*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 3 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JEANNE KENNEDY,Plaintiff-Appellant and CrossAppellee,
v. FORD MOTOR COMPANY,Defendant-Appellee and CrossAppellant. Nos. 02-7009 & 02-7069 (E.D. Oklahoma) (D. Ct. No. 92-CV-395-S)

ORDER AND JUDGMENT *
Before McCONNELL , Circuit Judge, BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.
In this diversity case, Jeanne Kennedy appeals a di strict court order granting summary judgment in favor of defendant For d Motor Company (“Ford”). Ford cross-appeals a district court order denying i ts motion for attorney’s fees. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1 and Federal Rule of Civil-2-

Procedure 54(b), we affirm the district court’s ord ers granting summary judgment and denying attorney’s fees.
Background Ms. Kennedy’s injuries occurred when the Ford Bronc o II she was driving rolled over. Based on diversity jurisdiction, she filed suit against Ford in the United States District Court for the Eastern Distri ct of Oklahoma, alleging defects in the vehicle caused the accident. Ms. Kennedy an d 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 $2 70,000.
Several years later, Ms. Kennedy learned of a “memo ” which, according to her, indicates Ford’s attorneys paid an expert witn ess, 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 acrucial fact witness ... to fraudulently induce a low settlement” in this and o ther Bronco II rollover suits. Based on this allegation, Ms. Kennedy filed a Secon d Amended Complaint to her original suit, alleging Ford “illegally concealed” evidence “that contained purchased perjured testimony of a crucial fact witn ess.” Ford filed a counterclaim for attorney’s fees, arguing Ms. Kennedy breached t he release and agreed to-3-

indemnify Ford against future claims. Ford request ed, 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 cove red by the release in question because they arise out of the product liability cla im.” The order granting summary judgment did not address Ford’s counterclai m 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 f inal judgment its order granting summary judgment in favor of Ford. The district co urt 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 re lease 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 a ddress these arguments below.-4-

Summary Judgment Ms. Kennedy believes the district court erred in ho lding 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 ar gues it applies only to “injuries and damages ... as a result of the ... vehicle acci dent.” According to Ms. Kennedy, “this fraudulent scheme [is] different seq uentially and conceptually from the underlying product liability claims.” She believes the release’s language limits it to claims based on “the consequences of aproduct (Ford Bronco II) and an accident, not the fraudulent scheme to cheat lit igants.”
Because this is a diversity action, we apply Oklaho ma’s substantive law, with the objective of reaching the same result as w ould 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 deter mine 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 appropr iate if “there is no genuine issue as to any material fa ct and ... the moving party is-5-

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 p arty and her counsel knew at the time she signed the release, and (2) the langua ge of the release. See Cassity v. Pitts , 839 P.2d 192, 194 (Okla. 1992). In conducting th e first portion of the analysis, we must consider whether Ms. Kennedy and her counsel had “information ... sufficient to show ... knowledge o f possible future claims” against Ford. Id. at 195 (quotation marks and citation omitted.). T he Oklahoma Supreme Court has held, where a party suspected the other p arty engaged in fraud but had no tangible evidence of the fraud, the suspicion sh ows 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 empha sizing she did not know-6-

Ford (allegedly) paid the witness to alter his test imony until she obtained the inculpatory memo. The Oklahoma Supreme Court has f latly 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 possi ble future claims.
Continuing to the second part of the analysis, we m ust determine whether the language “‘clearly contemplates some possible l iability or possible future claim in addition to that under discussion by the p arties 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 al l 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 d iscussed 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. Kenne dy: 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, eithe r in law or in equity, whether liquidated or unliquidated, either now existing or-7-

which may hereafter arise or be ascertained which t he undersigned, or [her successors in interest], ever had, now has or may hereafter have, by reason of an accident involving a 1984 For d Bronco II vehicle ... including, but not limited to, any and all claims asserted, or which might have been asserted, whether in law o r 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, spect rum of claim types ( i.e. , “any and all actions, suits, causes of action, debts, su ms of money, claims or demands, whatsoever”). It is not limited to then-existing o r then-known claims ( i.e. , “claims ... either now existing or which may hereaf ter arise or be ascertained” (emphasis added)). We therefore agree with the dis trict court; the release language is broad enough to bar Ms. Kennedy’s curre nt claim.
We are unpersuaded by Ms. Kennedy’s argument the re lease applies only to claims arising out of the Bronco II accident itself. As previously recounted, the release expressly refers to claims “either now exis ting 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 pertainin g in any way to the products liability suit. Further, had this not been Ms. Ken nedy’s intent, she could have1 Even if we were to read the Oklahoma Court of Appeals decision in Evansto

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- explicitly reserved from the release any claims forfraud relating to Mr. Bickerstaff’s testimony. See id. (noting the plaintiff “could easily have said in the settlement agreement that any claim arising fro m the fraud ... was reserved and not covered by the release.”).
We also reject Ms. Kennedy’s claim the Oklahoma Cou rt 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 eviden ce suggested the defendant affirmatively misrepresented it installed a rebuiltengine in the plaintiff’s car. Id. at 158. Evans is not helpful to Ms. Kennedy because, in that cas e: (1) the fraud went to the consideration that induced the release, and (2) nothing indicated the plaintiff suspected the fraud at the time she execu ted the release. Id. at 158-59. Here, Ford delivered the consideration ($270,000) t hat induced Ms. Kennedy to sign the release. As already discussed, Ms. Kennedy and her lawyer suspected the alleged fraud when she signed the release. 1-9-

Finally, we decline Ms. Kennedy’s invitation to con sider cases from other state and federal jurisdictions, and whether the di strict court’s order is undesirable as a matter of policy. Because the Okl ahoma 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 arisi ng outside of Oklahoma, nor engage in policy consideration on a topic the Oklah oma Supreme Court has already undertaken.
In sum, we agree with the district court in its det ermination the release bars Ms. Kennedy’s claims against Ford as a matter of la w. The court properly granted Ford’s motion for summary judgment.
Attorney’s Fees As we previously recounted, Ford filed both a count erclaim and a motion to recover costs and attorney’s fees. The district co urt entered a minute order denying Ford’s motion, but the order did not addres s 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 “a ll proceedings as to the counterclaim.”-10-

Ford believes the district court considered its mot ion for attorney’s fees “as a stand-alone request for fees in connection with t he 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 countercla im as a matter of law,” (2) hold its counterclaim is still pending before the distri ct court, or (3) if we determine the district court dismissed the counterclaim, reve rse 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 neve r ruled on Ford’s counterclaim. In certifying its order granting sum mary judgment, the district court referenced its previous order “staying all pr oceedings as to the counterclaim pending resolution of the issues on appeal to the T enth Circuit Court of Appeals.” The district court’s docketing statement likewise i ndicates 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 c ourt decision exists for us to review. Accordingly, we are prohibited from add ressing Ford’s claims under its counterclaim.-11-

Although Ford’s Notice of Appeal states it is appea ling the district court’s denial of its motion for attorney’s fees, and refer ences in its appellate brief a supplemental appendix with supporting documents, no supplemental appendix is before this court. Ford did not transmit the motio n to this court for review, nor did it attempt to explain how the district court er red in denying the motion. Because the evidentiary record before us is insuffi cient for our review, we must affirm the district court’s order denying Ford’s mo tion for attorney’s fees. See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000) (“Where the re cord 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 i nsufficiently 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 re mains pending before the district court. Entered by the Court: WADE BRORBY United States Circuit Judge