UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PINE TELEPHONE COMPANY, INC., an 

Oklahoma corporation; PINE CELLULAR 

PHONES, INC., an Oklahoma corporation, 

 Plaintiffs - Appellants, 

v. 

ALCATEL-LUCENT USA INC., a 

Delaware corporation, f/k/a Alcatel USA 

Marketing, Inc., 

 Defendant - Appellee. 

No. 14-7012 

(D.C. No. 6:11-CV-00353-JHP) 

(E.D. Oklahoma) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, SEYMOUR, and McHUGH, Circuit Judges. 

_________________________________ 

I. INTRODUCTION 

Plaintiffs Pine Telephone Company, Inc. and Pine Cellular Phones, Inc. appeal (1) 

the district court’s grant of summary judgment in favor of defendant Alcatel-Lucent USA 

Inc. on their breach of contract, breach of warranty, and fraud claims; (2) the district 

court’s denial of leave to amend; and (3) the district court’s exclusion of their expert 

 *

This order and judgment is not binding precedent, except under the doctrines of 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 Tenth Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 27, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

witness. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in 

part. 

II. BACKGROUND 

A. Factual History 

1. The Supply Agreement 

Pine Telephone Company, Inc. and Pine Cellular Phones, Inc. (collectively, Pine) 

are Oklahoma corporations engaged in the business of providing telecommunications 

services in Southeast Oklahoma. Alcatel-Lucent USA Inc. (Alcatel) is a Delaware 

subsidiary of a French-based corporation, Alcatel-Lucent. Alcatel sells telephone 

communications equipment and services. In May 2005, Pine and Alcatel entered into a 

Supply Agreement, which served as a master contract for the parties’ ongoing sellerpurchaser relationship. Pursuant to the Supply Agreement, Pine could submit purchase 

orders to Alcatel, which would be treated as offers. If Alcatel accepted the offer, Alcatel 

would be obligated to provide the relevant equipment, software, or services, subject to the 

terms of the Supply Agreement. 

Under the Supply Agreement, Alcatel expressly warranted that, for a period of 

twelve months, any equipment or software Pine purchased from Alcatel “shall, under 

normal use and service, be free from defects in material and workmanship, and . . . shall 

materially conform to Alcatel’s specifications thereof in effect on the date of the 

shipment.” If the purchased equipment was not as warranted, “Alcatel shall repair or 

replace the Equipment.” But, if “after the exercise of commercially reasonable efforts,” 

the equipment could not be repaired or replaced, Alcatel could “in its sole discretion, 
3 

refund to the Purchaser the Purchase Price of the Product, less a reasonable adjustment 

for beneficial use.” The warranty provision also includes a disclaimer, set forth in bold 

capital letters, stating the Agreement’s express warranties constitute purchaser’s sole 

remedy under the Agreement and disclaiming any implied warranties, including the 

implied warranties for merchantability or fitness for any intended or particular purpose. 

The liability section of the Supply Agreement further disclaims liability for all 

consequential damages, including lost revenues and profits. And the Supply Agreement 

contains a choice of law provision, which indicates it is governed by the laws of Texas. 

2. The 3G Network 

 In 2008, Pine expressed interest in purchasing from Alcatel equipment and 

services to deploy a Universal Mobile Telecommunications System (UMTS), also known 

as a 3G cellular network. Generally speaking, a 3G network consists of two basic 

segments: (1) a “core” network, which includes several pieces of equipment usually 

housed in or near the cellular office, and (2) a UMTS terrestrial radio access network 

(UTRAN), which includes the user equipment and the Radio Access Network 

(comprising radio towers, Node Bs, and the Radio Network Controller (RNC)). 

In November 2008, Alcatel provided an initial proposal to Pine for a “turnkey” 

solution (the Proposal), under which Alcatel would provide all equipment and services 

needed to deploy a complete 3G network. The Proposal quoted a purchase price of $2.3 

million for all equipment and of $986,778 for related services. Alcatel also prepared a 

Statement of Work (SOW), which described all of the services Alcatel would provide to 

deploy the 3G network. The SOW was to be governed by the terms of the Supply 
4 

Agreement, but in the event of a conflict between the SOW and the Supply Agreement, 

the SOW states “the terms of this SOW shall prevail with respect to the subject matter 

contained herein.” 

That same month, Pine and Alcatel representatives met in Jackson Hole, 

Wyoming, where Alcatel had deployed a 3G network, known as the Edge Network. 

Alcatel demonstrated the capacity of the Edge Network and allegedly told Pine it could 

expect even better performance if it were to purchase a 3G network from Alcatel. Pine 

contends Alcatel surreptitiously performed advanced testing of the Edge Network so that 

the demonstration would be uncharacteristically trouble-free. 

On December 15, 2008, Pine submitted to Alcatel thirteen purchase orders: eleven 

for the purchase of equipment for the 3G network, totaling approximately $2.29 million, 

and two for engineering, installation, integration, and project management services, 

totaling $935,811. A few months later, Pine submitted an additional purchase order in the 

amount of $191,515 for a limited technical support package, which provided for the 

return and repair of equipment with a goal, but not an obligation, of replacing the 

equipment within sixty days. These purchase orders and a few subsequent orders for 

additional equipment totaled approximately $3.7 million. Collectively, the purchase 

orders included all equipment and services identified in the turnkey solution, with the 

exception that Pine opted to perform its own (1) installation and commission of the Node 

Bs, (2) site survey, and (3) radio frequency design.1

 Pine’s decision to perform these 

 1

 Pine also initially planned to use its existing aggregation router, but ultimately 

purchased a new one from Alcatel. 
5 

tasks saved it $68,967—less than 2% of the $3.7 million proposed “turnkey” price. 

Several months after Pine had submitted all the purchase orders, Alcatel requested that 

Pine sign the SOW. 

3. The Unsuccessful Deployment of the 3G Network 

 The deployment of the 3G network did not go as planned. Alcatel established a 

target “equipment operational” date of sometime during the second quarter of 2009, but 

by early 2011, Pine still did not have an operational 3G network. The parties dispute the 

cause of the deployment problems. Alcatel points to Pine’s decision to self-install the cell 

cite equipment, Pine’s alleged under-staffing, and a storm that damaged some of the 

equipment. Pine, on the other hand, contends nonconformities in Alcatel’s equipment and 

Alcatel’s failure to render services as promised caused the problems. Pine notes that, 

despite numerous attempts to repair and replace equipment over nearly two years of 

troubleshooting, Alcatel never delivered a functioning 3G network. Pine also relies on 

internal Alcatel emails it alleges acknowledge Alcatel’s responsibility.2

 

 2

 For example, Pine relies on a March 9, 2009, internal Alcatel email discussing 

the issues with the Pine network and stating, “something is VERY wrong with our 

configuration this needs to be corrected ASAP so we do not lose more credibility.” 

Similarly, a January 2011 email from an Alcatel engineer indicated that the Pine network 

was not yet “turned up” and expressed his belief that some of the reasons were Alcatel’s 

fault, including “failing hardware, no [Alcatel] lab, limited product knowledge, etc.,” and 

some were the fault of Pine, including “no [radio frequency] design, delays in timeline, 

etc.” The same email indicated that all of Alcatel’s expertise was overseas and thus not 

available to provide on-site support, and opined that Alcatel had been “fumbling around 

this for over 12 months” and kept “floundering.” An Alcatel customer service 

representative emailed that “the frustration from Pine continues” and that “[t]he biggest 

problem is that we don’t show up and fix anything!” The customer representative 

concluded, “If we don’t commit today to get someone knowledgeable out there . . . we 

will lose [Pine’s business] and our reputation will take a huge hit.” 
6 

On January 12, 2011, over two years after the parties entered into their agreement 

(the 2008 Agreement), Pine sent Alcatel a letter stating it was rejecting the equipment 

and services it had purchased. In the letter, Pine expressed its position that Alcatel’s 

equipment failed to function as specified and that Alcatel’s promises to correct the 

problems remained unfulfilled, even after Pine had provided a reasonable time to cure. 

Pine therefore rejected “the equipment, engineering, self-installation, installation, 

integration, technical support, program management, optimization and migration in 

whole.” 

B. Procedural History 

In September 2011, Pine filed suit against Alcatel in Oklahoma state court, and 

Alcatel removed the case to the Federal District Court for the Eastern District of 

Oklahoma. In its First Amended Complaint, Pine alleged Alcatel breached the parties’ 

2008 Agreement by supplying defective equipment and failing to render adequate 

installation services, and that any and all warranty limitations were void because Alcatel 

was unable to repair or replace the equipment. In addition, Pine alleged Alcatel made 

false and misleading representations regarding its ability to deploy a 3G network, thereby 

fraudulently inducing Pine to enter into the 2008 Agreement. Pine requested damages in 

the form of repayment of the over $3.7 million purchase price, lost profits, and punitive 

damages, in addition to costs and fees. Pine also requested a declaration that it owed no 

further amounts to Alcatel. 

Alcatel moved for summary judgment on all of Pine’s claims. Pine opposed the 

motion and simultaneously moved for leave to amend its First Amended Complaint, 
7 

including as an attachment a Proposed Second Amended Complaint. Acknowledging the 

motion was untimely, Pine represented that the Second Amended Complaint was 

intended to cure any potential deficiencies in the First Amended Complaint, but did not 

add any new theories for relief. 

The district court granted Alcatel’s summary judgment motion. Applying 

Oklahoma law to Pine’s fraud claims, the court held Pine had not satisfied its burden of 

bringing forth evidence of each element of fraudulent inducement. And the district court 

concluded Pine’s postpurchase and constructive fraud claims were not pled with 

particularity as required by Federal Rule of Civil Procedure 9(b). 

The district court also granted summary judgment on Pine’s breach of contract and 

breach of warranty claims. Applying Texas law as required by the Supply Agreement, the 

court ruled that proof of nonconformity is an essential element of both breach of contract 

and breach of warranty and that Pine had the burden of proving the equipment failed to 

conform to the parties’ 2008 Agreement. The district court explicitly rejected Pine’s 

argument that it contracted to purchase a functional 3G network from Alcatel. Therefore 

it ruled Pine was required to prove defect as to each piece of equipment purchased. The 

district court held Pine had failed to come forward with evidence sufficient to create a 

question of fact as to whether Alcatel’s equipment was defective. 

In particular, the district court rejected the report of Pine’s proffered expert, 

Jonathan Reeves, because Pine had not timely identified him as an expert, his report 

failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B), and his opinions were 

purely conclusory. The court also determined that neither the deposition testimony of 
8 

Pine employees nor the internal Alcatel emails provided evidence of product defect. It 

further ruled that even if Pine could establish breach of contract or warranty, its sole 

remedy under the Supply Agreement would be repair or replacement, and that even if the 

repair or replacement remedy had failed of its essential purpose, Pine had waived 

consequential damages. 

In the same memorandum decision granting summary judgment in favor of 

Alcatel, the district court denied Pine’s motion for leave to file a second amended 

complaint. The court ruled the motion was untimely and that granting it would be futile 

because Pine conceded it had not added any new claims and none of Pine’s existing 

claims raised a genuine issue of fact for trial. Pine appeals the district court’s summary 

judgment order. 

