Traco v. Comtrol

2009 UT 81
222 P.3d 1164
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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Traco Steel Erectors, Inc., 	No. 20080074
Plaintiff and Petitioner,
v.
F I L E D
Comtrol, Inc.,
Defendant and Respondent. 	December 11, 2009
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Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 040911076
Attorneys: 	Stephen B. Doxey, Salt Lake City, for petitioner
Cass C. Butler, Zachary T. Shields, Michael D.
Stanger, Nathan R. Denny, Salt Lake City, for
respondent
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	Petitioner Traco Steel Erectors, Inc. entered into two
written subcontracts to provide steel erection work for
Respondent Comtrol, Inc. on construction projects at Utah Valley
State College and Weber State University. 	Disputes among the
parties arose, and Traco eventually abandoned both projects prior
to completion. 	Comtrol then invoked provisions of the
subcontracts that allowed Comtrol to complete the steel erection
work and charge Traco for costs incurred. 	Traco sued Comtrol for
amounts it had not been paid under its subcontracts on both
projects as well as amounts due on another project that is not at
issue in this appeal. 	Comtrol counterclaimed for damages
incurred in completing both projects as well as other damages not
at issue in this appeal.

1 Traco and Comtrol entered into additional contracts for
other projects that are not a part of this appeal.
No. 20080074 	2
¶2 	Several issues were resolved when the district court
granted Comtrol’s motion for partial summary judgment. 	The
remaining issues were tested in a five-day bench trial. 	The
district court judge issued forty-three pages of findings of fact
and conclusions of law. 	The trial court awarded Comtrol net
damages of $1,450.27 and $3,270.11 for the two projects.
¶3 	Traco appealed. 	It claimed that the trial court erred
in basing its damages award on the evidence presented by Comtrol
to prove the actual costs incurred in completing Traco’s work.
Specifically, Traco appealed what it claimed was the trial
court’s implicit use of a published national average wage rate
index titled the R.S. Means Building Construction Cost Data and
testimony on average hourly rates from Comtrol employees as a
baseline for calculating damages. 	The court of appeals held that
the appeal was from a fact-bound issue and that Traco therefore
had a duty to marshal the evidence surrounding the damages award.
Traco did not marshal the evidence relating to the trial court’s
findings of fact on the issue of damages. 	The court of appeals
therefore declined to reach the merits of the issue. 	Judge
McHugh dissented.
¶4 	Traco petitioned this court for certiorari review. 	We
granted the petition to decide (1) whether the court of appeals
erred in declining to address the merits of Traco’s challenge to
the trial court’s determination of the measure of damages and
(2) whether the court of appeals erred in affirming the district
court’s method of ascertaining the measure of damages. 	We hold
that Traco had a duty to marshal the evidence surrounding the
district court’s calculation of the total damages sought because
Traco’s appeal challenges the strength of the evidence supporting
the trial court’s findings of fact. 	Traco failed to marshal the
evidence surrounding the damages award and therefore the court of
appeals did not err in declining to reach the merits of Traco’s
appeal to the damages award.
BACKGROUND
¶5 	Comtrol is a general contractor. 	Traco is a steel
erection subcontractor. 	Comtrol and Traco entered into two
written subcontracts pursuant to which Traco agreed to provide
steel erection work for construction projects at Weber State
University and Utah Valley State College. 1 	Each of the
subcontract agreements contained the following provisions:

3 	No. 20080074
Contractor’s Right to do Subcontractor’s
Work: 	If Subcontractor fails to supply
sufficient forces, equipment or materials to
advance the work according to Contractor’s
schedule, then Contractor may use its own
forces, equipment, or materials to supply
such portions of the work as are necessary to
increase the rate of progress, and Contractor
shall deduct the expense, with reasonable
overhead and profit, from the Subcontractor
price.
Default: 	In the event that
Subcontractor appears likely to be unable to
complete its work according to Contractor’s
project schedule, or if Subcontractor fails
to fully perform its duties under this
Subcontract, or if Subcontractor becomes
insolvent, or fails to supply sufficient
forces to maintain this schedule, or is
guilty of any other default under this
Subcontract, then Contractor may (a) withhold
payment for work performed under the
Subcontract and withhold payment of any other
obligation of Contractor to Subcontractor;
(b) after giving 48 hours written notice to
Subcontractor, eject Subcontractor and take
over Subcontractor’s work and terminate
Subcontractor’s right to perform under the
Subcontract. 	If Contractor takes over
Subcontractor’s work, then Contractor will
charge Subcontractor for all costs incurred
as a result, including reasonable overhead
and profit and including attorney’s fees and
other expenses. 	If the total amount exceeds
the unpaid balance of the Subcontract, then
Subcontractor shall pay the difference to
Contractor. 	If the amount is less than the
unpaid balance of the Subcontract, the excess
shall be paid by Contractor to Subcontractor.
¶6 	Following a payment dispute between Traco and Comtrol,
Traco abandoned both the UVSC project and the Weber State project
before completing either. 	Comtrol gave Traco a written forty-
eight hour notice to return to work on the UVSC project and to
perform its contract obligations. 	Comtrol advised Traco that if
it did not return, Comtrol would charge Traco for the cost of
completing Traco’s work. 	Traco did not return to the UVSC
project. 	Traco later abandoned the Weber State project because

