United Park City Mines Co. v. Stichting Mayflower Mountain Fonds

2006 UT 35
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
United Park City Mines Co., No. 20040943
a Delaware corporation,
Plaintiff and Appellee,
v.
Stichting Mayflower Mountain
Fonds, a Netherlands
association; Stichting
Mayflower Recreational Fonds,
a general partnership;
Stichting Mayflower Recreation;
Consolidated Mayflower Mines,
Inc., a Utah corporation;
Royal Street of Utah;
Cooperative Centrale
Raiffeisenboerenleenbank, B.A.,
a Netherlands corporation; May
Finance C.V.; Deer Valley
Resort, Inc., a Nevada
corporation; and Newpark
Resources, Inc., a Nevada F I L E D
corporation,
Defendants and Appellants. June 6, 2006
---
Fourth District, Heber Dep’t
The Honorable Donald J. Eyre, Jr.
No. 000500087
Attorneys: Laura S. Scott, Michael P. Petrogeorge, Salt Lake
City, for plaintiff
E. Craig Smay, Salt Lake City, for appellants
Wendy A. Faber, Salt Lake City, for defendant Deer
Valley Resort
Casey K. McGarvey, Salt Lake City, for defendant
Newpark Resources
---
PARRISH, Justice:

No. 20040943 2
¶1 This case stems from the application of a much-favored
property right: a cotenant’s right to partition. Partition is
intended to broker peace between feuding cotenants and promote
the productive use of property. The scarcity of relevant case
law is perhaps a reflection of the effectiveness and wisdom of
the remedy. Nevertheless, a judicial partition can sometimes
breed further contention and dissatisfaction. This is one such
case.
¶2 Appellants Stichting Mayflower Mountain Fonds and
Stichting Mayflower Recreational Fonds (collectively,
“Mayflower”) challenge the trial court’s partition of certain
property located in Summit and Wasatch Counties and an
accompanying award of owelty. Mayflower contends that appellee
United Park City Mines Company (“United Park”) waived its right
to partition and that it was therefore error for the trial court
to order the partition. Alternatively, Mayflower argues that the
trial court erred in its calculation of the owelty award and its
refusal to order an accounting.
¶3 We reject Mayflower’s challenge to the trial court’s
ruling because Mayflower has failed to marshal the evidence as
required by rule 24(a)(9) of the Utah Rules of Appellate
Procedure. As a result, we assume that the evidence supports the
factual findings underlying the ruling. We therefore affirm.
BACKGROUND
I. FACTUAL HISTORY
A. The Properties
¶4 United Park and Mayflower own approximately 342 acres
of property (the “Partition Property”) as tenants in common. The
Partition Property is comprised of certain patented mining claims
located in the Uintah Mining District. Approximately 216 acres
of the Partition Property lie in Summit County; the remaining
acres are located in Wasatch County. The Partition Property is
located in an area commonly known as “Upper Mountain.”
¶5 Additionally, United Park and Mayflower each separately
own nearby properties. United Park owns approximately 1400 acres
of property located in Summit County (the “United Park
Property”). Part of the United Park Property is an 84-acre
parcel termed “Mountain Village,” which is located in an area
commonly known as “Lower Mountain.” Another part of the United
Park Property is a portion of the “Northside Neighborhood,” a
planned 63-acre development in Upper Mountain. United Park and