III. DISCUSSION 

Before addressing Pine’s challenges to the district court’s order, we pause to 

address three outstanding motions. The first is Pine’s motion for leave to file its brief and 

appendix under seal, and the second is a related request from Alcatel that volume II of its 

supplemental appendix remain under seal. The third is Pine’s motion to supplement the 

appendix on appeal. 

As to the first motion, Pine initially requested that its brief and appendix be filed 

under seal consistent with a protective order entered in the district court. But after we 

issued an order to show cause why the documents should not be made public, Pine 

retreated from its position and, instead, challenged the propriety of the district court’s 

protective order. Pine contends its brief and appendix contain no confidential trade 
9 

information and therefore need not be filed under seal. Conversely, Alcatel argues that 

Pine’s brief and all but five documents in Pine’s appendix contain sensitive commercial 

information regarding its network design and sales figures. Alcatel likewise argues in the 

second motion before us that volume II of its supplemental appendix should remain under 

seal because it contains confidential contractual, design, and sales information. 

In determining whether portions of a judicial record should be sealed, we begin 

with the presumption “that the public has a common-law right of access to judicial 

records.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th 

Cir. 2011). See also JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs., 754 F.3d 824, 826 

(10th Cir. 2014) (noting that courts “have long recognized a common-law right of access 

to judicial records”) (internal quotation marks omitted). “The party seeking to overcome 

the presumption of public access to the documents bears the burden of showing some 

significant interest that outweighs the presumption.” United States v. Pickard, 733 F.3d 

1297, 1302 (10th Cir. 2013) (internal quotation marks omitted). In civil litigation, a 

showing that the records contain trade secrets may rebut this presumption. Baxter Int’l, 

Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). Here, Alcatel seeks to seal Pine’s 

appendix in its entirety and volume II of its supplemental appendix on the basis that they 

contain confidential trade secret information. But this overly broad request is “bereft of 

specific examples” indicating which documents contain the allegedly confidential 

information and is therefore insufficient to overcome the presumption against sealing. 

LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 222 (3d Cir. 2011) (internal quotation 

marks omitted). 
10 

Therefore, with this decision we issue a separate order to show cause, instructing 

Alcatel to identify each portion of the briefs or page of the appendices it contends should 

be sealed and to indicate why its interest in sealing it overcomes the presumption in favor 

of public access. We reserve judgment on this matter pending resolution of the order to 

show cause. 

The third motion before us is Pine’s motion to supplement its appendix. Pine filed 

this motion in response to Alcatel’s request that we summarily affirm the district court 

due to Pine’s failure to submit an adequate record for review. We decline to summarily 

affirm and we allow Pine’s appendix to be supplemented by the documents included in 

Alcatel’s supplemental appendix. See, e.g., Harvey Barnett, Inc. v. Shidler, 338 F.3d 

1125, 1136 (10th Cir. 2003) (reaching the merits of an appeal despite appellant’s “failure 

to meet basic standards relating to the record on appeal” where appellee’s supplemental 

appendix cured any deficiencies). We now proceed to the merits of Pine’s appeal. 

Pine argues it presented sufficient evidence to survive summary judgment on its 

claims that (1) it purchased a functional 3G network from Alcatel, instead of just parts, 

and therefore Alcatel breached the 2008 Agreement by failing to deliver a network; (2) 

Alcatel breached certain express warranties; (3) the limited warranties and remedies 

provisions of the contract failed of their essential purpose, and therefore Pine is entitled 

to monetary damages; and (4) Alcatel fraudulently induced Pine to enter into the 2008 

Agreement and also committed constructive fraud. Pine also challenges the district 

court’s denial of its motion for leave to amend and exclusion of its expert. 
11 

A. Summary Judgment 

Although Pine challenges numerous components of the district court’s summary 

judgment ruling, its arguments on appeal fit within two general categories: those relating 

to Pine’s breach of contract and warranty claims and those relating to its fraud claims. 

Texas law governs Pine’s contract and warranty claims under the choice of law provision 

in the Supply Agreement. Pine’s fraud claims do not arise out of the Supply Agreement, 

so we look to the forum state’s choice of law principles to determine which law governs. 

BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999). 

Oklahoma applies the most-significant-relationship test, and under that test, Oklahoma 

law governs because Alcatel’s allegedly fraudulent conduct and Pine’s alleged reliance 

on that conduct took place in Oklahoma. See id. at 1103–04. In interpreting the relevant 

laws of these states, “we are not required to follow the dictates of an intermediate state 

appellate court, [but] we may view such a decision as persuasive as to how the state 

supreme court might rule.” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 n.1 (10th Cir. 

2013) (internal quotation marks omitted). 

We review the district court’s summary judgment decision de novo to determine 

whether there are any genuine issues for trial and, if not, whether Alcatel was entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Mid-Continent Cas. Co. v. 

True Oil Co., 767 F.3d 1000, 1004 (10th Cir. 2014) (describing the summary judgment 

standard). “In making such a determination, we resolve factual disputes and draw 

reasonable inferences in favor of the nonmoving party.” Mid-Continent Cas., 767 F.3d at 

1004. At summary judgment, the moving party carries the initial burden of demonstrating 
12 

a lack of a genuine issue of material fact, which it may satisfy by showing “an absence of 

evidence to support the nonmoving party’s case.” Schneider v. City of Grand Junction 

Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 

U.S. 317, 325 (1986)). If the moving party meets its burden, “the burden shifts to the 

nonmoving party to go beyond the pleadings and set forth specific facts showing that 

there is a genuine issue for trial.” 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 

1242 (10th Cir. 2013) (internal quotation marks omitted). A nonmoving party’s failure to 

prove an essential element of its case “renders all other facts immaterial.” Mountain 

Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) (internal quotation 

marks omitted). 

1. Contract and Warranty Claims 

Pine argues the district court erred in construing the 2008 Agreement as a contract 

merely for pieces of equipment. Instead, Pine asserts a reasonable jury could find Pine 

purchased an operational 3G network from Alcatel and Alcatel breached the 2008 

Agreement by failing to deliver a functional network. Pine also contends Alcatel 

breached certain express warranties because, even after repairing or replacing numerous 

pieces of equipment, Alcatel never deployed a functional network. Finally, Pine claims it 

presented sufficient evidence to survive summary judgment on its claim that the limited 

warranty and limited remedy provisions failed of their essential purpose, thereby 

permitting Pine to claim breach of the implied warranties of merchantability and fitness 

for a particular purpose and to recover consequential damages. Before reaching these 
13 

arguments, we address Alcatel’s contention that Pine failed to preserve some of its 

claims. 

a. Pine preserved its breach of contract and unconscionability of the limited 

remedy claims but failed to preserve its breach of express warranty claim. 

Alcatel insists Pine has substantially changed its breach of contract and warranty 

claims and its challenge to the limited remedy provision on appeal. According to Alcatel, 

Pine’s theories of breach of contract and warranty in the district court focused on 

defective equipment, whereas Pine’s theory on appeal is that it purchased a functioning 

3G network. Similarly, Alcatel argues Pine relies on a different basis for its challenge to 

the limited remedy provision on appeal than it did in the district court. Although Alcatel 

concedes the district court’s summary judgment order addressed the arguments Pine 

raises on appeal, it contends we should not rely on the district court’s ruling to conclude 

Pine preserved them. 

Alcatel relies on Tele-Communications, Inc. v. Commissioner, where we refused to 

consider as unpreserved an argument the tax court briefly considered, based on three 

sentences of the IRS Commissioner’s brief. 104 F.3d 1229, 1233–34 (10th Cir. 1997). 

We explained that even though the tax court ruled on the argument by “summarily 

reject[ing] this passing contention,” the argument was not preserved because its 

“perfunctory presentation” had “deprived [the tax] court of the opportunity to analyze and 

rule on this issue now raised in detail for the first time on appeal.” Id. at 1232, 1234. 

Alcatel argues that, like the IRS Commissioner’s unpreserved argument in Tele-
14 

Communications, Pine’s terse discussion in the district court of its network and limited 

remedies theories is insufficient to preserve those issues for appeal. 

The district court’s order offers the best evidence of the court’s understanding of 

the parties’ arguments. The summary judgment order here thoroughly addressed and 

ruled on Pine’s theory that it purchased a 3G network and Pine’s claim that the Supply 

Agreement’s limited remedy provisions failed of their essential purpose. Therefore, 

unlike the Tax Commissioner’s “perfunctory presentation” of its argument before the tax 

court in Tele-Communications, which “deprived that court of the opportunity to analyze 

and rule on [the] issue,” id. at 1234, Pine’s breach of contract and limited remedy 

arguments were sufficiently articulated to allow the district court to thoughtfully consider 

and rule on them. And although Pine has more fully developed these arguments on 

appeal, it has not “change[d] to a new theory.” Lyons v. Jefferson Bank & Trust, 994 F.2d 

716, 722 (10th Cir. 1993). We thus conclude Pine sufficiently preserved its breach of 

contract claim, including that it purchased an integrated network, and also preserved its 

unconscionability claim based on the failure of the limited remedies. 

But we agree with Alcatel that Pine has substantially altered its breach of warranty 

claim on appeal. Specifically, Pine argues on appeal that Alcatel expressly warranted 

through the Proposal and through its demonstration of the Edge Network that it would 

deliver a functioning network. See Tex. Bus. & Com. Code § 2.313 (describing the ways 

in which a seller creates express warranties). But in the district court, Pine’s breach of 

express warranty claim relied on the Supply Agreement’s warranty that any equipment or 

software Pine purchased from Alcatel would be free from defect and would materially 
15 

conform to Alcatel’s specifications. The district court’s summary judgment order, which 

focused solely on the express warranties created in the Supply Agreement, reflects this 

choice of theories. Pine’s breach of warranty claim thus suffers from two fatal errors. 

First, because Pine did not raise in the district court the theories it now relies on—

specifically, that the Proposal and Edge Network demonstration created express 

warranties—it has forfeited these theories. See Richison v. Ernest Grp., Inc., 634 F.3d 

1123, 1128 (10th Cir. 2011) (“[I]f the theory simply wasn’t raised before the district 

court, we usually hold it forfeited.”). Although we may “entertain forfeited theories on 

appeal,” we will only do so if the party carries its burden of showing the district court 

plainly erred in not addressing the forfeited theories. Id. Pine has not argued plain error, 

and therefore its claim that Alcatel breached express warranties created in the Proposal 

and Edge Network demonstration fails. See id. at 1131 (“[T]he failure to argue for plain 

error and its application on appeal . . . surely marks the end of the road for an argument 

for reversal not first presented to the district court.”). Second, by not raising on appeal the 

argument it advanced in the district court—that Alcatel breached the Supply Agreement’s 

express warranties—Pine has “intentionally relinquished or abandoned” this theory. Id. at 

1127. We therefore “deem it waived and refuse to consider it.” Id. Because Pine has 

either forfeited or waived its breach of express warranty theories, we affirm the district 

court’s grant of summary judgment in favor of Alcatel on this issue3

 and proceed to the 

merits of Pine’s breach of contract and limited remedy claims. 

