UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

_________________________________ 

PATRIOT MANUFACTURING, LLC, 

 Plaintiff - Appellant, 

v. 

HARTWIG, INC., 

 Defendant - Appellee. 

No. 14-3232 

(D.C. No. 6:10-CV-01206-EFM) 

(D. Kan.) 

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ORDER AND JUDGMENT*

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Before KELLY, BALDOCK, and GORSUCH, Circuit Judges. 

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Some years ago Patriot Manufacturing bought a machine shop lathe from 

Hartwig with hope of producing goods for the aircraft industry. But the deal soon 

turned sour and Hartwig repossessed the lathe, claiming that Patriot had defaulted on 

its payment obligations under the parties’ sales contract. Sure that Hartwig had 

breached the same agreement and that it had committed more than a few torts along 

the way, Mark Spencer — Patriot’s owner and sole member — filed this federal 

lawsuit. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 21, 2015

Elisabeth A. Shumaker 

Clerk of Court

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As Hartwig soon discovered, though, the positions Mr. Spencer advanced in 

his federal district court complaint were arguably inconsistent with the 

representations he made before a federal bankruptcy court just a few days earlier. 

Right before filing this lawsuit, Mr. Spencer sought Chapter 7 bankruptcy protection 

— a move that eventually won him a discharge of substantial debts. But in his initial 

bankruptcy filings, Mr. Spencer expressly denied being an officer, director, or partner 

of any company. In fact, he denied having any interest in any business at all. 

Seeking to hold Mr. Spencer accountable for his earlier statements disclaiming 

any business interests, Hartwig moved for summary judgment in this case on the 

theory that Patriot and its sole proprietor should be estopped from vindicating 

contract and tort claims that, Hartwig argued, existed before Mr. Spencer’s 

bankruptcy and should have been — along with his ownership of the company — 

disclosed to the bankruptcy court. See New Hampshire v. Maine, 532 U.S. 742, 749 

(2001) (explaining that judicial estoppel “‘generally prevents a party from prevailing 

in one phase of a case on an argument and then relying on a contradictory argument 

to prevail in another phase’”) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 

(2000)). The district court agreed and entered judgment for Hartwig. 

Patriot now asks us to reverse the district court, contending that the bankruptcy 

court was never really deceived by Mr. Spencer’s arguably incomplete filings. See 

Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007) (explaining 

that we generally “inquire whether the suspect party succeeded in persuading a court 

to accept that party’s former position” before applying judicial estoppel). And 

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arguing that Mr. Spencer won’t gain any sort of “unfair advantage” if Patriot is 

allowed to proceed with this lawsuit. See id. (noting that we usually “inquire 

whether the party seeking to assert an inconsistent position would gain an unfair 

advantage in the litigation if not estopped”). 

But whatever the merits of these arguments Patriot failed to make them when 

responding to Hartwig’s motion for summary judgment in district court and has, 

accordingly, forfeited the chance to win reversal using them in this court. See Adler 

v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Instead of arguing to the 

district court that estoppel was unwarranted under our case law or suggesting that 

estoppel would confer no unfair advantage, Patriot made entirely different (and mostly 

inapplicable) arguments under Kansas state law — arguments the company has since 

abandoned in this appeal. Neither, for that matter, has Patriot attempted in either of its 

briefs on appeal to show that the district court committed plain error in failing to 

recognize and develop for the company the arguments it now wishes to develop for itself 

in this court for the first time. And faced as we are only with arguments that weren’t 

raised below, and lacking any accompanying explanation how the district court’s alleged 

error might have been so severe as to nonetheless require correction as plain error, we 

decline to disturb its judgment. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 

1127-28 (10th Cir. 2011). 

 

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Affirmed. 

ENTERED FOR THE COURT 

Neil M. Gorsuch 

Circuit Judge 

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