                                                               FILED
                                                   United States Court of Appeals
                    UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                       July 1, 2015
                         _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
DEERE & COMPANY,

       Plaintiff,

v.                                                    No. 14-6208
                                              (D.C. No. 5:13-CV-00511-HE)
LARRY CABELKA; GOLDEN                                 (W.D. Okla.)
TRIANGLE FARMS LLC,

       Defendants Cross Claimants
       Cross Defendants -
       Appellants,

v.

STANLEY McCUISTON; STEVE
McCUISTON,

       Defendants Cross Defendants
       Cross Claimants - Appellees,

and

PHILIP McCUISTON,

       Defendant.
                          _________________________________

                          ORDER AND JUDGMENT *
                          _________________________________

*
      The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

     This appeal involves competing claims growing out of sales of

agricultural equipment. The primary claimants are Golden Triangle Farms

LLC, its principal (Mr. Larry Cabelka), and a father and son (Stanley and

Steve McCuiston). The McCuistons prevailed at trial, and Golden Triangle

and Mr. Cabelka appeal. In the appeal, Golden Triangle and Mr. Cabelka

(1) present new arguments, which we cannot entertain because of

forfeiture, waiver, and mootness, and (2) challenge the judgment based on

their view that the district court should have adopted their version of

events. We affirm.

I.   The Transfers of the Combine

     This appeal focuses primarily on a series of transactions involving a

combine. The initial transaction involved a sale from Deere & Company to

Mr. Donnie Bergkamp. Mr. Bergkamp authorized Mr. Larry Cabelka, of

Golden Triangle, to resell or rent the combine. Mr. Cabelka ultimately

agreed to give some interest in the combine to Stanley and Steve

McCuiston. Mr. Cabelka claims the transfer involved a rental; the

McCuistons insist there was a sale.




                                      2
If there was a sale, however, the combine would have come with a lien in

favor of Deere. See Okla. Stat. tit. 12A, § 1-9-315(a)(1) (2011).

     The lien was triggered when Mr. Bergkamp failed to pay Deere,

which in turn sued Golden Triangle, Mr. Cabelka, and the McCuistons

(everyone that had possessed the combine). Golden Triangle and Mr.

Cabelka filed cross-claims against the McCuistons for conversion and

breach of contract, and the McCuistons filed their own claims against

                                      3
Golden Triangle for breach of warranty and against Mr. Cabelka for

constructive fraud and negligent misrepresentation. Deere and the

McCuistons settled, with the McCuistons paying Deere $65,000. 1

      But the settlement did not terminate the cross-claims, which involve

disputes on

             whether the McCuistons had rented or purchased the combine,
              and

             whether the McCuistons had paid the purchase price for the
              combine.

The McCuistons say they bought the combine unaware there was a lien in

favor of Deere. Golden Triangle and Mr. Cabelka insist the McCuistons

were fully aware of the Deere lien and had simply rented the combine

because they did not have enough money to buy it. The district court sided

with the McCuistons, awarding them $65,000, 2 the amount they had agreed

to pay Deere for the combine. Golden Triangle and Mr. Cabelka challenge

the award to the McCuistons.

II.   The Sale of the Header

      The parties agree that the McCuistons promised to purchase a header

from Golden Triangle. The dispute is whether the McCuistons ever paid the

purchase price. The district court found that the McCuistons had paid for

1
     Deere also voluntarily dismissed its claims against Golden Triangle
and Mr. Cabelka. Thus, Deere is no longer a party in the case.
2
     The court based Golden Triangle’s liability on the warranty claim
and Mr. Cabelka’s liability on the claim of constructive fraud.
                                       4
the header by using a $30,000 offset. Golden Triangle and Mr. Cabelka

disagree with this finding.

III.   Golden Triangle/Cabelka’s New Appellate Arguments

       On appeal, Golden Triangle and Mr. Cabelka make two new appellate

arguments:

       1.    The McCuistons’ theory is based on an oral contract, which is
             precluded by the statute of frauds.

       2.    The McCuistons’ “unclean hands” would preclude equitable
             relief.

These arguments were not presented in district court. As a result, these

arguments were considered “forfeited.” See EEOC v. Beverage Distributors

Co., 780 F.3d 1018, 1023 n.4 (10th Cir. 2015). Forfeited arguments are

ordinarily reviewable under the plain-error standard. See Richison v.

Ernest Group, Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). But Golden

Triangle and Mr. Cabelka have not made an argument under the plain-error

standard. As a result, we decline to consider the new appellate arguments.

See id. at 1130-31.

IV.    Denial of Jury Trial

       Mr. Cabelka and Golden Triangle also contend that they should have

had a jury trial. We reject this contention.




                                       5
      After the deadline for a jury demand, Mr. Cabelka asked for a jury

trial. 3 But he later submitted a final pretrial report with the McCuistons,

designating the case for a nonjury trial. The district court approved the

final pretrial report. With the parties’ joint designation of the case for a

nonjury trial, the court conducted the trial without a jury.

      By designating the case for a nonjury trial, Mr. Cabelka waived his

request for a jury trial. See FMC Corp. v. Aero Indus., Inc., 998 F.2d 842,

845 (10th Cir. 1993) (holding that a party waived his right to a jury trial by

signing the proposed pretrial order designating the case for a nonjury

trial); see also Lampkin v. Int’l Union, 154 F.3d 1136, 1147 (10th Cir.

1998) (“A party who stipulates in the pretrial order to submission of an

issue to the court has waived the right to a jury determination of the

issue.”). In light of this waiver, we reject the argument involving failure to

conduct a jury trial.

V.    Attorney Fees

      Golden Triangle challenged the award of attorney fees to the

McCuistons on their warranty claim. But after making this challenge, the

parties stipulated to an attorney fee award in favor of the McCuistons.

Thus, Golden Triangle’s challenge to the fee award is moot.




3
      Golden Triangle never requested a jury trial in district court.
                                       6
VI.   The Weight of the Evidence

      Golden Triangle and Mr. Cabelka also argue that the district court’s

factual findings were not supported by the weight of the evidence. We

disagree.

      In addressing this argument, we apply the clear-error standard of

review. Fed. R. Civ. P. 52(a)(6). A finding is clearly erroneous only if we

have a definite, firm conviction that the district court made a factual

mistake. Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985). We are

particularly deferential to the district court when its findings are based on

the witnesses’ credibility. Id. at 575.

      Golden Triangle and Mr. Cabelka argue that the district court should

have found that

           Golden Triangle had simply rented the combine and

           the McCuistons had failed to pay the purchase price for either
            the combine or the header.

For these arguments, Golden Triangle and Mr. Cabelka rely largely on their

own account. But Stanley McCuiston testified that

           he had negotiated the purchases,

           he and his son had bought the combine and header at the
            negotiated prices, and

           they had paid the purchase prices for both the combine and the
            header.




                                          7
The district court could assess the evidentiary conflicts and make its own

credibility assessments. 4

      Golden Triangle and Mr. Cabelka say Mr. McCuiston claimed two

different offsets for the same action: (1) $40,000 for the combine based on

help in harvesting, and (2) $30,000 for the header for the same help in

harvesting. See Appellant’s Br. at 7. But there is nothing inherently

problematic with the two setoffs. The court could reasonably conclude that

the McCuistons had earned a total offset of $70,000, which would have

justified both setoffs.

      The record would have provided evidentiary support for that

conclusion. An example exists in the questioning of Mr. Stanley

McCuiston. When he was asked about a cutting log for the 2010 harvesting

season, he pointed to a notation of $89,000, stating that this figure

represented the approximate amount that he was owed for his work. See

Appellee’s App. at 156-57. This sum would have allowed the McCuistons

to both setoffs.

      Mr. Cabelka and Golden Triangle also contend that Stanley

McCuiston’s testimony was inconsistent with the testimony of his son



4
      Mr. Cabelka and Golden Triangle also contend that the ruling
conflicts with the documentary evidence. But the validity and importance
of the documentation was disputed. The district court could reasonably
interpret the documents based on the testimony. Thus, our focus returns to
the district court’s credibility determinations.
                                      8
(Steve). But the district court could reasonably view their testimony as

consistent on three critical points:

      1.    In 2011, Golden Triangle still owed the McCuistons about
            $89,000 for help in harvesting.

      2.    This debt was the source of the setoffs used for purchasing both
            the combine and the header.

      3.    The setoffs left a balance of $35,000, which was paid by check.

      Mr. Cabelka and Golden Triangle argue that Steve McCuiston’s

testimony was inconsistent with Stanley’s; at one point, Steve indicated

that the parties had negotiated the $40,000 setoff for the combine after the

McCuistons paid a $35,000 check, while Stanley indicated that the setoff

for the combine was negotiated before the $35,000 payment. For three

reasons, the court could reasonably downplay the significance of this

alleged inconsistency.

      First, Stanley and Steve McCuiston agreed on the amounts of the

setoffs and what they had been based on.

      Second, Steve did not say at trial that the setoff had been negotiated

after payment of the $35,000. For this argument, Mr. Cabelka and Golden

Triangle rely on a deposition excerpt. See id. at 195. Like Stanley, Steve

testified at trial that they had agreed to pay $35,000 by subtracting the

$40,000 debt from the $95,000 purchase price. This account made it clear

that the payment had been made after negotiation of the total price. See id.

at 185.

                                       9
      Third, the McCuistons’ version is bolstered by common sense: The

$35,000 payment for the combine was pegged to what remained of the

$95,000 purchase price (after subtracting $20,000 for the down payment

and $40,000 for the setoff). In these circumstances, the court could

reasonably infer that the setoff was negotiated first.

      In the end, we do not have a definite, firm conviction that the district

court erred in finding for the McCuistons and against Mr. Cabelka and

Golden Triangle on their respective cross-claims.

VII. Disposition

      We affirm.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




                                      10