 3

 Pine also failed to preserve its negligent performance of services claim and its 

argument that the failure of the Supply Agreement’s limited remedy provisions renders 
16 

b. Breach of contract 

Because Pine presented no direct evidence that the individual pieces of network 

equipment were defective, the district court held it failed to prove nonconformity, which 

the court determined was an essential element of Pine’s breach of contract and breach of 

warranty claims. In reaching this result, the district court erred by misinterpreting the 

distinction between breach of contract and breach of warranty under Texas commercial 

law. 

i. Breach of contract and breach of warranty are distinct under Texas law.

In Texas, “[B]reach of warranty and breach of contract are distinct causes of 

action with separate remedies.” Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 

60 (Tex. 2008). Specifically, under the Texas version of the Uniform Commercial Code 

(UCC), “[W]hen a party fails to deliver as promised, a breach of contract occurs. 

Conversely, when a seller delivers non-conforming goods, it is a breach of warranty.” 

Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 890 (Tex. App. 1996), writ 

denied (Feb. 13, 1998) (citing Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 

576 (Tex. 1991)). And under the Texas UCC, “breach of contract damages are available 

for failure to perform, but not for delivery of non-conforming goods.” Id.; compare Tex. 

Bus. & Com. Code § 2.711 (providing the damages available for failure to deliver goods), 

 

the Supply Agreement’s disclaimer of implied warranties of merchantability and fitness 

for a particular purpose unenforceable. Pine did not raise these arguments in the district 

court, and the district court did not address them. Pine has therefore forfeited them. See 

Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir. 2013), cert. denied, --- U.S. ----, 134 

S. Ct. 1874 (2014). 
17 

with id. § 2.714 (providing the damages available when buyer accepts and later rejects 

goods that are nonconforming). The district court required proof of nonconformity on 

both the breach of contract and breach of warranty claims, but such proof was necessary 

only for the latter claim. 

To survive summary judgment on its breach of contract claim, Pine must 

demonstrate a genuine issue regarding whether Alcatel delivered the good(s) promised 

under the 2008 Agreement. This determination hinges on whether the 2008 Agreement 

was one merely for individual pieces of equipment, which Alcatel delivered, or one for a 

functioning 3G network, which both parties agree was never deployed. We therefore now 

consider whether Pine presented sufficient evidence that it purchased a 3G network to 

survive summary judgment. 

 ii. A genuine issue exists regarding the nature of the 2008 Agreement. 

The district court rejected Pine’s argument that it purchased an entire network 

because Pine did not accept Alcatel’s “turnkey” proposal and Pine’s January 2011 

rejection letter separately identified each piece of equipment. Although these facts 

provide some evidence on the issue, we are not convinced that, as a matter of law, they 

foreclose Pine’s claim that Alcatel breached the 2008 Agreement by failing to provide a 

3G network. 

In ruling the 2008 Agreement was merely for parts, the district court apparently 

viewed the 2008 Agreement as consisting solely of the network purchase orders,4

 as 

 4

 More specifically, the district court seemed to consider only those purchase 

orders for network equipment, thereby ignoring the over $1 million of installation, 
18 

governed by the Supply Agreement. But Pine contends the Proposal and the SOW were 

also part of the 2008 Agreement and that these documents prove Alcatel’s intent to sell 

and Pine’s intent to purchase an integrated 3G network. 

The Texas Supreme Court has held that “instruments pertaining to the same 

transaction may be read together to ascertain the parties’ intent, even if the parties 

executed the instruments at different times and the instruments do not expressly refer to 

each other.” Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 

(Tex. 2000) (footnotes omitted). The Texas court has further explained that “a court may 

determine, as a matter of law, that multiple documents comprise a written contract,” and 

in some instances “courts may construe all the documents as if they were part of a single, 

unified instrument.” Id. (footnote omitted). But where a material factual dispute exists 

regarding which documents constitute the parties’ agreement, the dispute raises “a 

question of intent concerning contract formation,” which demonstrates “a latent 

ambiguity that allows for the admission of parol evidence.” Farmers Ins. Exch. v. 

Leonard, 125 S.W.3d 55, 65 (Tex. App. 2003) (citing Friendswood Dev. Co. v. McDade 

+ Co., 926 S.W. 280, 282–83 (Tex. 1996). And a dispute regarding the intent of the 

parties is more properly resolved by the factfinder. Grohman v. Kahlig, 318 S.W.3d 882, 

887 (Tex. 2010) (explaining that the intent of the parties to an ambiguous contract “is a 

question of fact for the jury”); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 

169 F.3d 677, 679 (11th Cir. 1999) (reversing summary judgment and remanding to the 

 

integration, project management, and technical support services Pine purchased under the 

2008 Agreement. 
19 

district court where the court was “uncertain exactly which documents comprise the 

contract”). 

This case presents a factual dispute over whether Pine and Alcatel’s 2008 

Agreement consisted of multiple documents. Although the terms of the Supply 

Agreement generally govern any purchase orders Pine submitted to Alcatel, the SOW and 

Proposal were prepared specifically for the 2008 transaction. Alcatel delivered the SOW 

to Pine just ten days before Pine submitted the purchase orders, and the SOW explicitly 

provided that, in a conflict between the SOW and the Supply Agreement, the terms of the 

SOW govern. And even after Pine decided to perform a small part of the work described 

in the SOW, Alcatel requested that Pine sign the SOW. This evidence supports Pine’s 

claim that both parties intended to proceed according to the SOW, despite it being 

slightly modified by Pine’s decision to perform some self-installation. 

