                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 17, 2014
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ERIC BROWN,

             Plaintiff - Appellant,

and                                                       No. 13-6250
                                                   (D.C. No. 5:11-CV-00856-D)
DIANA WEBSTER,                                            (W.D. Okla.)

             Plaintiff,

v.

USA TRUCK, INC.; JIMMY WATKINS,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.


      Plaintiff Eric Brown, appearing in this court pro se, appeals from the district

court’s order awarding him $58,172.82 in personal injury damages. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                           I

      Brown and his long-time companion, Diana Webster, operated a trucking

business called Crosswinds Trucking Company with their 2005 Freightliner Tractor.

On August 28, 2009, defendant Jimmy Watkins backed his tractor-trailer into the

front driver’s side of Brown’s parked tractor-trailer three times at low speed while

attempting to park at a rest area in Oklahoma. At the time of the accident, Brown

was asleep in the sleeping compartment at the rear of his truck’s cab. He was

awakened by the first impact and was injured by the repeated impacts.

      In July 2011, through counsel, Brown filed the underlying negligence suit in

state court against Watkins and Watkins’ employer, USA Truck, Inc. Defendants

removed the case to federal court. In August 2011, an amended complaint added

Webster as a plaintiff, but she was dismissed without prejudice by stipulation of the

parties in May 2012. Both defendants admitted that Watkins was acting in the scope

of his employment at the time of the accident, and Watkins admitted that he was at

fault. The only dispute was the amount of damages to be awarded to Brown for his

personal injuries caused by the accident. Brown, who was forty-one years old at the

time of the accident, claimed that he became totally disabled as a result of his

injuries. Defendants disputed Brown’s contentions that his asserted injuries resulted

from the August 28, 2009, accident and that his asserted medical expenses were

necessary.




                                          -2-
      At the parties’ request, the issue of damages was tried without a jury. After a

five-day bench trial, the court entered a forty-seven page “Findings of Fact,

Conclusions of Law, and Judgment,” which the court subsequently amended. Brown

was awarded a total of $58,172.82 in damages and $16,500 in costs.

      Brown filed his notice of appeal pro se, and the court granted his attorneys’

motion for leave to withdraw from the case. The court denied Brown’s two

subsequent, basically identical post-judgment filings, which the court construed as a

single motion to alter or amend the judgment. Brown attached to each of these

filings documents from the Social Security Administration indicating that on

January 31, 2013, it had determined that he became disabled on August 28, 2009, the

date of the accident caused by Watkins. The district court concluded that this

evidence was available long before the April 2013 trial and did not justify relief from

the judgment.

                                           II

      Because Brown appears in this court pro se, we construe his pleadings

liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). We “have

tried to discern the kernel of the issues [Brown] wishes to present on appeal.”

de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). 1




      1
        Defendants ask us to dismiss the appeal due to Brown’s failure to follow
certain procedural rules in the preparation of his brief and supporting materials.
Although “a pro se litigant . . . must follow the same rules of procedure that govern
                                                                            (continued)
                                            -3-
       Brown argues that: (1) his former counsel improperly omitted evidence that

the Social Security Administration determined in January 2013 that Brown became

disabled from working on August 28, 2009; (2) his former counsel improperly agreed

to the dismissal of Webster and her claim for business damages, and improperly

failed to include a claim for business damages in his suit, in violation of professional

standards; (3) his former counsel improperly submitted Crosswinds’ tax returns for

2007-2010 to an economic expert, allowing the expert to understate Crosswinds’

future earnings capacity if Brown had not been injured; (4) his former counsel

improperly failed to allow him to view videos or have written transcripts of

depositions that were not viewed in the courtroom, depriving him of the opportunity

to point out discrepancies in those video depositions to his counsel; (5) his former

counsel improperly failed to use the evidence that USA Truck paid to replace a part

on his Freightliner that could not have been broken in a low-speed collision, in order

to prove that Watkins’ truck did not hit his truck at a low speed and that he was

thrown violently when his truck was struck; (6) the district court erred in finding his

neck and right shoulder injuries had resolved because evidence that he was referred

to pain management and physical therapy did not prove that the injuries healed; and

(7) his damages award could not be offset by insurance proceeds or Social Security

disability benefits.


other litigants,” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), we do not need
to resolve this appeal on procedural grounds.


                                          -4-
       Brown’s first five arguments do not challenge the district court’s findings and

conclusions based on the evidence adduced at trial, but rather the alleged improper

conduct by his former counsel. “The general rule in civil cases is that the ineffective

assistance of counsel is not a basis for appeal.” Nelson v. Boeing Co., 446 F.3d

1118, 1119 (10th Cir. 2006). “If a client’s chosen counsel performs below

professionally acceptable standards, with adverse effects on the client’s case, the

client’s remedy is not reversal, but rather a legal malpractice lawsuit against the

deficient attorney.” Id. As a result, Brown’s first five issues are improperly raised in

this appeal.

       Brown next challenges the district court’s finding that his neck and right

shoulder pain resolved by early March 2010 on the grounds that “he reported

essentially no pain or minimal pain” at that time, and “any shoulder and right arm

pain currently experienced by Brown were not caused by the August 28 accident.”

We conclude that Brown failed to provide the necessary materials for our review of

this issue.

       “In an appeal from a bench trial, we review the district court’s factual findings

for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City of

Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001). We will reverse a finding of fact only

“if it is without factual support in the record” or if, “after reviewing all the evidence,”

we are “left with a definite and firm conviction that a mistake has been made.”

Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998) (quotation omitted).


                                           -5-
“On appeal, we view the evidence in the light most favorable to the district court’s

ruling and must uphold any district court finding that is permissible in light of the

evidence.” Exxon Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994) (citation

omitted). “This court further gives due regard to the district court’s opportunity to

judge the credibility of witnesses.” Manning, 146 F.3d at 813 (citing Fed. R. Civ. P.

52(a)).

      Brown failed to file the relevant trial transcript or exhibits for our review. The

burden was on Brown, as the appellant, to “provide all portions of the transcript

necessary to give the court a complete and accurate record of the proceedings related

to the issues on appeal.” 10th Cir. R. 10.1(A)(1). When an appellant contests the

sufficiency of the evidence, “the entire relevant trial transcript must be provided.”

Id. Because Brown failed to provide the relevant materials for his challenge to the

sufficiency of the evidence supporting the district court’s finding about his neck and

right shoulder pain, his challenge necessarily fails. Cf. United States v. Brody, 705

F.3d 1277, 1280 (10th Cir. 2013) (“An appellant’s failure to file a trial transcript

precludes review of a conviction for sufficiency of the evidence. By failing to file a

copy of the trial transcript as part of the record on appeal, the appellant waives any

claims concerning the sufficiency of the evidence at trial.” (quotation omitted)).

      Finally, Brown argues that his damages award could not be offset by insurance

proceeds or Social Security disability benefits. He points to no evidence that his

damages award was offset by any such proceeds, however, and our review of the


                                          -6-
district court’s “Findings of Fact, Conclusions of Law, and Judgment,” reflects that

no offset was made. Brown’s argument is therefore without merit.

                                         III

      AFFIRMED.


                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




                                         -7-
