UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LEPRINO FOODS COMPANY, Plaintiff - Appellant,

v. DCI, INC., Defendant - Appellee. No. 17-1031 (D.C. No. 1:13-CV-02430-RM-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

________________ _________________ This appeal involves DCI, Inc.’s sales of crystallizer tanks to Leprino Foods Company. Years after the sa les, the tanks corroded and Leprino sued DCI for breach of warranty and negligent nondisclosure. The district court granted summary judgment to DCI in this diversity action, concluding that (1) the breach-of-warranty claims were barred by the statute of limi tations and (2) the claims of negligent nondisclosure failed because Lepri no had not shown a duty to disclose. The breach-of-warranty claims are time -barred if the claims accrued upon delivery of the tanks. Leprino argues that the claims accrued only after delivery because the sale contracts had guaranteed the tanks’ condition beyond the delivery

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 1, 2018
Elisabeth A. Shumaker Clerk of Court2 dates. We disagree. Accrual can be delayed only by e xplicitly guaranteeing performance up to a future date or event, and no such guarantee existed here. Thus, DCI was entitled to summary judgment on the breach-of-warranty claims. For claims of negligent non disclosure, liability require s a duty to disclose. But Leprino has failed to demonstrate DCI had a duty to disclose. Thus, DCI was entitled to summary judgment on the claims of negligent nondisclosure. For these reasons, we AFFIRM the aw ard of summary judgment to DCI.
I Leprino manufactures and sells dairy products. To manufacture the dairy products, Leprino purchased stainless steel tanks fro m DCI for use as lactose crystallizers. In 2001, Leprino agreed to buy fourteen tanks (the “2001 Agreement”); these tanks were delivered in 2003. In 2007, Leprino bought twelve more (the “2007 Agreement”); these tanks were delivered in 2009. All twenty-six tanks were nearly identical. They are each approximately twenty-six feet in height and hold ten thousand gallons. The first fourteen tanks have an ou ter jacket made of “304 stainless steel,” while the la tter twelve tanks have an outer jacket made of “2101 Duplex steel.” All twenty-six tanks have an inner sidewall made of 304 stainless steel, and insulation (between the inner si dewall and the outer jacket) made of threeinch expanded polystyrene and one-inch fiberglass. Crystallizer tanks are susceptible to cracking and corrosion from chlorides found in the insulation between the inner sidewall and the outer jacket. To help3 prevent this, DCI applied a single barrier coat of “Thurmalox 70 silicone” to the exterior surface of the inner sidewall of all 26 tanks. The coating was meant to “resist[] chloride-induced stress cracking and corrosi on result[ing] from water leaching of soluble chlorides from insu lation at operating temperatures over 150 o F.” Vol. I at 54. In addition, the move to 2101 Duplex steel for the 2007 Agreement was in response to DCI’s recomm endation that “[t]he duple xes are excellent against chloride pitting and stress corrosion cracking.” Vol. V at 854. Both the 2001 Agreement and the 2007 Agreement included the same warranty provisions. Section 6.3 st ates, in relevant part: All goods, materials and equipment furnished under this Agreement will be fit for the purpos e intended as specified in the Agreement, of good quality, new, free from faults and defects (whether patent or latent) in material or workmanship and in conformance with this Agreemen t (which includes all exhibits attached hereto). . . . The provisions of this Paragraph shall survive acceptance of the Equipment by Leprino, and shall run to Leprino’s successors, assigns, cust omers and users of Leprino’s product. The provisions of this Paragraph shall not be deemed waived by reason of Leprino’ s inspection, acceptance or payment. Vol. I at 45, 63. Section 6. 4 states, in relevant part: In addition to all other warrantie s made by Seller for the benefit of Leprino, Seller agrees that fo r a period of twelve months from and after the date of Final Completion, the Equipment is guaranteed to be and remain free from defects in material and workmanship under normal and prope r use. If the Equipment (or any portion thereof), fails thro ugh defect in material or workmanship during such one year period, Seller will repair or replace such defective portion of the Equipment free of charge at the Property. Nothing containe d in this Paragraph shall be construed to establish a period of limitation with respect to other obligations which the Seller might have under this Agreement.4 Establishment of the time period of one year as described in this Paragraph relates only to the sp ecific obligation of Seller to correct the Work[.] Id. at 45–46, 63. In May 2012, Leprino notified DCI that some of the tanks had developed cracks. After some discussion, DCI info rmed Leprino that the likely cause was chloride stress corrosion cracking. In June 2012, Leprino personnel performed inspections inside all twenty-s ix tanks, and found cracks or l eaks in twenty of them. On September 6, 2013, Le prino filed suit against DC I in the United States District Court for the Distri ct of Colorado, alleging dive rsity jurisdiction. Leprino asserted the following claims: 1) breach of contract a nd express warranties under the 2001 Agreement; 2) breach of contract and express warranties under the 2007 Agreement; 3) negligent nondisclosure in the 2001 Agreement; 4) negligent nondisclosure in the 2007 Agreement; and 5) negligent misrepresentation in the 2007 Agreement. 1 On May 4, 2016, Leprino filed its motion for partia l summary judgment, and DCI filed its motion for summary judgment. On January 3, 2017, the district court issued a memorandum and order granting DCI’s motion for summary judgment and denying Leprino’s motion for partial su mmary judgment, reasoning that (1) the breach-of-warranty claims we re untimely because the fu ture-performance exception did not apply and (2) the claims of neglig ent nondisclosure failed because DCI had no duty to disclose. Leprino appeals, and we affirm.

1 The claim for negligent mi srepresentation is not at issue in this appeal.5 II We review de novo the district court’s grant of summary judgment, drawing all reasonable inferences and resolving all factual disputes in favor of Leprino. Birch v. Polaris Indus. , 812 F.3d 1238, 1251 (10th Cir. 2015) . In conducting de novo review, we apply Colorado substantive law. Etherton v. Owners Ins. , 829 F.3d 1209, 1223 (10th Cir. 2016). Our aim is to reach the same conclusi on that the Colorado Supreme Court would have reached if con fronted with the same issue. Id. If that court has not spoken on an issue, we cons ider opinions by Colorado’s inte rmediate appellate court, appellate courts in other states, and the District of Colorado. Specialty Beverages v. Pabst Brewing , 537 F.3d 1165, 1173-74 (10th Cir. 2008). We use these sources to predict what the Colorado Supreme Court would do if confronted with the same issue. See id . at 1174.
III A. The breach-of-warranty claims. The district court concluded that Le prino’s breach-of-warranty claims were time-barred. We agree. In Colorado, in suits invo lving contracts for sale, a “cause of action accrues when the breach occurs, regard less of the aggrieved party’ s lack of knowledge of the breach. A breach of warranty o ccurs when tender of delivery is made[.]” Colo. Rev. Stat. (“C.R.S.”) § 4-2-725(2). Normally, the statute of limitations for breach-ofwarranty claims begins running once the product is delivered, and at most, the6 limitations period here was three years. 2 Leprino sued more than three years after delivery. Thus, under the default rule, th e limitations period had expired on the breach-of-warranty claims before Leprino sued. Although accrual ordinarily occurs wh en the goods are delivered, an exception exists when “a warranty explicitly extends to future performance of the goods and discovery of the breach must awa it the time of such performance.” Id. If the exception applies, the claims accrue when the breaches were discovered or should have been discovered. Id . This exception is known as the “future-performance exception.” Colorado courts have narrowly applie d the future-perfo rmance exception, requiring that the warranty (1) guarantee pe rformance of the goods and (2) explicitly extend to a specific time or event in the future. See Boyd v. A.O. Smith Harvestore Prods. , 776 P.2d 1125, 1128 (Colo. App. 1989); Smith v. Union Supply Co. , 675 P.2d 333, 335 (Colo. App. 1983); Glen Peck, Ltd. v. Fritsche , 651 P.2d 414, 415 (Colo. App. 1981). The warranties here fa il to meet this narrow exception. 1. The warranties must guarantee performance. The warranty must be the right kind of warranty. Generally, there are two types of warranties that arise in this context: warranties to repair or replace and warranties for future performan ce. “The key distinction between these two kinds of

2 Before the district court, the par ties disputed whether the appropriate limitations period was two or three years. The difference is immaterial—Leprino filed suit more than three years after de livery, meaning the default rule bars Leprino’s claims under e ither limitations period.7 warranties is that a repair or replacement warranty merely provides a remedy if the product becomes defective, while a warranty for future performance guarantees the performance of the product itself for a stated period of time.” Boyd , 775 P.2d at 1128-29 (quoting Ontario Hydro v. Zallea Sys., Inc. , 569 F. Supp. 1261, 1266 (D. Del. 1983)). Unsurprisingly, the future pe rformance exception applies to the latter, not the former. Id. at 1128 (holding “a warranty fo r future performance must expressly provide a guarantee that the pr oduct will perform as promised in the future” rather than promise to repair or replace). It is possi ble, however, for a warranty to do both , and in such circumstances th e exception would still apply. Smith , 675 P.2d at 335. 2. The warranties must extend to a sp ecific time or event in the future. The future performance exception requires that a warranty “e xplicitly extends to future performance of the goods.” C.R. S. § 4-2-725(2). This means that the warranty must be both “prosp ective” and “explicit.” Glen Peck , 651 P.2d at 415. In cases where a warranty was both prospective and explicit, and thus met the future performance exception, the warra nty specified a future even t or a future period of time. See id. (specific future event); Smith , 675 P.2d at 334 (speci fic future period of time). Glen Peck involved the sale of two breed ing bulls. The sales agreement contained an express warrant y that “any bull Fourteen ( 14) months of age or over [would] prove a breeder after being used on cows known to be breeders.” 651 P.2d at 415. The Colorado Court of Appeals c oncluded the warranty was sufficiently8 “prospective” because it prom ised performance “not only at the moment of purchase but at some future date as well.” Id. And the warranty was sufficiently “explicit” because it was “adequately st ated so that there was no do ubt as to its meaning.” Id.
In Boyd , a case in which a warranty promised to repair or replace rather than guaranteed future performance, the court noted that “[t] he key distinction between these two kinds of warranties is that a repair or replacement warranty merely provides a remedy if the product becomes de fective, while a wa rranty for future performance guarantees the performance of th e product itself for a stated period of time.” 776 P.2d at 1128 (quoting Ontario Hydro , 569 F. Supp. at 1266) (emphasis omitted). Once again, a Colo rado court identified that e xpressing “a stated period of time” is “key” to mee ting the future performance exception. Leprino argues Glen Peckdid not require specificati on of a future date or event for the future-perfo rmance exception to be “p rospective.” But this interpretation disregards Glen Peck ’s reasoning: Glen Peckconcluded that the futureperformance exception applied only because th e warranty had explicitly extended to a specific future event (use of the bulls for breeding). See 651 P.2d at 415. Thus, Glen Peckconfirms the need for the warranty to explicitly exte nd to a specific date or event in the future. 3

3 Glen Peckdoes not explicitly require a warranty to extend to a specific date or event in the future. Instead, Glen Peck treats a warranty extendi ng to a future date or event as sufficient to satisfy the future-pe rformance exception. But Glen Peckdoes not suggest any other way to satisfy the fu ture-performance exception. Thus, based on Glen Peck , we interpret Colorado law to conf ine the future-per formance exception to warranties that extend to a specifi c date or event in the future.9 In fact, most courts have limited the exception to warranties that explicitly extend performance to a da te after the delivery. See, e.g. , Econ. Hous. Co. v. Cont’l Forest Prods. , 805 F.2d 319, 321 (8th Cir. 1986) (“The overwhelming weight of authority requires a buyer like Economy to prove that its seller sp ecifically warranted the product for a defined period of time in the future.”); Standard All. Indus. v. Black Clawson Co. , 587 F.2d 813, 820 (6th Cir. 19 78) (“[A]n express warranty which makes no reference at all to any future date should not be allowed to extend past the limitations period.”); LTL Acres L.P. v. Butler Mfg. , 136 A.3d 682, 687 (Del. 2016) (“To be explicit, the warra nty must be unambiguous, and will normally ‘indicate that the manufacturer is warranting the future performance of the goods for a specified period of time.’” (quoting R.W. Murray Co. v. Shatterproof Glass Corp. , 697 F.2d 818, 823 (8th Cir. 1983))); Safeway Stores, Inc. v. Certainteed Corp. , 710 S.W.2d 544, 548 (Tex. 1986) (“For an express warran ty to meet the exce ption, it must make specific reference to a specifi c date in the future.”). Based on Glen Peckand the approach of most cour ts addressing the issue, we conclude that Colorado’s future-perform ance exception applied only if the warranty had explicitly extended to a specific date or event in the future. 3. The warranties here do not satisfy the future-performance exception. Leprino argues that three sentences in Section 6.3, taken together, meet the future performance exception. First, Leprino claims Sec tion 6.3 guarantees performance:10 All goods, materials and equipment furnished under this Agreement will be fit for the purpos e intended as specified in the Agreement, of good quality, new, free from faults and defects (whether patent or latent) in material or workmanship and in conformance with this Agreement[.] Vol. I at 45, 63. Second, after listing several other provisions , Section 6.3 arguably guarantees that performance in the future: The provisions of this Paragra ph shall survive acceptance of the Equipment by Leprino, and shall run to Leprino’s successors, assigns, customers and users of Leprino’s pr oduct. . . . [DCI] shall protect, defend, indemnif y and hold harmless Leprino from . . . claims, demands, lie ns . . ., losses, cost s, and expenses . . ., and ‘liabilities’ (as defined in Paragraph 7.2) of any kind or nature which result from or are in connection with or arising out of any breach of expressed or im plied warranties as specified in this Agreement hereunder. Id. Because Section 6.3 does not offer any speci fic future event or date to limit the warranty, Leprino asserts that Section 6.3 creates a warranty that lasts “indefinitely.” Opening Br. at 20. To support this assertio n, Leprino identifies f our parts of Section
6.3: 1. The warranties expressl y covered late nt defects. 2. The warranties surviv ed acceptance of the tanks. 3. The warranties ran to Le prino’s successors, assigns, customers, and users. 4. DCI promised to defend an d indemnify Leprino for claims arising out of a breach of the warranties. Leprino’s first three arguments fail because the warranty language did not explicitly extend the guarantee of performance to a sp ecific date or even t in the future.11 Leprino’s last argument fails because the promise to defend or indemnify did not guarantee performance of the goods themselves.
First , the warranties stated th at the tanks would be “free from faults and defects (whether patent or latent).” Vol. I at 45, 63. Leprino argues that this language extended the warranties to future performance because latent defects appear only after purchase and are not discove rable through reasonable inspection. See Cosmopolitan Homes v. Weller , 663 P.2d 1041, 1045 (Colo. 1983) (en banc) (defining a latent defect). Although latent defects a ppear after delivery, disc overy and performance entail different matters. Regardless of when th e breach becomes discove rable, the futureperformance exception applies only if the warranties explicitly extend performance to a specific date or event in the future. The warranties here failed to explicit ly extend the guarantee of performance notwithstanding the coverage of latent de fects. With no explicit extension to a specific date or event in the future, the warranties gua ranteed only that the tanks would be free of defects when delivered, re gardless of when the defect could be reasonably discovered. Because the protection against latent defects did not explicitly extend performance of the goods to a specific date or event in the future, the contractual language did not trigger th e future-performance exception. Second , the warranties also provided that th ey would “survive acceptance of the Equipment by Leprino” and would “not be deemed waived by reason of Leprino’s inspection, acceptance or payment.” Vol. 1 at 45, 63. The district court concluded12 that this language served only to allo w Leprino to enforce the warranties after accepting the goods. Leprino di sagrees, arguing that the “survive acceptance” language must extend the warranties to fu ture performance because the district court’s interpretation would give the same meaning to both phras es (“shall survive acceptance of the equipment by Leprino” a nd “shall not be deemed waived by reason of Leprino’s inspection, acceptance or payment”). The problem with Leprino’s argument is that the “survive acceptance” language did not explicitly extend th e warranties to fu ture performance. See Glen Peck , 651 P.2d at 415 (noting that an explicit guarantee of future performance leaves “no doubt as to its meaning”). Because the “survive acceptance” clause did not explicitly extend to future performance, this clause di d not trigger the futureperformance exception. Third , the warranties provided that they would “run to Leprino’s successors, assigns, customers and users of Leprino’s product.” Vol. 1 at 45, 63. This clause did not explicitly extend the warranties to fu ture performance. Instead, the clause addressed only who c ould sue for breach of the warranty. Leprino argues that this interpretation is absurd, but we see nothing about this interpretation that is absurd , or even unusual. If anot her company acquired Leprino and discovered a breach of warranty within the three-y ear period of limitations, this clause would allow the succes sor to bring a breach-of-warra nty claim against DCI. In this manner, the clause extended who c ould enforce the warranties but did not explicitly extend the warrantie s to future performance.13 Fourth , DCI promised to “protect, defend, indemnify and hold harmless Leprino from any and all damages . . . , clai ms, demands, liens . . . , losses, costs and expenses . . . , and ‘liabilitie s’ (as defined in Paragraph 7.2)” arising from a breach of warranty. Id . Leprino argues that this language explicitly extended the warranties to future performance because Paragraph 7.2 st ated that the indemnification provisions would “survive Final Comple tion of the Work.” The work was not completed until the tanks met certain standards. As a re sult, Leprino asserts that the warranties extended the guarantee to so me date after delivery. We disagree. DCI was simply guaran teeing that it would defend and indemnify Leprino if the products failed ; the language did not guarantee continued performance of the products themselves. Cf. Boyd , 776 P.2d at 1128 (holding that a repair-or-replace warranty does not guarant ee performance, only that the seller would repair or replace the product if it failed to perform). Because the warranties did not guarantee performance of the goods, DCI’s pr omise to defend and indemnify Leprino did not trigger the future-performance exception. 4. Potential ambiguity in the wa rranty language would not justify denial of summary judgment. The warranties did not explicitly extend to future performance. But Leprino argues that even if the scope of the warranties had been ambiguous, summary judgment would be inappropriate based on a triable issue of fact on the parties’ intent.14 In determining whether warranties explic itly extend to future performance, we are considering a mixed que stion of law and fact. W. Recreational Vehicles v. Swift Adhesives , 23 F.3d 1547, 1550 (9th Cir. 1994). A mixed question of law and fact can be resolved on summary judgment if reasonable minds cannot differ. Resolution Tr. v. Fed. Sav. & Loan Ins. , 25 F.3d 1493, 1502 (10th Cir. 1994). Though ambiguity ordinarily suggests a factual issue, 4 the opposite is true here because the warranty language had to be “e xplicit” to trigger th e future-performance exception. By definition, the warranty la nguage could not be “explicit” if it was ambiguous. Webster’s II New Riverside University Dictionary 455 (1994) (defining “explicit” as “[e]xpressed wit hout vagueness or ambiguity”); see also Glen Peck , 651 P.2d at 415 (concluding that an explicit guara ntee of future performance leaves “no doubt as to it s meaning”). Thus, ambiguity in the warranty language would prevent application of the future-performan ce exception as a matter of law. See Joswick v. Chesapeake Mobile Homes, Inc. , 765 A.2d 90, 95 (Md. 2001) (stating that ambiguity weighs against the future -performance exception). Because the warranties di d not explicitly extend to future performance, summary judgment was appropriate becau se the statute of limitations barred Leprino’s breach-of-warranty claims.

