A.J. Reed Enterprises v. Kern River Gas Transmission Co.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 30 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
A.J. REED ENTERPRISES,
Plaintiff-Appellant,
v. No. 03-4200
(D.C. No. 2:02-CV-1093-TS)
KERN RIVER GAS TRANSMISSION (D. Utah)
COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.
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.
Plaintiff A.J. Reed Enterprises (Reed) appeals the district court’s grant of
summary judgment to defendant Kern River Gas Transmission Co. (Kern River).
*
This order and judgment is not binding precedent, except under the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.
Reed’s complaint alleged breach of contract, trespass, and other claims against
Kern River. We review the district court’s grant of summary judgment de novo.
Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1164 (10th Cir. 2000). Because
Reed’s appellate appendix is insufficient to permit a meaningful review of Reed’s
appellate arguments, we affirm. 1
1
A panel of this court issued an order on February 11, 2004, directing
Martha J. Amundsen, then counsel for Kern River, to show cause why she should
not be subject to attorney discipline for failure to meet her briefing deadline, to
respond promptly to this court’s deficiency notice, and to state the opposing
party’s position as required by 10th Cir. R. 27.4(B)(2). (Ms. Amundsen has
subsequently been substituted as counsel for Kern River by Christine T.
Greenwood). Ms. Amundsen mailed Kern River’s response brief to this court
more than six weeks after its original due date, having ignored this court’s interim
notice that her brief was overdue and allowing her a ten-day extension of time.
Ms. Amundsen then failed to request leave to file an untimely brief. When she
eventually did so, she failed to state the opposing party’s position on the
requested relief.
In her response to the show cause order, Ms. Amundsen contends that she
should not be disciplined because her failure to file a timely brief, to respond to
this court’s notice, and to comply with the court’s rules were due to her excessive
caseload. She also notes she had the flu for a week, and that the November,
December, and January holidays hampered her schedule. These are not justifiable
excuses for counsel’s egregiously dilatory conduct in this case. Therefore,
pursuant to this court’s authority to sanction an attorney under Fed. R. App. P.
46(c) for failure to comply with this court’s rules, and under 10th Cir. R. 46.6(C)
for inadequate representation, we impose on Ms. Amundsen a monetary sanction
of $250.00, for which she shall be personally responsible in accordance with
section 3.3 of this court’s Plan for Attorney Disciplinary Enforcement . Ms.
Amundsen shall make payment by check, payable to Patrick Fisher, Clerk of
Court, within 20 days of the date of this order.
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In 1990, Reed granted Kern River an easement to place an underground gas
transmission pipeline across a portion of its property. The recorded easement
allowed Kern River some flexibility for the pipeline’s placement, with the
understanding that if any routing adjustments were made, Kern River would,
within one year, record the pipeline’s actual centerline description and
compensate Reed for any additional acreage it utilized. Kern River did record an
adjusted centerline description in August 1993, and sent Reed a check for
additional acreage in January 1994, which Reed cashed.
In 2001, Reed was denied a permit to develop its land in part because of the
underground gas pipeline. Reed then filed its complaint against Kern River in
October 2002, seeking to void the easement because the adjusted centerline
description was recorded more than one year after the pipeline’s completion. The
district court ruled that all of Reed’s claims were barred by the applicable statutes
of limitations.
Reed then filed this appeal. 2
Its appellate appendix, however, contains
only its amended complaint, the order granting Kern River’s motion for summary
judgment, the order denying Reed’s motion for reconsideration, and the notice of
2
Kern River filed a motion to dismiss this appeal on the ground that Reed
had sold the property which is the subject of this suit, and thus lost standing to
sue. Reed’s claims survived the sale, however, because it reserved the right to
pursue damages against Kern River for the alleged diminution of the property’s
value. Thus, we deny the motion to dismiss.
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appeal. Kern River’s supplemental appendix contains its summary judgment
motion and supporting memorandum, and its reply to Reed’s response thereto.
Thus, the record on appeal does not include any of the arguments or evidence that
Reed presented to the district court.
Reed claims on appeal that the district court erroneously found that the
alleged trespass was a permanent trespass, for which the limitations period began
to run when the pipeline was completed. See Breiggar Props., L.C. v. H.E. Davis
& Sons, Inc ., 52 P.3d 1133, 1135-36 (Utah 2002) (explaining different application
of limitations statute for permanent and continuing trespasses). The district court
ruled that Reed failed to address Kern River’s argument that the trespass was
permanent, and further ruled that, on the uncontested facts, the trespass was a
single, permanent trespass. Reed argues it did respond to Kern River’s argument,
and includes in its brief what it claims is a quote from its response to the
summary-judgment motion. None of the responsive filings that might support
Reed’s assertion, however, are in the record on appeal. Therefore, we are unable
to verify whether Reed timely asserted its trespass arguments in the district court,
or whether Reed presented any evidence in support of its claim that the trespass
was continuing. See Travelers Indem. Co. v. Accurate Autobody, Inc ., 340 F.3d
1118, 1120 (10th Cir. 2003) (“[w]e are unwilling to reverse the decision of the
district court based on a guess”).
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Reed also claims that the district court erroneously rejected its argument
that the breach of contract limitations period should be tolled because the breach
was concealed. We are unable to determine from the record on appeal whether
Reed presented any evidence to the district court in support of its claim that it did
not and could not have known of the alleged adjustment in the pipeline’s location.
Kern River presented evidence in the district court that a 2003 survey
showed that the actual location of the pipeline is the same as the location shown
on the 1990 easement, and it contends that the suit is therefore moot. The district
court did not reach this issue. Reed asserts on appeal that Kern’s argument is
based on a disputed issue of fact, but we are unable to determine whether Reed
presented contrary evidence below on the record it presented to this court.
In short, there is nothing in the record before this court to support any of
Reed’s claims that the district court erred. Reed is represented by counsel, who
bears the responsibility under the rules of this court to “designate a record on
appeal that is sufficient for considering and deciding the appellate issues,”
10th Cir. R. 10.3(A); see also 10th Cir. R. 30.1(A)(1) (stating that requirements
of Rule 10.3 apply to an appendix), and 10th Cir. R. 10.2(B) (stating that the
record is to be presented in an appendix prepared by appellant when counsel is
retained). This “court need not remedy any failure of counsel to provide an
adequate appendix.” 10th Cir. R. 30.1(A)(3). “When the party asserting an issue
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fails to provide a record sufficient for considering that issue, the court may
decline to consider it.” 10th Cir. R. 10.3(B). Because the evidentiary record
before us in this appeal is insufficient to permit an assessment of Reed’s appellate
arguments, we must affirm. Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000);
see also Travelers , 340 F.3d at 1120-21 (noting that this court has repeatedly
enforced the record requirements of Rules 10.3(A) and 30.1(A)).
Kern River’s Motion to Dismiss Appeal is DENIED. We summarily
AFFIRM, with a monetary SANCTION of $250.00 IMPOSED on attorney
Martha J. Amundsen.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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