A genuine dispute also exists as to whether Alcatel intended the terms of the 

Proposal to constitute part of the 2008 Agreement. Taking all inferences in favor of Pine 

as we must on summary judgment, internal Alcatel emails circulated on the date of 

purchase evince Alcatel’s understanding that the Proposal governed the parties’ 2008 

Agreement. Specifically, an email to Alcatel account manager Allyson Raskin stated “we 

should somehow get the contract terms (i.e. proposal) solidified – to demonstrate what 

we’ve promised & what they get,” to which Ms. Raskin replied, “I can update the 

proposal with this new quote – I don’t think that the proposal has really changed.” These 

emails support Pine’s contention that it purchased a 3G network as set forth in the 

Proposal. They also support Pine’s position that its decision to self-install tower site 
20 

equipment so minimally impacted the Proposal that neither party considered it 

significant. Thus, Pine presented sufficient evidence to raise a genuine issue of fact as to 

whether the SOW and Proposal constituted part of the 2008 Agreement. 

Assuming the 2008 Agreement includes the SOW and Proposal, a reasonable 

interpretation of their language indicates Alcatel agreed to deliver Pine a functioning 3G 

network. Looking first to the language of the SOW, it expresses Alcatel’s commitment to 

“provide[] Services for the PINE CELLULAR rollout of a UMTS Radio and Core 

network. Included are Project Management, Engineering, Installation, Network 

Integration, RF Optimization and Maintenance services, to ensure a smooth network 

implementation.” The Proposal similarly states, “The nature of [Alcatel’s] offer . . . is 

best characterized as everything required to ‘Make the Solution Work’ and everything 

required to ‘Keep the Solution Working.’” The Proposal repeatedly uses phrases such as 

“network solution” and “delivery of this solution,” and it expresses Alcatel’s pledge to 

provide “all phases of work for an integrated end-to-end UMTS system solution.” The 

SOW and the Proposal also distinguish between the network “solution” Alcatel agreed to 

provide and the “network elements” or “network products” Alcatel would use to deliver 

the final network solution. Collectively, the Proposal and the SOW provide significant 

support for Pine’s claim that Alcatel contracted to deliver a functioning network. 

 Other evidence Pine relied on at summary judgment further supports its theory 

that the 2008 Agreement was a contract to purchase a functioning network. Specifically, 

internal Alcatel emails circulated shortly after the parties entered the 2008 Agreement 

express Alcatel’s understanding that it agreed to provide an integrated network. For 
21 

example, one email sent near the time Pine submitted the network purchase orders stated 

that Pine had “finally agreed to buy our [end-to-end] solution.” Another email stated that 

Alcatel had received Pine’s purchase orders for “network deployment[].” Ms. Raskin sent 

similar emails stating, “Pine purchased an entire UMTS network from Alcatel.” And in 

responding to an email from Pine questioning who had “end to end responsibility” in the 

“overall project,” Ms. Raskin stated, “We do.” 

When viewed in the light most favorable to Pine, this evidence creates a genuine 

issue of fact regarding whether the parties intended to contract for the sale and purchase 

of a complete, integrated 3G network. Because Alcatel never delivered a functional 

network, the district court erred in granting summary judgment on Pine’s breach of 

contract claim.5

c. The Supply Agreement’s limitation on Pine’s remedies 

Pine next argues the district court erred in granting summary judgment in favor of 

Alcatel on Pine’s claim that the Supply Agreement’s limitation on Pine’s remedies failed 

 5

 The district court ruled alternatively that even if the evidence supported Pine’s 

argument that it purchased an integrated network, Pine failed to establish defect of the 

network as a whole. Specifically, the district court ruled that “Pine’s allegation the 

network did not function, when it was responsible for installation of certain equipment, 

fails to establish defect of a network.” In other words, the district court ruled that where 

Pine was involved in installing one component of the network—the Node B towers—

Pine’s installation may have caused the network to fail. But causation is generally a fact 

issue, more properly decided by a jury. J.K. & Susie L. Wadley Research Inst. & Blood 

Bank v. Beeson, 835 S.W.2d 689, 698 (Tex. App. 1992). Where Alcatel presented no 

evidence demonstrating that Pine’s installation caused the network’s failure, Alcatel has 

not carried its burden on summary judgment of showing “an absence of evidence to 

support the nonmoving party’s case.” Schneider v. City of Grand Junction Police Dep’t, 

717 F.3d 760, 767 (10th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 

(1986)). 
22 

of its essential purpose. The Supply Agreement limits Pine’s remedies in two separate 

provisions. First, the warranty provision provides that if any equipment is not as 

warranted, “Alcatel shall repair or replace the Equipment,” and that if Alcatel is unable to 

repair or replace equipment “after the exercise of commercially reasonable efforts,” 

Alcatel may, “in its sole discretion refund to Purchaser the Purchase Price of the 

Product.” The warranty provision also expressly disclaimed any warranties “of any kind . 

. . including, but not limited to, any and all implied warranties of merchantability or 

fitness for any intended or particular purpose.” Because we conclude that Pine either 

forfeited or waived any breach of warranty claims, we need not address whether this 

limitation on remedies for breach of warranty failed of its essential purpose. 