4 See Dorman v. Petrol Aspen, Inc. , 914 P.2d 909, 912 (Colo. 1996) (“[O]nce a contract is determined to be ambiguous, the meaning of its terms is generally an issue of fact to be determined in the same manner as other disput ed factual issues.” (quoting Union Rural Elec. Ass’n v. Pub. Utils. Comm’n , 661 P.2d 247, 251 n.5 (Colo. 1983))).15 B. The negligent no ndisclosure claims. Leprino’s negligent nondisclosure claims rely on the Restatement (Second) of Torts (the “Restatement”) § 551. Opening Br. at 29; see also Poly Trucking, Inc. v. Concentra Health Servs., Inc. , 93 P.3d 561, 564 (Colo. A pp. 2004) (citing § 551 to determine whether the defenda nt had a duty to disclose under a claim for fraudulent nondisclosure). 5 Section 551(2) provides five scenar ios under which a party has a duty to disclose. See § 551(2)(a)-(e) (detailing each instan ce in a separate subsection). Before the district court, Leprino argued that DCI had a duty to disclose under subsections (a), (b), and (e ), but on appeal, only argues fo r subsections (b) and (e). Section 551(2) provides, in relevant part: (2) One party to a business trans action is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,

. . . (b) matters known to him that he knows to be necessary to prevent his partial or ambi guous statement of the facts from being misleading; and

. . .

5 Although Colorado courts have adopted the Restatement § 551 to determine whether a defendant has a duty to disclose as part of a fraudulent nondisclosure claim, Colorado courts have yet to adopt the Restatement § 551 for negligent nondisclosure claims. In fact, it is unclear whether a claim for negligent nondisclosure is viable at all in Colorado. See Sheffield Servs. Co. v. Trowbridge , 211 P.3d 714, 725 (Colo. App. 2009) (“In our analysis we assume, but decline to decide . . . a claim fo r negligent nondisclosure would be viable.”), overruled on other grounds by Weinstein v. Colborne Foodbotics, LLC , 302 P.3d 263, 268-69 (Colo. 2013). Because the parties do not dispute either that a ne gligent nondisclosure claim is viable or that the Restatement § 551 app lies, we assume for the purposes of this appeal that Colorado both recognizes negl igent nondisclosure claims and applies § 551 to define a duty to disclose.16 (e) facts basic to th e transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the re lationship between them, the customs of the trade or the other objective circumstances, would reasonably expect a di sclosure of those facts. The district court granted summary j udgment against Leprino, holding that Leprino failed to establish that DCI had a duty to disc lose under any subsection of § 551(2). Because “[w]hether a defendant had a duty to disclo se a particular fact is a question of law,” Berger v. Sec. Pa c. Info. Sys., Inc. , 795 P.2d 1380, 1383 (Colo. App. 1990), we review the dist rict court’s d ecision de novo. We first address whether the district court properly considered the duty to disclose question, and then turn to the me rits of Leprino’s ar guments under sections 551(2)(b) and 551(2)(e). 1. The district court properly considered the duty to disclose argument. Leprino argues that DCI’s motion for summary judgment “did not challenge this element, and thus the burden neve r shifted to Leprino in opposing DCI’s motion.” Opening Br. at 28 (citation omitted). Although we agree that DCI’s motion did not challenge the duty to disclose element, we concl ude that the district court properly reached this question because Le prino cured the issue by presenting the totality of its eviden ce in its response. And, even as suming the district court erred, Leprino has failed to prove any pr ejudice resulting from that error. Summary judgment is warranted “agains t a party who fails to make a showing sufficient to establish the exis tence of an element essential to that party’s case.”17 Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Although a moving party “always bears the initial res ponsibility of informing the dist rict court of the basis for its motion,” id. at 323, “the burden on the movi ng party may be discharged by ‘showing’—that is, pointing out to the distri ct court—that there is an absence of evidence to support the nonmoving party’s case,” id. at 325. In most instances wher e the moving party (typically , the defendant) fails to identify the absence of evidence to suppor t an element of the nonmoving party’s case, summary judgment—premised on the l ack of evidence for that element—is inappropriate. For example, we have explained: To be sure, there is one situati on in which the [plaintiffs] would have no burden to show the merits of a nondisclosure claim based on one or more of the five alte rnative circumstances [in Colorado law]. If [the plaintiffs] had rais ed such a claim in district court and the [defendant’s] motion fo r summary judgment had not presented argument and evidence showing that the claim lacked merit, summary judgment would ha ve been inappropriate. After all, it is not the party opposi ng summary judgment that has the burden of justifying its claim; the movant must establish the lack of merit. Alpine Bank v. Hubbell , 555 F.3d 1097, 1110 (10th Cir. 2009). In such a scenario, the nonmoving party does not then bear a burden to present evidence supporting an unchallenged element of its case. But, a “plaintiff confronted with such a facially defici ent motion sometimes cures defendant’s error by unde rtaking to set forth the tota lity of its ev idence in its opposition papers.” Nick’s Garage, Inc. v. Pr ogressive Cas. Ins. Co. , 875 F.3d 107, 116 (2d Cir. 2017). “Assessing the sufficiency of the evidence thus set forth, a court18 might conclude that there is no dispute ov er material fact a nd that defendant is entitled to judgment as a matter of law.” Id. When DCI moved for summary judgment against Leprino, DCI included only a passing mention to Leprino’s failure to prove DCI had a duty to disclose—an essential element of Leprino’s nondisclosure claim. Vol. I at 116. Specifically, DCI’s motion stated: Leprino made only vague alle gations of concealment or misrepresentation in its Complain t, claiming “DCI had reason to suspect that there were defects in the design and/or fabrication of its Tanks which would render th em unfit for Leprino Foods’ intended purpose,” and that DCI ha d a duty to disclose its alleged concerns to Leprino prior to th e parties’ execution of the 2001 and 2007 Agreement[s]. Id. (quoting the complaint). Given DCI’s failure to raise the duty to disclose issue in it s moving papers, the burden did not shift to Lepri no, and Leprino did not have to respond to an argument that DCI arguably forfeited. See Alpine Bank , 555 F.3d at 1110. On appeal, Leprino—in a single sentence—makes this exact argument: “DCI’s moving papers did not challenge [the duty to disclose] elem ent, and thus the burden never shifted to Leprino in opposing DCI’s motion.” Opening Br. at 28 (citation omitted). But, Leprino “cure[d] [DCI]’s error by undertaking to set forth the tota lity of its evidence in its opposition papers,” Nick’s Garage , 875 F.3d at 116, that DCI owed a duty to Leprino, by stating in its response: At all relevant times, DCI owed a duty of disclosure to Leprino because of the parties’ relations hip of trust and confidence, the historic relationship between them, and other objective19 circumstances. Leprino had purch ased equipment from DCI for decades prior to the ev ents at issue. DCI held itself out to Leprino and the public as expert in the design and manufacture of [lactose crystallizer s] to fit the custom ers’ intended uses. Consistent with its advertised “DCI Process,” DCI collected the information from Leprino it requested to custom design and manufacture [lactose crystallizers] to meet Leprino’s needs. DCI then provided Leprino with DCI’s “solutions to [Leprino’s] technical requirements” in the form of proposals recommending the materials of construction (i ncluding steel grade, insulation and Thurmalox 70) and the type of cooling medi um. Leprino also turned to DCI for guida nce following its discovery of discolored legs on one [lactose crystallizer] in October 2009, and again in May 2012 following Lepr ino’s discovery of cracks and leaks. Finally, DCI’s President acknowledged the parties’ special relationship to DCI’s management team. Vol. VI at 1122-23 (int ernal citations omitted). Though DCI’s initial motion did not addr ess the duty to disc lose, the district court granted summary judgment against Le prino, discussing Leprino’s evidence and holding that it was inadequate to support a duty to disclose. Id. at 1279-86. This was

