Camco v. KeyBank

2010 UT 63
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Camco Construction, Inc., 	No. 20090624
Plaintiff and Third-Party
Defendant,
v.
Utah Baseball Academy, Inc., et al.,
Defendants, Third-Party
Plaintiffs, and Appellants.
____________________________________
F I L E D
KeyBank National Association, et al.,
Defendants, Third-Party
Plaintiffs, and Appellees. 	November 16, 2010
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Third District, Salt Lake
The Honorable Anthony B. Quinn
No. 050918901
Attorneys: 	Denver C. Snuffer, Jr., Daniel B. Garriott, Bret W.
Reich, Tahne L. Hamilton, Sandy, for appellants
R. Stephen Marshall, Steven J. McCardell, Salt Lake
City, for appellees
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NEHRING, Justice:
INTRODUCTION
¶1 	In this interlocutory appeal, Athletic Performance
Institute, L.L.C., Utah Baseball Academy, Inc., and Robert Keyes
(collectively, “API”) ask us to overturn the district court’s
order, which denied API’s motion to disqualify the district court
judge, the Honorable Anthony Quinn, after he was exposed to
confidential arbitration materials. 	Because we conclude that
API’s motion to disqualify Judge Quinn was untimely, we decline
to consider the merits of the motion and accordingly, we affirm
the decision of the district court.

1 Athletic Performance Institute (“API”) owns Utah Baseball
Academy, Inc. (“UBA”), and Robert Keyes owns both API and UBA.
These parties are collectively referred to as simply “API”
throughout this opinion.
No. 2009 0624 	2
BACKGROUND
¶2 	API 1 entered into a contract with Camco Construction,
Inc. to build an athletic facility with an indoor baseball field,
an indoor basketball court, and other amenities. 	In order to
finance the project, API obtained a construction loan from
KeyBank.
¶3 	Problems arose during construction of the facility.
API began to complain that construction defects prevented the use
of the indoor baseball field. 	Camco was unhappy because it
believed that it was entitled to additional payments under the
construction contract. 	KeyBank refused to continue funding the
project because it claimed that API failed to comply with the
terms of the loan.
¶4 	In 2005, Camco sued API and KeyBank for API’s failure
to pay amounts due under the construction contract. 	It also
sought to foreclose its mechanic’s lien on the property. 	API
answered, counterclaimed, and filed a third-party complaint. 	The
counterclaims alleged that Camco breached the construction
contract because it failed to complete the project on time and
because its construction was defective.
¶5 	KeyBank also answered and counterclaimed. 	In addition,
KeyBank cross-claimed and brought a third-party complaint against
API. 	KeyBank sought to foreclose on the building, wanted a
receiver appointed, and requested a monetary judgment for any
deficiency remaining after foreclosure. 	API counterclaimed
against KeyBank. 	API accused the bank of breaching its contract
with API, and of committing negligence, conversion, breach of
fiduciary duty, and fraud. 	API claimed that KeyBank’s refusal to
fund the construction loan caused all of the disputes among the
parties because had KeyBank paid Camco, the project would have
been completed and the liens and litigation would have been
unnecessary.
¶6 	Camco’s contract with API contained an arbitration
clause and Camco demanded that it be enforced. 	In June 2006,
Judge Quinn, the trial judge, entered an order compelling
arbitration of the API-Camco claims. 	In April 2008, the
arbitrator awarded Camco approximately $608,000. 	The arbitrator
found that API failed to pay amounts due to Camco under the