No. 20080074 	4
of contract disputes. 	Comtrol notified Traco it would invoke its
rights under the subcontracts to perform the agreed upon work on
both projects and back charge Traco for the costs incurred.
Traco sent Comtrol written notice that it was abandoning the
projects.
¶7 	Comtrol completed the projects by using its own labor
force and subcontracting with a skilled welder instead of hiring
another steel erection company. 	Comtrol invoked the subcontract
provisions that allowed Comtrol to charge Traco the actual costs
and overhead for this work. 	Traco sued Comtrol for the amounts
unpaid under the contracts on both projects, and Comtrol
counterclaimed to recover the costs it incurred in completing the
two projects.
¶8 	At trial, Comtrol successfully introduced into evidence
the R.S. Means Building Construction Cost Data: 	2001 Western
Edition (Phillip R. Waier ed., 14th ed. 2001). 	This document is
an index of average wages and costs for skilled structural
steelworkers and equipment in the western United States. 	The
R.S. Means averages contractors’ percentage mark-ups applied to
base labor rates to arrive at typical billing rates for skilled
and unskilled labor as well as the cost of equipment. 	The
average also combines the base labor rates based on union wages
averaged over twenty major western U.S. cities, the average
worker’s compensation rates for thirteen western U.S. states, and
the fixed averages for all trades.
¶9 	Comtrol submitted the hourly rate of $50.68 found in
the R.S. Means average as the rate that the employees hired by
Comtrol to complete Traco’s work were actually paid. 	Comtrol
applied this average rate to all hours worked by Comtrol
employees in completing Traco’s work on the two projects.
Comtrol also added ten percent overhead and ten percent profit
for a total hourly labor rate of $60.82. 	Comtrol argued at trial
that the cost of completing Traco’s work for both projects was
much higher than the hourly wages paid to the workers because the
cost included the equipment and fuel expenses as well as
additional burden costs, such as workers’ compensation insurance,
general liability insurance, and overtime pay. 	Traco did not
appeal the propriety of the trial court’s evidentiary ruling
concerning the admissibility of the R.S. Means average.
¶10 	Comtrol’s president, Brian Burk, testified that the
R.S. Means average accurately reflected the actual cost Comtrol
incurred to perform the work Traco abandoned. 	Sharon Zobel, the
secretary and payroll manager for Comtrol, testified that Comtrol
normally paid laborers $20 an hour and supervisors $30 an hour

5 	No. 20080074
and that Comtrol incurred a thirty-five percent labor burden to
cover required taxes, social security, and insurance for each
employee. 	In an attempt to rebut this testimony, Traco
highlighted perceived inconsistencies between Mr. Burk’s trial
and deposition testimony. 	Traco also subpoenaed Comtrol’s
payroll records. 	The trial court quashed the subpoena because
Traco failed to request the records before the close of the
discovery deadline.
¶11 	The trial court found Comtrol owed Traco $7,449.39 for
amounts unpaid on the UVSC project and $46,942.39 for amounts
unpaid on the Weber State project. 	Comtrol presented exhibits to
the court demonstrating, through use of the R.S. Means average,
that the charge to Traco should total $17,279.73 for the UVSC
project and $58,212.50 for the Weber State project. 	However, the
trial court instead awarded Comtrol $8,900.00 on the UVSC project
and $50,212.50 on the Weber State project. 	The court arrived at
these numbers after adjusting for duplicate charges and for what
the court found to be excessive rates and hours to achieve a
“reasonable fair market value amount to complete Traco’s work.”
The trial court’s adjustments resulted in a net judgment for
Comtrol of $1,450.27 and $3,270.11 for the projects, to which it
added interest, court costs, and $58,549.75 in attorney fees.
¶12 	Following the trial court’s order, Traco appealed
several issues. 	Of importance to this appeal, Traco contented
that the trial court improperly relied on the R.S. Means average
and oral testimony to establish the costs Comtrol actually
incurred to complete Traco’s steel erection work. 	Traco Steel
Erectors, Inc. v. Comtrol, Inc., 2007 UT App 407 ¶¶ 40, 42, 175
P.3d 572. 	The court of appeals ruled that the trial court’s
calculation of damages was a question of fact and that Traco was
therefore required to marshal the evidence surrounding the
damages award in order to seek appellate review. 	Id. ¶¶ 41-43.
Since Traco failed to marshal the evidence surrounding the award
of damages, the court of appeals declined to address whether the
trial court erred in its calculations of the amount Traco owed
Comtrol. 	Id. ¶ 43. 	Judge McHugh dissented, reasoning that
whether the trial court properly considered the R.S. Means
average was a question of law and therefore not subject to the
marshaling requirement. 	Id. ¶ 54.
¶13 	We granted certiorari to determine (1) whether the
court of appeals erred in declining to address the merits of
Traco’s challenge to the district court’s determination of the
measure of Comtrol’s damages and (2) whether the court of appeals
erred in affirming the district court’s method of ascertaining

No. 20080074 	6
the measure of Comtrol’s damages. 	We have jurisdiction over this
appeal pursuant to Utah Code section 78A-3-102(3)(a)(2008).
STANDARD OF REVIEW
¶14 	On certiorari, we review the decision of the court of
appeals, not the trial court. 	Lysenko v. Sawaya, 2000 UT 58,
¶ 15, 7 P.3d 783. 	We review the decision of the court of appeals
for correctness, and give no deference to its conclusions of law.
Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 12, 61
P.3d 1009.
ANALYSIS
¶15 	This appeal presents us with the following two issues:
(1) whether Traco was required to marshal the evidence
surrounding the award of damages to Comtrol in order to challenge
the measure of damages and (2) whether the court of appeals erred
in affirming the trial court’s method of ascertaining the measure
of Comtrol’s damages. 	We conclude that Traco’s appeal from the
damages award was an appeal from a finding of fact, which
required Traco to marshal the evidence surrounding the damage
award. 	Because Traco failed to marshal the evidence, the court
of appeals correctly declined to address the merits of Traco’s
challenge to the damages award. 	We also conclude that the court
of appeals did not err when it affirmed the trial court’s method
of ascertaining the measure of damages.
I. 	THE COURT OF APPEALS PROPERLY DECLINED TO REVIEW TRACO’S
CHALLENGE TO COMTROL’S DAMAGES AWARD BECAUSE TRACO DID NOT
FULFILL ITS DUTY TO MARSHAL THE EVIDENCE
¶16 	The first issue before us is whether the court of
appeals erred in declining to address the merits of Traco’s
challenge to the trial court’s determination of the measure of
damages. 	The court of appeals declined to address the merits of
the particular issue because it found that “[t]he trial court’s
calculation of damages is clearly fact sensitive” and Traco had
an obligation to marshal the evidence presented on Comtrol’s
damages in order for the court to “reconsider the weight and
strength of that evidence.” 	Traco Steel Erectors, Inc. v.
Comtrol, Inc., 2007 UT App 407, ¶¶ 40, 42, 175 P.3d 572. 	We
agree that Traco’s appeal of the trial court’s determination of
the measure of damages is a challenge to the weight of the
evidence supporting the damages award and is therefore an appeal
from a finding of fact by the district court.

7 	No. 20080074
¶17 	“A trial court’s findings of fact will not be set aside
unless clearly erroneous.” 	Chen v. Stewart, 2004 UT 82, ¶ 19,
100 P.3d 1177. 	To establish that a factual finding is clearly
erroneous, the appealing party must “marshal all the evidence in
support of the finding and then demonstrate that the evidence is
legally insufficient to support the finding even when viewing it
in a light most favorable to the court below.” 	State v. Clark,
2005 UT 75, ¶ 17, 124 P.3d 235 (internal quotation marks
omitted); see also Utah R. App. P. 24(a)(9) (“A party challenging
a fact finding must first marshal all record evidence that
supports the challenged finding.”). 	“If the evidence is
inadequately marshaled, this court assumes that all findings are
adequately supported by the evidence.” 	Chen, 2004 UT 82, ¶ 19.
¶18 	We stated in Lysenko v. Sawaya that “[q]uestions of
fact ‘are generally regarded as entailing the empirical, such as
things, events, actions, or conditions happening, existing, or
taking place, as well as the subjective, such as state of mind.’”
2000 UT 58, ¶ 17, 7 P.3d 783 (quoting State v. Pena, 869 P.2d
932, 935 (Utah 1994)). 	We have previously noted that “the
adequacy of a damage award is a factual question.” 	Id. ¶ 13
(internal quotation marks omitted). 	In contrast, the measure
used to calculate damages is a question of law. 	See Mahana v.
Onyx Acceptance Corp., 2004 UT 59, ¶ 25, 96 P.3d 893. 	Therefore,
appeals from the adequacy of a damages award are appeals from
factual questions, which obligate the appealing party to marshal
the evidence before an appellate court may review the district
court’s award.
¶19 	Traco does not contend that it sufficiently marshaled
the evidence surrounding the damages award. 	Instead, it argues
that it was not obligated to marshal the evidence because its
appeal challenges whether the trial court used the correct
measure of damages in calculating the awarded damages and
therefore is an appeal based on a question of law. 	Traco relies
on Lysenko as support for its contention that its appeal to the
damages award was actually a challenge to the method used by the
trial court and not the sufficiency of the evidence underlying
the damages award.
¶20 	We find, however, that Lysenko demonstrates exactly why
Traco’s appeal of the damages award was exclusively an appeal of
the sufficiency of the evidence underlying the trial court’s
factual finding. 	In Lynseko, we addressed whether the court of
appeals had applied the proper standard of review to an appeal
from a damages award. 	2000 UT 58, ¶¶ 15-16. 	Although Lysenko
stands for the proposition that a district court’s use of a
measure of damages is a question of law, id. ¶ 16, the issue in

No. 20080074 	8
Lysenko was the trial court’s proper selection of one of two
properly presented measures of damages for a claim of conversion,
not the sufficiency of evidence presented to support either
measure of damages. 	Id. ¶ 23. 	In contrast, the case before us
does not involve two or more alternative formulae advanced as
candidates to properly calculate damages, but a sizeable mass of
evidence that the trial court was required to sift and weigh in
aid of reaching a lawful result.
¶21 	Although Traco claims its appeal is based on the
measure or method used by the trial court, the appeal essentially
relies on the argument that the evidence presented was not
sufficient to prove the costs Comtrol actually incurred. 	Traco’s
appeal does not allege that the trial court selected an improper
formula or framework for a determination of damages, but rather
challenges the types of evidence the court considered in using
the formula to calculate damages. 	Whether the trial court
calculated the damages award within the framework dictated by the
subcontracts, which in this case is “actual costs incurred,” is a
question of law. 	In contrast, a challenge to whether the R.S.
Means average along with testimony explaining the legitimacy of
the R.S. Means data as reflective of Comtrol’s actual costs is a
challenge to the quality of the evidence and not to the formula
used to calculate damages. 	The court of appeals was correct,
then, when it concluded that the trial court’s damage
determination was a question of fact.
¶22 	Judge McHugh’s dissent contends that Traco did not have
an obligation to marshal the evidence because “the issue of
whether average national hourly rates rather than evidence of the
actual costs of completing the work could be used to prove
Comtrol’s damages is an issue of law.” 	Traco, 2007 UT App 407,
¶ 54 (McHugh, J., dissenting). 	It asserts that as part of its
burden to prove a prima facie case of breach of contract, Comtrol
was required to provide the best evidence of what it actually
spent in completing Traco’s work and that failure to do so
foreclosed its claim to damages as a matter of law. 	Id. ¶ 58.
¶23 	We disagree. 	That Comtrol was obligated to prove
damages as part of its prima facie case and that the subcontracts
only allowed damages in the amount of costs actually incurred is
true. 	“A prima facie case has been made when evidence has been
received at trial that, in the absence of contrary evidence,
would entitle the party having the burden of proof to judgment as
a matter of law.” 	Bair v. Axiom Design, L.L.C., 2001 UT 20,
¶ 14, 20 P.3d 388. 	We are aware of no authority however that
restricts evidence that may be used to prove contract damages to
primary documentation of actual cash outlays to workers or

2 The court also received evidence from the welding
subcontractor hired by Comtrol to complete a portion of Traco’s
work that his rate was between $50 and $60 per hour.
9 	No. 20080074
suppliers, or that failure to do so results in a failure to
present a prima facie case of damages.
¶24 	As a general matter, “the desired objective is to
evaluate any loss suffered by the most direct, practical and
accurate method that can be employed.” 	Even Odds, Inc. v.
Nielson, 448 P.2d 709, 711 (Utah 1968). 	Judge McHugh concluded
in her dissent that Comtrol’s damages evidence did not meet this
standard. 	At its core, the skirmish over the R.S. Means average
is over its status as evidence. 	The dissent labels the R.S.
Means data “irrelevant.” 	The question of whether the dissent’s
assessment is correct is both intriguing and immaterial. 	Comtrol
offered the data into evidence. 	Traco objected to the admission
of the exhibit on grounds of foundation, not relevancy. 	The
trial court overruled the objection and received the exhibit.
Traco elected not to appeal the trial court’s evidentiary ruling.
An appellate court is ill-equipped to find that the evidence used
to support a damages award was not the best available. 	The
central inquiry is whether the evidence was sufficient; not
whether it was perfect.
¶25 	As the court of appeals briefly indicated, the evidence
presented to the trial court does not suggest that anything other
than amounts actually incurred, the proper measure of damages in
this case, was presented to the court as an alternative measure
of damages. 	This evidence included the R.S. Means average,
testimony from Ms. Zobel concerning the average rate paid to
workers, and testimony from Mr. Burk stating that the R.S. Means
average actually reflected the costs incurred to Comtrol in
completing Traco’s work. 2 	For instance, Mr. Burk testified that
he derived hourly rates for trades from the R.S. Means and
adjusted it to account for workers’ compensation insurance and
fixed overhead. 	When asked if based on his “experience in the
construction industry and knowledge of Comtrol’s expenses, do you
believe this rate of $50.68 accurately reflects the true cost to
Comtrol,” Mr. Burk replied “yes.” 	Traco’s appeal can thus only
be interpreted to be an appeal from the sufficiency of the
admitted evidence and not an appeal alleging that the court
applied any other standard of damages than costs actually
incurred.
¶26 	In our view, the record leaves no room to doubt that
reasonable minds might believe from a preponderance of the
evidence that the damages presented by Comtrol through time

No. 20080074 	10
cards, the R.S. Means average, and testimony were actually
suffered. 	See Darger v. Nielsen, 605 P.2d 1223, 1225 (Utah 1979)
(“Defendant presented a prima facie case of its damages, and
plaintiff did not present evidence that [the] charges were
unreasonable, or that defendant could have had the [structure]
finished at a lower price.”). 	Had Traco timely subpeoned
Comtrol’s payroll records, it is possible that such payroll
records may have contradicted the evidence presented by Comtrol.
Unfortunately, Traco failed to timely subpeona the payroll
records and presented no other evidence, besides conflicting
deposition testimony and deposition exhibits, that the hourly
rate of $50.68 did not reflect the actual costs incurred for the
labor and machinery required to complete Traco’s work.
¶27 	We hold, therefore, that Traco’s appeal of the damages
award was an appeal from the sufficiency of the evidence
underlying the damages award. 	The court of appeals did not err
when it declined to reach the merits of Traco’s claims. 	As the
court of appeals would not perform its own review of the record,
we too decline to determine whether the evidence presented to the
trial court was sufficient to support the damages award.
II. 	THE COURT OF APPEALS DID NOT ERR IN AFFIRMING THE DISTRICT
COURT’S METHOD OF DETERMINING DAMAGES
¶28 	Today we affirm the court of appeals’ holding that
Traco had an obligation to marshal the evidence underlying the
damages award and failed to do so. 	This court also granted
certiorari to address whether the court of appeals erred in
affirming the trial court’s method of ascertaining the measure of
damages. 	We interpret “method of ascertaining the measure of
damages” to mean the formula or method selected by the trial
court to establish the framework in which particular damages must
be shown. 	As stated in Part I of this opinion, “[w]hether the
district court applied the correct rule [or method] for measuring
damages is a question of law.” 	Mahana v. Onyx Acceptance Corp.,
2004 UT 59, ¶ 25, 96 P.3d 893.
¶29 	The court of appeals did not address the method of
damages the trial court employed in its opinion. 	Traco Steel
Erectors, Inc. v. Comtrol, Inc., 2007 UT App 407, ¶ 40, 175 P.3d
572. 	Traco argues this was error. 	Traco contends that the trial
court did not apply the right method of damages because the trial
court’s order refers to the fair market value of the work and not
the actual costs incurred by Comtrol. 	The trial court stated in
its order that the total damages claimed by Comtrol reflected
rates that exceeded “standard reasonable rates” and hours that
were “excessive and unreasonable.” 	The trial court subsequently

