* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### AUG 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

THRIFTY RENT-A-CAR SYSTEM, INC., an Oklahoma corporation,

Plaintiff-Appellee,

v. BEST LEASING, INC.,

Defendant, and ALDO MUROS, an individual,

Defendant-Appellant. No. 99-5137 (D.C. No. 96-CV-1136-BU) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and EBEL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This case arose when plaintiff, Thrifty Rent-A-Car System (Thrifty), brought suit against defendants, Best Leasing, Inc. (a Thrifty franchisee) and Aldo Muros (Best’s owner and guarantor of agreement s between Thrifty and Best), to collect on monies owed by Best to Thriftyas a result of agreements arising out of the franchise relationship. Defendants brought several counterclaims against plaintiff, and the district c ourt granted summary judgment in favor of plaintiff on defendants’ counterclaims. Thereafter, Best filed for bankruptcy, and the claims against it were stayed. The claims against Mr. Muros proceeded to trial, at which Mr. Muros did not appe ar, and the district court entered judgment pursuant to Fed. R. Civ. 54(b) in favor of plaintiff on those claims. Mr. Muros moved to vacate the judgment, an d the district court denied the motion. Mr. Muros now appeals from the summaryjudgment in favor of Thrifty on his counterclaims and from the final jud gment in favor of Thrifty on its claims against him. We affirm. At the outset, we hold that the district court was correct in its finding that the choice of law provisions in the relevant agreem ents determine the law to be applied in this case. The parties agreed in the gu aranties signed by Mr. Muros that Oklahoma law would govern any disputes betweenthe parties, and Oklahoma-3-

enforces such choice of law provisions, except wher e to do so would violate Oklahoma public policy. See Williams v. Shearson Lehman Bros., Inc. , 917 P.2d 998, 1002 (Okla. Ct. App. 1995). We begin by addressing Mr. Muros’ argument that the district court should have vacated its judgment against him on Thrifty’s claims because, without having determined Best’s liability on the agreement s, it cannot have adjudged the claims against him, as guarantor. The district cou rt was correct in declining to vacate its judgment on this basis. A guarantor’s o bligation is independent of the underlying contract, and Thrifty could have broughtsuit against Mr. Muros without even joining Best as a party. See Riverside Nat’l Bank v. Manolakis , 613 P.2d 438, 441 (Okla. 1980); Janeway v. Vandeventer , 45 P.2d 79, 82 (Okla. 1935). Mr. Muros argues that the district court erred in g ranting summary judgment in favor of Thrifty on the counterclaims. Defendants counterclaimed that Thrifty breached the lease agreement in two re spects: first, by failing to provide local advertising for Best’s business and s econd, by refusing to allow Best to operate a parking-only facility. They also alleged that Thrifty was liable for misrepresentations. Having reviewed the distri ct court’s ruling on summary judgment de novo , see Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996), we agree that Thrifty was entitled to judgment on defe ndants’ counterclaims.1 Like the district court, we do not consider any cla ims on appeal regarding

counterclaims that Thrifty breached the implied cov enant of good faith and fair dealing or that its failure to disclose material fa cts was a breach of the contract. Because these allegations were not properly raised before the district court, the district court did not consider them and, therefore , we do not consider them on appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). -4- With regard to the breach of contract counterclaim, we agree with the district court’s reading of the contract and its fi nding that Thrifty had no obligation to provide local advertising for Best’s business. The district court was also correct in finding that the agreement did not obligate Thrifty to allow Best to run a parking-only facility. The agreement clearly indicates the parties’ intent that Best operate a car rental business. Defendant s’ misrepresentation counterclaim also fails. The district court was co rrect in finding that defendants did not show that Thrifty had a duty to disclose th e information. They did not show that their relationship with Thrifty was anyth ing other than a normal commercial relationship. The record contains nothi ng indicating a special trust or confidence giving rise to a fiduciary relationship between the parties, and the district court was correct in finding that the cont ract provisions do not provide evidence of such a relationship. See Devery Implement Co. v. J.I. Case Co ., 944 F.2d 724, 730 (10th Cir. 1991). 1 Mr. Muros argues that the case should have been transferred to another district. The district court denied the motion to transfer, finding that the forum-5-

selection clause in the contract was valid and thatdefendants did not show any of the circumstances that might render the clause inva lid. The district court’s ruling was well within its discretion to deny the motion to transfer. See Scheidt v. Klein , 956 F.2d 963, 965 (10th Cir. 1992). Neither did the district court abuse its discretionin denying defendants leave to amend their answer and counterclaims. The untimeliness of the motion to amend, coupled with the lack of reason for the d elay, justifies the district court’s denial of the motion. See Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365-66 (10th Cir. 1993). We also review the court’s disqualification of an attorney for an abuse of discretion. See McEwen v. City of Norman , 926 F.2d 1539, 1550 (10th Cir. 1991). Because the record on appeal does not contain eith er the motion to disqualify or the district court’s ruling on the mo tion to disqualify, we cannot determine whether the district court acted within i ts discretion. If the record on appeal is insufficient to permit assessment of the claims of error, we must affirm. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992). Mr. Muros argues that the district court erred in s triking the jury trial because the agreements do not contain jury waiver p rovisions. The record is to the contrary. All the relevant agreements contain clear and conspicuous jury waiver provisions, and the district court was corre ct to enforce them.2 We do not address Mr. Muros’ objections to Mr. Cere fice’s deposition,

because he did not first raise them to the district court. See McEwen, 926 F.2d at 1550. -6- Finally, Mr. Muros challenges several discovery rul ings made by the district court, all of which we review for an abuse of discretion. See GWN Petroleum Corp. v. OK-TEX Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993). After an in camera review, the district court denie d discovery of a certain report sought by defendants. This ruling was within the d istrict court’s discretion. Also within its discretion was the denial of defendants’ motion to depose the Chief Executive Officer of Thrifty. Neither has Mr. Muro s shown that the district court abused its discretion in denying the motion to comp el further examination of Mr. Bonner. 2 In sum, Mr. Muros has fallen short of showing that Thrifty was not entitled to summary judgment on the counterclaims brought bydefendants. Neither has he shown that the judgment entered against him on Thri fty’s claims was in error and should be vacated. AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge