                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 10, 2009
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 DON QUARLES, an individual;
 QUARLES ACRES, LLC, an
 Oklahoma Corporation,
                                                         No. 08-5058
              Plaintiffs - Appellees,              (D.C. No. CV-00-913-F)
                                                         (N.D. Okla.)
 v.

 SPESS OIL CO., INC.,

              Defendant - Appellant,

 and

 UNITED STATES OF AMERICA, ex
 rel. BUREAU OF INDIAN AFFAIRS;
 UNITED STATES OF AMERICA, ex
 rel. ENVIRONMENTAL
 PROTECTION AGENCY; TEXACO
 INC.; PHILLIPS PETROLEUM CO.;
 CONOCOPHILLOPS CO.; SUN OIL
 CO.; LITTLE RIVER ENERGY CO.;
 YARHOLA PROD. CO.; THE LINK
 OIL CO.; and TONY OIL CO.,

              Defendants.



                            ORDER AND JUDGMENT *

       *
             This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
                                                                        (continued...)
Before TACHA, SEYMOUR, and HOLMES, Circuit Judges.


      Plaintiffs-Appellees Don Quarles and Quarles Acres (collectively

“Quarles”) brought suit against three defendants, including Defendant-Appellant

Spess Oil Company, Inc. (“Spess”), for damage that the defendants allegedly

caused to Mr. Quarles’s property through their oil and gas operations and site

cleanup. The district court found in favor of the defendants on Quarles’s

equitable claim but entered judgment for Quarles on all other issues, including

$67,500.00 in punitive damages against Spess. Spess filed a Fed. R. Civ. P. 59

motion for a new trial on the ground that the district court had erred in allowing

the punitive damages issue to go to the jury, as there was insufficient evidence to

warrant the imposition of punitive damages. The district court denied the motion,

and Spess now appeals. We exercise jurisdiction under 28 U.S.C. § 1291, and we

summarily AFFIRM the district court’s judgment, concluding in part that the

record is insufficient to allow for appropriate review.

                                 BACKGROUND

      Quarles’s claims for surface damages, nuisance, negligence, trespass, and

unjust enrichment went to trial after extended litigation and a previous appeal.



      *
        (...continued)
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

                                         -2-
Quarles also sought punitive damages from Spess. Both at the close of Quarles’s

case-in-chief and at the close of all the evidence, Spess moved for judgment as a

matter of law under Fed. R. Civ. P. 50 on the issue of punitive damages, but the

district court denied the motions and ultimately found sufficient evidence to

submit the issue to the jury. Before submitting the case to the jury, the district

court reserved the equitable issue of unjust enrichment.

      The jury returned a verdict for Quarles and against Spess on all the

remaining claims. The jury awarded Quarles $100,000.00 in damages from Spess

and $15,000.00 from each of the other two defendants. The jury also specifically

found by clear and convincing evidence that Spess acted in reckless disregard of

the rights of others, making Spess liable for punitive damages in an amount to be

determined after a second jury deliberation. Both parties waived the right to

present additional evidence and instead proceeded with closing arguments. After

further deliberation, the jury assessed punitive damages against Spess in the

amount of $67,500.00.

      After briefing by the parties on the issue of unjust enrichment, the district

court entered its findings of fact and conclusions of law, finding in favor of the

defendants on that issue. On the same day, the district court additionally entered

judgment in accordance with the jury’s verdict—i.e., in favor of Quarles and

against the defendants—on all the remaining issues, including punitive damages

against Spess. Spess filed a motion for a new trial pursuant to Fed. R. Civ. P.

                                         -3-
59(a), contending that the district court had erred as a matter of law when it

submitted the issue of punitive damages to the jury. The district court denied that

motion, and Spess now appeals. It argues that imposition of punitive damages

violated the requirements of substantive due process because Quarles did not

introduce sufficient evidence to provide the trial court an adequate basis for

sending the punitive damages issue to the jury.

                                   DISCUSSION

      We review de novo the district court’s determination of whether sufficient

evidence exists to support punitive damages. Hardeman v. City of Albuquerque,

377 F.3d 1106, 1120 (10th Cir. 2004). Despite the jury’s discretion to determine

the amount of such an award, a punitive damages award “must be set aside if the

court determines that the issue should not have been submitted to the jury in the

first place.” Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1182 (10th Cir.

1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L.

No. 102-166, 105 Stat. 1072-73. We review the denial of Spess’s Fed. R. Civ. P.

59 motion for a new trial for abuse of discretion. Sanjuan v. IBP, Inc., 160 F.3d

1291, 1296 (10th Cir. 1998).

      An adequate record on appeal, which allows us to examine the relevant

materials and proceedings before the district court, is necessary for us to conduct

our review. Sanpete Water Conservancy Dist. v. Carbon Water Conservancy

Dist., 226 F.3d 1170, 1175 (10th Cir. 2000); McEwen v. City of Norman, Okla.,

                                         -4-
926 F.2d 1539, 1550 (10th Cir. 1991). Together with its opening brief, Spess

filed an appendix as instructed by Fed. R. App. P. 30(a) and 10th Cir. R. 30.1.

             The record on appeal comprises all of “the original papers and
             exhibits filed in the district court; . . . the transcript of
             proceedings[,] if any; [and] . . . a certified copy of the docket
             entries prepared by the district clerk.” Fed. R. App. P. 10(a).
             However, in this Circuit we leave the record on appeal in the
             district court and rely primarily on an appendix that the parties
             are obligated to produce, containing the relevant parts of the
             record. 10th Cir. R. 30. We sometimes refer to this appendix
             colloquially as the record on appeal, but technically it is not.
             The appellant’s appendix must be “sufficient for considering
             and deciding the issues on appeal.” 10th Cir. R. 30.1(A)(1). If
             the appendix is insufficient on an issue that the appellee
             wishes us to decide, he may file a supplemental appendix of
             his own. 10th Cir. R. 30.2(A)(1). If the appendix and its
             supplements are not sufficient to decide an issue, we have no
             obligation to go further and examine documents that should
             have been included, and we regularly refuse to hear claims
             predicated on record evidence not in the appendix. 10th Cir.
             [R.] 30.1(A)(3). However, we retain the authority to go
             beyond the appendix if we wish, because all of the transcripts
             (if they have been ordered) and documents and exhibits filed in
             district court remain in the record regardless of what the
             parties put in the appendix.

Milligan-Hitt v. Bd. of Trs. of Sheridan County Sch. Dist. No. 2, 523 F.3d 1219,

1231 (10th Cir. 2008) (citations and footnotes omitted).

      Because the record that Spess provided to us in the form of its appendix

does not contain a trial transcript, it is insufficient for us to review the issue of

sufficiency of the evidence regarding punitive damages against Spess. The

burden lay on Spess to “provide all portions of the transcript necessary to give

[us] a complete and accurate record of the proceedings related to the issues on

                                           -5-
appeal.” 10th Cir. R. 10.1(A)(1); Milligan-Hitt, 523 F.3d at 1231 n.9 (noting that

because the record automatically contains district court filings, “the major failure

parties can make on appeal with respect to the record . . . is to neglect to order

transcripts that are necessary to adequately consider an issue”).

      Spess inexplicably neglected to order a transcript of the trial court

proceedings, in contravention of Fed. R. App. P. 10(b)(1), and hence the

transcript was not included in its appendix on appeal. Appellate review of the

issue raised by Spess is not possible without reference to the trial transcript, i.e.,

without reference to the only certified record of precisely what evidence was

presented at trial regarding the issue of Spess’s liability for punitive damages.

      Appellants who fail to provide an adequate record do so at their peril.

Burnett v. Sw. Bell Tel., L.P., __F.3d__, No. 07-3126, 2009 WL 237702, at *1

(10th Cir. Feb. 3, 2009); see also Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir.

1995) (“It is not this court’s burden to hunt down the pertinent materials. Rather,

it is Plaintiff’s responsibility as the appellant to provide us with a proper record

on appeal.”). This Court is not obligated to remedy any failure by counsel to

designate an adequate record or to provide such a record to us on appeal. 10th

Cir. R. 10.3(B); 10th Cir. R. 30.1(A)(3); Burnett, 2009 WL 237702, at *4 (“Our

procedural rules should not be considered empty gestures, as [w]e have repeatedly

enforced them.” (alteration in original) (internal quotation marks omitted)).

      Once again, it is incumbent upon us to remind litigants that we regularly

                                           -6-
decline to hear claims that are premised upon record evidence that is not included

in the appendix. Burnett, 2009 WL 237702, at *4 (“As we have warned parties

many times, we regularly decline to hear claims predicated upon record evidence

not included in the appendix.”); see also Morrison Knudsen Corp. v. Fireman’s

Fund Ins. Co., 175 F.3d 1221, 1238 (10th Cir. 1999) (“This court has held ‘on a

number of occasions and in a variety of settings that the lack of a required

transcript leaves us with no alternative but to affirm.’” (quoting McGinnis v.

Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992))).

      In addition to an inadequate record, Spess’s briefs are devoid of any

citations to the trial transcript in support of its assertions regarding what evidence

was introduced at trial. An appellant’s argument must contain its “contentions

and the reasons for them, with citations to the authorities and parts of the record

on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A) (emphasis added).

Thus, even if Spess had provided us with a transcript, “[s]uch a presentation

[would] require[] th[is] court ‘to scan volumes aimlessly’ in a search for what was

established at trial.” United States v. Baum, 550 F.3d 1210, 1213 (10th Cir. 2008)

(quoting Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. 2008)); see

Morrison Knudsen Corp., 175 F.3d at 1241 (noting “this court’s need for

sufficient guidance from parties to enable us to review voluminous records

intelligently, rather than sift through them aimlessly”). That would be

unacceptable. Spess “bears the responsibility of tying the relevant facts to the

                                          -7-
record in order to carry the burden of proving error. This Court has no

responsibility to ‘sift through’ the record to find support for [appellant]’s

arguments.” United States v. Stephenson, 452 F.3d 1173, 1182 n.4 (10th Cir.

