Cline v. Hilder

IN THE UTAH COURT OF APPEALS

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Earl L. Cline II,

Petitioner,

v.

Honorable Robert K. Hilder,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040130-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 75

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Original Proceeding in this Court

Attorneys: Earl L. Cline II, Salt Lake City, Petitioner Pro Se

Brent M. Johnson, Salt Lake City, for Respondent

Steven B. Wall, Salt Lake City, for Real Party in Interest

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

This is an extraordinary writ filed pursuant to rule 65B(d) of the Utah Rules of Civil Procedure and rule 19 of the Utah Rules of Appellate Procedure. Petitioner Cline moved to disqualify his Wife's attorney in their divorce action on the basis that counsel has a conflict of interest. The trial court denied the motion finding that (1) Cline failed to show that an attorney/client relationship existed between counsel and Cline; (2) counsel, based on his experience, would not agree to represent both parties; and (3) any information shared by counsel was already provided through other means. The trial court also found that to disqualify counsel would result in further delay of the trial which would be detrimental to the couple's child.

Counsel for Judge Hilder declined to file a response to the writ on the basis that Wife is the real party in interest. Counsel for Wife did file a response in opposition to the writ.

Rule 65B of the Utah Rules of Civil Procedure requires that Cline demonstrate that no other plain, speedy, and adequate remedy exists. Further, rule 65B(d) requires that he demonstrate that the trial court exceeded its discretion, abused its discretion, or failed to perform a duty required by law as a duty of the office.

Cline has failed to show that he has no other plain, speedy, and adequate remedy in the form of a direct appeal or an interlocutory appeal, pursuant to rule 5 of the Utah Rules of Appellate Procedure. The trial has concluded and the trial court has taken the matter under advisement. A direct appeal will not result in significant delay. Cline has also failed to demonstrate that the trial court committed a gross and flagrant abuse of discretion, more than a typical abuse of discretion featured in routine appellate review, in denying the motion to disqualify counsel. See State v. Stirba, 972 P.2d 918, 922, (Utah Ct. App. 1998).

We, therefore, dismiss Cline's petition for extraordinary relief.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge