* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### SEP 3 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OWEN J. PEPE, JR. and KATHERINE S. HOLDEN, Plaintiff-Appellants,

v. PAUL KORENY and MARGARET KORENY, individually and doing business as Cawthon Motel & Campground, Defendants-Appellees. No. 99-1063 (D.C. No. 98-N-746) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , 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 cause is therefore ordered submitted without oral argument.-2-

Owen J. Pepe, Jr., and Katherine S. Holden, plainti ffs, brought two separate suits against defendants Paul Koreny and Margaret K oreny. Mr. Pepe and Ms. Holden asserted claims for failure to pay minimum w age for all hours worked in violation of the Fair Labor Standards Act, 29 U.S.C .A. §§ 201-19 (1998) (FLSA) and Colo. Rev. Stat, § 8-6-118 (1998). Plaintiffs also alleged a common-law claim for breach of contract for failing to pay Mr. Pepe a commission on the sale of real estate. At trial, the district court found in favo r of defendants on the FLSA claim and dismissed it with prejudice. The district court also granted summary judgment for defendants on the contract claim. On appeal, p laintiffs challenge the trial court’s rulings on their substantive claims and rai se several procedural errors. I. Labor claim The Korenys owned and operated the Cawthon Motel & Campground in Las Animas, Colorado, where Mr. Pepe was employed as a manager and Ms. Holden as a housekeeper. Mr. Pepe was responsible for daily tasks such as signing in guests, mowing the lawn and shoveling snow. Ms. Holden pri marily cleaned the motel rooms. They alleged that each worked over 98 hours per week without compensation for overtime. After hearing testimonyand examining the evidence, the district court found the claim of hours worked to be “absurd.” Rec., supp. vol. I, at 151. Moreover, the court described Mr. Pepe’ s and Ms. Holden’s testimonies to be evasive and incredible. Id. at 151-52. On those grounds, the district court found in favor of the Korenys.-3-

On appeal, Mr. Pepe and Ms. Holden argue error. Ho wever, the record on appeal does not contain any of the trial transcriptother than the district court’s ruling. When an appellant challenges a trial court ’s fact findings but fails to include a transcript of all the relevant evidence, we cannot review the lower courts’ findings and must accept them as true. Trujillo v. Grand Junction Reg’l Ctr. , 928 F.2d 973, 976 (10th Cir. 1991). Because plai ntiffs did not file a trial transcript as part of the record on appeal, they have waived any claim that the trial court’s ruling was unsupported by or contrary to th e evidence. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977 (10th Cir. 1992). Accordingly, we a ffirm the district court’s disposition of the FLSA claims.

II. Contract claim Mr. Pepe also alleged he had a contract with the Ko renys to help procure a buyer for the motel in exchange for a commission. Upon sale of the motel, however, the Korenys refused to honor the contract. Relying on Colorado law, the district court granted summary judgment in favor of the Korenys. Mr. Pepe contends that since he was due a commission for the sale of the motel, the district court erred in granting summary judgment against hi m. Under Colorado law, a person who is not a licensed real estate broker may not act in that capacity, see Colo. Rev. Stat. 12-61-102 (1998), and may not col lect a commission as a sales agent for real property, see Manufacturer’s Nat’l Bank v.-4-

Hartmeister , 411 F.2d 173, 176 (10th Cir. 1969). Mr. Pepe adm itted he was not licensed, and his actions indisputably fall within the conduct described by state law as requiring a license, see Colo. Rev. Stat. § 12-61-101(2) (1998). Since the Colorado law is dispositive, no genuine issue remai ns. We affirm summary judgment for the Korenys.

III. Procedural claims Mr. Pepe and Ms. Holden also assert procedural erro rs. The record indicates on August 28, 1998, their first lawyer moved to wit hdraw for failure to be paid fees, which Mr. Pepe and Ms. Holden did not oppose. The pretrial conference was scheduled for two months later, October 25, 1998. On October 22, they filed for an extension of time in order to secure counsel, wh ich was denied. They eventually obtained counsel on December 14, and pro ceeded to trial four weeks later on January 11, 1999. Mr. Pepe and Ms. Holden now argue that the districtcourt improperly granted their first attorney leave to withdraw, err ed in denying their motions for extensions of time, and erred in approving a final pretrial order despite the fact they had no counsel at the time. “District courts generally are afforded great discr etion regarding trial procedure applications (including control of the do cket and parties), and their decisions are reviewed only for abuse of discretion .” United States v. Nicholson ,-5-

983 F.2d 983, 988 (10th Cir. 1993). The inherent a uthority of a district court to manage its docket includes discretion to grant or d eny continuances or extensions of time. See Biby v. Kansas City Life Ins. Co. , 629 F.2d 1289, 1293 (8th Cir.1980); United States v. Waldman , 579 F.2d 649, 653 (1st Cir. 1978). Pretrial orders are also clearly part of judicial managementreviewed for abuse of discretion, see R.L. Clark Drilling Contractors, Inc. v. Schram m, Inc. , 835 F.2d 1306, 1308 (10th Cir. 1987), as is the grant of a m otion of counsel to withdraw for

cause. In the instant case, it was within the court’s disc retion to grant counsel’s uncontested motion in a civil case to withdraw for failure to receive payment. It was also within the court’s discretion to deny an e xtension of time when Mr. Pepe and Ms. Holden offered no reason why two months was inadequate for them to secure counsel for the pretrial conference. Finall y, the district court’s acceptance of the pretrial order was within its discretion whe n, as here, the plaintiffs did not show good cause for delaying the order. We conclud e the district court did not abuse its discretion. We AFFIRM the judgment of the district court. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge