Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 15, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ____________________________________________
WASATCH TRANSPORTATION, INC.,
Plaintiff - Appellant,
v. No. 21-4107
FOREST RIVER, INC., d/b/a Glaval Bus,
Defendant - Appellee. _____________________________________________
Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CV-00752-HCN) ______________________________________________
Matthew N. Evans (Carol A. Funk and Whitney Hulet Krogue, with him on the briefs), Ray Quinney & Nebeker P.C., Salt Lake City, Utah, for Plaintiff-Appellant.
John D. Papageorge, Taft Stettinius & Hollister LLP, Indianapolis, Indiana (Nadine E. McSpadden, Taft Stettinius & Hollister, and Andrew D. Wright and Scarlet R. Smith, Strong & Hanni, P.C., Salt Lake City, Utah, with him on the briefs), for Defendant-Appellee. ______________________________________________
Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges. _______________________________________________
BACHARACH, Circuit Judge. _________________________________________ Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 2
The English language is full of words with possibilities for multiple
meanings based on the context. An example is the word warranty, which
can refer to the length of the protection, the parts and functions that are
covered, or the available remedies. For example, a car manufacturer might
refer to its warranty as one for 5 years or 100,000 miles. But the
manufacturer might also refer to a warranty based on the parts that are
covered or the available remedies. For instance, a manufacturer might refer
to its warranty as one covering only repair costs.
If a customer testifies that he saw the manufacturer’s warranty, was
he referring to the length, the covered parts or functions, or the remedies?
Here the district court assumed that the customer must be referring to the
covered parts and the available remedies. But that assumption may be
wrong; the customer could have been using the word warranty to refer to
the duration.
I. Wasatch Transportation buys three buses from Forest River, Inc.
The meaning of the word warranty figures prominently in this
appeal. A transportation company (Wasatch Transportation, Inc.) needed
three buses to comply with a state contract. Compliance required
particularly durable buses because the routes would exceed 350 miles in
inclement weather with substantial changes in elevation.
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To carry out the state contract, Wasatch considered buying Synergy
buses from the manufacturer (Forest River, Inc.). 1 A Wasatch executive
spoke with Forest River’s sales personnel, who allegedly said that the
Synergy buses
could handle the route,
would be a great fit for the route,
were great buses, and
were “[q]uality buses” that Forest River “would take really good care of” and would “be amazing when they were done.”
Appellant’s App’x vol. 2, at 263–65. Wasatch bought three Synergy buses
from Forest River, allegedly based on these assurances about the buses.
II. Forest River provides written warranties for fraud and breach of warranty.
For each bus, Forest River provided a warranty packet containing
three limitations:
1. The warranty covered only repair costs.
2. The warranty was exclusive, taking the place of other possible warranties.
3. The warranty provided the buyer’s only remedy for defects under any legal theory.
Id. at 444–45.
1 Forest River does business as “Glaval Bus.” 3 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 4
III. After the buses break down, Wasatch sues Forest River for fraud and breach of warranty.
After the purchase, the buses developed mechanical problems.
According to Wasatch, one bus broke down within 300 miles of Forest
River’s facility. Even after the bus was repaired, it continued to break
down. Another bus broke down soon after the purchase and was usable
only a third of the next year. Given the breakdowns, Wasatch allegedly had
to buy another bus to comply with the state contract; but the state
cancelled the contract anyway. Complaining of the cancellation and the
cost of buying another bus, Wasatch sued Forest River for
breach of an express warranty that the buses were suitable for the route,
breach of an implied warranty of fitness for a particular purpose, and
fraud. 2
IV. The district court grants summary judgment to Forest River.
The district court granted summary judgment to Forest River,
reasoning that its warranty packet prevented any relief.
The court relied on deposition testimony from the Wasatch executive
who had met with Forest River personnel before buying the buses. In the
deposition, the executive acknowledged that he’d asked about the warranty
2 In district court, Wasatch also claimed negligent misrepresentation. But this claim isn’t involved in the appeal.
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and conducted his own research. Given the executive’s testimony, the court
concluded that “a reasonable factfinder would be required to find . . . that
[the executive] had the opportunity to review Forest River’s written
limited warranty and was aware of its terms prior to the purchase.”
Appellant’s App’x vol. 5, at 1205.
In the court’s view, Wasatch’s knowledge of the warranty packet
prevented recovery. For the claims involving breach of warranty, the court
reasoned that the warranty packet had
expressly excluded oral warranties and
omitted a warranty of fitness for a particular purpose.
For the fraud claim, the court reasoned that Wasatch
had known of limitations in the warranty packet and
could not have reasonably relied on Forest River’s statements.
V. We apply the summary-judgment standard based on case law from Utah and Indiana.
We conduct de novo review of the district court’s grant of summary
judgment. Murphy v. City of Tulsa, 950 F.3d 641, 643 (10th Cir. 2019). In
conducting this review, we consider the evidence in the light most
favorable to Wasatch. Id. We may affirm only if no genuine dispute of
material fact exists and Forest River is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); Simpson v. Univ. of Colo. Boulder, 500 F.3d
1170, 1174 (10th Cir. 2007).
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In district court, the parties disputed the applicability of Utah law or
Indiana law. The district court declined to address this dispute, relying on
the similarities in the states’ case law. Given these similarities, we also
decline to decide whether Utah law or Indiana law applies. See Dummar v.
Lummis, 543 F.3d 614, 619 (10th Cir. 2008) (declining to decide whether
Utah or Nevada law applies because the states’ laws were substantially
similar in all relevant respects).
VI. A factfinder could reasonably conclude that Wasatch had bought the buses without knowing about the warranty packet.
A seller’s warranties are enforceable only if they constituted part of
the bargain when the parties entered the sales contract. See LWT, Inc. v.
Childers, 19 F.3d 539, 541 (10th Cir. 1994); see also Hahn v. Ford Motor
Co., 434 N.E.2d 943, 948 (Ind. Ct. App. 1982) (“A modification of
warranty or limitation of remedy contained in a manufacturers [sic] manual
received by purchaser subsequent to sale has not been bargained for and
thus does not limit recovery for implied or express warranties which arose
prior to sale.”). Wasatch insists that it bought the buses before learning of
the warranty packet, rendering its terms unenforceable.
Wasatch acknowledges that its executive testified that he had bought
the buses after reviewing Forest River’s warranty. But Wasatch contends
that the executive was referring only to Forest River’s marketing materials,
which contained descriptions of the warranty’s duration—not the more
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detailed warranty packet, which reflected the details involving coverage of
parts and limitations on remedies.
Forest River interprets the Wasatch executive’s testimony as
pertaining to the warranty packet, stating that he’d admittedly
met with Forest River personnel and discussed the length and scope of the coverage and
bought the buses after researching the warranties.
Appellant’s App’x vol. 2, at 266, 275. For example, Forest River spotlights
two exchanges in the deposition about the warranty packet:
Q. And did anyone . . . give you warranty booklets with the buses?
A. I can’t remember if the warranty booklets came from Lewis or [Forest River] directly.
Q. Okay.
A. I think they were on the buses when we picked them up from [Forest River], actually. There was like a packet that—I believe the—the actual exchange took place when I picked up my bus from, you know, Rick or Heidi. One of those two walked me through the bus and gave me the warranty packet, and then we brought it to Lewis.
Q. And to your knowledge, the warranty packet was in the other two buses?
A. Correct.
Q. And you had reviewed all of those warranties prior to ordering the buses?
A. That’s correct.
Id. at 272. 7 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 8
Q. Does this document [the warranty packet] refresh your memory on the . . . warranty that you may have reviewed?
A. It does.
Id. at 275. From these excerpts, Forest River characterizes the warranty
packet as part of the bargain.
In our view, however, a factfinder could reasonably reject Forest
River’s characterization of the deposition testimony. The Wasatch
executive acknowledged that he’d reviewed “the warranty” and “ those
warranties.” Id. at 266, 272, But was he referring to the general terms in
Forest River’s marketing materials or the details in the warranty packet?
Wasatch contends that its executive was referring to the general
terms in the marketing materials. In a declaration, the Wasatch executive
stated under oath that
to his knowledge, the warranty packet wasn’t available on Forest River’s website,
during a visit to the Forest River plant, no one had shown him the warranty packet, and
Forest River hadn’t disclosed its disclaimer of liability or limitation on damages.
Appellant’s App’x vol. 4, at 1104. The district court declined to consider
this declaration on the ground that it was a sham.
We disagree, concluding that the declaration merited consideration.
A court may ignore a declaration if it conflicts with a witness’s earlier
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sworn statements and would create a sham factual issue. See Franks v.
Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). But the court should not
ignore a declaration that clarifies ambiguous deposition testimony. Selenke
v. Med. Imaging of Colo., 248 F.3d 1249, 1258 (10th Cir. 2001).
The Wasatch executive’s deposition testimony was ambiguous. From
the deposition, a factfinder could conclude that the executive had reviewed
the warranty packet before the sale. But a factfinder could also conclude
that the executive had reviewed the warranty described in Forest River’s
marketing materials, not the warranty described in the warranty packet.
Either conclusion would be reasonable in light of the context of the
executive’s deposition testimony. See Brooks v. Colo. Dept. of
Corrections, 12 F.4th 1160, 1170–71 (10th Cir. 2021) (concluding that
deposition testimony was ambiguous in light of the context of the
testimony). Although the executive stated that he’d seen “the warranty
packet” when he had picked up the buses, he was then asked whether he’d
seen “all of those warranties prior to ordering the buses.” Appellant’s
App’x vol. 2, at 272 (emphasis added). The executive agreed that he’d
reviewed the warranties “through his homework and research.” Id.
This reference to “homework and research” related to an earlier
exchange in the deposition. In that exchange, the executive had testified
that he’d reviewed the warranties on “the website or brochures and things
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like that,” though “[m]aybe not for [Wasatch’s] specific buses.” Id. at
266. 3
Later in the deposition, the questioner appeared to refer back to the
warranties that the executive had reviewed on the website and in
brochures—not in the warranty packets. So when the executive referred
later to “those warranties,” he could have been referring again to the
descriptions on the website and in the brochures rather than in the warranty
packets.
Though the marketing materials and warranty packets referred to the
same warranties, the contents bore substantial differences. For example,
this is what Forest River’s brochure said about the warranty:
3 The warranty packet set forth the warranties for a specific bus. See Appellant’s App’x vol. 2, at 439 (“This booklet explains in detail the warranty coverage for your bus.” (emphasis added)). So when the executive testified that he might not have reviewed the warranty “for our specific buses,” a factfinder could reasonably infer that he hadn’t reviewed the warranty packet. See Appellant’s App’x vol. 2, at 266. 10 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 11
Appellant’s App’x vol. 4, at 1093, 1095. In contrast, the warranty packet
contained eight pages, setting out limitations on the coverage and on the
remedies:
Appellant’s App’x vol. 2, at 444–45.
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The deposition exchange did not specify which warranty the Wasatch
executive had reviewed. So a factfinder could reasonably find that Wasatch
had bought the buses without knowing the three limitations in the warranty
packet. Given the reasonableness of that finding, the district court
shouldn’t have decided as a matter of law that Wasatch had known about
the limitations in the warranty packet. 4
VII. We reject Forest River’s arguments for affirmance on alternative grounds.
Forest River argues that we should affirm the grant of summary
judgment on four alternative grounds: (1) estoppel, (2) puffery, (3) lack of
damages, and (4) lack of reasonable reliance. We reject these arguments.
A. Wasatch is not estopped from challenging enforcement of the limitations in the written warranty.
Forest River contends that Wasatch cannot challenge the warranty
packet’s limitations. For this contention, Forest River invokes the doctrine
of estoppel, observing that Wasatch sought and obtained repairs for the
4 The dissent relies on the Wasatch executive’s references to “those warranties” and his pleasure with the length of the warranty and “what it covered.” Dissent at 1 – 2 (quoting Appellant’s App’x vol. 2, at 266, 272). In the dissent’s view, those references establish that the executive had seen the warranty packet before purchasing the buses. In our view, the context creates an ambiguity in these references; the executive could have been referring to the descriptions of coverage in the marketing materials. Given the context, the factfinder should be allowed to interpret these references. 12 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 13
buses. Wasatch responds that it obtained repairs based on the oral
warranty, not the warranty packet.
In district court, Forest River did not make this estoppel argument
when seeking summary judgment. See Appellant’s App’x vol. 1, at 49–84.
Because estoppel is an affirmative defense, Forest River bore the burden of
persuasion. See State v. Hamilton, 70 P.3d 111, 120 (Utah 2003) (stating
that “estoppel is an affirmative defense” and the defendant “bore the
burden of proving reliance”); Schill v. Choate, 247 N.E.2d 688, 696 (Ind.
App. 1969) (“Since estoppel is an affirmative defense, [the defendants] had
the burden to suggest facts which would invoke that doctrine before the
trial court.”). So Forest River bore the burden to show the absence of a
disputed material fact. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.
1997). Forest River didn’t satisfy this burden.
In asserting estoppel, Forest River assumes that Wasatch knowingly
benefited from the warranty described in the packet. See, e.g., Mathews v.
REV Recreation Grp., Inc., 931 F.3d 619, 623 (7th Cir. 2019) (stating that
the plaintiffs “cannot have it both ways: relying on the contract when it
works to their advantage to get repairs done and then alleging that it is
unconscionable when it doesn’t”). But in moving for summary judgment,
Forest River didn’t argue that Wasatch had obtained the repairs based on
the warranty packet rather than the oral warranties preceding the sale. So
Wasatch had no chance to respond to this argument as a basis for summary
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judgment. See Kannady v. City of Kiowa, 590 F.3d 1161, 1170 (10th Cir.
2010) (requiring notice to the party that it “had to come forward with all of
[its] evidence”). Given the inability to respond, we decline to award
summary judgment on the basis of estoppel. See Tavery v. United States,
32 F.3d 1423, 1427 n.5 (10th Cir. 1994) (stating that we would not affirm
on alternative ground because the summary judgment motion hadn’t alerted
the plaintiff to the need to present evidence on a particular issue).
B. A factfinder could reasonably conclude that Forest River’s assurances had not constituted puffery.
Forest River also argues that the alleged statements about the buses
constituted puffery rather than oral warranties. Forest River characterizes
Wasatch as a sophisticated buyer that should have used its own expertise in
assessing Forest River’s statements about the buses.
When a seller expresses an opinion about the quality of a product,
the opinion may constitute puffery rather than a warranty. See Kesling v.
Hubler Nissan, Inc., 997 N.E.2d 327, 330 (Ind. 2013); Boud v. SDNCO,
Inc., 54 P.3d 1131, 1134–36, 1138 (Utah 2002). And some of the alleged
statements do involve puffery rather than facts. For example, Wasatch cites
statements from Forest River employees that the buses were “[the] highest
end product,” that Forest River “would take really good care of the buses,”
that the buses would be “amazing,” that Forest River would do “a good job
building them,” and that construction of the buses “would be a high
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priority.” Appellant’s Reply Br. at 18–19 (quoting Appellant’s App’x vol.
2, at 264). These alleged statements would not involve factual matters that
could be proven true or false.
But Wasatch also points to alleged statements that would involve
factual matters. For instance, Wasatch cites Forest River’s alleged
statement that the buses were suitable for a particularly difficult route
spanning over 350 miles in inclement weather and with substantial changes
in elevation. This alleged statement would have quelled Wasatch’s stated
concern about the durability of the buses, creating a factual question about
the existence of a warranty that the buses could endure this route. See
Wiseman v. Wolfe’s Terre Haute Auto Auction, Inc., 459 N.E.2d 736, 737–
38 (Ind. Ct. App. 1984) (concluding that a description of a truck as “road
ready” was a statement of fact sufficient to create a warranty). So we can’t
affirm by lumping together all of the alleged statements as mere puffery.
C. Factual disputes exist on Wasatch’s damages.
Forest River also insists that Wasatch hasn’t presented evidence
tying the defects to the state’s cancellation of the contract. Without this
evidence of causation, Forest River contends, Wasatch didn’t prove
damages.
