* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 30 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

A.J. REED ENTERPRISES,

Plaintiff-Appellant,

v. KERN RIVER GAS TRANSMISSION COMPANY, Defendant-Appellee. No. 03-4200 (D.C. No. 2:02-CV-1093-TS)

(D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 Transm ission Co. (Kern River).1 A panel of this court issued an order on February 1 1, 2004, directing

Martha J. Amundsen, then counsel for Kern River, to show cause why she should not be subject to attorney discipline for failure t o 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 R iver by Christine T. Greenwood). Ms. Amundsen mailed Kern River’s respo nse 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 a n 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. Amunds en contends that she should not be disciplined because her failure to fi le 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 wee k, and that the November, December, and January holidays hampered her schedul e. 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. Amu ndsen a monetary sanction of $250.00, for which she shall be personally respo nsible 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. -2- Reed’s complaint alleged breach of contract, trespa ss, and other claims against Kern River. We review the district court’s grant o f 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 permita meaningful review of Reed’s appellate arguments, we affirm. 12 Kern River filed a motion to dismiss this appeal onthe 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, bec ause it reserved the right to pursue damages against Kern River for the alleged d iminution of the property’s value. Thus, we deny the motion to dismiss. -3- In 1990, Reed granted Kern River an easement to pla ce an underground gas transmission pipeline across a portion of its prope rty. The recorded easement allowed Kern River some flexibility for the pipelin e’s placement, with the understanding that if any routing adjustments were made, Kern River would, within one year, record the pipeline’s actual cente rline description and compensate Reed for any additional acreage it utili zed. Kern River did record an adjusted centerline description in August 1993, andsent Reed a check for additional acreage in January 1994, which Reed cash ed. In 2001, Reed was denied a permit to develop its la nd in part because of the underground gas pipeline. Reed then filed its comp laint 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 KernRiver’s motion for summary judgment, the order denying Reed’s motion for recon sideration, and the notice of-4-

appeal. Kern River’s supplemental appendix contain s 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 erron eously found that the alleged trespass was a permanent trespass, for whic h 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 di fferent application of limitations statute for permanent and continuing trespasses). The district court ruled that Reed failed to address Kern River’s argu ment that the trespass was permanent, and further ruled that, on the uncontest ed facts, the trespass was a single, permanent trespass. Reed argues it did res pond 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 fi lings that might support Reed’s assertion, however, are in the record on app eal. 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 o f 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”).-5-

Reed also claims that the district court erroneousl y rejected its argument that the breach of contract limitations period shou ld 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 i n support of its claim that it did not and could not have known of the alleged adjustm ent in the pipeline’s location. Kern River presented evidence in the district courtthat 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 suitis therefore moot. The district court did not reach this issue. Reed asserts on ap peal that Kern’s argument is based on a disputed issue of fact, but we are unabl e 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 thi s 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 co urt to “designate a record on appeal that is sufficient for considering and decid ing 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 b y 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). “Whe n the party asserting an issue-6-

fails to provide a record sufficient for considerin g that issue, the court may decline to consider it.” 10th Cir. R. 10.3(B). Be cause 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 r epeatedly enforced the record requirements of Rules 10.3(A) and 30.1(A)). Kern River’s Motion to Dismiss Appeal is DENIED. W e 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