F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 7 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
THRIFTY RENT-A-CAR SYSTEM,
INC., an Oklahoma corporation,
Plaintiff-Appellee,
No. 99-5137
v. (D.C. No. 96-CV-1136-BU)
(N.D. Okla.)
BEST LEASING, INC.,
Defendant,
and
ALDO MUROS, an individual,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , 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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case arose when plaintiff, Thrifty Rent-A-Car System (Thrifty),
brought suit against defendants, Best Leasing, Inc. (a Thrifty franchisee) and
Aldo Muros (Best’s owner and guarantor of agreements between Thrifty and
Best), to collect on monies owed by Best to Thrifty as a result of agreements
arising out of the franchise relationship. Defendants brought several
counterclaims against plaintiff, and the district court granted summary judgment
in favor of plaintiff on defendants’ counterclaims. Thereafter, Best filed for
bankruptcy, and the claims against it were stayed. The claims against Mr. Muros
proceeded to trial, at which Mr. Muros did not appear, and the district court
entered judgment pursuant to Fed. R. Civ. 54(b) in favor of plaintiff on those
claims. Mr. Muros moved to vacate the judgment, and the district court denied
the motion. Mr. Muros now appeals from the summary judgment in favor of
Thrifty on his counterclaims and from the final judgment in favor of Thrifty on its
claims against him. We affirm.
At the outset, we hold that the district court was correct in its finding that
the choice of law provisions in the relevant agreements determine the law to be
applied in this case. The parties agreed in the guaranties signed by Mr. Muros
that Oklahoma law would govern any disputes between the parties, and Oklahoma
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enforces such choice of law provisions, except where to do so would violate
Oklahoma public policy. See Williams v. Shearson Lehman Bros., Inc. , 917 P.2d
998, 1002 (Okla. Ct. App. 1995).
We begin by addressing Mr. Muros’ argument that the district court should
have vacated its judgment against him on Thrifty’s claims because, without
having determined Best’s liability on the agreements, it cannot have adjudged the
claims against him, as guarantor. The district court was correct in declining to
vacate its judgment on this basis. A guarantor’s obligation is independent of the
underlying contract, and Thrifty could have brought suit against Mr. Muros
without even joining Best as a party. See Riverside Nat’l Bank v. Manolakis , 613
P.2d 438, 441 (Okla. 1980); Janeway v. Vandeventer , 45 P.2d 79, 82 (Okla.
1935).
Mr. Muros argues that the district court erred in granting summary
judgment in favor of Thrifty on the counterclaims. Defendants counterclaimed
that Thrifty breached the lease agreement in two respects: first, by failing to
provide local advertising for Best’s business and second, by refusing to allow
Best to operate a parking-only facility. They also alleged that Thrifty was liable
for misrepresentations. Having reviewed the district court’s ruling on summary
judgment de novo , see Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996), we
agree that Thrifty was entitled to judgment on defendants’ counterclaims.
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With regard to the breach of contract counterclaim, we agree with the
district court’s reading of the contract and its finding that Thrifty had no
obligation to provide local advertising for Best’s business. The district court was
also correct in finding that the agreement did not obligate Thrifty to allow Best to
run a parking-only facility. The agreement clearly indicates the parties’ intent
that Best operate a car rental business. Defendants’ misrepresentation
counterclaim also fails. The district court was correct in finding that defendants
did not show that Thrifty had a duty to disclose the information. They did not
show that their relationship with Thrifty was anything other than a normal
commercial relationship. The record contains nothing indicating a special trust or
confidence giving rise to a fiduciary relationship between the parties, and the
district court was correct in finding that the contract provisions do not provide
evidence of such a relationship. See Devery Implement Co. v. J.I. Case Co ., 944
F.2d 724, 730 (10th Cir. 1991). 1
Mr. Muros argues that the case should have been transferred to another
district. The district court denied the motion to transfer, finding that the forum
1
Like the district court, we do not consider any claims on appeal regarding
counterclaims that Thrifty breached the implied covenant of good faith and fair
dealing or that its failure to disclose material facts was a breach of the contract.
Because these allegations were not properly raised before the district court, the
district court did not consider them and, therefore, we do not consider them on
appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
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selection clause in the contract was valid and that defendants did not show any of
the circumstances that might render the clause invalid. The district court’s ruling
was well within its discretion to deny the motion to transfer. See Scheidt v. Klein ,
956 F.2d 963, 965 (10th Cir. 1992).
Neither did the district court abuse its discretion in denying defendants
leave to amend their answer and counterclaims. The untimeliness of the motion
to amend, coupled with the lack of reason for the delay, justifies the district
court’s denial of the motion. See Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365-66
(10th Cir. 1993).
We also review the court’s disqualification of an attorney for an abuse of
discretion. See McEwen v. City of Norman , 926 F.2d 1539, 1550 (10th Cir.
1991). Because the record on appeal does not contain either the motion to
disqualify or the district court’s ruling on the motion to disqualify, we cannot
determine whether the district court acted within its discretion. If the record on
appeal is insufficient to permit assessment of the claims of error, we must affirm.
See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992).
Mr. Muros argues that the district court erred in striking the jury trial
because the agreements do not contain jury waiver provisions. The record is to
the contrary. All the relevant agreements contain clear and conspicuous jury
waiver provisions, and the district court was correct to enforce them.
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Finally, Mr. Muros challenges several discovery rulings made by the
district court, all of which we review for an abuse of discretion. See GWN
Petroleum Corp. v. OK-TEX Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993).
After an in camera review, the district court denied discovery of a certain report
sought by defendants. This ruling was within the district court’s discretion. Also
within its discretion was the denial of defendants’ motion to depose the Chief
Executive Officer of Thrifty. Neither has Mr. Muros shown that the district court
abused its discretion in denying the motion to compel further examination of Mr.
Bonner. 2
In sum, Mr. Muros has fallen short of showing that Thrifty was not entitled
to summary judgment on the counterclaims brought by defendants. Neither has he
shown that the judgment entered against him on Thrifty’s claims was in error and
should be vacated. AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
2
We do not address Mr. Muros’ objections to Mr. Cerefice’s deposition,
because he did not first raise them to the district court. See McEwen, 926 F.2d at
1550.
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Thrifty Rent-A-Car v. Best Leasing, Inc.
Combined Opinion