Forest River points to Wasatch’s separate suit against the Utah
Department of Transportation. There the Department didn’t allege that it
had terminated the contract because of problems with the buses. Instead,
15 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 16
the Department denied terminating the contract, argued that Wasatch had
breached the contract, and accused Wasatch of embezzlement. Forest River
also argues that Wasatch has relied on hearsay and speculation to link
termination of the state contract to defects in the buses.
We reject this alternative argument for affirmance. For the state
contract, factual questions existed about Wasatch’s reliability based on the
constant breakdowns. It’s reasonable to conclude that these breakdowns
had contributed to the state’s dissatisfaction with Wasatch’s performance
and to termination of the contract.
Apart from termination of the state contract, Wasatch presented
evidence tying the defects to other damages. For example, Wasatch
presented evidence that it had to buy a new bus to cover the route. See
Appellant’s App’x vol. 4, at 1006. 5 And Forest River doesn’t question the
availability of damages for Wasatch’s extra expense in buying the new bus.
Because factual issues remain as to Wasatch’s alleged damages, we
can’t affirm the grant of summary judgment on this ground.
5 In seeking summary judgment, Forest River asserted that Wasatch had relied solely on cancellation of the state contract. In the amended complaint, however, Wasatch had also alleged the need to buy another bus to continue servicing the route. Appellant’s App’x vol. 1, at 21. 16 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 17
D. Forest River didn’t prevent a fact-issue on reasonable reliance.
Forest River also argues that even if it hadn’t disclosed the warranty
packet, Wasatch should have read the contract or asked to see a copy of the
packet before relying on oral warranties. But Forest River didn’t make this
argument in its summary-judgment motion, so Wasatch never had an
opportunity to present evidence on this issue. Without that opportunity, we
would ordinarily decline to affirm on an alternative ground. See pp. 13–14,
above (discussing Tavery v. United States, 32 F.3d 1423, 1427 n.5 (10th
Cir. 1994)).
Even if we were to consider affirmance on this ground, the summary-
judgment record wouldn’t prevent a finding of reasonable reliance. That
record contains Forest River’s order form, and the form says nothing about
a separate document limiting the warranty. Appellant’s App’x vol. 4, at
1107–10. Without such a disclosure, how would Wasatch have known that
another document had limited the warranties? To the contrary, Wasatch
presented evidence that it had obtained oral assurances that the buses could
travel a demanding route of over 350 miles in inclement weather and with
substantial changes in elevation. 6 From that evidence, a factfinder could
6 Forest River also argues that it was unreasonable to rely on statements of opinion. But some of the asserted misrepresentations constituted statements of fact. See Part VII(B), above. 17 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 18
justifiably determine that Wasatch had reasonably relied on Forest River’s
oral warranties.
* * *
We vacate the grant of summary judgment to Forest River and
remand the case to the district court for further proceedings.
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21-4107, Wasatch Transportation v. Forest River PHILLIPS, J., dissenting.
I would affirm. The district court correctly ruled that the deposition testimony
shows “Mr. [Steven] Fuller [of Wasatch Transportation] had the opportunity to review
Forest River’s written limited warranty and was aware of its terms prior to the purchase.”
App. vol. 5, at 1205. As the court found, Mr. Fuller admitted during his deposition that he
indeed had such awareness from the outset. Mr. Fuller unambiguously testified that he
had pre-purchase knowledge of Forest River’s limited warranty1:
Q: And did anyone at Lewis give you warranty booklets with the buses?
A: I can’t remember if the warranty booklets came from Lewis or from Glaval directly.
Q: Okay.
A: I think they [the warranties] were on the buses when we picked them up from Glaval, actually. There was like a packet that—I believe the—the actual exchange took place when I picked up my bus from, you know, Rick or Heidi. One of those two walked me through the bus and gave me the warranty packet, and then we brought it to Lewis.
Q: And to your knowledge, the warranty packet information was in the other two buses?
A: Correct.
Q: And you had reviewed all of those warranties prior to ordering the buses?
A: That’s correct.
1 A warranty provides (1) defined coverage (2) for a specified duration. I disagree that the two components are evaluated as separate warranties or that the word “warranty” has a multiple meanings. Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 20
R. vol. 2., at 272 (emphases added). Read together with the preceding lines, as provided
above, it is clear that “all of those warranties” refers to those warranties contained in the
“warranty-packet information.” Even splintering the warranty into pieces—duration,
parts, remedies—the majority encounters a dead end. By admitting that he reviewed “all
of those warranties” in the “warranty-packet information,” Mr. Fuller admitted that he
had reviewed all the majority’s splintered pieces too.
If any doubt remained on this point, Mr. Fuller dispelled it when he testified that,
during his initial visit to Forest River in November 2013, he approved of the warranty’s
duration and coverage:
Q: Did you ask any questions during this November visit to Glaval about its warranty?
A: Absolutely.
Q: And what—what were you told?
A: I can’t remember the specific discussions pertaining to the warranty, other than I was pleased about how long it was and what it covered.
Id. at 266 (emphasis added). This alone undoes the majority’s central argument that Mr.
Fuller might not have known of the warranty coverage terms before reading the warranty
packets inside the buses at delivery.
And still more. Mr. Fuller testified that he continued to communicate with Forest
River about warranties after his November 2013 visit to Forest River’s plant and before
Wasatch’s ordering the buses in January 2014:
Q: Did you have any further conversations with Heidi [of Forest River] between your visit to Elkhart [November 2013] and the time that the buses were ordered [January 2014]?
2 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 21
A: I’m confident we did, yeah.
Q: And what would you have talked about?
A: Timing. Warranties. Bus quality. All the same stuff several times. Specific equipment on the buses, those types of things.
Id. at 268 (emphasis added). The district court correctly ruled that Mr. Fuller’s deposition
testimony establishes that he knew the terms of Forest River’s warranties before the bus
purchases.
None of this is startling. Mr. Fuller was a high-level employee of a major
commercial business and was responsible for guiding a significant purchasing decision:
Q: And did you understand what the terms of the Freightliner warranty were?
A: Probably.
Q: What about the Cummins engine warranty?
A: I probably understood those as well.
Q: You were pretty thorough in your work; weren’t you?
A: I believe I was, yes.
Q: Did you ask to see any of the warranties from any of these manufacturers?
A: I believe I reviewed all the warranties from all the manufacturers. Maybe not for our specific buses, but based on, you know, the website or brochures and things like that.
Id. at 266.
I don’t read Mr. Fuller’s last answer as addressing Forest River’s warranty.
Nothing in it undermines Mr. Fuller’s testimony about his knowledge of Forest River’s
warranty during his initial visit in November 2013 or his continued communications with
3 Appellate Case: 21-4107 Document: 010110768882 Date Filed: 11/15/2022 Page: 22
Forest River about warranties in the weeks leading up to Wasatch Transportation’s
ordering the buses in January 2014.
Finally, I would rule that the district court didn’t abuse its discretion in
disregarding Mr. Fuller’s declaration. The declaration came in response to Forest River’s
motion for summary judgment. As the district court noted, “this declaration cannot be
squared with Mr. Fuller’s deposition testimony.”2 App. vol. 5, at 1204. The court acted
within its discretion in applying the rule that “when a declaration conflicts with previous
testimony, the declaration ‘will be disregarded when a court determines that it represents
an attempt to create a sham fact issue.’” Id. (quoting Steele v. Kroenke Sports Enters.,
L.L.C., 264 F. App’x 735, 744 (10th Cir. 2008)).
For these reasons, I would affirm the district court’s order granting summary
judgment to Forest River.
2 At the end of the deposition, defense counsel asked, “Will Mr. Fuller read and sign?” and was told “Yes.” App. vol. 2, at 305. In addition, I note that counsel for Wasatch Transportation chose not to ask Mr. Fuller any questions at the deposition, so I surmise that it saw no need to “clarify” his testimony as it later claims to do with his declaration. Thus, Forest River pinned Mr. Fuller to crucial testimony. The district court wisely declined Wasatch Transportation’s plea to unpin him. 4