3 No. 20040943
Deer Valley Resort Company (“Deer Valley”) are the two main
Northside Neighborhood property owners; three others also own
interests in the Northside Neighborhood, including Mayflower.
Mayflower solely owns approximately 50 to 60 acres of Summit
County property (the “Mayflower Property”).
B. The Annexation and Development Agreement
¶6 United Park has long sought to develop the United Park
Property. But Summit County zoning regulations, which permitted
only one unit of development per 40 acres, prevented large-scale
development. In 1994, United Park petitioned Park City for
annexation of approximately 1340 acres of land located in Summit
County, seeking a regulatory framework more conducive to its
development goals. Thus began a long and difficult negotiation
process that ultimately culminated in United Park’s partition
petition.
¶7 Park City allegedly responded to United Park’s 1994
petition by insisting on two conditions to annexation: (1) that
the annexation extend to the Summit County line and cover
property owned by several different owners, including the United
Park Property, the Mayflower Property, and the portion of the
Partition Property lying within Summit County (collectively, the
“Flagstaff Development”); and (2) that the Flagstaff Development
be subject to a master development agreement (the “Development
Agreement”) regulating its use and development. United Park
continued negotiating with Park City for over four years. United
Park and Park City particularly struggled over how much
development density to allocate to the Mountain Village and
Northside Neighborhood developments. None of the other property
owners ever participated in the negotiation process, nor did they
bear the associated expenses.
¶8 In 1997, the Park City planning commission approved
United Park’s proposal, which called for development in both the
Upper Mountain and Lower Mountain areas. The city council,
however, rejected the proposal and passed a resolution
restricting development to Lower Mountain. Frustrated, United
Park initiated parallel negotiations with Summit County for a
deal that would amend that County’s restrictive zoning
regulations. Park City resumed negotiations with United Park
shortly thereafter, and in 1998, the city council passed a
resolution allowing for development on Upper Mountain. The
annexation and the Development Agreement were both finalized on
June 24, 1999.

No. 20040943 4
¶9 The Development Agreement permits 470 residences, 16
single-family lots, and commercial development in Mountain
Village. The Development Agreement also allows for the
development of up to 38 single-family lots in the Northside
Neighborhood. Under the Development Agreement, United Park and
Deer Valley are collectively entitled to 30 lots in the Northside
Neighborhood. The Development Agreement also authorizes 8
additional Northside Neighborhood lots (the “Conditional Lots”),
but only in the event that the other three property owners,
including Mayflower, elect to join in the Development Agreement.
According to the Development Agreement, all development is to
take place within discrete “development pods”; the majority of
the Flagstaff Development--approximately 1500 acres--is zoned as
“recreational open space.”
¶10 Approximately 3.5 acres of the Partition Property (the
“Adjacent Property”) are located adjacent to both the proposed
subdivision within the Northside Neighborhood and the Mayflower
Property. The Mayflower Property is also located adjacent to the
proposed subdivision within the Northside Neighborhood. The
portion of the Partition Property located in Wasatch County was
not annexed and is not subject to the Development Agreement.
¶11 United Park made significant concessions as part of the
Development Agreement. In exchange for enhanced development
rights in the United Park Property and the Northside
Neighborhood, United Park agreed not to develop (1) an
approximately 650-acre parcel in Summit County commonly known as
“Richardson Flats”; (2) an approximately 90-acre parcel located
at the top of Iron Mountain; and (3) a parcel commonly known as
“Prospect Ridge.” United Park also agreed to “offer to dedicate
to the City a conservation easement[] or deed” in order to
preserve several parking lots located near City Hall. United
Park was also forced to “ratchet down its proposed density” for
its development of an approximately 1500-acre parcel in Wasatch
County commonly known as “Bonanza Flats.” Additionally, United
Park committed to operating private shuttle services within
Mountain Village, as well as undertaking multi-million dollar
road construction and renovation projects. As part of the
Development Agreement, Park City acquired a conservation easement
over 1,000-plus acres of property owned solely by United Park.
United Park also agreed to either construct a gondola between the
Flagstaff Mountain Resort and old town Park City or, if Park City
demanded, pay one million dollars to Park City.
C. The United Park-Mayflower Relationship

5 No. 20040943
¶12 Throughout its negotiations with Park City, United Park
attempted to get Mayflower and the other Flagstaff Development
property owners to participate in a joint venture. These efforts
ultimately were unsuccessful. On February 25, 1997, Hank
Rothwell, the president of United Park, faxed a letter (the “1997
Letter”) to Mayflower stating, “United Park or its
representatives, will not annex [Mayflower’s] property or accept
a density approval for [Mayflower’s] property without
[Mayflower’s] notification and permission.” The 1997 Letter was
purportedly “reconfirmed” on March 20, 1997. Discussions between
United Park and Mayflower continued, and on September 3, 1998,
Mayflower advised Park City in writing that it objected to the
terms of the annexation. United Park grew increasingly
frustrated by Mayflower’s refusal to participate in any kind of
joint venture, and on January 21, 1999, Rothwell sent a letter to
Mayflower advising that United Park would “delete Mayflower
property from [the] Master Planning effort.”
¶13 The annexation was finalized on June 24, 1999, pursuant
to Park City Ordinance No. 99-30. Although unilateral, the
annexation petition was proper under Utah Code section
10-2-403(b) (1999), which requires that a petition be signed by
the owner or owners of “a majority of the private land area
within the area proposed for annexation” that is “equal in value
to at least 1/3 of the value of all private real property within
the area proposed for annexation.” Because United Park was the
undisputed majority property owner, its petition met these
requirements.
II. PROCEDURAL HISTORY
¶14 In February 2000, United Park filed a complaint seeking
partition of the Partition Property. As part of the partition
process, the trial court appointed three referees to investigate
the issues relevant to the partition and to produce a report
recommending how the Partition Property should be divided. Each
party chose one referee; those two referees in turn selected a
third neutral referee.
¶15 Over the course of several months, the referees
reviewed the history of the annexation process and the resulting
Development Agreement. The referees first focused their efforts
on deciding how best to physically divide the Partition Property;
they then investigated Mayflower’s claims that the Development
Agreement had resulted in a transfer of development density from
the Partition Property and the Mayflower Property to Mountain
Village and the Northside Neighborhood. The referees submitted
their reports in April 2001. The neutral referee and the United

No. 20040943 6
Park referee signed the majority conclusions and recommendations
(the “Majority Report”), while the Mayflower referee submitted a
separate, dissenting report (the “Minority Report”).
¶16 The Majority Report recommended that the Partition
Property be divided so that United Park and Mayflower each
receive approximately 108 acres in Summit County and roughly 63
acres in Wasatch County. Additionally, the Majority Report
proposed that Mayflower be granted the Adjacent Property as part
of its 108-acre Summit County allotment. The Majority Report
further recommended that the trial court award Mayflower 3 or 4
of the Conditional Lots. According to the Majority Report, this
award would compensate Mayflower for density that was “probably
relocated from the [Partition Property and the Mayflower
Property] and clustered into the Northside Neighborhood.” In
making this recommendation, the authors of the Majority Report
stated that they were “convinced that the density in the
Flagstaff Development gained from the [Partition Property] and
from [the Mayflower Property] is limited to Mayflower’s fair
portion of the [Conditional Lots] in the Northside Neighborhood.”
¶17 The Minority Report did not dispute the Majority
Report’s proposed physical partition of the Partition Property.
It disagreed with the Majority Report, however, as to how many of
the Conditional Lots Mayflower should be awarded. The Minority
Report found that density may have been transferred to Mountain
Village from the Partition Property. According to the Minority
Report’s calculations, Mayflower was possibly entitled to a total
of 7.85 to 8.1 lots.
¶18 In March 2002, Mayflower amended its answer in the
partition lawsuit to allege that United Park, through the 1997
Letter, had waived its right to partition the Partition Property.
Both parties filed unsuccessful summary judgment motions in late
2002. In May 2004, the court held a bench trial and subsequently
issued a ruling adopting the recommendations of the Majority
Report. The trial court issued amended findings of fact,
conclusions of law, and an order in October 2004, and Mayflower
timely appealed. This court initially transferred the appeal to
the court of appeals but subsequently vacated the transfer order
and recalled the case. We have jurisdiction pursuant to Utah
Code section 78-2-2(3)(j) (2002).
ANALYSIS
¶19 Our holding in this case is but the latest in a series
of warning signs we must occasionally post for unsuspecting or
overly clever parties. The following analysis should serve as

7 No. 20040943
frank, severe instruction for those parties who ask us to decide
fact-dependent questions under the guise that they present only
issues of law.
¶20 While Mayflower purports to raise a multitude of issues
in its briefs, the substance of this case can actually be
distilled into two discrete questions: (1) whether the trial
court erred in determining that United Park did not waive its
right to partition; and (2) whether the trial court abused its
discretion in fashioning the owelty award. Mayflower also
requests an accounting. Because we conclude that Mayflower’s
claim for an accounting is duplicative of its request for an
additional owelty award, we refuse to consider that claim. We
therefore focus on the questions of waiver and owelty and discuss
each in turn.
I. WAIVER
¶21 Whether a party has effectuated a waiver is a mixed
question of law and fact. Chen v. Stewart, 2004 UT 82, ¶ 23, 100
P.3d 1177; see also U.S. Realty 86 Assocs. v. Sec. Inv., Ltd.,
2002 UT 14, ¶ 11, 40 P.3d 586. As we explained in Pledger v.
Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572, “[W]hether the trial
court employed the proper standard of waiver presents a legal
question which is reviewed for correctness, but the actions or
events allegedly supporting waiver are factual in nature and
should be reviewed as factual determinations.” Accordingly, we
“grant broadened discretion to the trial court’s findings” when
reviewing questions of waiver. Chen, 2004 UT 82, ¶ 23.
¶22 We have repeatedly applied the rule clarified in
Soter’s, Inc. v. Deseret Federal Savings & Loan Ass’n, 857 P.2d
935, 942 (Utah 1993), when evaluating questions of waiver. “A
waiver is the intentional relinquishment of a known right. To
constitute waiver, there must be an existing right, benefit, or
advantage, a knowledge of its existence, and an intention to
relinquish it.” Id. (internal quotation marks omitted); see also
In re Flake, 2003 UT 17, ¶ 30, 71 P.3d 589. Questions of waiver
often hinge on the critical third element of intent. We have
explained that the intent to relinquish a right must be distinct
and that fact-finders should “look[] at the totality of the
circumstances” in discerning intent. Id.
¶23 Mayflower argues that United Park waived its right to
seek a partition of the property. And there is no dispute that
the first two elements of waiver were satisfied here: United
Park had the right to a partition and was aware of that right.
Accordingly, the existence of a waiver turns on the question of

No. 20040943 8
intent. On this point, the trial court found that “United Park
ha[d] not waived its right to partition[;] [t]he [1997 Letter]
. . . did not evidence an intent by United Park to waive its
right to partition.” Because the issue of intent is
determinative here, Mayflower must successfully challenge this
factual finding if we are to reverse the trial court’s ruling.
This requires that Mayflower marshal all the evidence supporting
that finding. Utah R. App. P. 24(a)(9). Because Mayflower has
failed to do so, we assume that the evidence supports the finding
and consequently affirm.
¶24 Rule 24(a)(9) of the Utah Rules of Appellate Procedure
requires “[a] party challenging a fact finding [to] first marshal
all record evidence that supports the challenged finding.” See
also State v. Clark, 2005 UT 75, ¶ 17, 124 P.3d 235; Wilson
Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54 P.3d
1177. To pass this threshold, parties protesting findings of
fact 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.” Clark, 2005 UT 75, ¶ 17 (internal
quotation marks omitted).
¶25 That waiver is a mixed question of law and fact does
not relieve Mayflower of this important task. “Even where the
defendants purport to challenge only the legal ruling, as here,
if a determination of the correctness of a court’s application of
a legal standard is extremely fact-sensitive, the [appellants]
also have a duty to marshal the evidence.” Chen, 2004 UT 82,
¶ 20. Mayflower cannot dodge this duty by attempting to frame
the issues as legal ones. Because the question of waiver is so
dependent on factual findings, Mayflower must marshal the
evidence if it seeks to challenge the trial court’s determination
of that question.
¶26 Mayflower has not done so. It ostensibly makes an
effort to marshal the evidence on pages 21-22 of its brief: “It
marshals the evidence . . . to present the [1997 Letter] and
testimony [of one witness].” But contrary to Mayflower’s wistful
assertion, presenting evidence supporting the challenged
conclusion does not satisfy the marshaling requirement. Parties
cannot discharge their duty by “simply provid[ing] an exhaustive
review of all evidence presented at trial.” Chen, 2004 UT 82,
¶ 77. Rather, parties are required to
“temporarily remove [their] own prejudices
and fully embrace the adversary’s position”;
[they] must play the “devil’s advocate.” In

9 No. 20040943
so doing, appellants must present the
evidence in a light most favorable to the
trial court and not attempt to construe the
evidence in a light favorable to their case
. . . . In sum, to properly marshal the
evidence the challenging party must
demonstrate how the court found the facts
from the evidence and then explain why those
findings contradict the clear weight of the
evidence.
Id. ¶ 78 (quoting Harding v. Bell, 2002 UT 108, ¶ 19, 57 P.3d
1093) (citations omitted). What Mayflower has done instead is
“merely re-argue the factual case . . . presented in the trial
court,” id. ¶ 77, leaving United Park and this court to bear the
expense and time of performing the critical task of marshaling
the evidence. This is unfair, inefficient, and unacceptable.
See id.
¶27 We repeatedly have warned of the grim consequences
parties face when they fail to fulfill the marshaling
requirement. When parties fail to perform this critical task, we
can rely on that failure to affirm the lower court’s findings of
fact. Id. ¶ 80; see also Clark, 2005 UT 75, ¶ 17. We therefore
affirm the trial court’s factual findings, including its
determination that United Park did not intend to waive its right
to partition. Because we accept that finding of fact, we must
also affirm the trial court’s conclusion that United Park did not
waive its right to partition.
II. OWELTY
¶28 Because this court has rarely reviewed owelty awards,
we understand both parties’ confusion as to the applicable
standard of review. We therefore pause to clarify the correct
standard. The owelty remedy, though enabled by statute, Utah
Code Ann. § 78-39-41 (2002), is an equitable form of relief. The
statute itself recognizes the equitable nature of owelty: it
empowers courts “to make compensatory adjustment among the
parties according to the principles of equity.” Id. (emphasis
added). This is consistent with our characterization of
partition, which we have held to be “an equitable action,” in
part because “[t]he fundamental objective in a partition action
is to divide the property so as to be fair and equitable and
confer no unfair advantage on any of the co-tenants.” Blonquist
v. Frandsen, 694 P.2d 595, 596 (Utah 1984) (emphasis added). We
therefore review awards of owelty as we do other forms of
equitable relief.

