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

                             FOR THE TENTH CIRCUIT                           August 2, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LYNN ROBINSON; JUDITH
ROBINSON, and all others similarly
situated,

      Plaintiffs - Appellants,

v.                                                         No. 17-6166
                                                    (D.C. No. 5:17-CV-00426-F)
AMERICAN AIRLINES, INC., d/b/a                             (W.D. Okla.)
American Airlines,

      Defendant - Appellee.

–––––––––––––––––––––––––––––––––––

PAUL STEWART; MICHEL HICKS, and
all others similarly situated,

      Plaintiffs - Appellants,

v.                                                         No. 17-6167
                                                    (D.C. No. 5:17-CV-00429-F)
SOUTHWEST AIRLINES CO., d/b/a                              (W.D. Okla.)
Southwest Airlines,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
Before BRISCOE, PHILLIPS, and EID, Circuit Judges.
                   _________________________________

        In these related appeals, the respective plaintiffs (collectively, Plaintiffs) filed

putative class actions against American Airlines and Southwest Airlines (collectively,

Airlines) for not fully refunding the price of nonrefundable airline tickets they had

purchased but did not use. In a consolidated ruling, the district court held that

Plaintiffs’ claims were preempted by the Airline Deregulation Act of 1978 (ADA).

We have jurisdiction under 28 U.S.C. § 1291 and affirm, although for different

reasons than those stated by the district court, see Acosta v. Paragon Contractors

Corp., 884 F.3d 1225, 1235 n.7 (10th Cir. 2018) (“[W]e may affirm the district

court’s ruling on any ground supported by the record.”). Adopting the reasoning in a

closely related case, we decline to address preemption and hold that the Airlines “did

nothing more than enforce . . . enforceable contract[s].” Martin v. United Airlines,

Inc., 727 F. App’x 459, 460 (10th Cir. 2018) (unpublished).1

   I.       Background

        Plaintiffs Lynn Robinson and Judith Robinson sued American Airlines, and

plaintiffs Paul Stewart and Michael Hicks sued Southwest Airlines. In both cases,

the plaintiffs purchased nonrefundable airline tickets but were not able to take the

trips and canceled their reservations. The Robinsons purchased tickets in February



        1
        “Although [Martin] is not binding, we may consider it for its persuasive
value.” Anderson v. Spirit AeroSystems Holdings, Inc., 827 F.3d 1229, 1240 n.7
(10th Cir. 2016).

                                              2
2016 for roundtrip travel from New York to Paris. Mr. Stewart and Mr. Hicks bought

tickets in August 2013 to fly from Tulsa, Oklahoma to Phoenix, Arizona.

       Each Airline had a contract or conditions of carriage that governed its

obligations toward its customers, which Plaintiffs admittedly entered into by

purchasing their tickets. American Airlines’ Conditions of Carriage provided that

nonrefundable tickets expired if not used within one year of the date of purchase.

Aplt. App. No. 17-6166, at A100-01; see also id. at A100 (“Travel must commence

within one year from the original ticket issue date. For example, if a ticket is issued

on June 1, 2012, the new ticket travel must commence no later than June 1, 2013.”).

       Southwest Airlines’ Contract of Carriage provided that the type of ticket

Mr. Stewart and Mr. Hicks purchased (“Wanna Get Away Fares”) were

nonrefundable but reusable. Aplt. App. No. 17-1667, Vol. 2 at A188. Nonrefundable

tickets were subject to a travel credit if unused, so long as the travel credit was used

within the eligibility period. Id. at A190-91. The eligibility period was stated in a

Fare Comparison Chart, which also stated that unused tickets were reusable for up to

twelve months. Id. at A174. This requirement was confirmed in an email to the

customer providing the ticket’s expiration date. See id. at A172, A175-76.

       Plaintiffs filed suit in Oklahoma state court, alleging the following causes of

action: (1) breach of contract by failure of consideration, (2) breach of contract by

failure to fulfill intentions/reasonable expectations of the parties, (3) fraud, and

(4) breach of the covenant of good faith. The Robinsons’ complaint also included a

claim for recovery of money wrongfully taken and kept by American Airlines. The

                                            3
Airlines removed the cases to federal court under the Class Action Fairness Act,

28 U.S.C. § 1332(d), and filed motions to dismiss. The Airlines argued that

Plaintiffs’ claims were preempted by the ADA or, in the alternative, failed to state a

claim.

         The district court held that Plaintiffs’ claims were preempted by the ADA,

which states, in relevant part, that “a State . . . may not enact or enforce a law,

regulation, or other provision having the force and effect of law related to a price,

route, or service of an air carrier . . . .” 49 U.S.C. § 41713(b)(1). Therefore, the

district court dismissed the complaints with prejudice.

         Plaintiffs appeal, pursuing their claims for breach of contract. “[T]he ADA’s

preemption prescription bars state-imposed regulation of air carriers, but allows room

for court enforcement of contract terms set by the parties themselves.” Am. Airlines,

Inc. v. Wolens, 513 U.S. 219, 222 (1995). Therefore, we address the contract claims.

But Plaintiffs did not present any argument in their opening brief on the claims for

fraud, money wrongfully taken, or the tort of violating the implied covenant of good

faith and fair dealing, so they have waived any challenge to the dismissal of those

claims. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e

routinely have declined to consider arguments that are not raised, or are inadequately

presented, in an appellant’s opening brief.”).

   II.      Standards of Review

         “We engage in de novo review of the district court’s rulings on a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), and we accept the facts

                                            4
alleged in the complaint as true and view them in the light most favorable to the

plaintiffs.” Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir. 2018) (brackets and

internal quotation marks omitted). To withstand dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation and internal quotation marks omitted). Moreover, “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements,” are not

sufficient to state a claim for relief. Id.

       In Martin we applied Oklahoma contract law to a contract of carriage similar

to those in these cases. See Martin, 727 F. App’x at 462-63. We determine that

Oklahoma law applies to the claims brought by Mr. Stewart and Mr. Hicks,

No. 17-6167. Texas law, however, applies to the Robinsons’ claims, because the

Conditions of Carriage applicable to the Robinsons includes a choice-of-law

provision stating that Texas law applies. See Aplt. App. No. 17-6166, at A105-06.

Nevertheless, we reach the same result under Oklahoma and Texas law.

   III.   Ambiguous Contracts

       As in Martin, Plaintiffs assert the contracts at issue here are ambiguous.

Mr. Stewart and Mr. Hicks fail to identify any ambiguous contract language. The

Robinsons contend that American Airlines’ Conditions of Carriage is ambiguous



                                              5
because, although it states that an applicable change fee will be charged when a

nonrefundable ticket is rebooked, the amount of the change fee is not specified.

      Under Texas contract law, “[a] contract is not ambiguous simply because the

parties to a lawsuit offer conflicting interpretations of the contract’s provisions.”

Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 258 (Tex. 2017). Rather, “[a]

[contract] is ambiguous if it is genuinely subject to more than one meaning after

applying the pertinent rules of contract interpretation.” Id. The Robinsons have

proffered no conflicting interpretation of the provision for charging an applicable

change fee and we see none.

      We conclude that neither contract is ambiguous. Both contracts provided that

the tickets were nonrefundable and that the airline travel had to be taken within one

year of purchase. Plaintiffs concede that they did not book airline flights within one

year. We turn to Plaintiffs’ remaining arguments, which are “in essence” an attempt

to “change the terms of the contracts.” Martin, 727 F. App’x at 462.

   IV.    Rule Against Forfeitures and Quasi-Estoppel

      Plaintiffs contend that the rule against forfeitures and the doctrine of

quasi-estoppel prevent the enforcement of the Airlines’ contracts. We reject these

arguments.

      Both Oklahoma and Texas disfavor forfeitures, but neither state’s laws apply

the doctrine to invalidate an unambiguous contract. Guthrie v. Indep. Sch. Dist. No.

I-30, 1998 OK CIV APP 47, 958 P.2d 802, 805 (recognizing “the rule discouraging

construction of a contract in a way that works a forfeiture unless the plain,

                                            6
unambiguous language of the contract so requires”); Fischer v. CTMI, LLC, 479

S.W.3d 231, 239 (Tex. 2016) (stating “[f]orfeitures are not favored in Texas,” but “if

the parties clearly intended to agree and a reasonably certain basis for granting a

remedy exists, we will find the contract terms definite enough to provide that

remedy” (internal quotation marks omitted)). Thus, our conclusion that the Airlines’

contracts are not ambiguous dooms this claim.

        The quasi-estoppel doctrine also does not apply. “Quasi-estoppel precludes a

party from asserting, to another’s disadvantage, a right inconsistent with a position

previously taken.” Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766,

778 (Tex. 2017) (internal quotation marks omitted); accord Willard v. Ward,

875 P.2d 441, 443 (Okla. Civ. App. 1994) (“If it is unconscionable for a party to

assume an inconsistent position in a subsequent proceeding, the party may be barred

from doing so under the doctrine of quasi-estoppel.”). Neither Airline has taken a

position inconsistent with an earlier position.

   V.      Doctrine of Reasonable Expectations

        Invoking the doctrine of reasonable expectations, Plaintiffs contend that in

purchasing nonrefundable tickets, they expected their airline tickets never to expire

or to receive refunds if they did not use their nonrefundable tickets. “But the

Oklahoma courts apply the doctrine only if the contract is ambiguous or if a term is

‘masked by technical or obscure language or hidden in a policy’s provisions.’”

