2021 UT App 12



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

B RITTNEY T URPIN , Appellee
, v. V ALLEY O BSTETRICS AND G YNECOLOGY , B RIAN L. W OLSEY , J ENNIFER B OOTH , AND S COTT S. R EES , Appellant s

.

Opinion N o. 20200015

- CA Filed February 11, 2021

Fourth District Court, Spanish Fork Department The Honorable Jared Eldridge No. 180300203

Jaryl L. Rencher and Benjamin Lusty
, Attorney s for Appellant s John M

. Mac f arlane, Richard Eric Shelton, and P. McKay Corbett
, Attorney s for Appellee

J UDGE J ILL M. P OHLMAN authored th is Opinion
, in which

J UD GE D IANA H AGEN and S ENIOR J UDGE K ATE A PPLEBY concurred

. 1

POHLMAN
, Judge :

¶1 Brittney Turpin discovered she had ovarian cancer after undergoing surgery for what her doctors diagnosed as an ovarian cyst. Turpin filed a medical malpractice action against Valley Obstetrics and Gynecology; Brian L

. Wolsey, M.D.;

1 . Senior Judge Kate Appleby began work on this case as an active member of the Utah Court of Appeals. Sh e completed her work as a senior judge sitting by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11

- 201(6).Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 2 2021 UT App 12 Jennifer Booth, A CN P; and Scott S. Rees, D.O. ( collectively, Defendants) for their alleged negligence in failing to properly diagnose and treat her. N early six months after filing suit, Turpin moved to com pel arbitration pursuant to the parties’ agreement. Defendants opposed Turpin’s motion, contending that she had waived her right to arbitrate by substantially participating in litigation and that they were prejudiced by her filing. Without reaching the que stion of prejudice, the district court granted Turpin’s motion, concluding that she had not substantially participated in litigation and thus had not waived her right to arbitrate.

¶2 We affirm the district court’s decision, albeit on alternate grounds. Apply ing this court’s precedent, we conclude that Turpin substantially participated in litigation by filing her malpractice claims in district court. And having been invited by Defendants to reach the question of prejudice on the record before us, we conclude t hat Defendants have not shown that they were prejudiced as a result of Turpin’s filing.

BACKGROUND 2

¶3 Turpin visited Valley Obstetrics and Gynecology for a n annual check

- up in March 2014

. Several days after her visit
, she returned because she was experiencin g severe pelvic pain. An ultrasound revealed free fluid in Turpin’s pelvis and a large ovarian mass. Dr. Rees diagnosed Turpin with p olycystic

o varian s yndrome and recommended surgery to remove the

mass

.

2

. In ruling on Turpin’s motion to compel arbitration, the district court made few factual findings, and most of the rel evant facts are undisputed procedural facts. For the limited purpose of providing context for this appeal, we recite some additional facts as they are alleged in Turpin’s complaint. See infra ¶¶ 3

– 5.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 3 2021 UT App 12 ¶4 Two weeks later, Drs. Wolsey and Rees tried to surgi cally

remove Turpin ’s ovarian mass using a technique called morcellation, which involves fragmenting the mass into smaller pieces to aid removal

. The doctors removed what they could but left several pieces of the mass in side Turpin ’s abdomen. Subsequent te sts performed on the extracted pieces revealed that the mass was actually a cancerous tumor. Turpin has since undergo ne additional surgeries and aggressive chemotherapy under the care of other doctors.

¶5 Turpin believe s that Defendants were negligent in not making the correct diagnosis before operating and that the surgery itself was negligently performed. Accordingly, in 201 8, she served notices of intent to commence legal action against D efendants pursuant to the Utah Health C are Malpractice Act (the Act), Utah Code Ann. § § 78B

- 3

- 401 to

- 426 (LexisNexis 201 8 & Supp. 2020 ). 3 Pursuant to statute, t he Division of Occupational and Professional Licensing (DOPL) provided a prelitigation hearing panel, at which the parties appeared with counsel to address Turpin’s claims

. 4 See id

. § 78B

- 3

- 416 (Supp. 2020)

.

3

. Because recent statutory amendments are not material in this case, we cite the current version of the Utah Code for convenience.

4

. Under the Act, a plaintiff must submit a malpractice claim to a prelitigation panel as a prerequisite to filing a lawsuit. Utah Code Ann. § 78B

- 3

- 416(1)(c), (2)(a) (LexisNexis Supp. 2020). The proceedings are “informal and nonbinding but also compulsory as a condition precedent to commencing litigation.” Jensen v. Intermountain Healthcare, Inc. , 2018 UT 27, ¶ 8, 424 P.3d 885 (cleaned up). “After it completes its review, the hear ing panel issues an opinion and a certificate acknowledging that the plaintiff has complied with [the Act’s] prelitigation requirements.” Id.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 4 2021 UT App 12 ¶6 After resolution of the DOPL proceedings
, Turpin filed claims for medical malpractice against Defendants in district court

. Defendants moved to dismiss the complaint
, arguing that the claim s w ere barred by the Act’s statute of repose. Turpin opposed Defendants ’ m otion , and the court ruled in her favor. D efendants then answered Turpin’s complaint and the parties exchanged initial disclosures.

¶7 Just a few weeks later, and nearly six months after filing her complaint, Turpin mo ved to compel arbitration based on an agreement she had signed during her third vi sit with Defendants. The agreement provided that Turpin would resolve any medical malpractice claims she may have against Defendants through informal negotiation, non

- binding mediation, or binding arbitration. Turpin could choose her preferred method of re solution, but she waived her right to have any malpractice claim against Defendants “decided by a judge or jury.”

¶8 Defendants opposed Turpin ’s motion and argued that she had waived her right to arbitrate by filing her claims in district court. Citing the two

- part test first articulated by the Utah Supreme Court in Chandler v. Blue Cross Blue Shield of Utah , 833 P.2d 356 (Utah 1992) , Defendants argued that (1) Turpin had substantially participated in litigation to

a point inconsistent with the right to arbitrate and (2) her participation had prejudiced Defendants. T he court disagreed and ordered the case to arbitration

. It concluded that Defendants had not shown th at the substantial participation prong of the Chandler test was met , noting that Turpin “did not participate in written discovery

or conduct depositions, file motions with the Court, or engage in any significant discovery of months of time.” H aving reached that conclusion, the court found it unnecessary to address Defendants’ claim of prejudice

. Defendants appeal.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 5 2021 UT App 12 ISSUES AND STANDARD OF REVIEW

¶9 Defendants contend that the district court erred in grant ing Turpin’s motion to compel arbitration. For th e reasons described below, see infra ¶ ¶ 12

– 17 , the court’s determination is a legal conclusion that we review for correctness. ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65
, ¶ 11, 245 P.3d 184.

¶10 Defendants also invite us to decide, in the first i nstance, whether they were prejudiced by Turpin’s participation in litigation . Because Defendants’ claims of prejudice are based solely on the assertions made in their legal memorand a , we accept their invitation and make the determination as a matter of la w. See id.

ANALYSIS

¶11 The Utah Supreme Court first articulated the test for whether a party has waive d its right to arbitrat e in Chandler v. Blue Cross Blue Shield of Utah , 833 P.2d 356 (Utah 1992)

. There
, the court stated
, “ W aiver of a right of arbitration must be based on both a finding of participation in litigation to a point inconsistent with the intent to arbitrate and a finding of prejudice.” Id . at 360 (cleaned up)

. Because policy favors arbitration, “there is also a strong presumption against waiver of the right to arbitrate.” Cent ral Fla. Invs. Inc. v. Parkwest Assocs. , 2002 UT 3, ¶ 24 , 40 P.3d 599 . “The party claiming waiver has the burden of establishing substantial participation and prejudice.” Id

.
¶12 Before we address the two prongs of the Chandler test, we must first resolve the parties’ dispute over the proper standard of review.

I. Standard of Review

¶13 Citing Chandler
, Turpin argues that the district court’s determination that she did not substantially participate inTurpin v. Valley Obstetrics and Gynecology

20200015

- CA 6 2021 UT App 12 litigation is a factual one to whic h we owe deference. In contrast, Defendants cite ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, 245 P.3d 184, and argue that “[b]ecause this

case involved no disputed determinations of fact . . . and

was resolved solely on documentary evidence alone,” the applicable standard of review is correctness. We agree with Defendants.