No. 20040943 10
¶29 In equity cases, we review the trial court’s legal
conclusions for correctness. RHN Corp. v. Veibell, 2004 UT 60,
¶ 35, 96 P.3d 935. We grant considerable deference to the trial
court’s factual findings and will not reverse those findings
unless they are clearly erroneous. Id.
¶30 The equitable distribution of property, however,
involves more than factual findings and legal conclusions: it
requires trial courts to “balance[] the relative significance of
the facts and applicable law in order to achieve a fair and
equitable result. This balancing requires the exercise of
discretion.” Parduhn v. Bennett, 2005 UT 22, ¶ 23, 112 P.3d 495.
In partition actions, trial courts are specifically “accorded
broad discretion in fashioning an appropriate decree.” Gillmor
v. Gillmor, 657 P.2d 736, 739 (Utah 1982). We will affirm a
trial court’s exercise of that broad discretion unless it was
abused. Id.
¶31 Owelty is a remedy sometimes awarded in conjunction
with a partition order. When a partition cannot be made without
“great prejudice” to a cotenant, the trial court, by statute, is
permitted to order a sale of the property. Utah Code Ann.
§ 78-39-1 (2002). Owelty is an equitable alternative to this
often undesirable result. Under Utah Code section 78-39-41, a
court can go forward with the partition and award owelty to a
prejudiced party in order to compensate for any inequality
suffered by that party. In the past, this court has expressed a
preference that trial courts award owelty rather than forcing a
sale. See Clawson v. Silver, 2001 UT 42, ¶¶ 11, 12, 26 P.3d 209.
We reemphasize this preference: “a public sale should be a last
resort,” especially in cases where “both [parties] desire to
retain an interest” in the property to be partitioned. Id. ¶ 12.
¶32 Mayflower does not contest the trial court’s actual
physical division of the Partition Property. Rather, it
challenges the owelty award, contending that the 4 Conditional
Lots awarded by the trial court do not sufficiently compensate it
for the prejudicial impact of the partition. Because Mayflower
has failed to marshal the evidence supporting the owelty award,
however, we cannot conclude that the trial court abused its
discretion.
¶33 The trial court undertook an intensive factual inquiry
in determining the owelty award. Pursuant to section 78-39-41,
the trial court was required to determine whether the partition
could be made “equally among the parties . . . without prejudice
to the rights and interests of” Mayflower. This was clearly a

11 No. 20040943
question of fact. See Clawson, 2001 UT 42, ¶ 10 (“Whether . . .
a partition can be made without great prejudice to the owners is
a question of fact.” (internal quotation marks omitted)).
¶34 The partition order entered by the trial court included
the award of owelty in the form of the 4 Conditional Lots that
had been recommended by the Majority Report, thus reflecting the
trial court’s conclusion that an equal partition could not be
achieved absent an award of some additional compensation to
Mayflower. In reaching this conclusion, the trial court reviewed
the voluminous record, which includes witness testimony,
transcripts of city meetings, and the Majority and Minority
Reports, and concluded that Mayflower had failed to “present any
evidence that the physical division of the Partition Property
recommended by the [majority] referees is not fair or equitable.”
The trial court then had to “adjudge compensation” that would
remedy any “inequality” resulting from the partition. Utah Code
Ann. § 78-39-41. This task again required that the trial court
survey the record and consider issues of fact.
¶35 First, the trial court had to determine the extent of
the inequality to be remedied by the owelty award. The court
specifically focused on whether any density had been transferred
from the Partition Property or the Mayflower Property to Mountain
Village or the Northside Neighborhood. While the trial court
apparently agreed with the Majority Report’s conclusion that some
density was “probably” transferred “from the [Partition Property
and the Mayflower Property] and clustered into the Northside
Neighborhood,” it otherwise found that “no evidence was produced
as a basis for [Mayflower’s] claims for relief.” Thus, like the
drafters of the Majority Report, it was “convinced that the
density in the Flagstaff Development gained from the [Partition
Property] and from [the Mayflower Property] [was] limited to
Mayflower’s fair portion of the [Conditional Lots] in the
Northside Neighborhood.”
¶36 In addition to considering evidence concerning the
alleged density transfers, the trial court had to consider the
amount of compensation necessary to achieve a fair and equitable
partition. This again required that the trial court consider the
evidence presented, including the recommendations and
calculations in the Majority and Minority Reports. The trial
court ultimately decided that it would be appropriate to award
Mayflower 4 of the Conditional Lots in order to offset the
inequality produced by the probable transfer of density to the
Northside Neighborhood.

