Shyers v. Metropolitan Property & Casualty Insurance Company

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 25, 2025
• Docket: 24-5036
• Status: Unpublished

Opinion

Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 25, 2025 _________________________________ Christopher M. Wolpert Clerk of Court P.J. SHYERS, Special Administrator of the Estate of Michael Turner,

Plaintiff - Appellant,

v. No. 24-5036 (D.C. No. 4:18-CV-00653-JWB-JFJ) METROPOLITAN PROPERTY & (N.D. Okla.) CASUALTY INSURANCE COMPANY, d/b/a MetLife Auto & Home Business Insurance; JOHN M. BROWN INSURANCE INCORPORATED, d/b/a Farmer Brown Insurance Agency, Inc.,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, MURPHY, and CARSON, Circuit Judges. _________________________________

Plaintiffs generally cannot defeat summary-judgment motions by relying on

facts obtained during discovery distinct from their complaints’ factual theories. Due

process requires plaintiffs either hone their complaints’ factual allegations in

discovery or amend them should facts supporting new factual theories for a claim

arise.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 2

Michael Turner purchased replacement insurance coverage for his commercial

building. He claims the insurance agent told him his policy covered the total cost it

would take to replace any damage the building might suffer. He did not read the

final insurance policy, which limited replacement coverage to $100,000. When the

building burned down, Turner discovered the coverage limit. Purportedly believing

insurance company MetLife and its agents misled him, he sued to reform the

insurance policy to what he recalled the insurance company represented to him and

claimed the insurance company both defrauded him and acted in bad faith by writing

the contract as it did. The district court granted Defendants summary judgment on all

counts. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I.

Plaintiff Michael Turner operated a heating, ventilation, and air conditioning

business.1 He purchased a commercial building in Afton, Oklahoma out of which he

ran the business. He bought it for $50,000 and spent another $50,000 renovating the

dilapidated building. Prior to commencing work, he inquired at the Farmer Brown

Insurance Agency (“Farmer Brown”) about a policy covering the building. Plaintiff

claims he told Farmer Brown’s insurance agent he wanted “coverage to actually

replace [his] property in the event of a total loss.” He paid $100,000 for renovations,

and he says Farmer Brown’s agent got him an insurance policy that reflected that

amount. Plaintiff inquired whether the policy limited any insurance recovery to that

1 As explained below, P.J. Shyers later replaced Turner as named plaintiff. For simplicity, this opinion refers to both as Plaintiff. 2 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 3

valuation. The Farmer Brown agent assured him it “did not represent the benefits [he]

would be entitled to in the event of a loss and that [he] would be entitled to the actual

value of the cost to replace the building.” Plaintiff skimmed the policy without

reading it in depth and purchased it.

Whatever discussions Plaintiff had with Farmer Brown’s agent, the insurance

policy Metropolitan Property & Casualty Insurance Company (“MetLife”) issued

gave Plaintiff building-replacement-cost coverage clearly limited to $100,000.2

Recorded calls between Farmer Brown’s agent and Plaintiff prior to the latter signing

the policy contain no reference to unlimited replacement-cost coverage insurance,

and MetLife did not offer such policies.

Plaintiff’s building burned down. He filed a claim under his policy, and

MetLife retained Sedgwick Claims Management Services (“Sedgwick”) to

investigate the replacement cost. Sedgwick estimated the replacement cost would be

$336,966.75, an amount far exceeding Turner’s policy’s $100,000 limit. MetLife

paid $59,949.61 under the policy’s other provisions, including $2,319.30 in business-

income-loss coverage, and $100,000 in replacement coverage, but Plaintiff contested

the $100,000 replacement-coverage limits and MetLife’s business-income-loss

calculations. Calling Farmer Brown’s agent, he said he could not replace his

building for $100,000, after which the following conversation occurred:

MS. DOSSA: Uh-huh. Well the – did you – have you been speaking to the adjuster about the – because the property is on replacement cost. So if–

2 MetLife, a national insurance company, employed Farmer Brown as a local agent. 3 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 4

MR. TURNER: Really? MS. DOSSA: Yes, so if it–that means that if it takes more money for the property to be replaced, then they should be able to cover it. MR. TURNER: The property, meaning the– MS. DOSSA: The actual structure. MR. TURNER: –building? You’re kidding? MS. DOSSA: Yes. MR. TURNER: Seriously? MS. DOSSA: Yeah. Yeah, they should. If that’s something that they– MR. TURNER: All they paid – all they paid was the base value. MS. DOSSA: That’s something that the claim adjuster should know. That the policy is on replacement cost. . .

Plaintiff declared he “didn’t know if we had replacement coverage,” and that it was

“fantastic actually because [he] was thinking [he] was going to have to borrow the

money” to replace the building.

His excitement soon evaporated. Only after the phone conversation with Farmer

Brown’s agent did MetLife’s insurance adjuster tell Plaintiff of the policy’s $100,000

replacement coverage limit. Plaintiff called the agent again, who claimed ignorance.

Feeling MetLife owed him replacement coverage for the full amount Sedgwick estimated

and that both MetLife and Farmer Brown had misled him about the policy’s contents,

Plaintiff sued.3 He alleged negligence against Farmer Brown and both breach of contract

and bad faith against MetLife, seeking to reform the contract to meet what he believed

were the original terms.4

3 Plaintiff originally sued in state court, but the defendants later removed the case to the United States District Court for the Northern District of Oklahoma. 4 Plaintiff brought a negligence claim against Sedgwick and its predecessor company Vericlaim, Inc., but the parties later settled that claim. We dismiss that claim pursuant to Federal Rule of Appellate Procedure 42(b)(1). Plaintiff also sought

4 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 5

The district court granted MetLife and Farmer Brown’s motions for summary

judgment. The court determined Plaintiff’s reformation claim could not succeed

because he did not show any prior agreement existed between him and either Farmer

Brown or MetLife regarding replacement-cost coverage. He could not, therefore,

reform the insurance contract, and his contract-breach claim failed as a matter of law

for replacement-cost coverage. Plaintiff further alleged a contract-breach claim

based on unpaid business-income loss under the policy, which the district court also

dismissed. In the court’s view, Plaintiff made “no effort in his analysis to show that

[MetLife] breached the policy by failing to pay a certain amount for the business-

interruption claim” because he did not cite record evidence that contradicted

MetLife’s business-loss calculations. Plaintiff also had not properly pled, the district

court found, any other contract-breach claims based on the contract’s other

coverages.

The district court then dismissed Plaintiff’s bad-faith claim because he based it

almost exclusively on his reformed version of the contract that the district court

already found inadequately pled. As for other indicia, Plaintiff showed only that

MetLife waited to disburse certain insurance funds until he turned in several relevant

financial records. This did not, the court reasoned, evidence bad faith. The district

court lastly dismissed Plaintiff’s negligence claim, which he argued was not a

negligence claim at all, but instead was actually a fraud claim. The district court

punitive damages against all defendants, but does not appeal the district court’s order denying them. 5 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 6

disagreed, citing most prominently that the amended complaint said “COUNT 1 –

NEGLIGENCE AGAINST FARMER BROWN.” Plaintiff waived any negligence

claim he might have had by disavowing his negligence claim and shifting his

argument toward a claim for fraud. The district court denied Plaintiff’s request to

amend his complaint again, noting that he made no motion to do so and that “the

action had been proceeding for years and discovery was closed.”

Plaintiff died four months before the district court entered judgment against

him. Although unaware that their client had passed, his lawyers appealed. We later

granted his estate’s motion to substitute his estate’s administrator, P.J. Shyers, as

named plaintiff.

II.

MetLife argues we lack jurisdiction because Turner’s lawyers did not initially

name Shyers or themselves as a party when they appealed, doing so only later when

they moved to substitute. In Metlife’s view, Federal Rule of Appellate Procedure

3(c) requires appeal notices to “specify the party or parties taking the appeal by

naming each one in the caption or body of the notice,” and that this is a jurisdictional

requirement. “The Notice of Appeal,” it argues, “does not name a personal

representative of Turner or Turner’s attorney as the Appellant,” and it is therefore not

“objectively clear from the face of the Notice of Appeal that a personal representative

of, or attorney for, Turner intended to appeal on behalf of Turner.” According to

MetLife, because Turner died before he could appeal, his attorney should either have

“(a) secured and named a personal representative as the appellant or (b) named

6 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 7

himself as the appellant or plainly stated in the Notice of Appeal that he was

appealing on behalf of his deceased client.” The attorney’s failure to do so, MetLife

contends, divests us of jurisdiction.

We disagree. Federal Rule of Appellate Procedure 3(c)(7) states that “[a]n

appeal must not be dismissed for informality of form or title of the notice of appeal,

or for failure to name a party whose intent to appeal is otherwise clear from the

notice.” MetLife tries to do just that. Turner’s Notice of Appeal clearly named the

relevant parties for which legal decisions it sought review. The notice set forth

almost all relevant information except for the fact that Turner himself had died, an

incidental fact that does not undermine that the “intent to appeal is otherwise clear.”

Fed. R. App. P. 3(c)(7).

Federal Rule of Appellate Procedure 43(a)(2) also specifies that “[i]f a party

entitled to appeal dies before filing a notice of appeal, the decedent’s personal

representative—or, if there is no personal representative, the decedent’s attorney of

record—may file a notice of appeal within the time prescribed by these rules.”5 Rule

43(a)(1), in turn, places no limit on when a personal representative or attorney must

move to substitute. Fed. R. App. P. 43(a)(1). Addressing almost this exact issue, we

explained that this “court is not divested of jurisdiction where a party has died prior

5 MetLife interprets this rule to require either the decedent’s personal representative or the decedent’s attorney name themselves as party in the decedent’s stead in any notice of appeal. It contends Plaintiff’s attorney’s failure to do so therefore also divested this Court of jurisdiction. Rule 43(a)(2) has no such requirement, and means only the decedent’s personal representative or attorney may file the notice of appeal. 7 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 8

to entry of judgment in the district court but substitution was not requested in the

district court.” Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir.

1991). In Slade, we granted a motion to substitute filed more than four months after

a notice of appeal. Id. at 359–60. We see no reason to do otherwise here.

