                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              NOV 3 2003
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 JEANNE KENNEDY,

          Plaintiff-Appellant and Cross-
          Appellee,
                                                     Nos. 02-7009 & 02-7069
 v.                                                     (E.D. Oklahoma)
                                                    (D. Ct. No. 92-CV-395-S)
 FORD MOTOR COMPANY,

          Defendant-Appellee and Cross-
          Appellant.



                            ORDER AND JUDGMENT *


Before McCONNELL, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      In this diversity case, Jeanne Kennedy appeals a district court order

granting summary judgment in favor of defendant Ford Motor Company (“Ford”).

Ford cross-appeals a district court order denying its motion for attorney’s fees.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and Federal Rule of Civil


      *
          This order and judgment is not binding precedent except under the doctrines of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.
Procedure 54(b), we affirm the district court’s orders granting summary judgment

and denying attorney’s fees.



Background

      Ms. Kennedy’s injuries occurred when the Ford Bronco II she was driving

rolled over. Based on diversity jurisdiction, she filed suit against Ford in the

United States District Court for the Eastern District of Oklahoma, alleging defects

in the vehicle caused the accident. Ms. Kennedy and Ford settled the claim

without going to trial. Under the terms of the settlement agreement, Ms. Kennedy

released her claims against Ford in exchange for $270,000.



      Several years later, Ms. Kennedy learned of a “memo” which, according to

her, indicates Ford’s attorneys paid an expert witness, David Bickerstaff, to alter

his testimony about the Bronco II’s safety in Ford’s favor. She believes the

memo proves Ford “purchased perjured testimony of a crucial fact witness ... to

fraudulently induce a low settlement” in this and other Bronco II rollover suits.

Based on this allegation, Ms. Kennedy filed a Second Amended Complaint to her

original suit, alleging Ford “illegally concealed” evidence “that contained

purchased perjured testimony of a crucial fact witness.” Ford filed a counterclaim

for attorney’s fees, arguing Ms. Kennedy breached the release and agreed to


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indemnify Ford against future claims. Ford requested, in part, recovery of its

actual damages and attorney fees and costs.



      The district court granted Ford’s motion for summary judgment on grounds

the release Ms. Kennedy signed barred her claims. The court held “the fraud

claims brought in the instant case are clearly covered by the release in question

because they arise out of the product liability claim.” The order granting

summary judgment did not address Ford’s counterclaim for attorney’s fees. Based

on the favorable summary judgment order, Ford filed a motion for attorney’s fees.

The district court entered a minute order “denying defendant’s motion for attorney

fees” but never explicitly ruled on Ford’s pending counterclaim. Pursuant to Fed.

R. Civ. P. 54(b), the district court certified as final judgment its order granting

summary judgment in favor of Ford. The district court stayed “all proceedings as

to the counterclaim” pending this appeal.



      Ms. Kennedy now appeals the district court’s order granting summary

judgment. She argues she “did not and could not release the claims relating to the

concealing of evidence and the bribing of a witness of which she was unaware,

and which are now before this Court.” Ford cross-appeals the district court’s

order denying its motion for attorney’s fees. We address these arguments below.


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Summary Judgment

      Ms. Kennedy believes the district court erred in holding the release she

signed bars her current claim. The district court held the release bars her claim

because it arose from her original product liability suit. Ms. Kennedy believes

Ford fraudulently induced the release. She also argues it applies only to “injuries

and damages ... as a result of the ... vehicle accident.” According to Ms.

Kennedy, “this fraudulent scheme [is] different sequentially and conceptually

from the underlying product liability claims.” She believes the release’s language

limits it to claims based on “the consequences of a product (Ford Bronco II) and

an accident, not the fraudulent scheme to cheat litigants.”



      Because this is a diversity action, we apply Oklahoma’s substantive law,

with the objective of reaching the same result as would be reached by an

Oklahoma court. See Brodie v. General Chem. Corp., 112 F.3d 440, 442 (10th

Cir. 1997). However, we apply federal law to determine whether the district court

properly granted summary judgment. Eck v. Parke, Davis & Co., 256 F.3d 1013,

1016 (10th Cir. 2001). Accordingly, we review the decision de novo, applying

the same standard as the district court. Simms v. Oklahoma, 165 F.3d 1321, 1326

(10th Cir.), cert denied, 528 U.S. 815 (1999). Summary judgment is appropriate

if “there is no genuine issue as to any material fact and ... the moving party is


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entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).



      Under Oklahoma law, to determine whether a release bars future fraud

claims, we must consider (1) what the complaining party and her counsel knew at

the time she signed the release, and (2) the language of the release. See Cassity v.

Pitts, 839 P.2d 192, 194 (Okla. 1992). In conducting the first portion of the

analysis, we must consider whether Ms. Kennedy and her counsel had

“information ... sufficient to show ... knowledge of possible future claims” against

Ford. Id. at 195 (quotation marks and citation omitted.). The Oklahoma Supreme

Court has held, where a party suspected the other party engaged in fraud but had

no tangible evidence of the fraud, the suspicion shows knowledge of possible

future claims. Id.



      When Ms. Kennedy signed the release, she and her attorney knew Mr.

Bickerstaff changed his testimony in Ford’s favor. Her attorney also knew Ford

paid the witness, and believed the payment induced the change in testimony.

Thus, it is abundantly clear Ms. Kennedy and her attorney suspected Ford engaged

in fraud.



      Ms. Kennedy attempts to sidestep this fact by emphasizing she did not know


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Ford (allegedly) paid the witness to alter his testimony until she obtained the

inculpatory memo. The Oklahoma Supreme Court has flatly rejected the

argument a litigant must possess tangible evidence of the suspected fraud. Id.

Ms. Kennedy’s and her counsel’s suspicion Ford paid Mr. Bickerstaff to alter his

testimony sufficiently shows her knowledge of possible future claims.



      Continuing to the second part of the analysis, we must determine whether

the language “‘clearly contemplates some possible liability or possible future

claim in addition to that under discussion by the parties at the time the release

was executed.’” Id. (quoting Kay Pharmacal Co. v. Dalious Constr. Co., 276

P.2d 756, 758 (Okla. 1954)) (emphasis omitted). A release bars future fraud

claims if its language is “broad enough to cover all demands or rights to demand,

or possible causes of action, and constituted a complete discharge of liability,

whether or not the various demands or claims were discussed or mentioned when

the mutual release was signed, and whether or not the possible future claims were

known.” Id. (quoting Kay, 276 P.2d at 758) (emphasis in original).



      Under the terms of the release before us, Ms. Kennedy:

      remise[d], release[d] and forever discharge[d] ... Ford Motor
      Company ... from any and all actions, suits, causes of action, debts,
      sums of money, claims or demands, whatsoever, either in law or in
      equity, whether liquidated or unliquidated, either now existing or

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      which may hereafter arise or be ascertained which the undersigned,
      or [her successors in interest], ever had, now has or may hereafter
      have, by reason of an accident involving a 1984 Ford Bronco II
      vehicle ... including, but not limited to, any and all claims asserted,
      or which might have been asserted, whether in law or in equity, in
      that certain Case No. CIV-92-395-S.


      The release clearly contemplates future claims (i.e., “either now existing or

which may hereafter arise or be ascertained”; “now has or may hereafter have”).

It likewise covers a wide, if not exhaustive, spectrum of claim types (i.e., “any

and all actions, suits, causes of action, debts, sums of money, claims or demands,

whatsoever”). It is not limited to then-existing or then-known claims (i.e.,

“claims ... either now existing or which may hereafter arise or be ascertained”

(emphasis added)). We therefore agree with the district court; the release

language is broad enough to bar Ms. Kennedy’s current claim.



      We are unpersuaded by Ms. Kennedy’s argument the release applies only to

claims arising out of the Bronco II accident itself. As previously recounted, the

release expressly refers to claims “either now existing or which may hereafter

arise or be ascertained” and “any and all claims ... which might have been

asserted ... in that certain Case No. CIV-92-395-S.” This language suggests the

parties intended to bar all future claims pertaining in any way to the products

liability suit. Further, had this not been Ms. Kennedy’s intent, she could have


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explicitly reserved from the release any claims for fraud relating to Mr.

Bickerstaff’s testimony. See id. (noting the plaintiff “could easily have said in

the settlement agreement that any claim arising from the fraud ... was reserved

and not covered by the release.”).



      We also reject Ms. Kennedy’s claim the Oklahoma Court of Appeals

decision in Evans v. Bridgestone-Firestone, Inc., 904 P.2d 156 (Okla. Ct. App.

1995), permits her claims to survive the release. In Evans, the intermediate court

allowed a plaintiff to avoid a release where evidence suggested the defendant

affirmatively misrepresented it installed a rebuilt engine in the plaintiff’s car. Id.

at 158. Evans is not helpful to Ms. Kennedy because, in that case: (1) the fraud

went to the consideration that induced the release, and (2) nothing indicated the

plaintiff suspected the fraud at the time she executed the release. Id. at 158-59.

Here, Ford delivered the consideration ($270,000) that induced Ms. Kennedy to

sign the release. As already discussed, Ms. Kennedy and her lawyer suspected the

alleged fraud when she signed the release. 1




      1
         Even if we were to read the Oklahoma Court of Appeals decision in Evans to
conflict with the Oklahoma Supreme Court decisions in Cassidy and Kay, “we must apply
the most recent statement of state law by the state’s highest court.” Wood v. Eli Lilly &
Co., 38 F.3d 510, 513 (10th Cir. 1994) (emphasis added).


                                           -8-
      Finally, we decline Ms. Kennedy’s invitation to consider cases from other

state and federal jurisdictions, and whether the district court’s order is

undesirable as a matter of policy. Because the Oklahoma Supreme Court

definitively addressed the issues at hand, see Cassity, 839 P.2d at 194-195; Kay,

276 P.2d at 758, we need not look to case law arising outside of Oklahoma, nor

engage in policy consideration on a topic the Oklahoma Supreme Court has

already undertaken.



      In sum, we agree with the district court in its determination the release bars

Ms. Kennedy’s claims against Ford as a matter of law. The court properly

granted Ford’s motion for summary judgment.



Attorney’s Fees

      As we previously recounted, Ford filed both a counterclaim and a motion to

recover costs and attorney’s fees. The district court entered a minute order

denying Ford’s motion, but the order did not address the counterclaim. Later, in

its order certifying the summary judgment order as final judgment pursuant to

Fed. R. Civ. P. 54(b), the district court stayed “all proceedings as to the

counterclaim.”




                                          -9-
      Ford believes the district court considered its motion for attorney’s fees “as

a stand-alone request for fees in connection with the summary judgment,” and

believes the court did not rule on its counterclaim. It asks us to either: (1) “hold

that Ford is entitled to judgment on its counterclaim as a matter of law,” (2) hold

its counterclaim is still pending before the district court, or (3) if we determine

the district court dismissed the counterclaim, reverse the dismissal and remand for

the purpose of determining the amount of money Ford is entitled to for attorney’s

fees and costs.



      It is clear from the record the district court never ruled on Ford’s

counterclaim. In certifying its order granting summary judgment, the district

court referenced its previous order “staying all proceedings as to the counterclaim

pending resolution of the issues on appeal to the Tenth Circuit Court of Appeals.”

The district court’s docketing statement likewise indicates the court did not rule

on Ford’s counterclaim. In addition to the fact we lack jurisdiction to review

arguments pertaining to the pending counterclaim, see Rekstad v. First Bank Sys.,

Inc., 238 F.3d 1259, 1261 (10th Cir. 2001), no lower court decision exists for us

to review. Accordingly, we are prohibited from addressing Ford’s claims under

its counterclaim.




                                         -10-
       Although Ford’s Notice of Appeal states it is appealing the district court’s

denial of its motion for attorney’s fees, and references in its appellate brief a

supplemental appendix with supporting documents, no supplemental appendix is

before this court. Ford did not transmit the motion to this court for review, nor

did it attempt to explain how the district court erred in denying the motion.

Because the evidentiary record before us is insufficient for our review, we must

affirm the district court’s order denying Ford’s motion for attorney’s fees. See

Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000) (“Where the record is

insufficient to permit review we must affirm”); Murrell v. Shalala, 43 F.3d 1388,

1389 n.2 (10th Cir. 1994) (declining to review an insufficiently developed and

framed issue).



Conclusion

       For the reasons discussed above, we AFFIRM the district court’s grant of

summary judgment. We also AFFIRM the district court’s order denying Ford’s

motion for attorney’s fees. Ford’s counterclaim remains pending before the

district court.


                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge


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