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Arrington v. Chavez, 15-1019 (2016)

Court: Court of Appeals for the Tenth Circuit Number: 15-1019 Visitors: 7
Filed: Apr. 29, 2016
Latest Update: Mar. 02, 2020
Summary: 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, Colora
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                                                                                   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

Source:  CourtListener

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