III.

We review de novo district courts’ summary-judgment grants, applying the

same standard as the district court. Hamric v. Wilderness Expeditions, Inc., 6 F.4th

1108, 1121 (10th Cir. 2021) (citing Universal Underwriters Ins. Co. v. Winton, 818

F.3d 1103, 1105 (10th Cir. 2016)). We grant summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). In other words, we grant summary judgment

“against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In so doing,

we construe all reasonable factual inferences in Plaintiff’s favor. Water Pik, Inc. v.

Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (citing Sally Beauty Co., Inc.

v. Beautyco, Inc., 304 F.3d 964, 971–72 (10th Cir. 2002)). Like the district court, we

apply substantive Oklahoma law. See Cohen-Esrey Real Est. Servs., Inc. v. Twin

City Fire Ins. Co., 636 F.3d 1300, 1302 (10th Cir. 2011) (stating that courts

proceeding in diversity apply the substantive law of the state in which they sit). We

review the district court’s denial of Plaintiff’s request to amend his complaint for

abuse of discretion. Young v. Colorado Dep’t of Corr., 94 F.4th 1242, 1249 (10th

8 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 9

Cir. 2024) (citing SCO Grp., Inc. v. International Bus. Machines Corp., 879 F.3d

1062, 1085 (10th Cir. 2018)).

IV.

Plaintiff challenges the district court’s rejection of his reformation claims, his

purported fraud claims against Farmer Brown, and his bad-faith and breach-of-

contract claims against MetLife. Most of Plaintiff’s claims turn on the reformation

claim. So we address it first.

A.

Plaintiff claims the district court “incorrectly posited that [his] reformation

claim [sought] replacement coverage” rather than “full-replacement coverage for his

building.” He maintains disputed facts exist as to whether the parties agreed to full-

replacement coverage when he bought the insurance policy, pointing primarily to his

own declaration stating that Farmer Brown’s agent represented to him that “the

policy covered the full actual cost to rebuild [his] commercial building.” He argues

that Farmer Brown committed constructive fraud, and emphasizes that “[b]ecause

fraud, by its nature, is very difficult to prove by direct evidence, it is most often

proved by circumstantial evidence.” Plaintiff contends he relied on Farmer Brown’s

agent’s false representation to his detriment, and the district court should have

permitted him to reform his insurance policy on that basis.

Parties to Oklahoma contracts can reform them only with “proof of the

contract to be reformed and proof, by clear and convincing evidence, of a mutual

mistake or mistake by one party and inequitable conduct on the part of the other that

9 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 10

resulted in a written contract that did not reflect the parties’ intent.” Oklahoma

Oncology & Hematology P.C. v. U.S. Oncology, Inc., 160 P.3d 936, 947 n.22 (Okla.

2007) (citing Thompson v. Estate of H.H. Coffield, 894 P.2d 1065, 1067 (Okla.

1995)). Plaintiff compares his case to Gentry v. American Motorist Insurance Co., in

which Oklahoma’s Supreme Court reformed a contract after an insurance agent

falsely represented to a real estate developer that a risk policy covering theft included

theft by employees and subcontractors. 867 P.2d 468, 470 (Okla. 1994). When such

a theft occurred, the insured filed a claim the insurance company denied because the

policy excepted employee and subcontractor thefts. Id. The Oklahoma Supreme

Court upheld the district court’s reformation because the insurer engaged in

constructive fraud through its false representation. Id. at 472. Plaintiff argues he too

is a fraud victim, and that the district court erred by rejecting his effort to reform the

policy.

But Plaintiff fails to demonstrate either a prior contract or any fraud based on

evidence from which a reasonable jury could find for him by clear and convincing

evidence. Plaintiff’s appellate brief contains no record citations that support his

characterization of his interactions with Farmer Brown’s agent. Even when he

provides specific record citations in his reply, he mostly cites to his own declaration

telling his recollection of how he got his replacement coverage policy. The only

other part of the record to which he cites is an email from Farmer Brown’s agent that

reads “I confirmed the property is covered under replacement cost so go ahead and

get the plans and send them to the adjuster or to me and I will forward. I am waiting

10 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 11

to hear back about that possible extra coverage.” The email, which post-dates

Plaintiff purchasing the insurance policy, mentions neither full-replacement coverage

nor that Plaintiff ever discussed getting full-replacement coverage with Farmer

Brown’s agent.6

Plaintiff built his summary-judgment case mostly on his self-serving

declaration. In some contexts, “[e]ven standing alone, self-serving testimony can

suffice to prevent summary judgment.” Greer v. City of Wichita, Kansas, 943 F.3d

1320, 1325 (10th Cir. 2019) (citing Evers v. Regents of Univ. of Colo., 509 F.3d

1304, 1309 (10th Cir. 2007)). But “because at summary judgment we are beyond the

pleading phase of the litigation, [the non-movant]’s version of the facts must find

support in the record.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.

2009). And “[w]hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a

court should not adopt that version of the facts.” York v. City of Las Cruces, 523

6 MetLife claims Plaintiff’s amended complaint fails to state a reformation claim because it seeks to reform the contract “to provide ‘replacement cost rather than actual cash value’ coverage of the Building.” As the insurance policy has replacement coverage, albeit limited to $100,000, MetLife argues there can be no reformation and that Plaintiff therefore failed to state a claim. But construing the pleadings liberally, Plaintiff did state a reformation claim. The amended complaint says that “[a]t the time of agreement Metlife’s agent assured Plaintiff that the policy he purchased contained replacement cost coverage,” which he seems to have understood to mean providing the funds necessary to completely fix his building regardless of the amount. To this end, he pleads that “[a]s a result of all of the work on the building, it was worth well over $100,000.00 when it was completely lost.” As a result, he pleads sufficiently that he purchased coverage for a cost higher than the $100,000 replacement coverage limit the final policy contained. 11 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 12

F.3d 1205, 1210 (10th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

This is especially true in cases where the party with only self-serving testimony bears

the burden of proving his case by clear and convincing evidence, because under that

standard he bears the heavy burden of showing that the fact he seeks to prove is

“highly probable.” United States v. Dear, 104 F.4th 145, 147 (10th Cir. 2024)

(quoting Florida v. Georgia, 592 U.S. 433, 438–39 (2021)). Indeed, under the clear

and convincing evidence standard, the party’s evidence must leave us with “‘a firm

belief or conviction, without hesitancy,’ of the truth of the matter asserted.” United

States v. Antone, 742 F.3d 151, 169 (4th Cir. 2014) (quoting United States v.

Springer, 715 F.3d 535, 538 (4th Cir. 2013)).

Here, Plaintiff could reform the contract if his evidence demonstrated, with

high probability and left us firmly convinced, “without hesitancy,” that his version of

the story—namely, that he specifically asked for full-replacement coverage and

Farmer Brown’s agent represented that his policy would have it—is correct. Gentry,

867 P.2d at 472; Antone, 742 F.3d at 169. But he references no record evidence

showing that this was the case besides his own declaration. And the record strongly

supports the opposite conclusion. As the district court noted, “the recorded calls [in

the record] reveal that Plaintiff was surprised and elated at the thought that he could

recover more money for his building in the calls with [Farmer Brown’s agent] after

the fire.” In one recorded call, Farmer Brown’s agent stated that “if it takes more

money for the property to be replaced, then they should be able to cover it,” to which

Plaintiff said with surprise “You’re kidding . . . Seriously?” and observed that he

12 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 13

“didn’t know if [h]e had replacement coverage.” These calls, made months after he

obtained the policy, suggest Plaintiff never expected his insurance to cover the full

cost to replace his building if it ever burned down until after the fire. Plaintiff’s ex-

post-facto expectation contradicts his claim that he sought, and thought he received,

full-replacement coverage when he bought his insurance policy from MetLife.

Though Plaintiff’s contradictory testimony could possibly create an issue of fact

where the burden of proof was a mere preponderance of the evidence, it cannot defeat

summary judgment in this case, where Plaintiff bore the burden of proving his case

by clear and convincing evidence. See McCoy v. Meyers, 887 F.3d 1034, 1044 (10th

Cir. 2018) (quoting Patel v. Hall, 849 F.3d 970, 978 (10th Cir. 2017)).

But even if his self-serving declaration could defeat summary judgment

(which, we conclude it could not), Turner’s death presents a crucial issue relevant for

the first time on appeal: his case has no evidence admissible for trial. As indicated

above, the only evidence that supports Turner’s recollection that he asked Farmer

Brown for full-replacement coverage is his self-contradicting declaration that he

attached in response to Farmer Brown’s summary-judgment motion. Even if we

assume Plaintiff’s declaration could show “by clear and convincing evidence, a

mutual mistake or mistake by one party and inequitable conduct on the part of the

other that resulted in a written contract that did not reflect the parties’ intent,”

Oklahoma Oncology & Hematology, 160 P.3d at 947 n.22 (citing Salt Lake Cnty.,

894 P.2d at 1067), the declaration could defeat summary judgment only if the

testimony it contained would be admissible at trial, Universitas Educ., LLC v. Avon

13 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 14

Cap., LLC, 124 F.4th 1231, 1247 (10th Cir. 2024) (quoting Bryant v. Farmers Ins.

Exch., 432 F.3d 1114, 1122 (10th Cir. 2005)).

As Farmer Brown points out, though, “[t]he declaration . . . is not admissible

into evidence.”7 Farmer Brown is correct–Declarations like Turner’s—made out-of-

court to defeat summary judgment—are hearsay, and normally inadmissible because

they not are not subject to an oath, personal presence in court, and cross-examination.

