Vianzon v. City of Aurora , 377 F. App'x 805 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 12, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
FLORENCE VIANZON,
Plaintiff-Appellant,
v. No. 09-1434
(D.C. No. 1:06-CV-01510-WYD-BNB)
CITY OF AURORA, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Florence Vianzon and two other plaintiffs brought an action seeking a
declaratory judgment that the City of Aurora, Colorado (City) had violated the
United States Constitution by passing a law that regulated the ownership of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
certain dog breeds within the City. 1 After winnowing plaintiffs’ claims through
the summary judgment process, the district court conducted a three-day bench
trial on the remaining claims, which charged violations of substantive due
process, equal protection and the Takings Clause. Afterwards it entered findings
of fact and conclusions of law, in which it found “ample evidence . . . to establish
a rational relationship between the City’s ordinance regulating the possession of
pit bulls and other restricted breeds and the City’s undisputed legitimate interest
in protecting the health and safety of the City’s residents.” Aplt. App., Vol. 2 at
222. The district court then entered judgment in favor of the City, from which
Vianzon has filed this pro se appeal.
ANALYSIS
The City urges us to affirm the challenged judgment summarily, for two
reasons. First, it argues, Vianzon failed to move for judgment as a matter of law
at the close of all the evidence and she is therefore barred from challenging the
sufficiency of the evidence to support the district court’s conclusions. Because
all of Vianzon’s challenges relate to sufficiency of the evidence, the City
contends, none of her issues should be considered.
This argument fails. While it is true that an appellant who wishes to
challenge the sufficiency of the evidence to support a jury’s verdict must
ordinarily move for judgment as a matter of law under Fed. R. Civ. P. 50(a), the
1
The two other plaintiffs are not part of this appeal.
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same rule does not apply to bench trials. See Creative Consumer Concepts, Inc.
v. Kreisler, 563 F.3d 1070, 1078 n.3 (10th Cir. 2009). Where as here the
challenged judgment results from a trial to the court, a party “may later question
the sufficiency of the evidence supporting the findings, whether or not the party
requested findings, objected to them, moved to amend them, or moved for partial
findings.” Fed. R. Civ. P. 52(a)(5). Therefore, Vianzon’s arguments were not
waived by her failure to file a Rule 50(a) motion. See Creative Consumer
Concepts, 563 F.3d at 1078 n.3.
The City’s other challenge, however, has more merit. The district court
entered extensive factual findings in support of its conclusions. Vianzon’s
arguments on appeal rely on challenges to these findings. “The appellant must
provide all portions of the transcript necessary to give the court a complete and
accurate record of proceedings related to the issues on appeal.” 10th Cir. R.
10.1(A)(1). “If the appellant intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion.” Fed. R. App. P. 10(b)(2). Although we liberally construe
her pro se filings, Vianzon’s pro se status does not exempt her from following
these procedural rules or from providing an adequate transcript. See Murray v.
City of Tahlequah, 312 F.3d 1196, 1199 n. 3 (10th Cir. 2002); Nielsen v. Price, 17
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F.3d 1276, 1277 (10th Cir. 1994); 10th Cir. R. 11.2(A) (stating that in pro se
cases, district court clerk sends only transcripts that have been filed for appeal).
Vianzon has failed to supply us with anything approaching a complete or
adequate transcript of the trial proceedings. This being the case, we cannot
consider any issues she raises that turn on or relate to the evidence presented at
trial. 2 Moreover, taking the district court’s factual findings as true, as we must
given the significantly incomplete record, the evidence the court cited supports its
legal conclusion that the challenged ordinance bears a rational basis to a
legitimate government objective. See, e.g., Powers v. Harris, 379 F.3d 1208,
1216-17 (10th Cir. 2004) (setting out deferential analysis applicable to legislative
judgments under rational basis analysis).
Construing Vianzon’s briefs liberally, we do perceive one argument,
sufficiently developed for our review, that does not turn on a challenge to the
district court’s factual findings. Vianzon argues that the district court ignored the
exhibits she presented at trial. Specifically, she contends that the court cannot
have considered her exhibits because it returned custody of the exhibits to the
parties on the last day of trial, after announcing its oral decision but prior to entry
2
The Courtroom Minutes, which are present in the record, indicate that the
following witnesses testified during the course of the trial: for the plaintiffs,
Florence Vianzon Sasek, Glen Louis Bui, Debra Phyllis Merkle, Debbie Stafford,
Pam Alford, James W. Crosby, and Roger Patton Andreason; and for the defense,
Cheryl Conway and Rita Grable. The record contains transcripts of only the
testimony of Bui and Crosby.
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of its written findings and conclusions. Apparently, Vianzon believes the district
court should have given further review to the exhibits after the evidence was
closed but before announcing a decision, as when a jury considers exhibits during
its deliberations. We are unwilling to assume, particularly in light of the district
court’s extensive findings, that it failed to give adequate consideration to the
evidence. Moreover, even if we did conclude that an error occurred, which we do
not, in light of Vianzon’s failure to present an adequate record we would have no
way of determining whether the alleged failure to consider evidence resulted in
prejudice justifying a new trial or other relief. 3
The judgment of the district court is therefore AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
3
Vianzon also argues that Aurora’s ordinance violates Colo. Rev. Stat. § 18-
9-204.5(5)(a), prohibiting municipalities from adopting breed-specific regulation
of dangerous dogs. In the district court, she did not contest Aurora’s ability, as a
home rule city, to enact such an ordinance. See Plaintiffs’ Proposed Findings of
Fact and Conclusions of Law, Aplt. App., Vol. II, at 125 (proposing a finding that
Aurora’s ordinance was “only possible [because Aurora] has ‘home rule’ since the
Colorado Legislature passed a law against breed specific dog ordinances in
2004.”). In light of this concession, we will not consider any argument that the
Aurora ordinance facially violates the Colorado statute. To the extent she argues
that the Colorado statute raises the bar for the rational basis test, her argument is
also barred because she has not provided an adequate transcript sufficient for
appellate review of the rational basis issue.
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