* This order and judgment is not binding precedent, e xcept under the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

### FEB 19 2002 

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

DALE JENKINS,

Plaintiff-Appellant,

v. EVERGREEN NATIONAL INDEMNITY COMPANY,

Defendant-Appellee. No. 01-5042 (D.C. No. 99-CV-500-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

In this diversity action, plaintiff Dale Jenkins ap peals a grant of summary judgment in favor of third-party defendant Evergree n National Indemnity Company on Jenkins’ claim for recovery under a cons truction bond. Jenkins argues on appeal that the district court erred in h olding that his claim was barred by the statutory one-year limitations period for materialmen to bring an action against the surety of a public works contractor. W e determine that, under the circumstances of this case, Evergreen may be equita bly estopped from asserting a statute of limitations defense. Accordingly, we reverse the judgment against Jenkins and remand for further proceedings.

FACTUAL BACKGROUND Jenkins is the assignee of a materials supplier to G.W. Starr Pipeline, Inc., the general contractor for a public works project f or the City of Broken Arrow, Oklahoma. Evergreen issued a labor and materialman ’s bond on the project, through an employee of its agent, Courtney & Associ ates. Although the employee wrote the bond in September 1997 and promptly sent a copy to the City for its statutorily-required records, she did so without th e authorization of either Evergreen or Courtney. Evergreen’s underwriter acc epted the bond in December 1997, but the bond’s existence was not reflected onEvergreen’s computer system. Jenkins supplied materials to the project through F ebruary 18, 1998. Because Starr failed to make payment, Jenkins’ coun sel pursued collection efforts-3-

against Starr and sought information on the projectbond. He made an informal attempt to obtain a copy of the bond from the City, but did not follow through when told that Starr had performed a number of Cityprojects, that the files were closed, and that the bonds on these projects could be obtained only through a formal open records act request. Jenkins’ counse l did not follow through on the open records act request. Instead, he learned Courtney was Starr’s bonding ag ent and, on October 16, 1998, sent Starr a demand letter, with copies to Co urtney and the City. Evergreen’s claims representative responded to the letter by informing Jenkins that Evergreen had not written a bond covering the supplied materials and advised that the applicable bond was probably issued by Chatham Reinsurance Corporation. Jenkins filed suit against Chatham on May 25, 1999. Two months later, he discovered through correspondence from Courtney that, in fact, Evergreen had issued the applicable bond. Jenkins then asked forleave of court to amend his complaint to add Evergreen as a third-party defenda nt and moved to dismiss Chatham by stipulation of the parties. The amended complaint naming Evergreen was filed October 19, 1999. Evergreen moved for summary judgment on the ground that Jenkins’ suit was barred by Okla. Stat. tit. 61, § 2(A), which re quires that an action for-4-

payment under a bond insuring a public works projec t is to be filed no later than “one (1) year from the day on which the last of the labor was performed or material or parts furnished.” Evergreen’s premise was that the claimed materials were last supplied on February 18, 1998, therefore Jenkins’ complaint should have been filed before February 18, 1999. Jenkins argued that Evergreen was equitably estopped from asserting a statute of limi tations defense because, through its agent, it had caused Jenkins to sue the wrong insurance company. The district court rejected Jenkins’ argument, dete rmining that it may have been “valid if Jenkins had sued Chatham within the one-year period and then tried to have the later claim relate back to the date that Chatham was sued.” Appellant’s App. at 312. The court reasoned, howev er, that “[w]hether Evergreen knew, or should have known, that [its] information was incorrect is irrelevant” to the summary judgment motion because “[t]he informat ion given to Jenkins by Evergreen might have caused Jenkins to originally s ue the wrong party, but it did not cause Jenkins to sue the wrong party after the February 18, 1999 deadline.” Id. at 313. Based on this rationale, the court grante d Evergreen’s motion for summary judgment. This appeal followed.1 The district court may have analyzed the case under

Fed. R. Civ. P. 15(c)(3), which provides that, unde r certain circumstances, an amendment changing or adding a party may relate bac k to the date of the original (continued...) -5- DISCUSSION On appeal, the district court’s grant of summary ju dgment is reviewed de novo , see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996), affording no deference to the district court’s legal rulings concerning Oklahoma law, see Salve Regina Coll. v. Russell , 499 U.S. 225, 238-40 (1991). We consider the evi dence and all reasonable inferences drawn therefrom in th e light most favorable to the nonmoving party. Cooperman v. David , 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is proper if the record shows “that there is no genuine issue as to any material fact and that the moving party is e ntitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presen ce of each element essential to the case. Hulsey v. Kmart, Inc ., 43 F.3d 555, 557 (10th Cir.1994). At the outset, we conclude that the district court erred in rejecting Jenkins’ equitable estoppel argument outright: the untimelin ess of Jenkins’ suit against Chatham does not provide grounds for entry of summary judgment in favor of Evergreen. Instead, the proper focus is on whetherEvergreen is estopped from relying on the one-year statute of limitations set out in Okla. Stat. tit. 61, § 2(A). 11 (...continued)

pleading and thus salvaging an untimely claim. Her e, the date of Jenkins’ original filing against Chatham is immaterial to a determination of whether Jenkins’ suit against Evergreen is timely filed. -6- The Oklahoma Supreme Court has held that, with regard to actions on a public works bond, the limitation provision “is s ubject to waiver and estoppel where the necessary facts are established as in oth er instances of the application of waiver and estoppel to a statute of limitations.” Phillips Petroleum Co. v. United States Fid. & Guar., Co. , 442 P.2d 303, 307 (Okla. 1968). The essential elements of equitable estoppel in Oklahoma include: (1) “a false representation or concealment of facts,” (2) the representation or co ncealment “must have been made with knowledge, actual or constructive, of the real facts;” (3) “the party to whom it was made must have been without knowledge, or the means of knowledge, of the real facts;” (4) the representati on “must have been made with the intention that it should be acted upon;” and (5 ) “the party to whom it was made must have relied on or acted upon it to its prejudice.” Dixon v. Roberts , 853 P.2d 235, 239 (Okla. Ct. App. 1993) (quoting Lacy v. Wozencraft , 105 P.2d 781, 783 (1940) (additional quotation omitted). Ok lahoma courts generally “refuse to give effect to an estoppel where the parties were equally well informed as to the essential facts or where the means of kno wledge were equally open to them.” Hillers v. Local Fed. Sav. & Loan Ass’n , 232 P.2d 626, 630 (Okla. 1951).2 We note that Jenkins has also made an equitable tol ling argument, claiming

that the statute of limitations should be tolled fr om the date of the alleged misrepresentation until the date of his discovery o f the alleged misrepresentation. In Oklahoma, fraud or concealment can toll a statut e of limitations, generally on tort claims. See Samuel Roberts Noble Found., Inc. v. Vick , 840 P.2d 619, 626 (Okla. 1992). Because of our disposition of Jenkin s’ equitable estoppel argument, we do not determine whether the doctrine of equitab le tolling applies to Jenkins’ bond claim. -7- Thus, a party “who claims the benefits of an equita ble estoppel on the ground that he has been misled through the conduct of another m ust not have been misled through his own want of reasonable care.” Id. Because of its truncated disposition of this matter , the district court did not examine the summary judgment filings to determine w hether Jenkins has raised material issues of fact on each of the elements of equitable estoppel. Our de novo review of the record, however, reveals that the fac ts are disputed concerning two material issues: the state of Evergreen’s “knowled ge, actual or constructive, of the real facts” at the time its agent denied Evergreen’s responsibility, see Dixon , 853 P.2d at 239, and also whether Jenkins’s counsel was “misled through his own want of reasonable care” when he relied on Evergree n’s representations rather than pursuing an Open Records Act request, see Hillers , 232 P.2d at 630. Accordingly, on the present record, entry of summary judgment was inappropriate. 2-8-

We therefore REVERSE the district court’s grant of summary judgment and we REMAND to the district court for proceedings con sistent with this order and judgment.

Entered for the Court

John C. Porfilio Circuit Judge