not error. But, even assuming the district court erred, we do not reve rse for procedural errors when “the [appellants] ha ve failed to show prejudice.” Alpine Bank , 555 F.3d at 1115. In such a case, “[t]he district court’s failure does not entitle them to any relief.” Id. Here, Leprino does not indicate what additional evidence, if any, it would have provided to s upport DCI’s duty to disclose if DCI had robustly challenged the duty to disclose element. In fact, its entire argum ent before us rests on facts presented to th e district court. See, e.g. , Opp’n Br. at 30-31 (arguing DCI’s representations about Thurmalox 70 creat ed a false impression that required20 disclosure of additiona l facts to correct); id. at 32-33 (arguing DC I’s “relationship” with Leprino, based upon th eir past business transacti ons and DCI’s President’s remarks, created a duty to disclose). Because Lepri no has “failed to show any prejudice from the district court’ s failure,” “we grant no relief.” Alpine Bank , 555 F.3d at 1114. 6 2. Negligent nondisclosure under § 551(2)(b) Restatement § 551(2)(b) creates a duty to di sclose “matters known to [a party] that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading.” The comments to § 551 make clear that there are two instances when a st atement may be misleading unde r § 551(2)(b): (1) “when it purports to tell the whole truth and does not” and (2) when “made so ambiguously that it may have two interpretations, one of which is false.” Re statement § 551 cmt. g (commenting directly on § 551(2)(b)); see also Level 3 Commc’ns, LLC v. Liebert Corp. , 535 F.3d 1146, 1164 (10th Ci r. 2008) (applying Colorado law and § 551(2)(b),

