marshaling requirement in Utah

2013Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991). 131 More than a mere briefing requirement, the marshaling rule is prudent tactical advice.

2013Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991) (explaining the marshaling requirement).

2014Thus, while rule 24(a)(9) itself (adopted in 1999) speaks only of "marshal{ing] all record evidence that supports the challenged finding," our caselaw has sometimes extended this principle to require an appellant to "present, in comprehensive and fastidious order, every serap of competent evidence introduced at trial which supports the very findings the appellant resists," and to do so in a manner in which he "temporarily remove[s] [his] own prejudices and fully embrace[s] the adversary's position" by assuming the role of "devil's advocate." Chen, 2004 UT 82, ¶¶ 77-78 , 100 P.3d 1177 (internal

2014Thus, while rule 24(a)(9) itself (adopted in 1999) speaks only of "marshal{ing] all record evidence that supports the challenged finding," our caselaw has sometimes extended this principle to require an appellant to "present, in comprehensive and fastidious order, every serap of competent evidence introduced at trial which supports the very findings the appellant resists," and to do so in a manner in which he "temporarily remove[s] [his] own prejudices and fully embrace[s] the adversary's position" by assuming the role of "devil's advocate." Chen, 2004 UT 82, ¶¶ 77-78 , 100 P.3d 1177 (internal

2017In State v. Roberts, we held that "like the marshaling requirement imposed by rule 24(a)(9) of the Rules of Appellate Procedure, our adequate briefing .requirement is not a 'hard-and-fast default notion.’ Instead, it is a natural extension of an appellant’s burden of persuasion.' " 2015 UT 24, ¶ 18 , 345 P.3d 1226 (citing State v. Nielsen, 2014 UT 10, ¶¶ 40-41 , 326 P.3d 645 ).

2017In State v. Roberts, we held that "like the marshaling requirement imposed by rule 24(a)(9) of the Rules of Appellate Procedure, our adequate briefing .requirement is not a 'hard-and-fast default notion.’ Instead, it is a natural extension of an appellant’s burden of persuasion.' " 2015 UT 24, ¶ 18 , 345 P.3d 1226 (citing State v. Nielsen, 2014 UT 10, ¶¶ 40-41 , 326 P.3d 645 ).

2012See generally Kimball v. Kimball, 2009 UT App 233, ¶ 21 , 217 P.3d 733 ("The marshaling requirement is not satisfied if parties just list all the evidence presented at trial ...."); id. ¶ 20 n. 5 ("If there is some supportive evidence, onee that evidence is marshaled it is the challenger's burden to show the 'fatal flaw in that supportive evidence, and explain why the evidence is legally insufficient to support the [verdiet]." (citation omitted)).

2012See generally Kimball v. Kimball, 2009 UT App 233, ¶ 21 , 217 P.3d 733 ("The marshaling requirement is not satisfied if parties just list all the evidence presented at trial ...."); id. ¶ 20 n. 5 ("If there is some supportive evidence, onee that evidence is marshaled it is the challenger's burden to show the 'fatal flaw in that supportive evidence, and explain why the evidence is legally insufficient to support the [verdiet]." (citation omitted)).

1994See Wright v. Westside Nursery, 787 P.2d 508 , 512 n. 2 (Utah App.1990).

1992See Wright v. Westside Nursery, 787 P.2d 508 , 512 n. 2 (Utah App.1990) (the purpose of the marshaling requirement is to spare appellate courts the onerous burden of combing through the record in search of supporting factual matters).

2023But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40 , 326 P.3d 645 ; see also State v. Wall, 2020 UT App 36, ¶ 53 , 460 P.3d 1058 ; Wilson v. Sanders, 2019 UT App 126, ¶ 17 , 447 P.3d 1240 .

2023But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40 , 326 P.3d 645 ; see also State v. Wall, 2020 UT App 36, ¶ 53 , 460 P.3d 1058 ; Wilson v. Sanders, 2019 UT App 126, ¶ 17 , 447 P.3d 1240 .

2010Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051, 1053 (Utah Ct.App.1994) (internal quotation marks and citations omitted). *1243 ¶ 13 As Friends has not met the marshaling requirement, we will assume that the trial court's findings are supported by the evidence and therefore are not clearly erroneous.

2004This deference to a trial court’s findings is “based on and fosters the principle that appellants rather than ap-pellees bear the greater burden on appeal.” Id. at 1053 . ¶ 80 If the marshaling requirement is not met, the appellate court has grounds to affirm the court’s findings on that basis alone.

2012See generally Friends of Maple Mountain, Inc. v. Mapleton City, 2010 UT 11, ¶ 12 , 228 P.3d 1238 (“[A] recital of the challenged findings with an attempt to reargue the facts [does not fulfill the marshaling requirement].

2012See generally Friends of Maple Mountain, Inc. v. Mapleton City, 2010 UT 11, ¶ 12 , 228 P.3d 1238 (“[A] recital of the challenged findings with an attempt to reargue the facts [does not fulfill the marshaling requirement].

2008See Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶¶ 18-20 , 164 P.3d 384 . 121 Defendant has inadequately briefed these claims in that he has failed to satisfy the marshaling requirement.

2008See Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶¶ 18-20 , 164 P.3d 384 . 121 Defendant has inadequately briefed these claims in that he has failed to satisfy the marshaling requirement.

2004It found that Eggett "made a proper and reasonable segregation between those claims to which he is entitled to an award of ... fees, and those claims to which he is not entitled to such an award." To challenge that factual finding, Wasatch must "marshal the evidence in support of the [trial court's] findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." Young v. Young, 1999 UT 38, ¶ 15 , 979 P.2d 338 (internal quotations omitted); see also Moon v. Moon

2004It found that Eggett "made a proper and reasonable segregation between those claims to which he is entitled to an award of ... fees, and those claims to which he is not entitled to such an award." To challenge that factual finding, Wasatch must "marshal the evidence in support of the [trial court's] findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." Young v. Young, 1999 UT 38, ¶ 15 , 979 P.2d 338 (internal quotations omitted); see also Moon v. Moon

2018See Bresee v. Barton , 2016 UT App 220 , ¶ 58, 387 P.3d 536 .

2018See Bresee v. Barton , 2016 UT App 220 , ¶ 58, 387 P.3d 536 .

2010"If the marshaling requirement is not met ... we assume that the evidence supports the trial court's findings" and may "affirm ... on that basis alone." Id. ¶ 80; see also United Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT 35, ¶ 27 , 140 P.3d 1200 ("When parties fail to [marshal], we can rely on that failure to affirm the lower court's findings of fact.").

2010"If the marshaling requirement is not met ... we assume that the evidence supports the trial court's findings" and may "affirm ... on that basis alone." Id. ¶ 80; see also United Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT 35, ¶ 27 , 140 P.3d 1200 ("When parties fail to [marshal], we can rely on that failure to affirm the lower court's findings of fact.").

2010We decline to engage in this analysis because Friends failed to properly marshal the evidence. ¶ 10 To adequately fulfill the marshaling requirement, the appellant must temporarily assume the role of his adversary, presenting us, "in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." Chen v. Stewart, 2004 UT 82, ¶ 77 , 100 P.3d 1177 (quoting Neely v. Bennett, 2002 UT App 189, ¶ 11 , 51 P.3d 724 ).

2010We decline to engage in this analysis because Friends failed to properly marshal the evidence. ¶ 10 To adequately fulfill the marshaling requirement, the appellant must temporarily assume the role of his adversary, presenting us, "in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." Chen v. Stewart, 2004 UT 82, ¶ 77 , 100 P.3d 1177 (quoting Neely v. Bennett, 2002 UT App 189, ¶ 11 , 51 P.3d 724 ).

2004It found that Eggett "made a proper and reasonable segregation between those claims to which he is entitled to an award of ... fees, and those claims to which he is not entitled to such an award." To challenge that factual finding, Wasatch must "marshal the evidence in support of the [trial court's] findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." Young v. Young, 1999 UT 38, ¶ 15 , 979 P.2d 338 (internal quotations omitted); see also Moon v. Moon

2004It found that Eggett "made a proper and reasonable segregation between those claims to which he is entitled to an award of ... fees, and those claims to which he is not entitled to such an award." To challenge that factual finding, Wasatch must "marshal the evidence in support of the [trial court's] findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." Young v. Young, 1999 UT 38, ¶ 15 , 979 P.2d 338 (internal quotations omitted); see also Moon v. Moon

2025See, e.g., Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 18 , 222 P.3d 1164 ; Wilson v. Sanders, 2019 UT App 126, ¶ 24 , 447 P.3d 1240 ; Boyer v. Boyer, 2008 UT App 138, ¶ 21 , 183 P.3d 1068 ; Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355, ¶ 12 , 993 P.2d 222 . ¶64 But Vail’s briefing on the question of damages was decidedly incomplete when it came to describing the evidence about Herzog’s injuries.

2025See, e.g., Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 18 , 222 P.3d 1164 ; Wilson v. Sanders, 2019 UT App 126, ¶ 24 , 447 P.3d 1240 ; Boyer v. Boyer, 2008 UT App 138, ¶ 21 , 183 P.3d 1068 ; Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App 355, ¶ 12 , 993 P.2d 222 . ¶64 But Vail’s briefing on the question of damages was decidedly incomplete when it came to describing the evidence about Herzog’s injuries.

2025England Inc. v. Labor Comm’n, 2024 UT App 170, ¶ 28 , 561 P.3d 213 (“A party challenging a factual finding or sufficiency of the evidence will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” (quotation simplified)), cert. denied, 564 P.3d 958 (Utah 2025); Cox v. Cox, 2023 UT App 62 , ¶ 34 n.6, 532 P.3d 128 (noting that the marshaling requirement does not apply to a challenge regarding “a legal question”). 20240347-CA 6 2025 UT App 124 Schmith v. Schmit was the trustee and his children were the beneficiaries.

2025See id. ¶¶ 2–4.

2023But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40 , 326 P.3d 645 ; see also State v. Wall, 2020 UT App 36, ¶ 53 , 460 P.3d 1058 ; Wilson v. Sanders, 2019 UT App 126, ¶ 17 , 447 P.3d 1240 .

2023But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40 , 326 P.3d 645 ; see also State v. Wall, 2020 UT App 36, ¶ 53 , 460 P.3d 1058 ; Wilson v. Sanders, 2019 UT App 126, ¶ 17 , 447 P.3d 1240 .