F I L E D
United States Court of Appeals
Tenth Circuit
SEP 3 1999
UNITED STATES COURT OF APPEALSPATRICK FISHER
Clerk
TENTH CIRCUIT
OWEN J. PEPE, JR. and KATHERINE
S. HOLDEN,
Plaintiff-Appellants,
v. No. 99-1063
(D.C. No. 98-N-746)
PAUL KORENY and MARGARET (Colorado)
KORENY, individually and doing
business as Cawthon Motel &
Campground,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
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 cause 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This order and judgment is not binding precedent, except under the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, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Owen J. Pepe, Jr., and Katherine S. Holden, plaintiffs, brought two separate
suits against defendants Paul Koreny and Margaret Koreny. Mr. Pepe and Ms.
Holden asserted claims for failure to pay minimum wage 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 favor 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, plaintiffs challenge the trial
court’s rulings on their substantive claims and raise 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 primarily cleaned the motel
rooms. They alleged that each worked over 98 hours per week without
compensation for overtime. After hearing testimony and 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.
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On appeal, Mr. Pepe and Ms. Holden argue error. However, the record on
appeal does not contain any of the trial transcript other 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 plaintiffs 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 the evidence. See Deines v.
Vermeer Mfg. Co., 969 F.2d 977 (10th Cir. 1992). Accordingly, we affirm the
district court’s disposition of the FLSA claims.
II. Contract claim
Mr. Pepe also alleged he had a contract with the Korenys 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 him.
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 collect
a commission as a sales agent for real property, see Manufacturer’s Nat’l Bank v.
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Hartmeister, 411 F.2d 173, 176 (10th Cir. 1969). Mr. Pepe admitted 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 remains. We affirm summary
judgment for the Korenys.
III. Procedural claims
Mr. Pepe and Ms. Holden also assert procedural errors. The record indicates
on August 28, 1998, their first lawyer moved to withdraw 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, which was denied. They
eventually obtained counsel on December 14, and proceeded to trial four weeks
later on January 11, 1999.
Mr. Pepe and Ms. Holden now argue that the district court improperly
granted their first attorney leave to withdraw, erred 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 discretion regarding trial
procedure applications (including control of the docket and parties), and their
decisions are reviewed only for abuse of discretion.” United States v. Nicholson,
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983 F.2d 983, 988 (10th Cir. 1993). The inherent authority of a district court to
manage its docket includes discretion to grant or deny 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 management reviewed for abuse of
discretion, see R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d
1306, 1308 (10th Cir. 1987), as is the grant of a motion of counsel to withdraw for
cause.
In the instant case, it was within the court’s discretion 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 extension 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. Finally, the district court’s acceptance
of the pretrial order was within its discretion when, as here, the plaintiffs did not
show good cause for delaying the order. We conclude 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
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