge that there are circumstances in which,
despite the absence of a proper rule 63 motion, allegations of
judicial bias have been reviewed substantively on appeal. See,
e.g., id. ¶¶ 46, 57–61; Madsen v. Prudential Fed. Sav. & Loan Ass’n,
767 P.2d 538, 544–49 (Utah 1988); Gardner v. Madsen, 949 P.2d
785, 791–92 & n.4 (Utah Ct. App. 1997); cf. In re Estate of Valcarce,
2013 UT App 95, ¶¶ 40–43, 301 P.3d 1031 (suggesting that
judicial bias discovered post-judgment might be preserved by
4. Given Cheek’s representation that he was appealing to the
judge’s inherent authority to recuse, and was not proceeding
under rule 63, we note without deciding the possibility of waiver
via invited error. See Pratt v. Nelson, 2007 UT 41, ¶¶ 17–24, 164
P.3d 366 (“Our invited error doctrine arises from the principle
that a party cannot take advantage of an error committed at trial
when that party led the trial court into committing the error.”
(citation and internal quotation marks omitted)).
20150177-CA 10 2016 UT App 227Cheek v. Clay Bulloch Construction
filing “a motion for relief from judgment”). And that review has
included whether recusal was required under provisions of the
Code of Judicial Conduct. See, e.g., Regional Sales Agency, Inc. v.
Reichert, 830 P.2d 252, 254–57 (Utah 1992); Madsen, 767 P.2d at
544–49; Gardner, 949 P.2d at 791–92 & n.4.
¶26 But even were we inclined to substantively review
Cheek’s allegations, we would be unable to do so. While “[a]
judge should be disqualified when . . . the judge’s impartiality
might reasonably be questioned,” “[j]udges are presumed to be
qualified and a party alleging [judicial] bias . . . has the burden of
demonstrating that the judge is not qualified.” Dahl, 2015 UT 79,
¶ 49 (citation and internal quotation marks omitted). Relying on
an informal opinion of the Ethics Advisory Committee, Cheek
contends that Judge Lyman’s recusal was mandatory given his
assignment to the Fifth District where defendant’s wife was
employed as the District Court Clerk. But that opinion cannot be
read so broadly.
¶27 Informal Opinion 98-14 interpreted two provisions of the
Code of Judicial Conduct. Under the first, “[a] judge shall
disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including”
when “[t]he judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of facts that are
in dispute in the proceeding.” Utah Code Jud. Conduct
R. 2.11(A)(1) (2013). 5 Under the second, “[a] judge shall not
permit family, social, political, financial, or other interests or
relationships to influence the judge’s judicial conduct or
judgment.” Id. R. 2.4(B).
5. While Informal Opinion 98-14 interpreted the Code of Judicial
Conduct as it appeared in 1998, we cite those provisions of the
Code as they appeared in 2013, when Cheek’s motion was filed
and ruled on by the trial court.
20150177-CA 11 2016 UT App 227Cheek v. Clay Bulloch Construction
¶28 Based on these principles, Informal Opinion 98-14
advised automatic disqualification in proceedings in which a
party is “a family or household member of an employee that has
a close working relationship with the judge.” 6 Utah State Bar Ethics
Advisory Committee, Informal Op. 98-14 (1998) (emphasis
added). 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.¶29 Even assuming we would agree with that general
presumption, it may not apply in atypical situations, such as a
judge sitting by assignment pursuant to Utah Rule of Judicial
Administration 3-108. Because Cheek did not file a supporting
affidavit or invoke rule 63’s procedures for review, we do not
have a full evidentiary record regarding Judge Lyman’s work
with the Fifth District or his interactions with the Fifth District
Court Clerk. We therefore cannot discern whether the facts are
such that “the judge’s impartiality might reasonably be
questioned.” See Dahl v. Dahl, 2015 UT 79, ¶ 49 (citation and
internal quotation marks omitted). “Unlike a trial court, we do
not find facts, and our review is limited to the factual record
6. In reaching this conclusion, the Committee retreated from an
earlier opinion, which advised disqualification “in proceedings
involving an employee of the judge’s district” or “members of
the employee’s immediate family and household.” Utah State
Bar Ethics Advisory Committee, Informal Op. 96-2 (1996). Given
the administrative difficulty and expense of applying that rule,
particularly in large districts with few judges, the Committee
reconsidered and concluded that it was “not reasonable to
perceive that a judge might be biased in all proceedings
involving a family member of a district employee, without
regard to the relationship between the judge and the particular
employee.” Utah State Bar Ethics Advisory Committee, Informal
Op. 98-14 (1998).
20150177-CA 12 2016 UT App 227Cheek v. Clay Bulloch Construction
developed in the trial court.” In re Estate of Valcarce, 2013 UT App
95, ¶ 43. Accordingly, we decline to consider de novo Cheek’s
“claim that the trial judge should have recused himself from
serving in this matter.” 7 See id.II. Breach of Contract Claims
¶30 Cheek next challenges the trial court’s dismissal of his
claims. Because Cheek’s arguments are inadequately briefed, we
do not address them.
¶31 Rule 24 of the Utah Rules of Appellate Procedure requires
the identification and development of legal authority, reasoned
analysis based on that authority, and a statement of the precise
relief sought. See Utah R. App. P. 24(a)(9), (10); Spencer v. Pleasant
View City, 2003 UT App 379, ¶ 20, 80 P.3d 546. “[W]e will not
assume a party’s burden of argument and research,” Broderick v.
Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶ 9, 279 P.3d 391(citation and internal quotation marks omitted), particularly
when, as here, a party’s lack of clarity and supporting
argumentation leaves the opposing party without a fair
opportunity to respond. “A brief must go beyond providing
conclusory statements and fully identify, analyze, and cite its
legal arguments.” West Jordan City v. Goodman, 2006 UT 27, ¶ 29,
135 P.3d 874 (citation and internal quotation marks omitted).
¶32 Here, Cheek does not specifically challenge any of the
trial court’s findings of fact or conclusions of law. Instead, Cheek
asserts multiple contractual theories, some of which are
contradictory, and alleges a range of errors, each without
supporting authority or analysis. For example, with little
7. We leave open the potential for relief in situations involving
plain error or extraordinary circumstances, see Campbell, Maack &
Sessions v. Debry, 2001 UT App 397, ¶ 24, 38 P.3d 984, but Cheek
has not sought application of either of those exceptions.
20150177-CA 13 2016 UT App 227Cheek v. Clay Bulloch Construction
explanation Cheek simultaneously claims that the “parties
entered into a contract implied in fact”; the trial court
erroneously failed to incorporate additional, outside terms into
the parties’ agreement; and the parties had “an integrated
contract”—i.e., a writing or writings that constitute the final and
complete expression of the parties’ bargain.
¶33 Cheek also claims the trial court should not have
considered the parties’ testimony regarding the contract’s terms
and could not have found an agreement to construct the Sears
building partially on the wrong property. Instead, Cheek asserts,
the trial court was required primarily to consider the documents
Cheek presented and to base its findings of fact and conclusions
of law on those proposed by Cheek’s counsel, or at least to
address Cheek’s proposals to a greater degree. Legal support
and analysis for these propositions is absent, and Cheek does not
otherwise clarify the errors alleged or relief sought. We therefore
reject Cheek’s substantive claims as inadequately briefed. See
Spencer, 2003 UT App 379, ¶¶ 20–21.
CONCLUSION
¶34 No motion for disqualification and accompanying
certificate and affidavit were filed in the trial court, as provided
for in rule 63 of the Utah Rules of Civil Procedure, nor was the
trial judge asked to certify the question of recusal for review.
Therefore, Cheek waived any error regarding the denial of his
Motion to Determine Application of Existing Order or failure to
refer the question of recusal for review. In addition, any
substantive issues regarding Cheek’s breach of contract claims
are inadequately briefed, precluding review on appeal.
Accordingly, we affirm.
20150177-CA 14 2016 UT App 227