CORA USA LLC v. Quick Change Artist LLC

2017 UT App 66THE UTAH COURT OF APPEALS
CORA USA LLC,
Appellee,
v.
QUICK CHANGE ARTIST LLC,
Appellant.
Opinion
No. 20150504-CA
Filed April 13, 2017
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 130901898
Chance McClain, Attorney for Appellant
Richard F. Ensor and Michael C. Barnhill, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and STEPHEN L. ROTH concurred.
TOOMEY, Judge:
¶1 Quick Change Artist LLC (Quick Change) appeals the
district court’s award of damages and attorney fees to CORA
USA LLC (CORA) in connection with its breach of contract claim
against Quick Change. Quick Change argues the court erred
when it granted three of CORA’s motions in limine and asks us
“to vacate or set aside the Final Judgment and reverse and
remand for a new trial.” Because Quick Change has “failed to
address the trial court’s detailed ruling, failed to develop [its]
citation to authority, and failed to provide any reasoned analysis
based on that authority, we conclude that [it has] failed to carry
[its] burden of persuasion on appeal.” State v. MacNeill, 2017 UT
App 48, ¶ 84; see also State v. Roberts, 2015 UT 24, ¶ 18, 345 P.3d
1226 (explaining that “our adequate briefing requirement . . . is a
CORA USA v. Quick Change Artist
natural extension of an appellant’s burden of persuasion”
(citation and internal quotation marks omitted)). We therefore
affirm.
¶2 “It is well established that an appellate court will decline
to consider an argument that a party has failed to adequately
brief.” Valcarce v. Fitzgerald, 961 P.2d 305, 313 (Utah 1998)
(plurality opinion). To be adequately briefed, an “argument shall
contain the contentions and reasons of the appellant with respect
to the issues presented . . . with citations to the authorities,
statutes, and parts of the record relied on.” Utah R. App. P.
24(a)(9). An adequately briefed argument requires more than
“bald citation to authority but development of that authority and
reasoned analysis based on that authority.” State v. Thomas, 961
P.2d 299, 305 (Utah 1998).
¶3 In its appeal, Quick Change asserts several arguments
over a scant six pages. It takes issue with the district court’s
decision to grant two of CORA’s motions in limine, which
barred Quick Change “from using evidence or testimony prior to
October 28, 2012,” and excluded a number of unproduced
exhibits Quick Change used in its deposition of CORA. In
support of these two arguments, Quick Change cites Tschaggeny
v. Milbank Insurance Co., 2007 UT 37, 163 P.3d 615, for the bare
proposition that “a trial court is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling,” and
asserts that it should have done so in this case. Id. ¶ 16 (citation
and internal quotation marks omitted). Quick Change also cites
Jensen v. IHC Hospitals, Inc., 2003 UT 51, 82 P.3d 1076, for the
proposition that “[a]n erroneous decision to admit or exclude
evidence does not constitute reversible error unless the error is
harmful.” Id. ¶ 100 (citation and internal quotation marks
omitted). Quick Change claims it was harmed by the court’s
decision to grant the motions in limine and “was not able to put
on a proper defense” as a result. But this is the beginning and
end of its legal analysis. “Analysis of what [these authorities]
20150504-CA 2 2017 UT App 66CORA USA v. Quick Change Artist
require[] and of how the facts of [the] case satisfy these
requirements [is] wholly lacking.” See Thomas, 961 P.2d at 305.
¶4 Quick Change’s third claim consists of one paragraph in
which it argues the district court erred in awarding CORA
attorney fees. Quick Change cites Stewart v. Utah Public Service
Commission, 885 P.2d 759 (Utah 1994), for the proposition that, in
general, “attorney fees cannot be recovered by a prevailing party
unless a statute or contract authorizes such an award.” Id. at 782.
According to Quick Change, “the original contract [between the
two parties] was no longer controlling” and therefore the court
erroneously awarded CORA attorney fees. But Quick Change
does not demonstrate how the original contract was superseded
or, more importantly, cite any authority to support its argument
that in such a situation the decision by the court to award the
prevailing party its attorney fees is an abuse of discretion.
¶5 Quick Change’s final two claims—that its expert and
accompanying expert report should not have been excluded and
that it should have been awarded damages on its counterclaim—
each span one paragraph and lack any citation to authority. We
note that “[w]hile failure to cite to pertinent authority may not
always render an issue inadequately briefed, it does so when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.” See Thomas, 961
P.2d at 305. Such is the case here.
¶6 In sum, “[w]hile there is no bright line between adequate
and inadequate briefing,” we conclude that Quick Change has
not “developed an argument sufficient to carry [its] burden of
persuasion.” See Heslop v. Bear River Mutual Ins. Co., 2017 UT 5,
¶ 47, 390 P.3d 314; see also Bank of Am. v. Adamson, 2017 UT 2,
¶ 12 (“[A]n appellant who fails to adequately brief an issue will
almost certainly fail to carry its burden of persuasion on appeal.”
(citation and internal quotation marks omitted)). We therefore
affirm.
20150504-CA 3 2017 UT App 66CORA USA v. Quick Change Artist
¶7 As a final matter, we address CORA’s request for its
attorney fees and costs on appeal. In general, “when a party who
received attorney fees below prevails on appeal, the party is also
entitled to fees reasonably incurred on appeal.” Utah Dep’t of
Social Services v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991);
see also Management Services Corp. v. Development Associates, 617
P.2d 406, 408–09 (Utah 1980) (explaining that a prevailing party
may receive attorney fees on appeal where it is permitted by
statute or contract). Pursuant to the parties’ agreement, the
district court awarded CORA its attorney fees and costs.
Accordingly, CORA “is entitled to an award of attorney fees
reasonably incurred on appeal” and we remand for calculation
of those fees. See Adams, 806 P.2d at 1198.
¶8 Having concluded that Quick Change has failed to meet
its burden of persuasion on each of the issues it raises, we affirm
the district court’s rulings and remand for the limited purpose of
determining the amount of attorney fees and costs CORA
reasonably incurred on appeal.
20150504-CA 4 2017 UT App 66