2006) (citation omitted) (quoting SEC v. Thomas, 965 F.2d 825, 827 (10th Cir.

1992)).

      Spess has conceded that it failed to provide a sufficient record. See Aplt.

Reply Br. 2; R., Dist. Ct. Dkt. No. 570 (Tr. Order Form, filed Apr. 30, 2008). It

contends, however, that the “only portions of the trial transcript which are

necessary” pertain to two witnesses—Messrs. Spess and Quarles—and it urges us

to permit it to supplement the record solely with the trial transcripts embodying

the testimony of those witnesses. Aplt. Reply Br. 5. However, “[w]hen

sufficiency of the evidence is raised, the entire relevant trial transcript must be

provided.” 10th Cir. R. 10.1(A)(1)(a) (emphasis added); see Roberts v. Roadway

Express, Inc., 149 F.3d 1098, 1104-05 (10th Cir. 1998) (noting the appellate

court’s inability to review sufficiency-of-the-evidence claims when only a portion

of trial transcript was provided); see also Deines v. Vermeer Mfg. Co., 969 F.2d

977, 979-80 (10th Cir. 1992) (citing cases and refusing review).

      We are not convinced by Spess’s conclusory assertion that the testimony of

these two witnesses—constituting an unknown portion of a trial that lasted more

than five days—is the only relevant part of the transcript that is required for us to



                                          -8-
undertake appellate review. See Burnett, 2009 WL 237702, at *3 (noting that “we

are not inclined to consider reversing the district court based upon the parties’

tacit assurances that we have before us all of the relevant matter”). Furthermore,

in light of Spess’s failure to provide any citations to the trial transcript in support

of its arguments, we are disinclined to embrace the opportunity to sort through

any proffered transcript in search of purported errors. Thomas, 965 F.2d at 826-

27 (“[Appellant] essentially argues that the district court was wrong, without

pointing us to the errors of which he complains.”); Fed. R. App. P. 28(a)(9)(A),

(e); 10th Cir. R. 28.1(A). Thus, we deny Spess’s request to supplement the

record.

      Moreover, our reasoning in this regard explains why Quarles’s actions

cannot have the effect of rescuing Spess and providing a basis for our review.

Unlike an appellant, an appellee has no duty to produce an appendix. See, e.g.,

Morrison Knudsen Corp, 175 F.3d at 1239 n.18 (noting that “[a]n appellee has no

parallel duty to produce an appendix”). However, it may supplement an

appellant’s filing with its own. 10th Cir. R. 30.2(A)(1). Quarles apparently did

take the initiative to order the transcripts of the trial testimony of the two

witnesses whose testimony Spess tendered in its request to supplement the record,

but indicated that it had received only the transcript of one of them—specifically,

Mr. Quarles. And Quarles filed a supplemental appendix, which consisted solely

of transcript excerpts of Mr. Quarles’s testimony.

                                           -9-
      For the reasons noted above, however, Spess is not “bailed out” by our

access to Mr. Quarles’s testimony—it constitutes a woefully deficient foundation

for our review. Cf. Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 n.19

(10th Cir. 2003) (reversing a grant of summary judgment despite appellants’

“inexcusabl[e]” “failure to meet basic standards” and to include underlying

pleadings in the record when “[i]n many instances, appellants’ record-designation

deficiencies were bailed out by the appellees themselves”). This is especially true

given the sufficiency-of-the-evidence challenge raised by Spess. Indeed, even

though providing the transcript excerpts of Mr. Quarles’s testimony, Quarles has

opposed Spess’s assertion that the transcripts of the testimony of Messrs. Quarles

and Spess would establish an adequate record. See Aplee. Mot. for Leave of

Court to File Aplee.’s Surreply Br. 2 (“[T]he error of Spess cannot be remedied

by requesting only two portions of the transcript, but can only be remedied by

ordering the entire trial transcript.”).

      In sum, Spess’s failure to provide us with a sufficient record through its

filed appendix or with citations to the record in support of its appellate arguments

is fatal to its challenge to the district court’s punitive damages determination. We

are constrained to summarily uphold the district court’s judgment. 1


      1
            Although it is unclear from its brief, Spess also appears to argue that
the amount of the punitive damages award—$67,500.00—is excessive. Under the
same rationale articulated in text, we would conclude that our review of any such
                                                                      (continued...)

                                           -10-
                               CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s judgment.


                                    Entered for the Court


                                    Jerome A. Holmes
                                    Circuit Judge




      1
        (...continued)
argument was foreclosed by the woefully inadequate record and summarily
affirm.

                                     -11-
