United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-10635 

____________ 

John Craig First, Individually, also known as Craig First, 

Plaintiff—Appellant, 

versus

Rolling Plains Implement Company, Incorporated; 

AGCO Corporation; AGCO Finance, L.L.C.; AGCO 

Service, a Subsidiary of AGCO Corporation, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 7:21-CV-6 

______________________________ 

Before Higginbotham, Stewart, and Higginson, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge: 

Defendant Rolling Plains sold an agricultural combine manufactured 

by AGCO Corporation to John Craig First. Asserting that he was misled as 

to the combine’s quality and condition, First filed suit. We VACATE and

REMAND in part and AFFIRM in part. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 11, 2024 

Lyle W. Cayce 

Clerk 

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I. 

A. 

Defendant AGCO Corporation manufactures agricultural combines 

used in hay and grain fields. In 2015 Defendant Rolling Plains, an authorized 

reseller of AGCO Corporation products, approached First about purchasing 

a combine. Its employee Jack Handley told First that, as the Combine was 

part of AGCO Corporation’s Certified Pre-Owned Program, it was 

“vigorously inspected” and “Darned Near Good As New,” that the 

Combine had roughly 400 hours on it, and had “never been to the field.” 

Unbeknownst to First, this was false—the Combine was not Certified PreOwned and had been used for over 1,200 hours. 

Handley also told First the Combine was covered by a Protection Plan, 

provided by Defendant Wesco and administered by Defendant AMT, until 

April 13, 2017. The Protection Plan reiterated Handley’s representations 

about the Combine; its first page stated that the Combine had 438 “current 

engine hours.” Relying on Handley’s representations, First purchased the 

Combine in the spring of 2016. Defendant AGCO Finance financed the 

purchase. 

Almost immediately around Memorial Day weekend of 2016, First 

experienced problems with the Combine’s computer, sieves, and rotor 

gearbox. Believing he bought a “lemon,” First sought technical assistance 

from Rolling Plains. When the problems continued into 2019, First turned to 

Butler Machinery, a third-party repair shop. Butler informed First that the 

Combine had an extensive repair history and over 900 hours—far eclipsing 

what Handley had stated. First then turned to the courts. 

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B. 

On September 17, 2020, First sued AGCO Corporation, AGCO 

Service, AGCO Finance, AmTrust, Wesco, AMT, and Rolling Plains in the 

District Court of Oklahoma County. Defendants removed to federal court in 

Oklahoma and filed motions to dismiss. On January 26, 2021, the federal 

district court granted the motions without prejudice and transferred the case 

to the Northern District of Texas. 

After amending his complaint, First asserted state law claims of actual 

and constructive fraud, breach of the warranty of description, and failure of 

essential purpose. Defendants filed a consolidated motion to dismiss. The 

district court granted the motion in part and dismissed First’s fraud claims 

against AGCO Corporation, AGCO Service, AmTrust, Wesco, and AMT 

for failing to allege fraud with particularity. 

First amended his complaint a third time and asserted, inter alia, 

claims of: (1) actual fraud against Rolling Plains; and (2) breach of warranty 

and failure of essential purpose against Rolling Plains and AGCO Finance. 

AGCO Finance filed a motion for summary judgment, arguing it made no 

warranties and was not liable for those made by Rolling Plains. The district 

court agreed and granted AGCO Finance’s motion. Rolling Plains also filed 

a motion for summary judgment arguing that First’s fraud claim was barred 

by Oklahoma’s two-year statute of limitations as First knew or should have 

known of the alleged fraud by Memorial Day 2016 but did not file suit until 

September 17, 2020.1

 The district court found that the limitations question 

presented a genuine dispute of material fact and denied summary judgment. 

_____________________ 

1 Okla. Stat. tit. 12, § 95(A)(3).

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The case proceeded to trial on First’s fraud, breach of warranty, and 

failure of essential purpose claims. Rolling Plains argued before the jury that 

these claims were barred by the statute of limitations as First knew or should 

have known of the alleged fraud by Memorial Day 2016 but did not initiate 

suit until September 17, 2020, over four years later. Rolling Plains requested 

that the jury identify when First knew or should have known of the fraud. 

First objected to a charge asking the jury to identify a specific accrual date as 

the record evidence spoke “in terms of relative time frames,” such as the 

“harvest of 2017 or spring of 2018,” instead of particular dates. The trial 

judge presented the question to the jury, asking on the special verdict form: 

“What is the date that Plaintiff knew or reasonably should have known of the 

fraud?”2

During deliberations, the jury asked the court: “What was the date 

that Mr. First found out from Butler that the engine really had 990 hours on 

it?” The court responded that First testified to having learned the Combine 

had over 990 hours in August 2019. Ultimately, the jury determined that First 

knew, or should have known, of Rolling Plains’s fraud by April 13, 2017, over 

three years before First brought suit. It also returned a $96,000 verdict on 

both the fraud and failure of essential purpose claims against Rolling Plains, 

but found that Rolling Plains had not breached its warranty of description. 

Rolling Plains moved for judgment as a matter of law, asserting First’s 

claims were barred by the statute of limitations based on the April 13, 2017 

date. The district court agreed with Rolling Plains, holding that sufficient 

evidence supported the jury’s findings regarding the April 13, 2017 date and 

entered judgment in favor of Rolling Plains. 

_____________________ 

2

 The jury charge, however, instructed that “[l]imitations begins on the date the 

plaintiff knew or reasonably should have known of the injury and its cause.” 

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First now appeals three orders: (1) the order granting Rolling Plains’s 

motion for judgment as a matter of law; (2) the district court’s order granting 

AGCO Corporation, AGCO Service, and AGCO Finance’s motion to 

dismiss the fraud claims with prejudice; and (3) the order granting summary 

judgment in favor of AGCO Finance on the breach of warranty and failure of 

essential purpose claims. We address these issues in order. 

II. 

As jurisdiction here rests on diversity of citizenship, we apply the 

choice of law rules of the forum state: Texas.3

 “Texas courts honor the ‘party 

autonomy rule’ that parties can agree to be governed by the law of another 

state.”4

 Here, the parties agreed to be governed by Oklahoma law.5 “When 

evaluating issues of state law, we look to the decisions of the state’s highest 

court.”6

 

III. 

We turn first to the district court’s grant of Rolling Plains’s motion 

for judgment as a matter of law on Oklahoma’s two-year statute of 

limitations. We find the verdict unsupported by the evidence, and 

accordingly vacate and remand for retrial on when First’s cause of action 

accrued. 

_____________________ 

3 Nix v. Major League Baseball, 62 F.4th 920, 932 (5th Cir.), cert. denied, 144 S. Ct. 

165 (2023). 

4 Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319, 324 (Tex. 2014); Restatement 

(Second) of Conflict of Laws § 187 (1971). 

5

 The Installment Contract provides that “[t]he law of the state of Buyer’s address 

. . . shall govern all matters relating to the validity, effect and enforcement of this Contract.”

First listed an Oklahoma address. 

6 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (citation omitted). 

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A. 

“When a case has been tried by a jury, a motion for judgment as a 

matter of law is a challenge to the legal sufficiency of the evidence underlying 

the jury’s verdict.”7 “The jury’s findings of fact are reviewed on the whole 

record and are affirmed if supported by substantial evidence; a scintilla of 

evidence is insufficient to present a question for the jury . . . .”8 This court 

should “consider all of the evidence, drawing all reasonable inferences and 

resolving all credibility determinations in the light most favorable to the nonmoving party.”9

 

B. 

Oklahoma’s two-year statute of limitations for fraud claims does not 

begin until the fraud is discovered, i.e., “when, in the exercise of reasonable 

diligence, it could have or should have been discovered.”10 To prove that 

First knew or should have known of the fraud by Memorial Day 2016, Rolling 

Plains presented the following evidence: (1) the Protection Plan expired on 

April 13, 2017; (2) testimony that the Combine malfunctioned around 

Memorial Day 2016; and (3) statements by First’s employee, Virgil Berry, 

that the Combine had “gremlins” and “demons.” Because First did not file 

suit until September 17, 2020, Rolling Plains maintained that First’s fraud 

claim was barred by the limitations period. 

_____________________ 

7 Hartford Fire Ins. Co. v. City of Mont Belvieu, Tex., 611 F.3d 289, 294 (5th Cir. 

2010) (citing Streber v. Hunter, 221 F.3d 701, 721–22 (5th Cir. 2000)). 

8 Hunnicutt v. Wright, 986 F.2d 119, 122 (5th Cir. 1993) (citing Boeing Co. v. 

Shipman, 411 F.2d 365, 370–74 (5th Cir. 1969)). 

9 Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001) (quoting 

Brown v. Bryan Cnty., Okla., 219 F.3d 450, 456 (5th Cir. 1997)). 

10 Okla. Stat. tit. 12, § 95(A)(3); McCain v. Combined Commc’ns Corp. of Okla., 

Inc., 1998 OK 94, ¶ 8, 975 P.2d 865, 867. 

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C. 

We find that the evidence presented was insufficient to support the 

jury’s chosen date of April 13, 2017. As an initial matter, there is a disconnect 

between the trial evidence and the jury charge. Statutes of limitation are 

necessarily date-specific, but the trial evidence spoke in general terms. 

Witnesses referred to holiday weekends, seasons, and months when 

describing the malfunctions, but the jury was tasked with identifying a 

specific date that began the limitations period. The jury was asked to select a 

specific date without the evidentiary basis to do so. Its confusion is evident 

from its inquiry to the court, asking “the date that Mr. First found out from 

Butler that the engine really had 990 hours on it.” The court’s response 

(“August 2019”) provided no further guidance on the specific date. 

The jury chose the only date presented as a day, month, and year: the 

Protection Plan’s expiration date. But the Protection Plan’s expiration date 

cannot support the verdict because it is temporally unrelated to any pertinent 

fact that would cause First to suspect fraud. It is undisputed that the Combine 

malfunctioned over Memorial Day 2016 but this would not have caused First 

to suspect fraud. Trial witnesses testified that the main issue at that time—

computer problems that caused the engine to idle—was part-and-parcel of 

setting up the Combine.11 Further testimony explained that maintenance 

issues with combines are “common” and often take time to “straighten 

out.” First, an experienced harvester who worked with combines his whole 

_____________________ 

11 Nor is this an instance where the consumer failed to perform his or her due 

diligence. To the contrary, First inspected the Combine multiple times before purchasing 

it. First testified that he visually inspected the machine, looked under the hood, reviewed 

the purported hours as presented on the computer, and examined the Combine’s 

component parts. Based on this inspection, First believed the Combine’s condition 

matched that represented to him. At the time of purchase, therefore, reasonable diligence 

did not cause First to suspect fraud. 

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life, went so far as to say that maintenance issues were “routine” and did not 

suggest fraud. Similarly, Berry was not concerned because “a lot of times new 

equipment has problems, but we figured they would work them [sic] out.”12

Rolling Plains fostered this understanding by assuring First that any problem 

“would work itself out” and encouraging First to continue using the 

Combine in the meantime. Because maintenance issues were expected, First 

would not then reasonably suspect fraud from these routine repairs of used 

equipment. 

Moreover, the jury’s selected date—April 13, 2017—occurred almost 

one year after the Memorial Day 2016 malfunctions. Rolling Plains did not 

identify additional events during this year that would cause First to suspect 

fraud. The resulting disconnect between the jury’s selected date and any 

incidents giving rise to a suspicion of fraud renders the verdict unsupported. 

In sum, we are not persuaded that the record supports the jury’s 

verdict. Thus, we remand for retrial on whether First’s fraud claim is barred 

by the statute of limitations.13 A retrial will provide further clarity on the 

essential dates for the jury. 

IV. 

We turn next to whether the district court erred by granting AGCO 

Corporation, AGCO Service, and AGCO Finance’s motion to dismiss the 

_____________________ 

12 Berry’s testimony as to “gremlins” cannot support the verdict for the same 

reason: harvesters expect problems and presume any quirks will work themselves out. 

13 No party challenges the jury’s independent factual finding that First was entitled 

to $96,000 in actual damages. We say nothing that strikes at that award. It is not apparent 

that the remand on the limitations issue requires a new trial of the jury award on damages 

should First prevail on the limitations question, a determination we leave to the sound 

discretion of the able district court. 

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fraud claims for lack of particularity. Relatedly, First also argues the district 

court erred by dismissing his claims with prejudice. 

Grants of a motion to dismiss are reviewed de novo.14 We accept all 

well-pleaded facts as true and view those facts in the light most favorable to 

the plaintiff.15 Federal Rule of Civil Procedure 9 requires fraud allegations to 

be pleaded with specificity.16 “Put simply, Rule 9(b) requires ‘the who, what, 

when, where, and how’ to be laid out.”17 This Circuit interprets Rule 9(b) 

“strictly,”18 and “we apply the rule with force, without apology.”19 

A. 

Under Oklahoma law, there are two types of fraud.20 Actual fraud 

requires intentional deception and includes suggestions or assertions of false 

facts by “a party to the contract, or with his connivance, with intent to 

deceive another party thereto, or to induce [another] to enter into the 

contract.”21 Constructive fraud occurs when a person, “[i]n any breach of 

_____________________ 

14 Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011) (citing Martin K. Eby Constr. 

Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). 

15 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation and 

quotation omitted). 

16 Fed. R. Civ. P. 9(b). 

17 Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032 

(5th Cir. 2010) (citing Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th 

Cir. 2003)). 

18 Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 

(5th Cir. 2009) (citing Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)). 

19 Williams, 112 F.3d at 178. 

20 Sutton v. David Stanley Chevrolet, Inc., 2020 OK 87, ¶ 21, 475 P.3d 847, 852, as 

corrected (Oct. 21, 2020) (citing Patel v. OMH Medical Ctr., Inc., 1999 OK 33, ¶ 34, 987 P.2d 

1185). 

21 Okla. Stat. tit. 15, § 58. 

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duty which, without an actually fraudulent intent, gains an advantage to the 

person in fault, or any one claiming under him, by misleading another to his 

prejudice.”22

We find that the complaint fails to state a claim of actual fraud against 

AGCO Corporation, AGCO Service, or AGCO Finance because it does not 

identify false misrepresentations made by these entities. At no point does the 

complaint allege AGCO Corporation, AGCO Service, or AGCO Finance 

spoke with First, much less told him that the Combine had 438 hours; as First 

concedes on appeal.23

Lacking direct statements from these Defendants, First alternatively 

argues that AGCO Corporation is liable for Rolling Plains’s employee Jack 

Handley’s statements that the Combine was Certified Pre-Owned. But we 

cannot impute Handley’s statements to AGCO Corporation. Handley 

worked for Rolling Plains, a different company and legal entity. 

“Corporations are distinct legal entities, and generally one corporation will 

not be held responsible for the acts of another.”24 Moreover, allegations that 

Handley was “Defendants’ authorized representative” are conclusory and 

_____________________ 

22 Okla. Stat. tit. 15, § 59. 

23 At several points, the complaint suggests AGCO Service and AGCO Finance are 

liable purely because they are subsidiaries of AGCO Corporation. Allegations of common 

ownership and shared profits, without more, cannot state a claim for fraud because these 

claims fail Rule 9(b)’s particularity requirement for failure to set out the “who, what, when, 

where, and how.” Shandong Yinguang Chem., 607 F.3d at 1032. This argument also runs 

afoul of the common understanding that “[c]orporations are distinct legal entities, and 

generally one corporation will not be held responsible for the acts of another.” Gilbert v. 

Sec. Fin. Corp. of Okla., 2006 OK 58, ¶ 22, 152 P.3d 165, 175 (citations omitted), abrogated 

on other grounds by Montgomery v. Airbus Helicopters, Inc., 2018 OK 17, 414 P.3d 824; id.

(identifying basis of alter-ego liability); see generally Gabler v. Holder & Smith, Inc., 2000 

OK Civ. App. 107, 11 P.3d 1269 (considering franchise agreements). 

24 Gilbert, 2006 OK ¶ 22, 152 P.3d at 175. 

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cannot establish that Handley was authorized to act on AGCO Corporation’s 

behalf. 

Finally, we find that the complaint fails to state a claim for 

constructive fraud, “the concealment of material facts which one is bound 

under the circumstances to disclose.”25 “[S]ilence as to a material fact is not 

necessarily, as a matter of law, equivalent to a false representation; there 

must have been an obligation to speak.”26 First’s allegations regarding 

AGCO Corporation, AGCO Services, and AGCO Finance do not explain 

why they were “obligat[ed] to speak.”27 Vague references to a “duty to 

disclose,” offered without a showing of the contours or basis of this duty, are 

insufficient to demonstrate the “peculiar circumstances” requiring a party to 

disclose particular facts.28 First failed to state a claim of actual or constructive 

fraud against AGCO Corporation, AGCO Service, or AGCO Finance. 

_____________________ 

25 Bankers Tr. Co. v. Brown, 2005 OK Civ. App. 1, ¶ 14, 107 P.3d 609, 613 (citation 

omitted); Sutton, 2020 OK ¶ 14, 475 P.3d at 854 (“In other words, the facts concealed 

must be such as in fair dealing, the one party has a right to expect to be disclosed, and such 

as the other party is bound to disclose.”) (citation omitted); Barry v. Orahood, 1942 OK

419, 132 P.2d 645, 648 (“In order that suppression of the truth may constitute fraud, there 

must be a suppression of facts which one party is under a legal or equitable obligation to 

communicate to the other and which the other party is entitled to have communicated to 

him.”) (citing 23 Am. Jur., Fraud and Deceit, § 78)). 

26 Silk v. Phillips Petroleum Co., 1988 OK 93, ¶ 33, 760 P.2d 174, 179. 

27 Id. 

28 Sutton, 2020 OK ¶ 14, 475 P.3d at 854 (“Where the peculiar circumstances give 

rise to a duty on the part of one of the parties to a contract to disclose material facts and the 

party remains silent to his or her benefit and to the other party’s detriment, the failure to 

speak constitutes fraud.”) (citation omitted); see also Fernandez-Montes v. Allied Pilots 

Ass’n, 987 F.2d 278, 284 (5th Cir. 1993) (“[C]onclusory allegations or legal conclusions 

masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”) 

(citation omitted). 

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B. 

First further argues the district court erred by dismissing his fraud 

claims with prejudice instead of permitting First to amend his complaint. 

First did not seek leave to amend his complaint below and has forfeited this 

argument by raising it for the first time on appeal.29

In sum, we affirm the district court’s dismissal of First’s fraud claims 

against AGCO Corporation, AGCO Service, and AGCO Finance. 

V. 

The final question is whether the district court erred by granting 

summary judgment to AGCO Finance on the warranty claim. We find no 

error, as there was no genuine dispute as to whether Rolling Plains was 

AGCO Finance’s agent. 

A. 

We review a grant of summary judgment de novo and “construe all 

facts and draw all reasonable inferences in the light most favorable to the nonmoving party.”30 Summary judgment is appropriate where there is “no 

genuine dispute as to any material fact” and “the movant is entitled to 

judgment as a matter of law.”31 Grants of summary judgment may be 

affirmed for any reason raised to the district court and supported by the 

record, and we are not bound by the grounds articulated by the district 

court.32

_____________________ 

29 Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021). 

30 Miller v. Michaels Stores, Inc., 98 F.4th 211, 215–16 (5th Cir. 2024) (citations 

omitted). 

31 Fed. R. Civ. P. 56. 

32 Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir. 1993). 

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B. 

Sellers establish an express warranty of description by making any 

“affirmation of fact or promise” to the buyer “which relates to the goods and 

becomes part of the basis of the bargain[.]”33 First argued Rolling Plains 

created such a warranty when it described the Combine as having 438 hours. 

And First maintains AGCO Finance is liable for Rolling Plains’s actions as 

Rolling Plains acted as AGCO Finance’s agent in issuing the warranty. 

Agency can be actual or apparent, and the “burden of proving the 

existence, nature and extent of the agency relationship rests ordinarily upon 

the party who asserts it.”34 Actual authority “is such authority as the 

principal knowingly permits the agent to assume or which he holds the agent 

out as possessing.”35 The essential question is whether the principal has the 

right to control the agent.36 Apparent agency “results from a manifestation 

by the principal to a third person that another is his agent.”37 “[T]he third 

person must know the facts and, acting in good faith, have reason to believe, 

and also actually believe, the agent possessed that authority.”38 

_____________________ 

33 Okla. Stat. tit. 12A, § 2-313(1). 

34 Enter. Mgmt. Consultants, Inc. v. State ex rel. Okla. Tax Comm’n, 1988 OK 91, ¶ 

5, 768 P.2d 359, 362 (citing Coe v. Esau, Okl., 377 P.2d 815, 818 (1963)). 

35 Stephens v. Yamaha Motor Co., Japan, 1981 OK 42, ¶ 7, 627 P.2d 439, 441 (citing 

Rosser-Moon Furniture Co. v. Okla. State Bank, 135 P.2d 336 (1943)).

36 Murray Cnty. v. Homesales, Inc., 2014 OK 52, ¶ 15, 330 P.3d 519, 526–27 

(citations omitted); McGee v. Alexander, 2001 OK 78, ¶ 29, 37 P.3d 800, 807 (“An essential 

element of an agency relationship is that the principal has some degree of control over the 

conduct and activities of the agent.”). 

37 Stephens, OK 42, ¶ 8, 627 P.2d at 441 (“The existence of actual authority 

between principal and agent is not a prerequisite to establishing apparent authority.”) 

(citations omitted); Wheeler v. Puritan Ins. Co., 1986 OK 33, ¶ 12, 720 P.2d 729, 731. 

38 Wheeler, 1986 OK ¶ 12, 720 P.2d at 731. 

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C. 

First argues Rolling Plains had actual or apparent authority to 

represent ACGO Finance. We disagree. 

First argues Rolling Plains had actual authority to represent AGCO 

Finance, as evinced by their “retail financing agreement.” According to 

First, the retail financing agreement allowed Rolling Plains to submit credit 

applications on customers’ behalf, inform AGCO Finance of the products’ 

condition for financing purposes, and sign installment contracts. Of course, 

a contract may establish a principal-agent relationship so long as the “intent 

and effect of the contract language and the evidence of their actual conduct” 

demonstrates “actual control by the principal.”39 Fatally here, First did not 

provide the retail financing agreement or alternative summary judgment 

evidence establishing the requisite control. Without evidence that AGCO 

Finance controlled Rolling Plains’s behavior, First did not present a genuine 

issue of material fact as to whether there was a principal-agent relationship. 

Alternatively, First makes four arguments in support of his contention 

that Rolling Plains had apparent authority to act as AGCO Finance’s agent. 

None persuade. 

To begin, First asserts that Rolling Plains had apparent authority to 

bind AGCO Finance because Rolling Plains’s employee, Rhonda Henry, 

handled the financing paperwork for purchases. This, First argues, led him 

to believe that Henry represented AGCO Finance. But this argument is 

contradicted by First’s deposition testimony in which he admitted that he 

knew Henry worked for Rolling Plains, not AGCO Finance. 

_____________________ 

39 Enter. Mgmt. Consultants, 1988 OK ¶ 6 n.12, 768 P.2d at 362; see also Thornton v. 

Ford Motor Co., 2013 OK Civ. App. 7, ¶ 18, 297 P.3d 413, 419. 

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Second, First points to the “numerous instances where Rolling Plains 

acted for, and held itself out to be acting for, AGCO Finance.” This 

argument steps past the settled premise that apparent authority “results 

from a manifestation by the principal to a third person that another is his 

agent.”40 First offered no such evidence; indeed, First testified during his 

deposition that he did not speak with AGCO Finance employees at any point 

before purchasing the Combine. The testimony further suggests that First 

understood AGCO Finance was only obligated to “finance the combine” 

under the Installment Contract, as opposed to extending a warranty. 

Third, First argues the Installment Contract suggested apparent 

agency between Rolling Plains and AGCO Finance. Not so. The Installment 

Contract contained no warranty representations, and instead, AGCO 

Finance explicitly disavowed in the contract any such warranty. 

Finally, First argues that Rolling Plains conflated the AGCO entities 

“such that Mr. First believed that all AGCO entities were the same.” First’s 

confusion may be understandable given that Defendants have similar names, 

but this misunderstanding is insufficient to create a genuine dispute of fact as 

to whether Rolling Plains acted with apparent authority. 

Ultimately, the uncontroverted evidence presented at summary 

judgment showed that Rolling Plains lacked actual and apparent authority to 

bind AGCO Finance to its warranties. The district court properly granted 

summary judgment in AGCO Finance’s favor. 

_____________________ 

40 Stephens, OK 42, ¶ 8, 627 P.2d at 441; Wheeler, 1986 OK ¶ 12, 720 P.2d at 731 

(“To establish that an agent has apparent authority to act, the principal must have 

manifested his consent to the exercise of such authority or have knowingly permitted the 

agent to act exercising that authority.”). 

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VI. 

In conclusion, we VACATE the order granting Rolling Plains’s 

motion for judgment as a matter of law and REMAND for retrial regarding 

the specific date that First’s fraud claim accrued, an issue upon which Rolling 

Plains bears the burden of proof. We AFFIRM the district court’s dismissal 

of First’s fraud claims against Defendants AGCO Corporation, AGCO 

Service, and AGCO Finance. Finally, we AFFIRM the dismissal of First’s 

breach of the warranty of description and failure of essential purpose claims 

against Defendant AGCO Finance. 

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