When must appellants marshal evidence in construction damages appeals? Traco v. Comtrol Explained

Background and Facts

Traco Steel Erectors entered into two written subcontracts with Comtrol to provide steel erection work at Utah Valley State College and Weber State University. After payment disputes arose, Traco abandoned both projects before completion. Comtrol invoked contractual provisions allowing it to complete the work and charge Traco for “actual costs incurred.” Comtrol used the R.S. Means Building Construction Cost Data—a national average wage rate index—along with testimony about average hourly rates to calculate damages. The trial court awarded Comtrol net damages after adjusting for what it deemed excessive rates and hours to achieve a “reasonable fair market value amount.”

Key Legal Issues

The central issue was whether Traco’s challenge to the damages calculation constituted an appeal from a question of law (the measure of damages) or a question of fact (sufficiency of evidence), which would trigger the marshaling requirement. Traco argued it was challenging the trial court’s method of calculating damages, not the adequacy of the evidence. The court of appeals had declined to reach the merits because Traco failed to marshal the evidence supporting the damages award.

Court’s Analysis and Holding

The Utah Supreme Court distinguished between two types of appeals: challenges to the measure or formula used to calculate damages (questions of law) versus challenges to the sufficiency of properly admitted evidence supporting a damages award (questions of fact). The court determined that Traco’s appeal essentially argued that the evidence was insufficient to prove Comtrol’s actual costs, rather than challenging the legal framework for calculating damages. Since the subcontracts clearly specified “actual costs incurred” as the measure, and the trial court applied this standard, Traco was challenging the weight and strength of the evidence—a factual determination requiring marshaling.

Practice Implications

This decision clarifies a crucial distinction for construction law appeals. Practitioners must carefully frame their challenges to damages awards. Arguing that a trial court used the wrong legal standard or formula for calculating damages avoids the marshaling requirement, while challenging the types or quality of evidence supporting the award triggers marshaling. The court also confirmed that cost data like R.S. Means averages, combined with supporting testimony, can constitute sufficient evidence of actual costs incurred, even without primary documentation of cash outlays.