Arrington v. Chavez , 646 F. App'x 590 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TROY R. ARRINGTON, II,
Plaintiff - Appellant,
v. No. 15-1019
(D.C. No. 1:12-CV-00172-LTB-KLM)
TIMOTHY R. CHAVEZ, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
_________________________________
Troy Arrington, II, sued Timothy Chavez for negligence after they were
involved in a car accident in Durango, Colorado. A jury found Chavez was not
negligent, and the district court entered judgment in his favor. Arrington appeals and
we summarily affirm.
Both parties are represented by counsel on appeal. Therefore, under this
Court’s rules, it is the appellant’s duty to file an appendix that serves as the record on
appeal. See 10th Cir. R. 10.2(B), 30.1(B)(1); see also Milligan-Hitt v. Bd. of Trs.,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
523 F.3d 1219, 1231 (10th Cir. 2008) (“[I]n this Circuit we leave the record on
appeal in the district court and rely primarily on an appendix that the parties are
obligated to produce, containing the relevant parts of the record.”). The appellant’s
appendix must be “sufficient for considering and deciding the issues on appeal.”
10th Cir. R. 30.1(B)(1). “If the appendix and its supplements are not sufficient to
decide an issue, we have no obligation to go further and examine documents that
should have been included, and we regularly refuse to hear claims predicated on
record evidence not in the appendix.” Milligan-Hitt, 523 F.3d at 1231; see also
10th Cir. R. 30.1(B)(3).
Arrington first challenges the district court’s exclusion of a fact witness for
being untimely disclosed. The appendix contains Chavez’s motion to strike the
untimely disclosures, as well as the response and the reply. But it contains only some
of the exhibits attached to the response and none of the exhibits attached to the
motion or the reply. It is unclear why some exhibits were included and others were
excluded; perhaps counsel considered the omitted materials irrelevant. Cf.
10th Cir. R. 10.3(D)(2) (requiring a record on appeal to include “relevant portions of
affidavits, depositions and other supporting documents”). But “we are not inclined to
consider reversing the district court based upon the parties’ tacit assurances that we
have before us all of the relevant matter.” Burnett v. Sw. Bell Tel., L.P., 555 F.3d
906, 910 (10th Cir. 2009).
Second, Arrington asserts that the district court erred in admitting the
testimony of an expert witness. The appendix contains Arrington’s motion to
2
exclude the expert’s testimony, but it does not contain any response or reply.1
Similarly, the appendix presents a supplement to the motion, but no response or
reply. Such filings are required to be included in a record on appeal, see 10th Cir. R.
10.3(D)(2), and omitting them leaves us unable to evaluate the arguments made
before the district court, see Burnett, 555 F.3d at 908. The appendix also omits a
transcript of the expert’s trial testimony, so there is no information regarding the
content of the actual testimony and whether Arrington preserved any objections. The
appendix does contain various documents that appear to relate to this expert, but
those documents are not presented in any identifying way. They are not file-stamped
and it is unclear how or when they were presented to the district court. See
10th Cir. R. 30.1(D)(2) (“Documents in the appendix should show the district court’s
electronic stamp.”). For these reasons, the appendix does not permit an adequate
review of the decision to admit the defense expert’s testimony.
Third, Arrington challenges the exclusion of his two expert witnesses. The
appendix contains copies of Chavez’s motion to strike or limit their testimony, as
well as copies of the response and the reply. But, as with the materials relating to
Arrington’s fact witness, the appendix does not include any of the exhibits supporting
the motion and the reply. Additionally, as with the defense expert, the appendix
1
The original appendix also failed to include a copy of the transcript of the
district court’s hearing on Arrington’s motion, during which the district court gave its
reasons for denying the motion. See 10th Cir. R. 10.3(C)(3) (requiring a record on
appeal to contain transcripts of oral rulings). Arrington, however, subsequently
submitted that transcript to this court with a motion for leave to file a supplemental
appendix. We grant the motion to file the supplemental appendix, but it addresses
only a small part of the problem.
3
includes materials that may relate to these experts, but without any indication of how
or when they were presented to the district court. For the reasons already discussed,
the appendix is inadequate to review the district court’s decision to exclude
Arrington’s expert witnesses.
Finally, Arrington asserts, without any further discussion, that “[Chavez] may
be cross-examined as to a statement he made under oath to impeach his credibility.”
Such conclusory assertions are waived for inadequate briefing. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005). Even if this issue were
not waived, the appendix does not include the relevant motion, response, and reply.
Further, a document identified as a transcript of a 2009 hearing (presumably in state
court) is presented without any indicia of authenticity or any information about how
or when it was presented to the district court.
“[A]n appellant who provides an inadequate record does so at his peril.”
Burnett, 555 F.3d at 908. The appendix before us is so inadequate that we will not
overlook or remedy its deficiencies. See Rios v. Bigler, 67 F.3d 1543, 1553
(10th Cir. 1995) (“It is not this court’s burden to hunt down the pertinent materials.
Rather, it is Plaintiff’s responsibility as the appellant to provide us with a proper
record on appeal.”). As a result, we summarily affirm the district court’s judgment.
See Burnett, 555 F.3d at 910.
Chavez’s request for sanctions, asserted at the end of his response brief, is
DENIED as the request was not made in a separately filed motion as required by
4
Fed. R. App. P. 38.2 Arrington’s motion for leave to file a supplemental appendix is
GRANTED. The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
2
Chavez also asserts that Arrington failed to provide an adequate appendix
regarding damages. We need only consider the adequacy of the appendix as to
Arrington’s liability arguments because damages issues are irrelevant when there are
no grounds to reverse on liability.
5