Martin, 727 F. App’x at 462-63 (quoting Am. Econ. Ins. Co. v. Bogdahn, 2004 OK 9,

¶ 9, 89 P.3d 1051, 1054 (internal quotation marks omitted)). “Texas law does not

                                            7
recognize the ‘Doctrine of Reasonable Expectations’ . . . as a basis to disregard

unambiguous policy provisions.” Vandeventer v. All Am. Life & Cas. Co.,

101 S.W.3d 703, 719 n.8 (Tex. App. 2003) (citing Forbau v. Aetna Life Ins. Co.,

876 S.W.2d 132, 145 n.8 (Tex. 1994)). As discussed above, the applicable contracts

are not ambiguous, nor is the nonrefundability of the tickets masked by technical or

obscure language.

   VI.    Covenant of Good Faith and Fair Dealing

      Plaintiffs also invoke the covenant of good faith and fair dealing in the context

of contract construction, in contrast to their claim noted above asserting a tort of

violating the implied covenant. “But that covenant cannot impose terms that

contravene the express terms of the contract.” Martin, 727 F. App’x at 463 (citing

Mercury Inv. Co. v. F.W. Woolworth Co., 706 P.2d 523, 532 (Okla. 1985); United

Assocs., Inc. v. Wal-Mart Stores, Inc., 133 F.3d 1296, 1298 (10th Cir. 1997)). Texas

law similarly provides that “[t]he agreement made by the parties and embodied in the

contract itself cannot be varied by an implied good-faith-and-fair-dealing covenant.”

Exxon Corp. v. Atl. Richfield Co., 678 S.W.2d 944, 947 (Tex. 1984). Thus, the

implied covenant cannot be applied to change the contract provisions stating that the

tickets were nonrefundable.

   VII. Unconscionable Contracts

      Plaintiffs further contend that the restrictions on nonrefundable tickets are

unconscionable. Under Oklahoma law, “[a]n unconscionable contract is one which

no person in his senses, not under delusion would make, on the one hand, and which

                                            8
no fair and honest [person] would accept on the other.” Barnes v. Helfenbein,

548 P.2d 1014, 1020 (Okla. 1976). “The basic test of unconscionability of a contract

is whether under the circumstances existing at the time of making of the contract, and

in light of the general commercial background and commercial needs of a particular

case, clauses are so one-sided as to oppress or unfairly surprise one of the parties.”

Id. An unconscionable contract generally “include[s] an absence of meaningful

choice on the part of one of the parties, together with contractual terms which are

unreasonably favorable to the other party.” Id.

      “Texas . . . recognizes both substantive and procedural unconscionability.

Substantive unconscionability refers to the fairness of the [contractual] provision

itself . . . .” In re Olshan Found. Repair Co., 328 S.W.3d 883, 892 (Tex. 2010)

(internal quotation marks omitted). In general, “a contract is [substantively]

unconscionable if, given the parties’ general commercial background and the

commercial needs of the particular trade or case, the clause involved is so one-sided

that it is unconscionable under the circumstances existing when the parties made the

contract.” Id. (internal quotation marks omitted). Procedural unconscionability

“refers to the circumstances surrounding adoption of the [contractual] provision.” Id.

(internal quotation marks omitted).

      The contracts at issue here do not satisfy the criteria for unconscionability

under either Oklahoma or Texas law. As explained in Martin,

      Every day, thousands of travelers have a choice between purchasing a
      refundable ticket or a significantly cheaper nonrefundable ticket from a
      variety of airlines. Few are out of their senses or delusional. Contracts

                                            9
      made on competitive markets are seldom unconscionable. Although the
      market for air travel is not a model of perfect competition, the commercial
      context here also argues against finding unconscionability. Airlines can
      compete against each other, and an airline could certainly obtain a
      competitive advantage in obtaining customers by making all tickets fully
      refundable or, as some do, by reducing the burden of exchanging the ticket,
      but the cost to an airline of doing so may constrain such an effort. Further,
      there is certainly no procedural unfairness present here. Airlines are hardly
      oppressive or coercive in offering travelers the choice of cheaper
      nonrefundable tickets.
Martin, 727 F. App’x at 463-64 (footnote omitted); see also id. at 463 n.3 (quoting

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 389 (1992) (describing airline-

travel market conditions)).

   VIII. Conclusion

      Because Plaintiffs were bound by the contract conditions on nonrefundable

tickets, their breach-of-contract claims must fail. Accordingly, we affirm the district

court’s judgments of dismissal.




                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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