2 2008 UT 7, 177 P.3d 605.
3 	No. 2009 0624
contract and that API’s breach excused Camco’s refusal to
perform. 	The arbitrator did not consider KeyBank’s alleged
failure to fund the construction loan because KeyBank was not a
party to the arbitration and did not have a contract with Camco.
¶7 	API paid the arbitration award, and Camco and API
stipulated to dismiss Camco’s claims with prejudice. 	Judge Quinn
ordered dismissal, with prejudice, of all claims between Camco
and API.
¶8 	Meanwhile, the litigation between API and KeyBank moved
forward. 	KeyBank regularly attached as exhibits and used as
evidence documents from the API-Camco arbitration, including
documents, deposition testimony from the proceedings, and the
April 2008 arbitration award. 	API objected to KeyBank’s use of
the arbitration materials, claiming the information was both
irrelevant and prejudicial to its position in the subsequent
litigation.
¶9 	On June 22, 2009, API filed the first of three motions
to disqualify Judge Quinn. 	API’s first motion was brought under
Utah Rule of Civil Procedure 63. 	In this motion, API argued that
KeyBank violated the confidentiality provisions of the
Alternative Dispute Resolution Act (“ADR Act”) by disclosing
arbitration materials in subsequent litigation. 	The motion
stated that KeyBank’s disclosure, when coupled with our decision
in Reese v. Tingey Construction,2 required Judge Quinn to
immediately recuse himself from further proceedings in the case
because he had viewed confidential materials from the API-Camco
arbitration. 	Judge Quinn denied API’s motion and, as required by
rule 63, referred it to Associate Presiding Judge Maughan for his
review. 	Judge Maughan also denied API’s motion.
¶10 	On July 6, 2009, API filed a second motion seeking to
amend the order denying the motion to recuse Judge Quinn under
rules 59 and 60 of the Utah Rules of Civil Procedure. 	On July 9,
Judge Maughan denied API’s motion to amend because it was
untimely and did not satisfy the requirements of rule 63(b).
Although Judge Maughan denied the motion, he permitted API to
bring another motion using only Tingey Construction as its
grounds for disqualification. 	On July 14, API filed a third
motion to disqualify Judge Quinn, this time based solely on
Tingey Construction. 	On July 17, Judge Quinn heard argument on
API’s third motion to disqualify and issued an order that denied
it.

3 State v. Alonzo, 973 P.2d 975, 979 (Utah 1998).
4 2008 UT 7, 177 P.3d 605.
No. 2009 0624 	4
¶11 	Judge Quinn stated four reasons for denying the motion.
First, Judge Quinn determined that Tingey Construction does not
establish a per se rule requiring recusal in every case where a
judge has been exposed to ADR materials. 	Second, Judge Quinn
reasoned that Tingey Construction was a mediation case and its
narrow holding did not extend to cases involving arbitration.
Third, Judge Quinn determined that API waived any confidentiality
arguments by producing arbitration materials in discovery.
Finally, Judge Quinn determined that due to the hundreds of hours
already spent on the case, judicial economy weighed in favor of
denying API’s motion. 	On July 22, Judge Quinn stayed the
proceedings below to allow API to bring this interlocutory
appeal. 	We have jurisdiction under Utah Code section
78A-3-102(3)(j) (Supp. 2010).
STANDARD OF REVIEW
¶12 	Whether a trial judge erred by failing to recuse
himself is a question of law that we review for correctness. 3
ANALYSIS
¶13 	On appeal, API continues to argue that Judge Quinn
erred when he declined to recuse himself after he viewed
confidential information arising out of the API-Camco arbitration
proceedings. 	In support of this claim, API makes two primary
arguments: 	First, API argues that Utah’s ADR Act requires that
arbitration materials remain confidential and prohibits
disclosure of these materials in subsequent litigation. 	Second,
API asserts that our decision in Reese v. Tingey Construction 4
interprets Utah’s ADR Act to require a judge’s recusal where
information from an ADR proceeding is disclosed in subsequent
litigation.
¶14 	In response, KeyBank urges us not to reach the merits
of API’s disqualification motion because it was untimely filed
under Utah Rule of Civil Procedure 63(b). 	KeyBank argues that
API waited over fourteen months after KeyBank began to use
arbitration materials in the litigation and almost seventeen
months after Tingey Construction was decided to file its
disqualification motion--a length of time long past rule 63’s
prescribed deadline.

5 API argues that the time limitations in rule 63 do not
apply to its motion for disqualification because the motion was
filed under Tingey Construction, not under rule 63. 	We are
unpersuaded. 	Rule 63 governs motions for disqualification,
regardless of the grounds asserted. 	Timeliness is critical to
all motions to disqualify judges, and parties cannot file a
motion for disqualification under another name to escape rule
63’s timelines.
6 Utah R. Civ. P. 63(b)(1)(B) (emphasis added).
7 Madsen v. Prudential Fed. Sav. & Loan Ass’n, 767 P.2d 538,
542 (Utah 1988).
5 	No. 2009 0624
¶15 	We agree with KeyBank. 	Because API’s motion to
disqualify Judge Quinn was untimely under Utah Rule of Civil
Procedure 63(b)(1)(B), we decline to consider the merits of API’s
motion and affirm the decision of the district court.
I. 	API’S RULE 63(b) DISQUALIFICATION MOTION WAS UNTIMELY FILED
¶16 	Motions for disqualification of a judge are governed by
Utah Rule of Civil Procedure 63(b). 	This rule governs motions
for disqualification whether the text of a party’s motion
mentions the rule or not. 5 	Under rule 63, a motion to disqualify
a judge
shall be filed after commencement of the
action, but not later than [twenty] days
after the last of the following:
(i) 	assignment of the action or hearing
to the judge;
(ii) 	appearance of the party or the
party’s attorney; or
(iii) 	the date on which the moving party
learns or with the exercise of reasonable
diligence should have learned of the grounds
upon which the motion is based. 6
As we have stated before, “[t]imeliness is essential in filing a
motion to disqualify” because “delay imposes unnecessary
disruption on both the judicial system and [the] litigants. . . .
and it necessarily results in significant additional costs to the
parties.” 7
¶17 	“To be timely, a motion to disqualify should be filed
at counsel’s first opportunity after learning of the

8 Id. at 543.
9 Id.
10 See Utah R. Civ. P. 63(b)(1) (stating that a
disqualification motion shall be filed “not later than [twenty]
days after . . . the date on which the moving party learns or
with the exercise of reasonable diligence should have learned of
the grounds upon which the motion is based.” (emphasis added));
see also Madsen, 767 P.2d at 543-44 (finding a disqualification
motion to be untimely when the party waited thirty-nine days
after an adverse ruling before filing a motion to disqualify);
Williams v. Williams, 2004 UT App 245U, para. 1 (finding
disqualification motion filed on the day of trial was untimely
when the party knew a particular judge was assigned to the case
months before trial and during that time had in her possession
every document she needed to file the motion); K.F. v. State
(State ex rel. D.F.), 2001 UT App 256U, para. 5-6 (finding a
motion for disqualification was untimely when a party waited
forty-seven days after observing the questionable conduct to file
her motion); Birch v. Birch, 771 P.2d 1114, 1116 (Utah Ct. App.
1989) (holding a disqualification motion was untimely when it was
filed eighty-eight days after an alleged demonstration of bias).
No. 2009 0624 	6
disqualifying facts.” 8 	Because an undue delay in filing a
disqualification motion is costly, wasteful, and prevents the
speedy resolution of matters, “[o]nly if good cause for a delay
is demonstrated in the motion seeking disqualification should a
delinquent motion even be considered.” 9
¶18 	Here, because there is no question that API’s motion to
disqualify Judge Quinn was filed too late, and because we
conclude that API has not demonstrated good cause for its filing
delay, we decline to consider the merits of API’s delinquent
motion. 10 	Judge Quinn entered an order compelling arbitration
between Camco and API in June 2006. 	While the arbitration
proceeded to conclusion, the litigation between API and KeyBank
also continued. 	From early on in the proceedings, API was on
notice that KeyBank intended to introduce and rely on
confidential materials from the API-Camco arbitration; in fact,
references, documents, and transcripts from the arbitration were
attached to motions submitted to Judge Quinn on a regular basis
throughout the litigation. 	The record is replete with examples:
(1) In June 2007, KeyBank referenced the arbitration between API
and Camco and listed the resulting arbitration award as a defense
to API’s counterclaims against KeyBank. 	(2) In April 2008,
KeyBank attached a copy of the arbitration award as an exhibit to
its motion for summary judgment. 	(3) Although in April 2009, API

7 	No. 2009 0624
filed a motion in limine to exclude from the litigation the
arbitration award and other confidential arbitration materials,
API failed to mention the ADR Act or Tingey Construction, or as
much as suggest that Judge Quinn should disqualify himself from
the case. 	(4) In May 2009, KeyBank filed a responsive motion
that relied extensively on information and documents from the
arbitration proceedings. 	KeyBank attached as exhibits to its
memorandum the arbitrator’s decision and award, as well as
deposition transcripts from the arbitration proceedings. 	While
API objected to the introduction of these arbitration materials
on relevance and prejudice grounds, API waited until June 22,
2009 to file a disqualification motion, far more than twenty days
after it had the grounds to do so.
¶19 	While API concedes that it knew for some time that
confidential materials from the arbitration were being introduced
in subsequent litigation and that these materials were regularly
attached to motions before Judge Quinn, API argues that it had
good cause for delay in bringing its disqualification motion
because counsel did not learn it had grounds to bring a motion
until he attended a Continuing Legal Education seminar on the
topic in June 2009. 	An affidavit from API’s counsel states as
follows:
[D]uring [the CLE] I became aware that the
Utah Legislature adopted the Alternative
Dispute Resolution Act, including the
confidentiality requirements for both
arbitration and mediation proceedings. . . .
I was also informed about the Utah Supreme
Court case of Reese v. Tingey Construction,
2008 UT 7, 177 P.3d 605, that warned future
litigants and courts to carefully observe the
statutory bar to disclosing confidential
information from the alternative dispute
process.
API’s counsel urges us to find that its disqualification motion
was timely, despite being filed almost three years into the
litigation, after enough proceedings had occurred to generate
over forty volumes of record, and over sixteen months after
Tingey Construction was published. 	API asserts that its motion
was timely because API’s counsel filed it within twenty days of
attending a Continuing Legal Education seminar where he learned
of the legal bases for filing the motion. 	We are wholly
unpersuaded by this argument. 	As we stated above, rule 63
provides that a party shall file a disqualification motion “not
later than [twenty] days after . . . the date on which the moving