Fed. R. Evid. 804(b)(1)(A–B); see also United States v. Console, 13 F.3d 641, 656

(3d Cir. 1993). Relevant portions of Turner’s declaration are also hearsay within

hearsay because Turner described in the declaration representations Farmer Brown’s

agent allegedly made to him about the scope of the replacement-coverage insurance

he purchased. Turner would likely have testified to the declaration’s contents at trial

where Farmer Brown could have cross-examined him, but his death precludes that

possibility.8

7 Tellingly, Plaintiff never disputes this observation. He comes closest in his reply brief, in which he defends against Farmer Brown’s argument by arguing that it “did not object to or move to strike Mr. Turner’s declaration in its summary judgment pleadings. As such, any argument regarding the declaration’s admissibility is waived and it is properly considered as evidence on summary judgment.” Plaintiff were correct, the evidence would still be inadmissible at trial even if Farmer Brown never moved to strike Turner’s declaration in its summary-judgment briefing. 8 Plaintiff contends Farmer Brown, which argued Turner’s declaration was inadmissible first in its response brief on appeal, forfeited any argument regarding the declaration’s admissibility because it did not object to it as summary-judgment evidence below. But Turner did not die until December 28, 2023, more than three years after Farmer Brown moved for summary judgment and Turner sought to defeat it with his declaration. Turner also made his declaration to defeat summary judgment, and “[a]t the summary judgment stage, evidence need not be submitted ‘in

14 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 15

Now Turner is not available to testify and no hearsay exception applies to

Turner’s declaration. Federal Rule of Evidence 804(b)(1) only allows courts to admit

former testimony from an unavailable witness for the testimony’s truth if it “was

given as a witness at a trial, hearing, or lawful deposition, whether given during the

current proceeding or a different one” and “is now offered against a party who had—

or, in a civil case, whose predecessor in interest had—an opportunity and similar

motive to develop it by direct, cross-, or redirect examination.” Turner gave his

declaration in response to Farmer Brown’s summary-judgment motion, and therefore

did not reveal its contents during “a trial, hearing, or lawful deposition.” And Farmer

Brown had no opportunity to develop it by cross-examination because the case never

made it to trial.

Ultimately, we consider only evidence that could be admissible at trial when

reviewing the propriety of a district court’s order granting summary judgment.9

a form that would be admissible at trial.’” Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Celotex Corp., 477 U.S. at 324). Farmer Brown had no need, therefore, to object to Turner’s declaration’s admissibility because it could have cross-examined Turner at trial. Farmer Brown did not forfeit its admissibility argument because it was not clear below that Turner’s testimony about his interactions with it would be inadmissible because of his death. 9 To be clear, evidence need not be in admissible form for courts to consider it for summary judgment. Argo, 452 F.3d at 1199 (quoting Celotex, 477 U.S. at 324). Parties often “submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form.” Id. (citing Bryant, 432 F.3d at 1122). But as explained above, Farmer Brown has no way to cross-examine Turner at trial and no hearsay exception applies. For that reason, Turner’s declaration is inadmissible and, at this point, not proper summary-judgment evidence. 15 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 16

Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (quoting

Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998)).

So even assuming the declaration could demonstrate his position by clear and

convincing evidence, excluding Turner’s declaration extinguishes Plaintiff’s case

because he relied almost entirely on his own testimony, as set forth in the declaration,

to rebut Farmer Brown’s strongly contradictory record evidence. Thus, we lack

sufficient evidence upon which we could reverse the district court’s summary-

judgment holding, and Plaintiff’s reformation-claim appeal must fail as a matter of

law.

B.

Plaintiff next argues the district court erred in granting summary judgment on

his contract-breach claims against MetLife. He has three: one based on failing to pay

the full replacement-coverage balance he would get if he succeeded in reforming the

contract to remove the $100,000 limit, one based on alleged failure to properly

calculate and pay his business-interruption-loss coverage, and one that generically

seeks damages for failure to pay “other coverages” MetLife allegedly owed under the

insurance policy. As the district court correctly granted MetLife summary judgment

on Plaintiff’s reformation claim, the first cannot succeed.

As for the business-loss claim, Plaintiff contends MetLife vastly

underestimated his business-interruption loss. MetLife gave him $2,319.30 in

business-interruption-loss coverage, calculating that amount by referencing profit and

16 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 17

loss statements Plaintiff provided.10 Plaintiff argues that in so doing it “ignored the

seasonal aspect of [his] restoration business” and “used months where Mr. Turner

was not as active to calculate lost income, instead of the months that would be

sharply affected by the lost business.” Instead, it should have used “the average of

the whole year” and reached the far-higher total of $236,216.61. In other words, he

argues MetLife underpaid his business income expenses based on incomplete data.

These arguments fail. Plaintiff’s factual theory both in his response to

MetLife’s summary-judgment motion below and in his appellate brief turn on

improper calculation, namely a seasonal aspect to his HVAC business that

undervalued the true amount lost. But his amended complaint alleged no facts to

support this argument. His complaint instead says only that the “policy further

provided coverage for business interruption resulting in a loss of business income,”

and that he was “entitled to benefits under this coverage but Metlife has failed and

refused to tender such benefits.” When alleging his contract-breach claim,

meanwhile, he said only that he “requested Metlife tender payment under [the

business-income-loss] policy and Metlife has failed to fully tender said payment in

connection with said policy.” The reference to having “failed to fully tender” the