¶14 Turpin is correct that
, for nearly two decades, Utah appellate courts treated a district court’s decision about a party’s waiver of its right to arbitrate as a fact

- intens ive decision. Beginning with Chandler
, our supreme court explained that the existence of both substantial participation and prejudice “should be reviewed as factual determinations
, ” with the “dispositive issue” being “whether there [was] sufficient support in the record to uphold the trial court’s findings. ” Chandler v. Blue Cross Blue Shield of Utah , 833 P .2d 356, 360 (Utah 1992) . And the court applied this standard, even though the relevant facts in Chandler were “not in dispute

. ” 5 Id.

¶15 Until 2010, Utah ap pellate courts applied this standard of review in every case that followed. See P l edger v. Gillespie
, 1999 UT 54, ¶ 16, 982 P.2d 572 (“[T]he actions or events allegedly supporting waiver are factual in nature and should be reviewed as factual determination s , to which we give a district court

5

. In dissent, Justice Zimmerman expressed puzzlement over the majority’s articulation of the standard of review, observing that “[t]he trial court made no factual findings on disputed evidence in determining that the standard for waiver was met, and there was no dispute as to the relevant facts.” Chandler v. Blue Cross Blue Shield of Utah , 833 P.2d 356, 361

– 62 (Utah 1992) (Zimmerman, J., concurring and dissenting). In his view, “[t]he trial [court] was either correct in concluding that the uncontroverted facts satisfied the legal standard or [it] was not. There is no room here for the exercise of trial court discretio n on this question.” Id. at 362.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 7 2021 UT App 12 deference.”); Central Fla. Invs. Inc. v. Parkwest Assocs. , 2002 UT 3, ¶ 2 0 , 40 P.3d 599 (same); Cedar Surgery Center, LLC v. Bonelli , 2004 UT 58, ¶ 6, 96 P.3d 911 (same); Smile Inc. Asia Pte. Ltd. v. Brite S mile Mgmt., I nc. , 2005 UT App 381, ¶ 20, 122 P.3d 654 (same); see also Baker v. Stevens , 2005 UT 32, ¶ 14 , 114 P.3d 580 (“ We have noted that the f inding of the existence of substantial participation and the finding of the existence of prejudice

are factual in nature and therefore should be reviewed as factual determinations.” ( c leaned up) )

. But in ASC Utah
, our supreme court articulated a different standard. There, the court stated, for the first time in the Chandler context, that “when a distri ct court denies a motion to compel arbitration based on documentary evidence alone, it is a legal conclusion that is reviewed for correctness.” ASC Utah
, 2010 UT 65, ¶ 11.

¶16 Turpin invites us to overlook this statement, arguing that “the standard of review in ASC Utah does not apply here ” because the ASC Utah court decided only whether the Chandler test applied in that case and did not evaluate whether the evidence supported the district court’s waiver determination. But we read ASC Utah differently. The sup reme court referred to the district court’s determinations under the Chandler test as “legal conclusions,” ASC Utah , 2010 UT 65, ¶ 25, and it examined the undisputed evidence to independently e valuate whether the defendant had substantially participated in litigation to

a point inconsistent with arbitration, id. ¶¶ 3 0

– 34, and whether the plaintiff had been prejudiced as a result , id. ¶ 36. Further, t he supreme court ultimately determined that the district court’ s conclusions were “correct,” and it never once suggested that i t was deferring to the district court’s judgment. Id. ¶¶ 1, 29

– 40.

¶17 We acknowledge that the standard of review applied in ASC Utah is different from the standard applied in Chandler
, even thoug h in each case the waiver question was evaluated based on undisputed, documentary evidence. But we are bound to strictly follow the decisions rendered by our supreme court,Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 8 2021 UT App 12 and that includes following its most recent pronouncement on the applicable standar d of review. See Ortega v. Ridgewood Estates LLC
, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (cleaned up) ) ; Gary Porter Constr. v. Fox Constr., Inc. , 200 4 UT App 354, ¶ 15 n.2, 101 P.3d 371 ( recognizing that this court must follow the Utah Supreme Court’s “most recent” pronouncement on an issue). 6 Thus, because the district court’s substantial participation determination was made based on documents alone, we review its decision for correctness.

