Zesiger et al v. Leavenworth County, Kansas

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRYAN ZESIGER and GINA MONTALBANO
ZESIGER,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF
LEAVENWORTH COUNTY, KANSAS, et al.,
Defendants.
Case No. 2:25-CV-02323-JAR-RES
MEMORANDUM AND ORDER
Plaintiffs Bryan Zesiger and Gina Montalbano Zesiger, proceeding pro se, brought this
action against Defendants the Board of County Commissioners of Leavenworth County, Kansas;
Misty Brown, in her official capacity as Leavenworth County Counselor; and Melissa Johnson,
in her official capacity as an employee of the Leavenworth County Planning and Zoning
Department. Plaintiffs alleged that Defendants’ classification of their property for tax purposes
and imposition of a special use permit violated the United States Constitution. The Court
previously granted Defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(6) and entered
judgment in Defendants’ favor.1 This matter is now before the Court on Plaintiffs’ Motion to
Supplement the Record for Appellate Purposes and Request for Judicial Notice (Doc. 33).
Plaintiffs move under Fed. R. App. P. 10(e)(2) to supplement the record on appeal with a
copy of a Kansas Board of Tax Appeals decision, Docket No. 2022-1396-EQ. However,
Plaintiffs’ motion is moot for two reasons.
1 Docs. 31, 32.
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2
First, a copy of that decision is already part of the record because Plaintiffs previously
attached it as an exhibit to their motion for temporary restraining order.2 Under Rule 10(a), the
record on appeal consists of “the original papers and exhibits filed in the district court,” and Rule
10(e)(2) permits correction only when something material has been “omitted from or misstated
in the record by error or accident.”3 Here, there is nothing to correct because a copy of the
decision Plaintiffs seek to add is already in the record.
Second, no appeal is currently pending. Rule 10 concerns the “record on appeal,” and an
appeal is taken only by filing a notice of appeal.4 Here, Plaintiffs have not filed a notice of
appeal. And “[s]imply put, a district court may not supplement a trial record unless an appeal is
pending.”5 Accordingly, because the document Plaintiffs seek to add is already part of the trial
record, and because no appeal is currently pending, the motion is denied as moot.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion to
Supplement the Record for Appellate Purposes and Request for Judicial Notice (Doc. 33) is
denied as moot.
IT IS SO ORDERED.
Dated: April 7, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
2 Doc. 22-1 at 4–13.
3 Fed. R. App. P. 10(a)(1), (e)(2).
4 Fed. R. App. P. 3(a)(1), 10(a).
5 Walsh v. Timberline S. LLC, 643 F. Supp. 3d 744, 748 (E.D. Mich. 2022).
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