10 The relevant provision in Plaintiff’s insurance policy covered loss of business income if the loss was “due to” the suspension of operations “caused by direct physical loss of or damage to” covered property. Plaintiff gave MetLife his profit and loss statements to show business interruption, from which MetLife calculated that during the relevant period Plaintiff’s projected revenue was $120,956.13. Subtracting Plaintiff’s reported actual revenue of $116,081.99 and $2,554.84 of discontinuing expenses, it paid $2,319.30 in business income loss coverage. 17 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 18

business income indicates that, contrary to MetLife’s argument, he alleged MetLife

underpaid his business income loss coverage. But no facts, let alone a factual theory,

supported that bare legal conclusion.11

Plaintiff cannot allege new factual theories on appeal. Generally, “we will not

consider arguments on appeal not tied to the allegations in the complaint.” Requena

v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018). Although parties can refer to facts

only found in discovery to show material factual disputes sufficient to preclude

summary judgment, due process and notice-pleading principles require they not

“alter[] radically the factual basis of [their] complaint at summary judgment” by

“introduc[ing] a new factual basis not previously presented in the pleadings for a

claim.” Whitaker v. Milwaukee Cnty., 772 F.3d 802, 808 (7th Cir. 2014). Holding

otherwise would “permit plaintiff[s] to construe [their] complaint as entirely generic

and, throughout the litigation, incorporate any new factual allegations without

seeking amendment[, which] would read the ‘fair notice’ requirement out of Rule

8(a) and would seriously undermine the rule’s goal of encouraging expeditious

resolution of disputes.” Pickern v. Pier 1 Imports (U.S.), Inc., 339 F. Supp. 2d 1081,

1088 (E.D. Cal. 2004), aff’d, 457 F.3d 963 (9th Cir. 2006); see also Roeder v.

Normandy Apartments Holdings, LLC, No. 14-CV-494-JHP-PJC, 2015 WL 5673127

11 Contrary to the district court’s holding, Plaintiff cited to record facts that supported his argument below, albeit only in his response to MetLife’s renewed motion for summary judgment’s facts section. But he neither raised this argument nor alleged facts to support it in his amended complaint, and we do not consider such arguments and factual theories. Requena, 893 F.3d at 1205. 18 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 19

at *2 (N.D. Okla. Sept. 25, 2015) (refusing to consider a new factual theory not

mentioned in the complaint raised in summary-judgment response because “[t]o do

otherwise would reward Plaintiff's prolonged delay in revealing his true theory of

liability and would be unfairly prejudicial to Defendants”). Plaintiff did not simply

change the factual basis for his claim, he never alleged one at all in his complaint.

He cannot now rely on facts gained from discovery to create a material factual

dispute.

Even if Plaintiff had alleged facts to support his undercalculation theory, he

would still lose. Plaintiff’s insurance policy required him to send MetLife “a signed,

sworn proof of loss containing the information . . . to investigate the

claim . . . . within 60 days after [MetLife’s] request.” The record reveals MetLife’s

adjuster Sedgwick asked Plaintiff for records supporting his alleged business loss on

February 17, 2017, and again on March 15, 2017. Plaintiff provided the relevant

records only on December 14, well after the sixty-day deadline. So even if Plaintiff

is correct that MetLife undercalculated, his failure to timely submit the required

records suggests the contract did not even entitle him to the business-interruption

coverage he received.

Plaintiff’s third contract breach claim fails as well. He claims the district court

erred in holding he did not adequately plead contract breach based upon coverages

other than reformation-driven full-replacement coverage and business-interruption-

loss coverage. He argues he pled his “policy provided for various coverages” under

the heading “COUNT 3 - BREACH OF CONTRACT AGAINST METLIFE,” and

19 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 20

that he alleged broadly under the bad-faith count that MetLife “[f]ail[ed] to pay [him]

the insurance benefits that it was entitled to under the policy.” Ignoring this claim

merely because he did not place these relevant allegations under the contract breach

heading, Plaintiff contends, violates the “liberalized pleading standard under Fed. R.

Civ. P. 8 and [requires] a specificity in pleading that Rule 8 does not require.”

But liberal pleading standards do not lend a voice to utter silence. Merely

observing that the complaint referenced “various coverages” does not provide

MetLife any notice that it either underpaid or did not pay Plaintiff the other

coverages it owed him under the policy in breach of the policy. And nothing in the

complaint’s contract-breach section suggests that claim implicated those other

coverages. It alleged exclusively that Plaintiff “had a policy of insurance with

Metlife to cover losses to its building and business” for which “Metlife has failed to

fully tender said payment in connection with said policy.” No reasonable litigant

would interpret this language to state a general contract-breach claim for failure to

pay under other policy coverages of which Plaintiff omitted mention. Even if we

ignored the contract-breach heading and looked to Plaintiff’s bad-faith count,

Plaintiff again omitted any identifiable references to other coverages.12 We hold

12 He alleged only that “[f]ailing to pay Plaintiff the insurance benefits that it was entitled to under the policy at the time when Defendants knew the Plaintiff was entitled to those benefits” evidenced bad faith, which any reasonable litigant would have understood to mean the replacement coverage and business-loss coverage he described previously. 20 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 21

Plaintiff to that omission. The district court properly granted MetLife summary

judgment on this claim.

C.

Plaintiff claims penultimately that the district court erred in dismissing his

bad-faith claim against MetLife. As with his contract-breach claim, his bad-faith

claim has three iterations: failure to pay the required full-replacement coverage under

the reformed contract, failure to pay the policy’s other coverages, and failure to pay

the full business-loss coverages. For the reasons explained above, the district court

correctly refused to reform the contract and Plaintiff’s amended complaint did not

adequately reference any other coverages. The first two bad-faith claims therefore

fail.

As to Plaintiff’s last claim, he largely repeats his contract-breach arguments.

He restates that he “presented evidence that MetLife’s accountant severely

undercalculated the business losses,” and that “[t]he District Court ignored this

evidence and merely stated MetLife fully paid [Plaintiff’s] claim within days of

receiving word that MetLife should base its decision on the business records

submitted by [Plaintiff] and/or his adjuster.” The district court, he contends, thus

inappropriately weighed evidence during summary judgment.

The district court did no such thing. Plaintiff fails to raise a genuine factual

question for his bad-faith-business-loss claim because, as with his contract-breach

claim on the same policy provision, he did not allege any facts in his complaint

related to his miscalculation theory. Pointing to record facts obtained during

21 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 22

discovery that support this theory cannot raise a genuine factual issue for the same

reasons. See Whitaker, 772 F.3d at 808.

And the district court did not weigh evidence. It instead noted that undisputed

record evidence “show[ed] that [MetLife] requested several financial documents from

Plaintiff’s adjuster so that the [business-loss] claim could be evaluated” but that

Plaintiff refused to provide them. It further noted that Plaintiff only argued that

“Defendant’s adjuster admitted that undisputed payments were unreasonably delayed,

in some instances for many months after she had reason to know those claims were

valid,” and that he had “produced evidence that Defendant withheld payments on

other claims without conducting a reasonable investigation.” Because this argument

was “vague and not supported by the undisputed facts pertaining to this claim,” the

district court correctly declined to find any material factual dispute about whether

MetLife failed to timely pay Plaintiff his proper business-loss coverage amount.

D.

Lastly, Plaintiff argues the district court failed to recognize a fraud claim in his

amended complaint against Farmer Brown. His amended complaint never used the

word fraud, and the relevant heading reads “COUNT 1- NEGLIGENCE AGAINST

FARMER BROWN.” Plaintiff contends, nevertheless, that, though he “may have

titled his claims against Defendant Farmer Brown as ‘negligence[,]’” his claim “is—

and has always been—one for fraud based on the misrepresentations of [Farmer

Brown’s agent].” In Plaintiff’s view, the district court ignored various factual

allegations and “applied a formality in pleading standard that simply does not exist.”

22 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 23

He points to several facts that could support a fraud claim, especially some purported

misrepresentations by Farmer Brown’s agent upon which he allegedly relied in

detrimental belief that he had full-replacement coverage. Thus, he contends, “[t]hese

allegations all point to a substantive fraud claim against Defendant Farmer Brown

and the facts obtained in discovery back that up.”

Plaintiff’s after-the-fact interpretation of his complaint is unpersuasive. Under

Oklahoma law, plaintiffs must state fraud claims “with sufficient particularity to

enable the opposing party to prepare his/her responsive pleadings and defenses.” A-

Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ Comp. Ass’n, 936 P.2d

916, 930–31 (Okla. 1997) (citing Gay v. Akin, 766 P.2d 985, 993 (Okla. 1988)).

Though that “does not mean the plaintiff has to plead detailed evidentiary matters,”

nothing in Plaintiff’s amended complaint suggests he intended to bring a fraud claim

against Farmer Brown. Fanning v. Brown, 85 P.3d 841, 848 n.10 (Okla. 2004)

(citing A-Plus Janitorial, 936 P.2d at 930–31). Besides the heading labeling count

one as a negligence claim, the allegations included statements such as “Farmer

Brown had a duty to Plaintiff to exercise reasonable care” and “Farmer Brown

breached that duty by advising Plaintiff he had purchased a policy of insurance that

contained replacement cost coverage without obtaining such policy or confirming

that the policy did, in fact, contain replacement cost coverage.” Both reference

negligence elements and standards of care, suggesting Plaintiff originally intended to

bring a negligence claim—he only later attempted to describe his claim as one for

fraud, even though the complaint is devoid of allegations supporting that theory.

23 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 24

Smith v. City of Stillwater, 328 P.3d 1192, 1200 (Okla. 2014) (“There are three

elements to a claim for negligence: 1) a duty owed by the defendant to protect the

plaintiff from injury; 2) a failure to perform that duty; and 3) injuries to the plaintiff

which are proximately caused by the defendant's failure to exercise the duty of

care.”) (citing Berman v. Laboratory Corp. of Am., 268 P.3d 68 (Okla. 2011)).