6 In this particular case, holding ot herwise would simply waste judicial resources. We have the entire record befo re us, and on appeal, th e parties have fully briefed and argued the duty to disclose issue. Reversing and remanding to the district court would entail the parties making the exact same arguments on the exact same record in additional summary judgment briefs , or it would entail the district court permitting plaintiffs to proceed to trial on a deficient claim. If this same forfeiture is sue arises in another case, and the nonmoving party again cures the movant’s erro r, the district court there would have several options available to it. Among them would be to permit a dditional submissions under Federal Rule of Civil Pro cedure 56(e)(1), or to sua sponte give notice to the nonmoving party of a deficient claim under Rule 56(f)(3) before considering summary judgment on its own. But, given that this issue has been fully briefed and argued before us, we exercise our discretion to reach the merits of the duty to disclose issue.21 and concluding that a “refer [ence] to the six-minute batteries as ‘new’” was misleading because it was “amb iguous in that it can be unde rstood to represent one of at least two things: (1) that the batteries are brand-new, or (2) that the batteries are new only insofar as they are not the same as the old order of 15-mi nute batteries”). Here, Leprino argues DCI made the misl eading statements that Thurmalox 70: (1) “resists chloride-induced stress cr acking and corrosion result[ing] from water leaching of soluble chlorides from insula tion”; and (2) “resists chloride induced cracking and corrosion.” Opening Br. at 30-31 (quoting Vol I at 54, 69). DCI allegedly “knew when it made these statem ents that they woul d create the false impression that Thurmalox wo uld provide Leprino with ad equate protection against [corrosion].” Id. at 31. These statements, Leprino argues, created a duty “to disclose the fact that (i) a barrier coating may not ha ve been necessary in the first instance had DCI fabricated the [tanks] w ith a chloride-free insulati on, which was available and used by other DCI customers to reduce the risk of [corrosion] , or (ii) that the barrier coating should be used in conjunction with chloride-free insulation, a disclosure DCI made to other tank customers.” Id. Leprino does not argue that Thurmal ox 70 does not, in fact, help resist corrosion. Indeed, it is unc lear whether Leprino is argui ng that DCI’s statements “purport[] to tell the whole truth and do[] not” or that they are “made so ambiguously that [they] may have two in terpretations, one of which is false.” Restatement § 551 cmt. g.22 Under either argument, Leprino loses. Nothing about DCI’s statements “purports to tell the whole truth.” And the statements are not ambiguous; Thurmalox 70 resists corrosion under any reasonable interpretation. To succeed on this point, Leprino must argue that “resists corro sion” does not obviously mean “resists corrosion,” but could also mean “provides adequate protection, alone, to prevent corrosion.” That stretches DCI’s statements too far. 3. Negligent nondisclosure under § 551(2)(e) Section 551(2)(e) creates a duty to disclose “facts basic to the transaction, if he knows that the other is about to enter into it under a mistak e as to them, and that the other, because of the relati onship between them, the custom s of the trade or the other objective circumstances, would reasonably expect a disclosure of those facts.” This analysis has two subparts: (1 ) were the “facts basic to the transaction”; and (2) was there a “relationship” betw een the parties such that plaintiff “would reasonably expect a disclosure of those facts.” Facts basic to the transaction Comment j describes the m eaning of “basic facts”: A basic fact is a fact that is a ssumed by the parties as a basis for the transaction itself. It is a fact that goes to the basis, or essence, of the transaction, a nd is an important part of the substance of what is bargained fo r or dealt with. Other facts may serve as important and persuasive inducements to enter into the transaction, but not go to its essence. These facts may be material, but they are not basic. Restatement § 551 cmt. j. Comment k further explains when a fact is not basic: “When the facts are patent, or when the pl aintiff has equal opportunity for obtaining23 information that he may be expected to ut ilize if he cares to do so . . . there is no obligation to give aid to a bargaining antagonist[.]” Leprino argues that the nondisclosed fa cts (previously lis ted in Leprino’s argument for § 551(2)(b) nondisclosures) ar e “basic” to its tr ansaction with DCI because “DCI’s Tank proposals expressl y specified and ackno wledged that the [tanks] would be exposed to chlorides da ily from Leprino’s la ctose permeate, the City-provided cooling water, and DCI’s two layers of chloride-containing insulation.” Opening Br. at 32 (citations omitted). First, this argument shows that the fa cts were important, but not necessarily basic. Comment j establishes that basic facts go to the “es sence” of the transaction; it is possible for a fact to be “material” but not “basic.” The illustrations to comment j bear this out. Compare Restatement § 551 cmt. j, illus. 3 (“A sells to B a dwelling house, without disclosing to B the fact that the house is riddl ed with termites. This is a fact basic to th e transaction.”), with id. illus. 4 (“A sells to B a dwelling house, knowing that B is acting in the mistaken be lief that a highway is planned that will pass near the land and enhance its value. A does not disclose to B the fact that no highway is actually planned. This is not a fact ba sic to the transaction.”). Second, Leprino does not argue that th ese facts are not “p atent”—that Leprino could not, through its own i nvestigation, discover that ch loride-free insulation exists, or that Thurmalox 70 alone mi ght not provide adequate pr otection. Simply put, DCI is not under a duty to disclose every possi ble option Leprino could have purchased for its stainless steel tanks.24 Relationship between the parties Comment l to § 551 describes when a relationship is sufficient under § 551(2)(e): “In general, th e cases in which the rule stat ed in Clause (e) has been applied have been those in which the adva ntage taken of the plaintiff’s ignorance is so shocking to the ethical se nse of the community, and is so extreme and unfair, as to amount to a form of swindling, in which the plaintiff is led by appearances into a bargain that is a trap, of whose essence a nd substance he is una ware.” Restatement § 551 cmt. l. For example, “a seller who k nows that his cattle are inf ected with tick fever or contagious abortion is not free to unload th em on the buyer and take his money, when he knows that the buyer is unaware of the fact, could not easily discover it, would not dream of entering into the bargain if he knew and is relying upon the seller’s good faith and common honesty to disclose any such fact if it is true.” Id. In Colorado, “when parties are deali ng as vendor and vendee they deal at arm’s length.” Mallon Oil Co. v. Bowen/ Edwards Assocs., Inc. , 965 P.2d 105, 112 (Colo. 1998) (quoting Williams v. Wagers , 184 P.2d 497, 500 (C olo. 1947)) (refusing to conclude “a special rela tionship” existed under § 551(2)(e) where the parties dealt as vendor and vendee, even though the defe ndant’s employee “played integral roles” in “negotiating” and “encour aging” the transaction). Leprino argues that such a relations hip existed with DCI because their relationship was “long-standing.” Opening Br . at 32. This is irrelevant. The transaction here is not a case where “the advantage taken of the plaintiff’s ignorance25 is so shocking to the ethical sense of the community, and is so ex treme and unfair, as to amount to a form of swindling, in whic h the plaintiff is led by appearances into a bargain that is a trap, of whose essence a nd substance he is una ware.” Restatement § 551 cmt. l. Leprino and DCI dealt as vendor and vendee. They were sophisticated businesses dealing at “arm’s length.” See Mallon Oil Co. , 965 P.2d at 112. Leprino has shown nothing to overcome this defaul t rule in Colorado law, meaning that no special relationship exis ted under § 551(2)(e). Because Leprino presented the tota lity of its eviden ce regarding DCI’s purported duty to disclose, a nd still failed to establish DCI had such a duty, summary judgment was appropriate against Leprino’s nondisclosure claims.
IV The breach-of-warranty claims are time -barred because the warranties do not explicitly extend to future performance, and the claims of negligent nondisclosure fail because DCI had no duty to disclose. 7 Accordingly, we affirm the grant of summary judgment to DCI.

