Unpublished Disposition, 925 F.2d 1469 (9th Cir. 1991)

No. 89-15992.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, POOLE, Circuit Judges; and HATTER,^**  District Judge

MEMORANDUM^*** 

This court has jurisdiction of this matter since final judgment was entered by the district court. 28 U.S.C. § 1291.

The appropriate standard of review for questions of fact is whether the district court was clearly erroneous in its findings. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.), cert. denied, 469 U.S. 824 (1984). This Court should not disturb the district court's findings of fact unless they are clearly erroneous. McConney, 728 F.2d at 1201. This Court may consider only those facts brought before it on appeal and must adhere to the mandates of Fed. R. Civ. P. 52(a). See United States v. Page, 302 F.2d 81, 85-86 (9th Cir. 1962).

Byrne and Barr contend that the district court erred in its finding that Ager did not violate RICO or commit common law fraud. Yet, they failed to provide this Court with a copy of the transcript of the evidentiary proceedings in the record on appeal. This is a violation of Fed. R. App. P. 10(b) (2) and limits this Court to the lower court's findings of fact. Thomas v. Computax Corp., 631 F.2d 139, 141 (9th Cir. 1980). Additionally, the district court's findings are presumed to be supported by the evidence. Thomas, 631 F.2d at 141. Consequently, the district court's findings were not clearly erroneous, and its decision must stand.

While Byrne and Barr argue that this Court should reverse the dismissal of their action, they failed to present arguments to support their claims of error. The court, in Grimes v. Commissioner of Internal Revenue, 806 F.2d 1451, 1454 (9th Cir. 1986), stated that an appeal is frivolous when no colorable claim of error is presented and the result of the appeal is obvious. In accord with Grimes, the appellants have presented a frivolous appeal. Byrne and Barr merely repeat their district court arguments and fail to challenge the court's conclusions. Therefore, the result of this appeal is obvious.

The consequence of a frivolous appeal is sanctions under Fed. R. App. P. 38 and 28 U.S.C. § 1912. See Grimes, 806 F.2d at 1454. The purpose of Rule 38 and section 1912 is to induce litigants to conform to the governing rules and prevent meritless appeals. See Grimes, 806 F.2d at 1454. Accordingly, Ager's request for attorneys' fees and costs is granted. The court below shall determine the amount of such fees.

Affirmed.