In this circuit, “[w]e do not believe [] liberalized pleading rules permit

plaintiffs to wait until the last minute to ascertain and refine the theories on which

they intend to build their case” by using a “late shift in the thrust of their case” to

potentially prejudice the opposing party. Evans v. McDonald’s Corp., 936 F.2d

1087, 1091 (10th Cir. 1991) (quoting 5 Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 1219 at 194 (1990)). Here, Plaintiff attempted to

switch theories against Farmer Brown two years after the case began while

responding to its motion for summary judgment.13 That is, by any standard, too late

to shift the thrust of one’s case, and clearly prejudices Farmer Brown in its attempt to

13 As Plaintiff filed this case on November 15, 2018, this number comes from Plaintiff’s November 16, 2020, response to Farmer Brown’s motion to dismiss. Plaintiff’s response suggests he may have first made the argument in his reply to now-settled defendant Sedgwick’s response to his motion to supplement the summary-judgment record on October 22, 2020. But Farmer Brown had no reason to read that document, which did not implicate any claims against it. And prior references to fraud related to his claims against MetLife would not reasonably put Farmer Brown on notice that Plaintiff’s claims against it also implicated fraud. Even if they did, Plaintiff first expanded upon that argument on April 3, 2020, at least a year and a half after he amended his complaint.

24 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 25

build a coherent summary-judgment motion.14 Plaintiff cannot survive summary

judgment by claiming fraud. Because he abandoned his negligence claim both below

and on appeal in favor of fraud, we do not consider whether he could succeed on that

theory. Wyo-Ben Inc. v. Haaland, 63 F.4th 857, 870–71 (10th Cir. 2023) (citing

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011)).

E.

Plaintiff argues the district court should have permitted him to fix all these

flaws by amending his complaint. The district court denied the motion because the

case “had been proceeding for years and discovery was closed.”15 Referencing the

well-known precept that “[r]efusal of a request to amend is appropriate only ‘on a

14 In addition to arguing that his pleadings encompassed fraud against Farmer Brown, he also argues that “Farmer Brown was on notice of Plaintiff’s legal theory throughout the discovery phase of this case, and certainly by the time the parties started taking depositions.” But Plaintiff cites nothing indicating this is true. Farmer Brown’s summary-judgment motion did not even mention fraud, casting further doubt upon Plaintiff’s claims. 15 The district court also denied leave because “Plaintiff could have sought leave to amend at the time he filed his response by filing a motion and failed to do so.” Plaintiff contends the district court should have perceived his response to Farmer Brown’s and MetLife’s summary-judgment motions as a request to amend his complaint to the extent he presented new factual theories and allegations, and that its failure to do so and allow amendment violates the Federal Rules of Civil Procedure’s policy that “courts should ‘freely’ allow amendment of the pleadings.” Plaintiff is correct that “[o]ur cases interpret the inclusion of new allegations in a response to a motion for summary judgment, as a potential request to amend the complaint.” Adams v. C3 Pipeline Constr. Inc., 30 F.4th 943, 971 (10th Cir. 2021) (quoting Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003)). But his expansive view of these cases would render pleading requirements and litigation deadlines meaningless. But, even assuming he is correct, the district court gave other reasons for denying amendment, so this error, if any, is harmless. 25 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 26

showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory

motive, failure to cure deficiencies by amendments previously allowed, or futility of

amendment,’” Plaintiff argues that “delay alone is an insufficient ground to deny

leave to amend” even though he waited several years to move to do so. He compares

his case to Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006), in

which we held that a plaintiff’s belief that he already fairly pled his claim excused

his delay in seeking amendment.

Minter illustrates precisely why the district court did not abuse its discretion in

denying Plaintiff’s request to amend. First, although “[l]ateness does not of itself

justify the denial of the amendment,” Minter, 451 F.3d at 1205 (quoting R.E.B., Inc.

v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir. 1975)), the law is clear that “[t]he

longer the delay, ‘the more likely the motion to amend will be denied, as protracted

delay, with its attendant burdens on the opponent and the court, is itself a sufficient

reason for the court to withhold permission to amend,’” id. (quoting Steir v. Girl

Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)). Here, Plaintiff had already

amended his complaint once when he sought leave to amend again on November 16,

2020, more than two years after litigation commenced. The timing and previous

amendment weigh against granting further alteration.

Plaintiff also presents a weak justification for the delay. We focus on “the

reasons for the delay,” id. at 1206, when ruling on amendment motions. We

generally uphold the denial of leave “when the party filing the motion has no

adequate explanation for the delay,” Frank v. U.S. West, 3 F.3d 1357, 1365–66 (10th

26 Appellate Case: 24-5036 Document: 86-1 Date Filed: 07/25/2025 Page: 27

Cir. 1993) (quoting Woolsey v. Marion Lab’ys, Inc., 934 F.2d 1452, 1462 (10th Cir.

1991)), and when the plaintiff tries “to ‘salvage a lost case by untimely suggestion of

new theories of recovery,’” Minter, 451 F.3d at 1206 (quoting Hayes v. Whitman,

264 F.3d 1017, 1027 (10th Cir. 2001)). Plaintiff’s only proffered reasons for why he

did not move to amend earlier are that he believed his claims were already fairly

pled, and that “the claims arose from the same facts and circumstances” the

complaint expressed. As explained above, Plaintiff’s proposed amendments took his

case far afield from the bare factual allegations his complaint expressed. His long

delay in seeking amendment and threadbare justifications for it strongly suggest he

sought amendment to “salvage a lost case,” which is a justification we generally find

unpersuasive. The district court did not abuse its discretion in denying amendment.

AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge