2016 UT App 227

THE 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-andforth 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

20150177-CA 2 2016 UT App 227

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 
Cheek v. Clay Bulloch Construction

20150177-CA 3 2016 UT App 227

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)
Cheek v. Clay Bulloch Construction

20150177-CA 4 2016 UT App 227

(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.
Cheek v. Clay Bulloch Construction

20150177-CA 5 2016 UT App 227

¶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.
Cheek v. Clay Bulloch Construction

20150177-CA 6 2016 UT App 227

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, 
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20150177-CA 7 2016 UT App 227

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 
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20150177-CA 8 2016 UT App 227

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
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20150177-CA 9 2016 UT App 227

. . . 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 
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20150177-CA 10 2016 UT App 227

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)).
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20150177-CA 11 2016 UT App 227

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.
Cheek v. Clay Bulloch Construction

20150177-CA 12 2016 UT App 227

¶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).
Cheek v. Clay Bulloch Construction

20150177-CA 13 2016 UT App 227

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.
Cheek v. Clay Bulloch Construction

20150177-CA 14 2016 UT App 227

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.