The Dinner and Bingo Club v. Meadowbrook Assoc., Inc

The Dinner and Bingo Club Inc. v. Meadowbrook Associates, Inc. Filed April 29, 1999 IN THE UTAH COURT OF APPEALS

----ooOoo----

The Dinner and Bingo Club, Inc., a Utah corporation,
Plaintiff and Appellant,

v.

Meadowbrook Associates, Inc., a Utah corporation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971547-CA

F I L E D
April 29, 1999
  1999 UT App 138 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys: Dean H. Becker, Salt Lake City, for Appellant
Eric C. Olson, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Bench, and Billings.

WILKINS, Presiding Judge:

The Dinner and Bingo Club, Inc. (D&B) appeals from a judgment awarding Meadowbrook Associates, Inc. damages for heating, venting, and air conditioning (HVAC) costs arising from a lease agreement as well as the court's allocation of common area maintenance (CAM) fees arising from the lease. We affirm.

1. HVAC Costs

D&B challenges the trial court's finding that Meadowbrook complied with the lease warranty to maintain the HVAC system in "working condition" for sixty-days after October 1994, and thus erred in holding D&B liable for all HVAC maintenance expenses arising after the expiration of the warranty. However, D&B has failed to marshal all evidence presented to the trial court that supports this factual finding and then demonstrate a fatal flaw in that evidence sufficient to convince us that the trial court's finding is clearly erroneous. See Warner v. Sirstins, 838 P.2d 666, 669 (Utah Ct. App. 1992) (setting forth marshaling requirement). Instead, D&B merely presents carefully selected facts and excerpts of trial testimony in support of its position and then argues for its version of the facts based on the evidence most favorable to its position. "Such selective citation to the record does not begin to marshal the evidence; it is nothing more than an attempt to reargue the case before this court--a tactic that we reject." Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051, 1053 (Utah Ct. App. 1994). Because of this deficiency, we assume that the finding is accurate and affirm the trial court's ruling on this ground.

2. CAM Fees

D&B further argues that the trial court erroneously allocated CAM fees. This also presents a challenge to the trial court's factual findings. Again, however, appellant has failed its marshaling duty. Rather, appellant merely states the facts most favorable to its position. Moreover, appellant's brief fails to comply with appellate briefing requirements, see Utah R. App. P. 24(a), being devoid of any substantive legal analysis, citation to authorities, or reference to the record. See State v. Thomas, 361 Utah Adv. Rep. 3, 4 (Utah 1999) (refusing to address issue when brief omitted substantive analysis and provided "only superficial citation of authority and cursory legal analysis"). For the foregoing reasons, we do not disturb the trial court's finding on this issue.

3. Attorney Fees

Finally, D&B challenges the trial court's assessment of attorney fees. However, because appellant's brief fails to adequately examine this issue, we also decline to address this matter. See id.

Affirmed.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

-----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Russell W. Bench, Judge