In a separate provision, Alcatel disclaimed liability for all consequential damages 

for any claim arising out of the agreement. The Supply Agreement thereby limits Pine’s 

recovery for breach of contract to the “purchase price of the product or services that are 

the subject of such claim.” Under Texas commercial law, this limitation on Alcatel’s 

liability is enforceable. See Tex. Bus. & Com. Code § 2.719(c) (explaining that 

“[c]onsequential damages may be limited or excluded . . . where the loss is commercial”); 

see also Wade & Sons, Inc. v. Am. Standard, Inc., 127 S.W.3d 814, 822 (Tex. App. 2003) 

(“Section 2.719 of the U.C.C. allows parties to limit or exclude consequential damages in 

their contracts . . . .”).6

 Therefore, if Pine prevails on its breach of contract claim on 

 6

 This is true even if Pine had preserved its breach of warranty claim and 

succeeded in proving the warranty provision’s limitation to repair and replacement failed 

of its essential purpose. See Bray Int’l, Inc. v. Computer Assocs. Int’l, Inc., No. CIV.A. 

H-02-98, 2005 WL 6792280, at *15 (S.D. Tex. Sept. 30, 2005), rev’d in part on other 
23 

remand, its recovery will be limited to the price of the equipment and services it 

purchased under the 2008 Agreement. 

2. Fraud Claims 

The district court also dismissed Pine’s fraud claims on summary judgment. Pine 

contends the district court erred by (1) applying the wrong legal standard at summary 

judgment, (2) disregarding evidence Pine claims demonstrates that Alcatel knowingly or 

recklessly made misrepresentations regarding its capacity to deploy a 3G network, and 

(3) dismissing Pine’s constructive fraud claim as inadequately pled. We address each 

argument in turn. 

a. The district court applied the correct legal standard. 

Pine first claims the district court erroneously applied a clear-and-convincingevidence standard to Pine’s fraud claim. Although Pine correctly notes it need not prove 

its fraud claims by clear and convincing evidence to survive summary judgment, “in 

ruling on a motion for summary judgment, the judge must view the evidence presented 

through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 254 (1986). Therefore, “the clear-and-convincing standard of proof 

should be taken into account in ruling on summary judgment motions.” Id. at 255; see 

 

grounds, No. CIV H-02-0098, 2005 WL 3371875 (S.D. Tex. Dec. 12, 2005) (predicting 

that “the Texas Supreme Court would hold that a limitation of liability clause that 

purports to exclude any and all liability for consequential damages . . . cannot be voided 

even if a limited remedy clause fails of its essential purpose”); see also Eastman Chem. 

Co. v. Niro, Inc., 80 F. Supp. 2d 712, 721 (S.D. Tex. 2000) (citing cases and concluding 

that “a waiver of consequential damages can be valid notwithstanding the fact that a 

limitation of remedy has failed of its essential purpose”). 
24 

also Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1244 (10th 

Cir. 1990) (ruling that summary judgment on a fraud claim was proper “[b]ecause of the 

high standard of proof and [plaintiff’s] failure to establish each element of fraud”). 

Here, the district court did just that. It did not require Pine to show fraud by clear 

and convincing evidence, but merely took that burden into consideration in ruling Pine 

had not come forward with evidence on each element of fraud. We reject Pine’s 

contention that the district court applied the wrong legal standard. 

b. Pine failed to present sufficient evidence of fraudulent inducement to survive 

summary judgment. 

Pine next challenges the merits of the district court’s fraud determination. Pine 

argues the district court was improperly dismissive of evidence that, according to Pine, 

shows Alcatel represented it could deploy a 3G network even though Alcatel knew, or 

was reckless in not knowing, it did not have sufficient resources in the United States to 

deploy a 3G network. The district court granted summary judgment on Pine’s fraud claim 

based on its conclusion that statements of opinion or promises of future performance are 

insufficient to show fraud. The court reasoned that even if the promises of future 

performance later turned out to be untrue, Pine failed to provide any evidence that Alcatel 

knew the statements to be false when made or that it was reckless in making those 

statements. The court thus held Pine had failed to present a genuine issue as to essential 

elements of its fraud claim.7

 7

 Under Oklahoma law, the elements of fraud are: “1) a false material 

misrepresentation, 2) made as a positive assertion which is either known to be false or is 

made recklessly without knowledge of the truth, 3) with the intention that it be acted 
25 

We agree with the district court. Although Pine presents internal, post-2008 

Agreement emails expressing frustration with Alcatel’s U.S. resources, none of these 

emails suggest Alcatel’s sales team knew of these deficiencies at the time the parties 

entered the 2008 Agreement. And the only pre-2008 Agreement email Pine relies on 

expresses Alcatel’s opinion that deploying Pine’s network in the second quarter of 2009 

was a “reasonable timeframe.” Although the evidence suggesting Alcatel may have been 

hampered by a lack of resources is relevant to Pine’s breach of contract claim, it is 

insufficient to create a triable issue on whether Alcatel fraudulently induced Pine to enter 

the 2008 Agreement. See Citation Co. Realtors v. Lyon, 610 P.2d 788, 790 (Okla. 1980) 

(“There is a wide distinction between the nonperformance of a promise and a promise 

made mala fide, only the latter being actionable fraud.”). We therefore affirm the district 

court’s grant of summary judgment on Pine’s fraudulent inducement claim. 

c. Pine failed to adequately plead constructive fraud.

Pine also argues the district court erred in rejecting its constructive fraud claim as 

inadequately pled.8

 The district court held Pine had failed to plead its constructive fraud 

claim with particularity. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party 

 

upon, and 4) which is relied on by the other party to his (or her) own detriment.” Bowman 

v. Presley, 212 P.3d 1210, 1218 (Okla. 2009). 

