Jenson v. Pacific Research ( 1997 )


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  •                                                                 F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    APR 1 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    DUANE JENSON and CRAIG
    CARPENTER,
    Plaintiffs-Appellants,
    v.                                      No. 96-4012
    PACIFIC RESEARCH &
    DEVELOPMENT, INC., a Utah
    corporation; LUME INTERNATIONAL,
    INC., a Utah corporation; J. EDWARD
    McPHERSON; J. EDWARD
    McPHERSON, JR.; C. JEFFREY
    THOMPSON; SUSAN M. FRANCESCHI;
    and THOMPSON, HATCH, MORTON &
    SKEEN, a Utah partnership,
    Defendants-Appellees.
    and
    DUANE JENSON and CRAIG
    CARPENTER,
    Plaintiffs-Appellees,
    v.                                      No. 96-4024
    PACIFIC RESEARCH &                           (D.C. No. 91-C-592 B)
    DEVELOPMENT, INC., a Utah                          (D. Utah)
    corporation; LUME INTERNATIONAL,
    INC., a Utah corporation; J. EDWARD
    McPHERSON; J. EDWARD
    McPHERSON, JR.; C. JEFFREY
    THOMPSON; and SUSAN M.
    FRANCESCHI,
    Defendants,
    and
    THOMPSON, HATCH, MORTON &
    SKEEN, a Utah partnership,
    Defendant-Appellant.
    ORDER AND JUDGMENT*
    Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
    This is a securities fraud case arising out of an agreement to merge Lume
    International, Inc. (Lume), and Blackwater, Inc. (Blackwater). Plaintiffs Duane Jenson
    and Craig Carpenter, stockholders in Blackwater, filed federal and state securities law
    claims, as well as a state law claim for fraud, against officers, directors, and counsel for
    Lume. At trial, the jury returned a verdict in favor of plaintiffs and against defendants on
    all claims in the amount of $429,000. Defendants Jeffrey Thompson (counsel for Lume)
    and his law firm, Thompson, Hatch, Morton & Skeen (THMS), moved for judgment
    notwithstanding the verdict or, in the alternative, for a new trial. The district court
    granted defendants' motion. Plaintiffs appeal the district court's entry of judgment in
    favor of Thompson and THMS, as well as the district court's refusal to submit the issue of
    punitive damages to the jury. THMS has filed a cross-appeal challenging the court's
    conclusion that THMS is responsible for Thompson's alleged misconduct. We affirm the
    district court's judgment in favor of Thompson and THMS and dismiss the cross-appeal
    as moot.
    In their first issue on appeal, plaintiffs contend the district court erred in granting
    defendants' motion for judgment notwithstanding the verdict. Specifically, they contend
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
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    the court erred in finding (1) neither Thompson nor THMS had a duty to disclose to
    plaintiffs, (2) neither Thompson nor THMS made misrepresentations to plaintiffs, (3)
    plaintiffs did not reasonably rely on any misrepresentations made by Thompson or
    THMS, and (4) THMS did not have secondary liability for Thompson's acts.
    We review de novo a judgment notwithstanding the verdict, applying the same
    standard applied by the district court. Klein v. Grynberg, 
    44 F.3d 1497
    , 1503 (10th Cir.),
    cert. denied 
    116 S. Ct. 58
     (1995). "Under this standard, [we] must view all of the
    evidence in the light most favorable to the nonmoving party, and then determine whether
    there is evidence upon which the jury could have properly relied in returning a verdict for
    the nonmoving party." 
    Id.
     In so doing, we may not reweigh the evidence or substitute
    our judgment for that of the jury. Instead, the verdict must be allowed to stand if there is
    any evidence upon which the jury could have based its verdict. 
    Id.
    We are unable to review plaintiffs' challenge to the district court's entry of
    judgment in favor of Thompson and THMS because plaintiffs have failed to comply with
    the Tenth Circuit Rules. Under 10th Cir. R. 30.1.1, "[i]t is the responsibility of appellant's
    counsel to file an appendix sufficient for consideration and determination of the issues on
    appeal." For purposes of guidance, 30.1.1 specifically refers to 10th Cir. R. 10.1.1 and
    10th Cir. R. 10.3. In this case, 10.1.1 and 10.3 required plaintiffs to include in their
    appendix (1) the complaint, (2) the pretrial order, and (3) the entire trial transcript. See
    10th Cir. R. 10.1.1 ("when sufficiency of the evidence is raised, the entire trial transcript
    ordinarily should be provided"); 10th Cir. R. 10.3.1 (noting "[e]very record on appeal"
    must include "the last amended complaint" and "the final pretrial order"). Plaintiffs'
    appendix contains none of these items. Although the supplemental appendixes filed by
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    defendants contain fragments of the trial transcript, they are insufficient to allow us to
    conduct a de novo review of the district court's decision to grant defendants' motion for
    judgment notwithstanding the verdict. See Taylor v. Phelan, 
    9 F.3d 882
    , 884 n.4 (10th
    Cir. 1993); Deines v. Vermeer Mfg. Co., 
    969 F.2d 977
    , 979 (10th Cir. 1992) (holding that
    twenty pages of transcript were insufficient for review of claims that verdict was against
    weight of evidence, that instructions were clearly erroneous, and that court made
    evidentiary errors); see also 10th Cir. 30.1.1 (court under no obligation to remedy
    counsel's failure to provide appendix sufficient to allow review of issues raised on
    appeal). We therefore affirm the district court's decision.
    In their second issue on appeal, plaintiffs contend the district court erred in
    granting judgment in favor of defendants on plaintiffs' request for exemplary damages.
    According to plaintiffs, sufficient evidence was introduced at trial to demonstrate that
    Thompson made misrepresentations to plaintiffs and that he did so "with reckless
    disregard for the truth, or with a mental state embracing an intent to deceive, manipulate,
    or defraud the plaintiffs." Appellant's br. at 39. For the reasons previously noted, we are
    unable to consider this issue. In particular, the appendix provided by plaintiffs does not
    allow us to review the evidence presented at trial to determine if there was sufficient
    evidence to support a claim for punitive damages. The district court's decision on this
    issue is therefore affirmed.
    In its cross-appeal, THMS argues the district court erred in concluding it was
    responsible for Thompson's alleged misconduct. Because we affirm the entry of
    judgment in favor of Thompson and THMS, the cross-appeal is moot. See Morgan v.
    City of Albuquerque, 
    25 F.3d 918
    , 919 (10th Cir. 1994).
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    The judgment of the district court in appeal No. 96-4012 is AFFIRMED; the cross-
    appeal in No. 96-4024 is DISMISSED as moot.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
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