11 Utah R. Civ. P. 63(b)(1)(B) (emphases added).
12 See Black’s Law Dictionary 523 (9th ed. 2009) (defining
“reasonable diligence” as “[a] fair degree of diligence expected
from someone of ordinary prudence under circumstances like those
at issue”); Utah R. of Prof’l Conduct 1.3 (noting that an
attorney has a professional responsibility to “act with
reasonable diligence and promptness in representing a client”);
see also Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 24, 100 P.3d
1211 (interpreting the phrase “reasonable diligence” under Utah
Rule of Civil Procedure 4 and noting that “[i]n order to meet the
reasonable diligence requirement . . . a plaintiff must take
advantage of reasonably available channels of relevant
information as suggested by ordinary prudence and the particular
circumstances of the case”); Brown v. Glover, 2000 UT 89, ¶ 37,
16 P.3d 540 (stating that an attorney’s duty of reasonable
diligence includes a duty to observe and act according to the
deadlines prescribed in the Utah Rules of Civil Procedure).
13 See Utah Code Ann. §§ 78B-6-201 to -209 (2008).
14 See 1991 Utah Laws ch. 279, § 13.
15 See Utah Code Ann. § 78B-6-208.
No. 2009 0624 	8
party learns or with the exercise of reasonable diligence should
have learned of the grounds upon which the motion is based.” 11
The responsibility to exercise reasonable diligence under this
rule includes a duty to perform adequate research to determine
the existence of any legal claims in a timely fashion. 12 	API’s
ignorance of the ADR Act and of Tingey Construction do not
constitute good cause for its extreme delay in filing its
disqualification motions.
¶20 	First, API should have been--and with the exercise of
reasonable diligence would have been--aware of the Utah ADR
Act. 13 	The confidentiality provisions of this Act were codified
in 1991 14 and were present in the Utah Code during the entire
duration of API’s lengthy arbitration with Camco. 15 	We find it
difficult to understand how a party may competently participate
as a party in an arbitration without being aware of an entire Act
in the Utah Code that governs arbitration proceedings. 	While we
do not question the truthfulness of the sworn statement of API’s
counsel, we find counsel’s ignorance of the Act to be no excuse
for API’s delay in filing a disqualification motion.
¶21 	Second, we also conclude that if API’s counsel
exercised the reasonable diligence required by rule 63, it should

16 2008 UT 7, 177 P.3d 605.
17 See, e.g., Utah R. Prof’l Conduct 1.3 (“A lawyer shall
act with reasonable diligence and promptness in representing a
client.”).
9 	No. 2009 0624
have learned of Tingey Construction at an earlier stage in the
litigation. 	Tingey Construction was published in February 2008,
over a year before API filed its first disqualification motion. 16
At this time, API was aware that KeyBank was regularly presenting
Judge Quinn with arbitration materials, yet API failed to bring
this case to the court’s attention and has no reasonable
justification for the delay. 	An attorney’s failure to exercise
reasonable diligence in his representation of a client is not
good cause for failing to bring a timely disqualification motion
and adopting such a rule would encourage inattention, inadequate
representation, waste of judicial resources, and failure to
perform ethical duties required by the Utah Rules of Professional
Conduct. 17 	Because API waited to file its motion until long
after it should have known of possible grounds for
disqualification, we conclude API’s disqualification motion was
untimely filed under rule 63(b). 	We thus decline to reach the
merits of the motion, affirm the district court’s decision to
deny it, and direct Judge Quinn to proceed with the case.
CONCLUSION
¶22 	We conclude that API’s motion to disqualify was
untimely and that API has not demonstrated any good cause for its
delay. 	Because API’s motion did not meet the requirements of
Utah Rule of Civil Procedure 63(b), we decline to consider the
merits of API’s arguments and we affirm Judge Quinn’s decision to
deny the disqualification motion.
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¶23 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Judge Harmond concur in Justice Nehring’s
opinion.
¶24 	District Judge George M. Harmond sat.
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