Entered for the Court
Mary Beck Briscoe Circuit Judge

7 Because we conclude that DCI did not have a duty to disclose, we need not address DCI’s alternative argument for af firmance under the economic-loss rule.Leprino Foods Co. v. DCI, Inc. , No. 17-1031 BACHARACH , J., concurring in part and dissenting in part. This case involves claims of breach of warranty and negligent nondisclosure arising from the sale of crystallizer tank s. Leprino Foods Company appeals the district court’s grant of summary judgment to DCI, Inc., and the majority affirms on all claims. I concur with the majority’s affi rmance on the wa rranty claims. In my view, however, DCI wa s not entitled to summa ry judgment on the claims of negligent nondisclosure. The district court rule d that Leprino had failed to show a du ty of disclosure, but DCI’s summary-judgment motion had not raised this issue in district court. Thus, the burd en to show a duty never shifted to Leprino. And in the absence of a burden shift, summary judgment could not be granted based on Leprino’s failure to show a duty of disclosure. DCI also urges an alternative basi s to affirm on the claims of negligent nondisclosure, invoking the economic-loss rule. I would reject DCI’s alternative argument because the claims arose from a duty outside of the contracts. Accordingly, I resp ectfully dissent on the majority’s treatment of the claims of negligent nondisclosure.
I. Leprino had no burden to pres ent evidence of a duty of disclosure. Summary judgment is ordinarily appropriate for the defendant if the plaintiff “fails to make a showing suffic ient to establish th e existence of an2 element essential to that party’s case.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). But this showing is required on ly if the defendant demonstrates “the abse nce of a genuine issue of material fact and entitlement to judgment as a matter of law.” Split Rail Fence Co. v. United
States , 852 F.3d 1228, 1237 (1 0th Cir. 2017). The Supreme Cour t explained in Celotex Corp. v. Catrett that the burden shifts to the plaintiff only if the defendant informs the district court of the basis for summary judgment and identifies materials that would preclude a genuine issue of material f act. 477 U.S. at 322 . This burden is satisfied by showing the district cour t that there is a lack of evidence supporting the plai ntiff’s claim. Id. at 325. If the defend ant fails to satisfy its initial burden , the burden never shifts to the plaintiff. See Alpine Bank v. Hubbell , 555 F.3d 1097, 1110 (10th Cir. 2009); 1 cf. Tavery v. United
States , 32 F.3d 1423, 1427 n.5 (10th Cir. 1994) (refusing to affirm the

1 There we explained: To be sure, there is one situation in which the [plaintiffs] would have no burden to show the merits of a nondisclosure claim [b ased on Colo rado’s five ways to establish a duty of disclosure]. If [the plaintiffs] had raised such a claim in district court and the [defendant’s] motion for summary judgment had not presented argument and evidence showing that the claim lacked merit, summary judgment would have been inappropri ate. After all, it is not the party opposing summary judgment that has the bu rden of justifying its claim; the movant must establish the lack of merit. Hubbell , 555 F.3d at 1110.3 award of summary judgment on an alternative gr ound because the moving party had not raised the is sue in district court, fa iling to put the nonmoving party on notice of a duty to pr esent evidence on the issue). DCI asserted at oral argument that the summary-judgment motion had alleged a failure to show a duty of di sclosure. DCI’s assertion fails for two

reasons: 1. The argument was first ma de in oral argument.
2. DCI’s cursory mention of a duty of disclosure did not satisfy its initial bu rden under Celotex

. After Leprino raised th e burden-shifting issue in the opening appeal brief, DCI responded that it was fair to consider the existe nce of a duty of disclosure because Leprin o had urged such a duty in responding to the summary-judgment motion. Because Le prino had discussed the duty, DCI argued that its own failure to raise the existence of the duty in the summary-judgment motion was irreleva nt. But DCI’s argument misses the point: Leprino would never have incu rred a burden to show a duty of disclosure if DCI had failed to rais e the issue in its summary-judgment motion. See Malhotra v. Cotter & Co. , 885 F.2d 1305, 1310 (7th Cir. 1989) (“When a party moves for summary j udgment on ground A, his opponent is not required to respond to ground B—a ground th e movant might have presented but did not.”).4 Perhaps for this reason, DCI changed its approach at oral argument, stating that it had in fact raised th e issue in its summary-judgment motion. We do not generally cons ider arguments first rais ed at oral argument. Chavez v. City of Albuquerque , 402 F.3d 1039, 1043 (10th Cir. 2005). But DCI’s argument would fail even if it had been properly raised. DCI bore the initia l burden to

 inform the district court that the motion for summary judgment had been based at least partly on Leprino’s failure to establish a duty of disclosure and

 show the district court that Leprino had failed to present evidence supporting a du ty of disclosure. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). DCI failed to satisfy eith er burden. DCI did not inform the district cour t of a challenge to the existence of a duty of disclosure. The sole mention of duty in DCI’s summaryjudgment motion wa s this sentence: Leprino made only vague allegations of concealment or misrepresentation in its Complain t, claiming “DCI had reason to suspect that there were defects in the design and/or fabrication of its Tanks whic h would render them unfit for Leprino Foods’ intended purpose,” and that DCI had a duty to disclose its alleged concerns to Leprino prior to the parties’ execution of th e 2001 and 2007 Agreement[s]. Appellant’s App’x, vol. 1 at 116. Preceding this sentence was a paragraph listing the elements that Leprino had to prove. Id . Nowhere in that paragraph did DCI state that Leprino had to prove a duty of disclosure.5 After the sentence mentioning a duty, DCI argued only that Leprino had failed to present evidence of a fact ual misrepresentation or omission. DCI’s single sentence in the summary-judg ment motion did not inform the district court of a challe nge to the existen ce of a duty of disclosure. DCI was arguing instead that Leprino had failed to show a misrepresentation or omission. The reference to a du ty was in DCI’s summary of what Leprino had assert ed, not in a separate argument. Even if the brief mention of a duty of disclosure had satisfied the burden to raise the issue, DCI did not argue that Le prino had lacked evidentiary support for th e duty. Thus, DCI did no t satisfy its initial burden to identify an issue involvin g a duty of disclosure. Because the burden never shifted to Leprino, th e district court erred in granting summary judgment to DC I on the claims of ne gligent nondisclosure. The majority acknowledges that DCI failed to satisfy its threshold burden in district court. But the majo rity concludes that this failure was cured by Leprino’s voluntary submission of evidence. For this conclusion, the majority relie s on language in Nick’s Garage, In c. v. Progressive Casualty Insurance Co. , 875 F.3d 107 (2d Cir. 2017). There the Second Circuit reversed an award of summary judgment because the movant had failed to satisfy its initial burden under Celotex

