2021 UT App 12

THE UTAH COURT OF APPEALS

BRITTNEY TURPIN,

Appellee,

v.

VALLEY OBSTETRICS AND GYNECOLOGY, BRIAN L. WOLSEY,

JENNIFER BOOTH, AND SCOTT S. REES,

Appellants.

Opinion

No. 20200015-CA

Filed February 11, 2021

Fourth District Court, Spanish Fork Department

The Honorable Jared Eldridge

No. 180300203

Jaryl L. Rencher and Benjamin Lusty, Attorneys

for Appellants

John M. Macfarlane, Richard Eric Shelton, and 

P. McKay Corbett, Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY 

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. She completed her 

work as a senior judge sitting by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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Jennifer Booth, ACNP; and Scott S. Rees, D.O. (collectively, 

Defendants) for their alleged negligence in failing to properly 

diagnose and treat her. Nearly six months after filing suit,

Turpin moved to compel 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 question 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. Applying 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 that Defendants have not shown that 

they were prejudiced as a result of Turpin’s filing.

BACKGROUND2

¶3 Turpin visited Valley Obstetrics and Gynecology for an 

annual check-up in March 2014. Several days after her visit, she

returned because she was experiencing severe pelvic pain. An 

ultrasound revealed free fluid in Turpin’s pelvis and a large 

ovarian mass. Dr. Rees diagnosed Turpin with polycystic 

ovarian syndrome 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 relevant 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.
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¶4 Two weeks later, Drs. Wolsey and Rees tried to surgically 

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 inside Turpin’s abdomen.

Subsequent tests performed on the extracted pieces revealed that 

the mass was actually a cancerous tumor. Turpin has since 

undergone additional surgeries and aggressive chemotherapy 

under the care of other doctors.

¶5 Turpin believes that Defendants were negligent in not 

making the correct diagnosis before operating and that the 

surgery itself was negligently performed. Accordingly, in 2018, 

she served notices of intent to commence legal action against

Defendants pursuant to the Utah Health Care Malpractice Act 

(the Act), Utah Code Ann. §§ 78B-3-401 to -426 (LexisNexis 2018 

& Supp. 2020).3 Pursuant to statute, the 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 hearing panel 

issues an opinion and a certificate acknowledging that the 

plaintiff has complied with [the Act’s] prelitigation 

requirements.” Id.
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¶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 claims were barred by the 

Act’s statute of repose. Turpin opposed Defendants’ motion,

and the court ruled in her favor. Defendants 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 moved to compel arbitration based on an 

agreement she had signed during her third visit 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 resolution, 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. The court

disagreed and ordered the case to arbitration. It concluded 

that Defendants had not shown that 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.” 

Having reached that conclusion, the court found it 

unnecessary to address Defendants’ claim of prejudice.

Defendants appeal.
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ISSUES AND STANDARD OF REVIEW

¶9 Defendants contend that the district court erred in

granting Turpin’s motion to compel arbitration. For the 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 instance, 

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 memoranda, we 

accept their invitation and make the determination as a matter of 

law. See id.

ANALYSIS

¶11 The Utah Supreme Court first articulated the test for 

whether a party has waived its right to arbitrate in Chandler v. 

Blue Cross Blue Shield of Utah, 833 P.2d 356 (Utah 1992). There, the 

court stated, “Waiver 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.” 

Central 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 in 
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litigation is a factual one to which 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-intensive 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 appellate courts applied this standard of 

review in every case that followed. See Pledger 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 determinations, 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 discretion on 

this question.” Id. at 362.
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deference.”); Central Fla. Invs. Inc. v. Parkwest Assocs., 2002 UT 3, 

¶ 20, 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. 

BriteSmile Mgmt., Inc., 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 finding 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.” (cleaned 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 district 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 supreme 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 evaluate whether 

the defendant had substantially participated in litigation to 

a point inconsistent with arbitration, id. ¶¶ 30–34, and 

whether the plaintiff had been prejudiced as a result, id. ¶ 36.

Further, the supreme court ultimately determined that the 

district court’s conclusions were “correct,” and it never once 

suggested that it 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 though 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, 
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and that includes following its most recent pronouncement on 

the applicable standard 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., 2004 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, waiver 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 prejudice 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’ invitation, 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.
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A. Substantial Participation in Litigation

¶20 “This first part of the Chandler test looks at the actions of 

the party seeking arbitration, and whether those actions 

evidence 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 

litigation 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 complaint. See, e.g., Chandler, 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. 

BriteSmile Mgmt., 2005 UT App 381, ¶¶ 22–27, 122 P.3d 654.

Under those circumstances, courts 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 Mutual Insurance

Ass’n v. Evans, this court addressed a different scenario—one in 

which a plaintiff sought to arbitrate its dispute after having 

filed 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 complaint. 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 likewise evidenced her intent to pursue 

redress through litigation, thus satisfying the first prong of the 

Chandler test.
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¶22 Turpin urges us to reach a different conclusion than that 

reached in Educators, arguing that the court’s substantial 

participation determination “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 the 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 analysis. 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. This 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 Central 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 compel.” 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 antithetical to other precedent.
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¶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 limitations 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 party’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 its 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.” (cleaned up)).

 

7. That Turpin may have been an unsophisticated litigant 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 relinquishment 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 has 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 UT 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.
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¶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 pursue 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 declined to 

reach the second prong, which required Defendants to show that 

they were prejudiced by Turpin initiating litigation. Aware that 

they ultimately must prevail on both prongs of the test, 

Defendants invite us to decide the question of prejudice rather 

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 that “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 

judgment on an alternative ground if it is apparent in the 

record.” Madsen v. Washington Mutual 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.
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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 participated in litigation to a point 

inconsistent with the intent to arbitrate, “whether waiver has 

occurred rests solely on a finding of prejudice.”10 See Chandler, 

833 P.2d at 358–59. “[T]he prejudice must relate to the delay in 

the assertion of the right to arbitrate,” 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. 

Central Fla. Invs., 2002 UT 3, ¶ 24.

 

10. During oral argument, we asked counsel whether the 

Chandler prejudice prong had been abrogated by Mounteer 

Enterprises, 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 assume 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.
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¶29 Defendants 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 DOPL 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 

that would have been spent preparing for arbitration. Even if 

Turpin had immediately asserted her right to arbitrate, 

Defendants still would have invested time examining the facts of 

the case and considering their potential defenses. Only generally 

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 hearing 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 claims 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 litigation 

could suggest, even without detailed proof, that the expenses 

incurred were significant. For example, in Smile Inc. Asia Pte. Ltd. 

v. BriteSmile Management, Inc., 2005 UT App 381, 122 P.3d 654, 

this court affirmed a determination of prejudice based on a 

(continued...)
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¶32 Similarly, Defendants have not identified any particular

information that Turpin gleaned from the DOPL hearing that she 

would not have learned otherwise or that would give her an 

unfair advantage in arbitration. Defendants’ mere assertion that 

the discussion was “candid” does not reveal whether Turpin left 

the hearing with any kind of advantage. And even 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 

as 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 360.

¶33 Next, Defendants argue that their lost “right to conduct 

discovery under the Utah Rules of Civil Procedure” in 

arbitration is prejudicial. But that alleged loss12 is not a harm 

cognizable under Chandler. The Chandler court stated that the 

“prejudice must relate to the delay 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 this 

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.
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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 Defendants 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 harm. 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 brief 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 that they

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 may 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 arbitration 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 360.
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 Turpin 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 we therefore affirm on this alternative ground the district 

court’s order compelling arbitration.