No. 20040943 12
¶37 This examination of the issues of prejudice,
inequality, and compensation undergirded the trial court’s
eventual exercise of its discretionary powers in fashioning the
owelty award. When parties appeal a court’s fact-sensitive use
of its discretionary powers, they “must successfully challenge
the factual findings upon which the trial court’s decision . . .
depended.” Chen v. Stewart, 2004 UT 82, n.14, 100 P.3d 1177.
This requires that parties marshal the evidence. As we have
previously explained, parties who ask this court to consider
fact-sensitive questions--including those questions reviewed
under an abuse of discretion standard--have a duty to marshal all
the evidence that formed the basis for the trial court’s ruling.
See id. (holding that parties had a duty to marshal the evidence
when challenging the appointment of an interim CEO, a question
reviewed under an abuse of discretion standard).
¶38 We reaffirm the deliberate, clear instruction found in
our prior decisions regarding the marshaling obligation and
emphasize that the labels given particular issues by courts or
counsel are not determinative. Rather, the critical element
triggering the duty to marshal is factual inquiry. Parties
seeking appellate review must marshal the evidence on those
questions that require substantive factual inquiry, regardless of
whether those questions are reviewed for clear error or abuse of
discretion. Otherwise, this court will not question a lower
court’s factual analysis and will instead assume that the
evidence supports the challenged findings.
¶39 In challenging the owelty award, Mayflower had a duty
to marshal all of the evidence supporting the award, including
evidence relevant to the questions of inequality and appropriate
compensation. Even if the challenged ruling did not specifically
reference all such evidence, Mayflower was nevertheless required
to present “every scrap of competent evidence introduced at trial
which supports the very findings [it] resists.” Id. ¶ 77. This
enables the reviewing court to evaluate fact-centric arguments in
the context of the entire body of evidence.
¶40 Mayflower has shirked that responsibility here. It has
neither corralled the evidence supporting the compensation
calculation of the trial court nor reviewed the evidence relating
to the alleged density transfers “in a light most favorable to
the trial court.” Id. ¶ 78. Instead, Mayflower has cobbled
together disjointed arguments and repeatedly highlighted and
restated only that evidence favorable to its position.
¶41 Because Mayflower has not properly challenged the
factual basis underlying the owelty award, we cannot conclude

13 No. 20040943
that the trial court abused its discretion. We therefore affirm
the trial court’s award of owelty.
III. ACCOUNTING
¶42 Finally, Mayflower argues that the trial court erred by
not requiring United Park to account for profits it received as a
result of the annexation. We decline to analyze this claim on
the ground that it is duplicative of Mayflower’s claim for
owelty. Indeed, the accounting claim hinges on the same familiar
question of fact: whether the alleged transfers of density
actually occurred. And the amount awarded under either remedy
would be shaped by the same consideration: the benefits or
profits received by United Park as a result of the alleged
density transfers.
¶43 Furthermore, because the resolution of Mayflower’s
request for an accounting hinges on a question of fact, Mayflower
has a corresponding duty to marshal the evidence supporting the
trial court’s findings on that question. As explained above,
Mayflower has failed to do so and therefore has not effectively
demonstrated that the trial court erred in failing to order an
accounting.
CONCLUSION
¶44 Unless appellants marshal the evidence relevant to
fact-dependent questions, they risk having their appeals rejected
without consideration of those questions. Despite this
frequently repeated counsel, parties sometimes attempt a second
bite at the factual apple without first fulfilling this well-
established duty. This tactic may be particularly appealing when
a party attempts, as Mayflower has done here, to characterize the
issues as issues of law that are not reviewed under a clearly
erroneous standard. The duty is not, however, contingent on
labels and standards of review; it instead springs when an
evaluation of the record is central to the task confronting the
reviewing court.
¶45 While this duty may seem to place appellants in the
disadvantageous position of advocating the arguments they seek to
rebut, it may often have the unexpected benefit of bolstering the
cogency of the arguments they actually advance. Additionally,
and more importantly, fairness and judicial economy compel us to
vigorously enforce the threshold marshaling requirement found in
rule 24(a)(9). Because Mayflower has not met this threshold, we
must assume that the evidence supports the factual findings
underlying the trial court’s decision and therefore affirm.

No. 20040943 14
---
¶46 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant and Judge Quinn concur in Justice Parrish’s
opinion.
¶47 Having disqualified himself, Justice Nehring does not
participate herein; District Court Judge Anthony B. Quinn sat.