. Nick’s Garage , 875 F.3d at 114-15. In dicta, howev er, the court indicated th at the nonmoving party6 might “cure” such a failur e by “undertaking to set forth the totality of its evidence in its oppo sition papers.” Id. at 116. I disagree with this dicta. The Second Circuit’s dicta and it s application here run afoul of Celotex

. See p. 2, above. Celotex states that the burden shifts to the nonmoving party only if the moving party satisfies its initial burden. DCI did not carry its ini tial burden on the du ty of disclosure. See p. 2, above. So how could Leprino fail to satisfy a burden it never had? The majority states that Leprino’s voluntary submission of evidence cured DCI’s failure. I re spectfully disagree: Leprino never incurred a burden to present evidence on a du ty of disclosure, and no federal appellate court has ever held that vo luntary submission of evidence can cure the movant’s failure to satisfy its threshold burden under Celotex

. We might surmise, as the majority does, that Leprino presented all of its evidence supporting a du ty of disclosure and would have presented the same evidence if DCI had challenged the existence of a duty in the summary-judgment motion. But DCI did not assert such a challenge. And under Celotex , Leprino never incu rred a burden to present evidence supporting a duty of disc losure in the ab sence of such a challenge. There is nothing in Celotex or our other precedents to suggest that a claimant might assume an otherwis e nonexistent burde n by voluntarily presenting evidence. Re gardless of whether Lepr ino voluntarily submitted evidence, it couldn’t have assumed a burden that ha d always remained with7 DCI. Without a burden on Leprino to present ev idence of a duty of disclosure, the district court could not grant summary judgment to DCI based on Leprino’ s failure to fulfill that burden. The majority also concl udes that even if the district court had erred, reversal would be unwarranted beca use Leprino had fa iled to show prejudice. For this conclusion, the majority relies on Alpine Bank v. Hubbell , 555 F.3d 1097 (10th Cir. 2009). There we rejected two of the appellants’ arguments for failure to show prejudice. 555 F.3d at 1114-15. But there the error involved only th e sequence of the district court’s rulings on multiple motions, not the gr ant of summary j udgment against a plaintiff who had no duty to present any evidence. See id. Neither Alpine Bank nor any other federal appellate opinion has ever required an appellant to show prejudice in order to obtain reversal fr om a district court’s grant of summary judgment in the absence of a duty to pr esent supporting evidence. See, e.g. , Conoshenti v. Pub. Se rv. Elec. & Gas Co. , 364 F.3d 135, 145-46 (3d Cir. 2004) (reversing without discus sion of prejudice a grant of summary judgment on claim because the moving party failed to carry its initial summa ry-judgment burden); Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1107 (9th Cir. 2000) (same). The majority views reversal as a wa ste of judicial resources based on Leprino’s ultimate inab ility to presen t evidence suppor ting a duty of disclosure. As the majority sugges ts, Leprino’s claims of negligent8 nondisclosure might ultimately fail in a subsequent summary-judgment motion or at trial. But we are obligated to follow Celotex , a Supreme Court precedent. Under Celotex DCI bore the initial bur den on the duty of disclosure, and the majori ty acknowledges th at DCI failed to satisfy this burden. In light of the failure to satisfy this bur den, the district court erred in granting summa ry judgment to DCI on the claims of negligent nondisclosure, and I would reverse the grant of summary j udgment on that claim.
II. The economic-loss ru le did not apply. Alternatively, DCI ur ges affirmance under the economic-loss rule. But this rule did not apply because DCI’s alleged duty of disclosure had arisen outside of the contracts. The economic-loss rule bars tort recovery for economic losses arising from a contractual duty. Town of Alma v. AZCO Constr. , 10 P.3d 1256, 1262-63 (Colo. 2000) (en banc). To determine whether the economic-loss rule applies, Colorado courts “focus on the source of the duty alleged to have been violated.” Id. at 1263. Absent an independent du ty of care, a party suffering only economic loss fr om the breach of a contractual duty cannot recover for a tort that arises from the breach. Id. at 1264. Colorado courts have generally concluded that claims of negligent misrepresentation are not subject to the economic-loss rule because they are based on misrepresentations preceding entry into the contract. See Van9 Rees v. Unle aded Software , 373 P.3d 603, 607 (Colo. 2016) (“Van Rees’s tort claims are based on misrepresenta tions made prior to the formation of the contracts, which he alleges induce d him to enter into the contracts and therefore violated an independent dut y in tort to re frain from such conduct.”). 2 Leprino contends that DCI incurr ed a duty of disclosure from misleading statements, party relation ships, and indust rial customs. See Restatement (Second) of Torts § 551(2 )(b), (e). For th ese contentions, Leprino relies on § 551 of the Second Restatement of Torts rather than anything in the contracts. As Leprino points out , the Colorado Court of Appeals has held that § 551 creates a duty of disclo sure independent of the contract, preventing appl ication of the economic-lo ss rule for an alleged nondisclosure. Gattis v. McNutt , 318 P.3d 549, 557 (Colo. App. 2013). DCI argues that the claims of negl igent nondisclosure were based on contractual duties, po inting to two cases: BRW, Inc. v. Dufficy & Sons , 99 P.3d 66 (Colo. 2004 ) (en banc), and A Good Time Rental v. First American Title Agency , 259 P.3d 534 (Colo. App. 2011) . In these cases, the alleged misrepresentation consisted only of th e defendant’s assertion that it was complying with the contract. BRW , 99 P.3d at 74; A Good Time Rental , 259

2 Leprino’s claims involve neg ligent nondisclosure, not negligent misrepresentation. But both parties rely on case law i nvolving negligent misrepresentation.10 P.3d at 541. Here, howev er, the omissions prec eded entry into the contracts. This differ ence is critical because BRW distinguished cases in which the misrepresentation had preceded entry into the contract. BRW , 99 P.3d at 75. Leprino’s claims of negligent nond isclosure were ba sed on a duty that

 was independent of the contracts and

 had arisen before enteri ng into the contracts. Therefore, the economic-lo ss rule did not apply.
III. Conclusion

On summary judgment, the moving party bear s the initia l burden. Because DCI failed to satis fy this burden, Leprino never incurred a burden to show a duty of disclosure. And the economi c-loss rule does not apply here because the claims of neglig ent nondisclosure were based on an independent duty that had arisen prio r to the contracts. Thus, I would reverse the grant of summary judgment to DCI on th e claims of negligent nondisclosure.