* 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

FILED

United States Court of Appeals

Tenth Circuit

May 12, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FLORENCE VIANZON,

Plaintiff-Appellant,

v.

CITY OF AURORA,

Defendant-Appellee.

No. 09-1434

(D.C. No. 1:06-CV-01510-WYD-BNB)

(D. Colo.)

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

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1 The two other plaintiffs are not part of this appeal.

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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

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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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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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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

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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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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

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