II. The Chandler Test

¶18 Having identified the applicable standard of review, we turn our attention to the merits of Defendants’ appeal, which requires our application of the Chandler two

- part test. As mentioned above, waiv er of a right to arbitrate occurs when both parts are met. See supra ¶ 11 . First, the party seeking arbitration
must substantially participate in litigation to a point inconsistent with the right to arbitrate . Second, the party’s participation must

cause p rejudice to the opposing side

. Chandler v. Blue Cross Blue Shield of Utah , 833 P.2d 356, 360 (Utah 1992)

.
¶19 We consider first whether the district court erred in concluding that Turpin did not substantially participate in litigation. Next, at Defendants’ inv itation , we decide in the first instance whether Turpin’s participation prejudiced Defendants

.

6

. We note that this court, in Educators Mutual Insurance Ass’n v. Evans , cited the standard of review from Chandler and its progeny as the applicable standard, even though that decision post

- dated ASC Utah

. See Educators Mutual Ins. Ass’n v. Evans
, 2011 UT App 171, ¶ 21, 258 P.3d 598. But unlike this case, it does not appear that there was a dispute in Educators Mutual about the appropriate standard of review.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 9 2021 UT App 12 A. Substantial Participation in Litigation

¶20 “Th is first part of the Chandler test looks at the actions of the party seeking arbitration, and whether those actions

ev idence an intent to submit to the jurisdiction of the court and pursue redress through litigation. ” Central Fla. Invs . Inc. v. Parkwest Assocs

. , 2002 UT 3, ¶ 26 , 40 P.3d 599

. The district court determined that Turpin did not substantially participate in li tigation because, it reasoned, she did not engage in significant discovery or file motions with the court. Defendants argue that the district court’s focus on the extent of Turpin’s post

- filing activities was misguided and that Turpin filing the complaint, “by itself,” evidenced a clear intent to litigate her dispute and waive her right to arbitrate. We agree.

¶21 Our case law applying the Chandler test ordinarily arises in the context of a defendant seeking to arbitrate after having answered a plaintiff’s com plaint. See, e.g.
, Chandle r , 833 P.2d at 360 ; Central Fla . Invs. 2002 UT 3 , ¶ 28 ; Baker v. Stevens
, 2005 UT 32, ¶¶ 13

– 15, 114 P.3d 580 ; Smile Inc. Asia Pte. Ltd. v. Brite S mile Mgmt.
, 2005 UT App 381, ¶ ¶ 2 2

– 27 , 122 P.3d 654

. Under those circumstances, court s are called upon to evaluate the defendant’s various litigation activities to

assess whether the extent of its participation evidences an intent to litigate the dispute. But in Educators Mut ual Ins urance Ass ’ n v. Evans , this court addressed a different scenario

— one in which a plain tiff sought to arbitrate its dispute after having fil ed a complaint. 2011 UT App 171, ¶ 66, 258 P.3d 598. And in that case, the court had no trouble concluding that the first prong of the Chandler test was satisfied by the plaintiff’s filing of the comp laint. Id. The court explained, “ By filing the complaint, [the plaintiff] plainly evidenced an intent to submit
to the jurisdiction of the court and pursue redress through litigation. ” Id. Applying that principle here, Turpin ’s filing of her complaint li kewise evidenced her intent to pursue redress through litigation, thus satisfying the first prong of the Chandler test.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 10 2021 UT App 12 ¶22 Turpin urges us to reach a different conclusion than that reached in Educators , arguing that the court’s substantial participation dete rmination “is cursory dictum” and does not set a precedent we must follow. We disagree. Dicta is nonbinding language in a court’s opinion that is made “casually and without analysis, where the statement is uttered in passing without due consideration of th e alternatives, or where it is merely a prelude to another legal issue that commands the court’s full attention.” State v. Robertson , 2017 UT 27, ¶ 27, 438 P.3d 491 (cleaned up)

. The statement in Educators was not uttered in passing or casually without ana lysis. The court was called on to specifically address whether the first prong of Chandler was met, and the court concluded, without equivocation, that filing the complaint, without more, evidenced an intent to litigate. Educators , 2011 UT App 171, ¶ 66. T his determination was a key component of the court’s analysis on the waiver issue , and we are in no position to disregard it.

¶23 Turpin also suggests that Educators is at odds with Chandler and its progeny, but we view them as consistent. For example, in Cent ral Florida Investments, our supreme court affirmed the district court’s determination that the defendant did not substantially participate in litigation, but the supreme court considered it to be a “close call.” 2002 UT 3, ¶ 27. The court saw it that way because the defendant had not just answered the complaint, but it had filed a counterclaim and a motion to dismiss before moving to compel arbitration. Id. ¶ 28. Thus, the defendant “invoked the authority of the court . . . before filing the motion to comp el.” Id. Still, the court ultimately held that the defendant did not waive its right to arbitrate
, deeming it significant that the defendant did not “invoke[]” “the litigation machinery ” and that “when it did participate in the litigation process,” “it did so reluctantly” and “while communicating an intent to arbitrate.” Id. ¶ 34. Given the significance attributed to the defendant’s reluctance in Central Florida Investments

— a reluctance that was missing from Educators

— we do not view Educators as antithetica l to other precedent

.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 11 2021 UT App 12 ¶24 Finally, Turpin alternatively asks us to distinguish her case from Educators , explaining that she “ is not a large insurance company , ” as was the plaintiff in that case, and that she filed her lawsuit shortly before the statute of limi tations expired while changing law firms and fighting cancer. We are sympathetic to Turpin’s situation , but we fail to see how these differences are material to the substantial participation prong of the Chandler
test. 7 The question posed is whether a part y’s actions evidence an intent to submit to the jurisdiction of the court and pursue one’s claims through litigation. Absent some outward indication by Turpin that she was pursuing litigation reluctantly or did not want to waive her right to arbitrate, we see no relevant difference between this case and Educators
, 8 and we are bound by it s precedent. See State v. Legg , 2018 UT 12, ¶ 9, 417 P.3d 592 (“ Under the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court.” ( c leaned up) ).

7

. That Turpin may have been an unsophisticated l itigant and may not have recalled signing the arbitration agreement seems relevant to whether she relinquished a “known” right. See ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, ¶ 26, 245 P.3d 184 (cleaned up) (“A waiver is the intentional relin quishment of a known right. To constitute a waiver, there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it.” (cleaned up)). But Turpin conceded knowledge for purposes of this appeal, and she h as not otherwise shown how these facts are relevant to the substantial participation question.

8

. We note that unlike Turpin, the plaintiff in Educators had participated in other litigation activities, including a year of “pleadings and discovery.” 2011 U T App 171, ¶ 13. But the court did not view the other activities as material to its analysis. It concluded that filing the complaint was sufficient to satisfy the first prong of Chandler

. Id. ¶ 66.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 12 2021 UT App 12 ¶25 In sum, we conclude that the district court erred in deciding that Turpin had not substantially participated in litigation. 9 By invoking the litigation machinery, Turpin evidenced her intent to pu rsue her medical malpractice claims against Defendants through litigation, thus satisfying the first prong of the Chandler two

- part test.

B. Prejudice

¶26 Having determined that Defendants did not satisfy the first prong of the Chandler test, the district court d eclined to reach the second pr ong, which require d Defendants to show that they were prejudiced by Turpin initiating litigation. Aware that they ultimately must prevail on both prongs of th e test , Defendants invite us to decide the question of prejudice rat her than remand the issue for resolution in the first instance by the district court.

¶27 We accept Defendants’ invitation for two reasons. First, Defendants offered no evidence in support of their claims of prejudice, but instead they asked the district court to decide the question based on the docket and counsel’s representations. Because this posture presents us with a question of law, we are well suited to decide it. See ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, ¶ 11, 245 P.3d 184 (holding th at “when a district court denies a motion to compel arbitration based on documentary evidence alone, it is a legal conclusion that is reviewed for correctness”). Second, “when reviewing a decision made on one ground, we have the discretion to affirm the ju dgment on an alternative grou nd if it is apparent in the record.” Madsen v. Washington Mut ual Bank fsb , 2008 UT 69, ¶ 26, 199 P.3d 898 (cleaned up) ; see also Bodell Constr. Co. v. Robbins
, 2009 UT 52, ¶ 26 n.17, 215 P.3d 933 (“To serve judicial economy,

we may affirm a district court’s decision whenever the decision

9

. In fairness to the district court, neither party cited the Educators case in briefing Turpin’s motion to compel arbitration.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 13 2021 UT App 12 appealed from is sustainable on any legal ground or theory apparent on the record.” (cleaned up) )

. In the interest of judicial economy , we exercise that discretion here.

¶28 Because Turpin participa ted in litigation to a point inconsistent with the intent to arbitrat e , “whether waiver has occurred rests solely on a finding of prejudice.” 10 See Chandler
, 833 P.2d at 3 5 8

– 5 9

. “ [ T ] he prejudice must relate to the delay in the assertion of the right to arbi trate,” and “the prejudice [must] be of such a nature that the party opposing arbitration suffers some real harm.” Id. at 360. “ [ A ] ctual prejudice or real harm” may be shown by the party opposing arbitration if it has incurred “ significant expenses in the district court litigation that would not have been incurred in arbitration
, ” Pledger v. Gillespie
, 1999 UT 54, ¶ ¶ 19, 23, 982 P.2d 572, or if it has participated in discovery “that would not have been available in arbitration
, ” ASC Utah , 2010 UT 65, ¶ 35. Finally, “prejudice can occur if a party gains an advantage in arbitration through participation in pretrial procedures.” Chandler
, 833 P.2d at 359 . The party opposing arbitration has the burden of proving prejudice. Cent ral Fla. Invs.
, 2002 UT 3, ¶ 24.

10 . During oral argument, we asked counsel whether the Chandler prejudice prong had been abrogated by Mounteer Enterprise s , Inc. v. Homeowners Ass’n , 2018 UT 23, 422 P.3d 809. In Mounteer , the Utah Supreme Court stated generally that “[t]he prejudice requirement is a doctrinal misfit in the law of waiver,” and it thus “repudiate[d] [its] prior decisions that speak of prejudice as an element of waiver.” Id. ¶ ¶ 33

– 34

. Mounteer , however, was not an arbitration case, and the court did not specifically address whether prejudice remains an element of the Chandler test. Id . ¶¶ 9

– 10, 31

– 34. Because the parties did not raise this issue in the district court or on appeal, we consider it waived and as sume for purposes of our review that the prejudice prong still applies in the Chandler context. Still, without expressing any opinion on it, we flag the issue for possible exploration in a future case.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 14 2021 UT App 12 ¶29 De fendants first contend that they were prejudiced by Turpin’s delay in pursuing arbitration because they participated in the DOPL hearing. Defendants claim that they “were required to incur attorney fees preparing for the hearing” and that they lost revenue from having to “take time away from their clinical practices ” to attend. Additionally, Defendants claim that Turpin “gained an informational advantage ” because there was a “candid discussion ” of Defendants’ “ defenses and medical
assessments ” during the DO PL hearing.

¶30 We do not share Defendants ’ view that they have shown actual prejudice arising from their participation in the DOPL hearing

. For one thing, Defendants have not shown that the time spent preparing for and attending the DOPL hearing is not time
t hat would have been spent p reparing for arbitration

. Even if Turpin had immediately asserted her right to arbitrate, Defendants still would have invest ed time examining the facts of the case and considering their po tential defenses

. O nly g enerally alleging that they incurred costs preparing for and attending the hearing does not establish that the time was wasted and that they suffered “real harm.” See Chandler , 833 P.2d at 360.

¶31 Further
, even if Defendants incurred some expense to participate in the DOPL he aring that they would not have incurred preparing for arbitration, Defendants have not shown that those expenses were “significant

. ” See Pledger , 1999 UT 54, ¶ 23

. Defendants bear the burden of proof, and by producing no evidence to substantiate their clai ms of lost revenue or attorney fees, their generalized representations make it impossible for us to conclude that the expenses incurred were significant. 11

11 . There may be instances where the extent of the liti gation could suggest, even without detailed proof, that the expenses incurred were significant. For example, in Smile Inc. Asia Pte. Ltd. v. Brite S mile Management, Inc. , 2005 UT App 381, 122 P.3d 654, this court affirmed a determination of prejudice based on a (continued...)Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 15 2021 UT App 12 ¶32 Similarly
, Defendants have not identified any particular information that Turpin gleaned from the DOP L hearing that she would not have learned otherwise or that would give her an unfair advantage in arb itration. Defendants’ mere assertion that the discussion was “candid” does not reveal whether Turpin left the hearing with any kind of advantage. And e ven if we assume that Turpin did learn something unique in the DOPL hearing, any alleged harm is mitigated by the Act because the proceedings are confidential and the evidence of the proceedings and the panel’s findings and determinations “ are not admissible

a s evidence in any civil action or arbitration proceeding.” See Utah Code Ann. § 78B

- 3

- 419(1) (LexisNexis 2018) ; id. § 78B

- 3

- 417(5) (a)

. Given those limitations, Defendants must do more to demonstrate actual harm

. See Chandler
, 833 P.2d at 3 60

.
¶33 Next , Defenda nts argue that their lost “right to conduct discovery under the Utah Rules of Civil Procedure” in arbitration is prejudicial

. But that alleged loss 12 is not a harm cognizable under Chandler . The Chandler court stated that the “prejudice must relate to the d elay in the assertion of the right to

(...continued) review of the record that demonstrated that the parties had engaged in “two years of active litigation,” including exchanging “significant and extensive discovery” and filing and arguing “numerous motions.” Id. ¶¶ 35

– 36. In contrast, the record in thi s case does not, without more, show that Defendants incurred significant expense.

12 . We describe this as an alleged loss because, as Defendants note, Turpin “explicitly stated that she will stipulate [in arbitration] to full discovery under the Utah Rules of Civil Procedure.” Defendants concede that they “have no reason to believe that Ms. Turpin or her counsel would renege on this stipulation
, ” and thus Defendants ’ claim that they will not be able to conduct the same amount of discovery in arbitration is speculative at best.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 16 2021 UT App 12 arbitrate.” Id. This alleged harm is not related to Turpin’s delay ; the alleged harm would exist regardless of when Turpin demanded arbitration. Thus, alleged prejudice of this kind does not support a determination of waiver.

¶34 Lastly, Defendants argue that they have been prejudiced by Turpin’s delay in compelling arbitration because they “have already devoted extensive briefing to the question of whether Ms. Turpin filed her complaint outside of the statute of repose.” 13 D efendants assert that they “likely” would not have briefed this issue if the claim had proceeded directly to arbitration
, but they acknowledge that they would have raised it as a legal defense in arbitration. Once again, Defendants have not shown actual h arm. Where they admit that they would have raised this issue in arbitration, and may have even briefed it , any claims of prejudice are speculative and inadequate to meet their burden of showing actual harm. And even if the costs Defendants incurred to brie f their district court motion would exceed the costs they would have expended in arbitration, Defendants have not demonstrated that the difference is in any way “significant.” See Pledger , 1999 UT 54, ¶ 23.

¶35 In sum, Defendants bear the burden of proving tha t the y suffered “real” and “actual” prejudice resulting from Turpin’s six

- month delay in asserting her right to arbitrate

. See Chandler
, 833 P.2d at 360 ; Pledger , 1999 UT 54, ¶ 19. Defendants have generally identified one or two activities in which they ma y or may not have participated had Turpin immediately proceeded to arbitration. Without more, Defendants have not established that

13

. Defendants also argue that they will be prejudiced because arbitration limits certain options, such as the ability to appeal. But like their discovery argument, this argument is unavailing. A limitation on the ability to appeal an a rbitration award is not a cognizable prejudice under Chandler because it does not relate to Turpin’s delay in initiating arbitration. Chandler
, 833 P.2d at 3 60.Turpin v. Valley Obstetrics and Gynecology

20200015

- CA 17 2021 UT App 12 they have suffered actual harm as a result of the delay , and thus the Chandler prejudice prong has not been met.

CONCLUSION

¶36 T urpin showed her intent to submit to the jurisdiction of the court and pursue redress through litigation by filing a complaint against Defendants in district court

. But Defendants have not shown that they were prejudiced as a result

. Thus, Defendants have not satisfied both prongs of the Chandler test and w e therefore affirm on this alternative ground the district court’s order compelling arbitration

.