8

 More precisely, Pine argues it sufficiently pled both constructive fraud and 

negligent misrepresentation. Under Oklahoma law, constructive fraud “may be based on 

a negligent misrepresentation or an innocent misrepresentation where there is an 

underlying right to be correctly informed of the facts. Croslin v. Enerlex, Inc., 308 P.3d 

1041, 1046 (Okla. 2013), reh’g denied (Aug. 7, 2013). In other words, negligent 

misrepresentation is one type of constructive fraud, and therefore we consider Pine’s 

negligent misrepresentation and constructive fraud claims together. 
26 

must state with particularity the circumstances constituting fraud or mistake.”); see also 

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000) (explaining that under 

Rule 9(b), the pleading must “set forth the time, place and contents of the false 

representation, the identity of the party making the false statements and the consequences 

thereof” (internal quotation marks omitted)). Specifically, the district court ruled Pine 

failed to plead duty and concealment, which are essential elements of constructive fraud. 

See Howell v. Texaco Inc., 112 P.3d 1154, 1161 (Okla. 2004) (“Constructive fraud is the 

concealment of a material fact by one who has a duty to disclose.”). 

In challenging this ruling, Pine points to portions of its First Amended Complaint 

alleging that Alcatel’s representations were “made recklessly,” that Pine “reasonably 

relied upon Alcatel’s representations and promises,” and that Pine suffered damage as a 

result. It also pled “[i]n the alternative, Alcatel’s representations, recommendations, and 

installation services were negligent and caused Pine to suffer damages.” Id. Absent from 

these allegations is any mention of duty or concealment of a material fact, which are 

essential elements of constructive fraud. We therefore affirm the district court’s ruling 

that this claim was inadequately pled. 

To summarize, we reverse in part and affirm in part the district court’s grant of 

summary judgment in favor of Alcatel. Pine presented sufficient evidence to raise a 

genuine issue of material fact of whether Alcatel breached the 2008 Agreement by not 

delivering an operational 3G network. We therefore reverse the district court’s grant of 

summary judgment on Pine’s breach of contract claim. But we affirm the district court’s 

grant of summary judgment on Pine’s breach of express warranty claim and its 
27 

conclusion that the Supply Agreement’s disclaimer of consequential damages is 

enforceable. We also affirm the district court’s grant of summary judgment to Alcatel on 

Pine’s fraud claims. 

B. Denial of Motion for Leave to Amend Complaint 

Pine next contends the district court abused its discretion in denying its motion for 

leave to amend. The district court denied Pine’s motion on the basis that it was untimely.9

We review a denial of a motion for leave to amend for an abuse of discretion. Duncan v. 

Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005). 

Although Federal Rule of Civil Procedure 15 indicates leave to amend should be freely 

given “when justice so requires,” Fed. R. Civ. P. 15(a)(2), a court may refuse leave to 

amend “on a showing of undue delay.” Duncan, 397 F.3d at 1315 (internal quotation 

marks omitted). In this circuit, “untimeliness alone is an adequate reason to refuse leave 

to amend.” Id. Here, Pine filed its motion to amend two years into the litigation and after 

the deadline for amended pleadings had passed. The district court acted within its 

discretion in denying Pine’s motion as untimely. We therefore affirm this decision. 

C. Exclusion of Pine’s Expert Witness 

Finally, Pine contends the district court abused its discretion in excluding the 

testimony of its proffered expert, Jonathan Reeves. The district court ruled that 

Mr. Reeves’s expert report was inadmissible because Pine failed to timely identify 

 9

 The district court further ruled that even if the motion had been timely, granting 

it would be futile because Pine’s opposition to summary judgment failed to raise a 

genuine issue of fact for trial. Because we rule that the district court was within its 

discretion in denying Pine’s motion for leave to amend on the basis that it was untimely, 

we need not address whether it was also futile. 
28 

Mr. Reeves as an expert, his report failed to comply with Federal Rule of Civil Procedure 

26(a)(2)(B), and his opinions were purely conclusory. We review for an abuse of 

discretion a district court’s decision to exclude expert testimony. Proctor & Gamble Co. 

v. Haugen, 427 F.3d 727, 742 (10th Cir. 2005). 

Federal Rule of Civil Procedure 26(a)(2)(D) requires disclosures to be made “at 

the times and in the sequence that the court orders.” On appeal, Pine argues it timely 

disclosed Mr. Reeves because Pine intended Mr. Reeves to serve as a rebuttal witness, 

and therefore Pine was not required to identify him on the disclosure deadline for experts 

in chief. Pine did not argue this distinction in the district court. Pine also failed to 

demonstrate before the district court and on appeal that Mr. Reeves’s report met the 

substantive requirements of Rule 26. See Fed. R. Civ. P. 26(a)(2)(B) (requiring parties to 

provide as to an expert witness a description of all opinions of the expert and the basis for 

them, the facts or data considered by the expert, a list of any exhibits the expert will use, 

a description of the expert’s qualifications, a list of other cases the expert has participated 

in, and a statement of the expert’s compensation). 

 Because Pine’s brief on appeal lacks any discussion of how Mr. Reeves’s report 

meets the specific requirements of Rule 26(a)(2)(B), we affirm the district court’s 

decision to exclude Mr. Reeves. 

IV. CONCLUSION 

We affirm in part and reverse in part the district court’s grant of summary 

judgment to Alcatel. Pine presented sufficient evidence to raise a genuine issue of 

material fact on whether Alcatel breached the 2008 Agreement. We therefore reverse the 
29 

grant of summary judgment on this claim and remand to the district court for further 

proceedings consistent with this opinion. But we affirm the district court’s grant of 

summary judgment as to Pine’s breach of express warranty claim, Pine’s claim that it is 

entitled to consequential damages, and Pine’s fraud claims. We also affirm the district 

court’s denial of Pine’s motion for leave to amend and its exclusion of Pine’s expert. 

 ENTERED FOR THE COURT 

 Carolyn B. McHugh 

 Circuit Judge