3 The subcontracts themselves entitled Comtrol to recover
costs incurred. 	We disagree with the court of appeals’ dissent’s
insistence that “incurred” unambiguously means what Comtrol
“actually spent to finish the work.” 	The primary dictionary
definition of “incur” is “to become liable or subject to.”
American Heritage Dictionary, 653 (2d ed. 1985). 	“Incur” quite
unambiguously does not imply anything about discharging the
liability. 	Thus, what Comtrol “actually spent” is irrelevant to
whether it actually “incurred” costs.
11 	No. 20080074
found $8,900.00 for the UVSC project and $50,212.50 for the Weber
State project “to be a reasonable fair market amount to complete
Traco’s work.”
¶30 	In this case, the proper measure of damages is found in
the contract language allowing Comtrol to recover the “actual
costs incurred” in completing Traco’s work. 3 	That a party can
recover the costs required to repair a breach of contract is also
reflected in our case law as pointed out by Judge McHugh’s
dissent. 	Id. ¶ 56; see also Darger v. Nielsen, 605 P.2d 1223,
1225 (Utah 1979) (“The measure of damages for such a breach is
the excess of the cost of completi[on] . . . over what defendant
would have paid under the contract.”); Stangl v. Todd, 554 P.2d
1316, 1320 (Utah 1976) (“The contract breaker should pay the cost
of construction and completion in accordance with his
contract.”). 	The trial court selected the proper measure of
damages.
¶31 	Although the trial court impliedly considered
reasonableness in its determination, a factfinder’s consideration
of the reasonableness of cost of completion in a construction
performance context is not inappropriate as a matter of law. 	See
Darger, 605 P.2d at 1225 (“Defendant presented a prima facie case
of its damages, and plaintiff did not present evidence that [the
party hired to complete the work’s] charges were unreasonable, or
that defendant could have had the [work] finished at a lower
price.”); see also 11 Joseph M. Perillo, Corbin on Contracts
§ 60.1 (rev. ed. 2005) (stating, “for a total breach by refusal
and failure to complete the work, the injured party can usually
get a judgment for damages measured by the reasonable cost of
reconstruction and completion in accordance with the contract.”).
The trial court’s reference to fair market value, therefore, is
not incorrect as a matter of law.
¶32 	A determination of what measure of damages is
reasonable will depend on the agreement between the parties, the
particular circumstances, the applicable industry, and the
evidence presented. 	Although Traco now argues that the trial

No. 20080074 	12
court used improper evidence to determine reasonableness, Traco’s
failure to marshal the evidence surrounding the damages award
precludes appellate review of that contention. 	The court of
appeals did not err in failing to address whether the evidence
supports the costs awarded because Traco failed to marshal the
evidence.
CONCLUSION
¶33 	Damages awards in construction cases stemming from a
breach of a subcontract are often fact intensive and require
diligent attention to the costs incurred by both parties. 	While
an appeal from the measure or formula of damages used by a trial
court to determine damages is a question of law, an appeal from
the types of properly admitted evidence upon which the trial
court applies the formula is an appeal from a question of fact.
An appeal from a question of fact requires the appealing party to
marshal the evidence. 	In this case, Traco failed to marshal the
evidence and therefore the court of appeals did not err in
declining to review the merits of Traco’s challenge to the trial
court’s determination of damages. 	The court of appeals also did
not err in affirming the trial court’s method of ascertaining the
measure of damages. 	The court of appeals implicitly determined
that the trial court determined damages by taking into account
the actual costs incurred to Comtrol with any evidence suggesting
the actual costs presented were not reasonable. 	This was not
error. 	We therefore affirm the decision of the court of appeals.
---
¶34 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.