# 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 Firs t. Asserting that he was misled as to the combine’s quality and co ndition, 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 Case: 23-10635 Document: 105-1 Page: 1 Date Filed: 07/11/2024I.
A. Defendant AGCO Corporation manufactures agricultural combines used in hay and grain fi elds. In 2015 Defendant Ro lling 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 fi eld.” Unbeknownst to First, this was false—the Combine was not Certi fi ed 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 stat ed that the Combine had 438 “current engine hours.” Relying on Handley’s representations, First purchased the Combine in the spring of 2016. De fendant AGCO Finance financed the purchase. Almost immediately around Memo rial Day weekend of 2016, First experienced problems with the Comb ine’s computer, sieves, and rotor gearbox. Believing he bought a “lemo n,” First sought tec hnical 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 hist ory and over 900 hours—far eclipsing what Handley had stated. First then turned to the courts. Case: 23-10635 Document: 105-1 Page: 2 Date Filed: 07/11/2024B. On September 17, 2020, First su ed AGCO Corporation, AGCO Service, AGCO Finance, AmTrust, We sco, AMT, and Rolling Plains in the District Court of Oklahoma County. De fendants removed to federal court in Oklahoma and fi led motions to dismiss. On January 26, 2021, the federal district court granted the motions with out prejudice and transferred the case to the Northern District of Texas. After amending his compla int, First asserted state law claims of actual and constructive fraud, breach of th e warranty of description, and failure of essential purpose. Defendants fi led a consolidated moti on to dismiss. The district court granted the motion in pa rt and dismissed Fi rst’s fraud claims against AGCO Corporation, AGCO Se rvice, AmTrust, Wesco, and AMT for failing to allege fra ud with particularity. First amended his complaint a third time and asserted, inter alia , claims of: (1) actual frau d against Rolling Plains; an d (2) breach of warranty and failure of essential purpose agains t Rolling Plains and AGCO Finance. AGCO Finance fi led 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 Fi nance’s motion. Rolling Plains also fi led a motion for summary judgment arguing that First’s fraud claim was barred by Oklahoma’s two-year statute of limitat ions as First knew or should have known of the alleged fraud by Memorial Day 2016 but did not fi le 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). Case: 23-10635 Document: 105-1 Page: 3 Date Filed: 07/11/2024The case proceeded to trial on Firs t’s fraud, breach of warranty, and failure of essential purpose claims. Rolling Plains argu ed 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 Memo rial Day 2016 but did not initiate suit until September 17, 2020, over four years later. Rollin g Plains requested that the jury identify when First knew or should have known of the fraud. First objected to a ch arge asking the jury to identify a speci fi c 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 pa rticular dates. The trial judge presented the question to the jury , asking on the special verdict form: “What is the date that Plainti ff knew or reasonably should have known of the fraud? ” 2 During deliberations, the jury as ked the court: “What was the date that Mr. First found out from Butler th at the engine really had 990 hours on it?” The court responded that First testi fi ed to having learned the Combine had over 990 hours in August 2019. Ulti mately, the jury determined that First knew, or should have know n, of Rolling Plains’s frau d 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 essentia l purpose claims against Rolling Plains, but found that Rolling Plains had not br eached its warranty of description. Rolling Plains moved for judgment as a matter of law, asserting First’s claims were barred by the statute of lim itations based on the April 13, 2017 date. The district court agreed wi th Rolling Plains, holding that su ffi cient evidence supported the jury’s fi ndings regarding the April 13, 2017 date and entered judgment in favor of Rolling Plains.

_____________________

2 The jury charge, however, instructed that “[l]imitations begi ns on the date the plainti ff knew or reasonably should have known of the injury and its cause .” Case: 23-10635 Document: 105-1 Page: 4 Date Filed: 07/11/2024First now appeals three orders: (1) the order gr anting 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 prejudic e; and (3) the order granting summary judgment in favor of AGCO Finance on the breach of warra nty and failure of essential purpose claims. We address these issues in order.
II. As jurisdiction here rests on dive rsity 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 cour t’s grant of Rolling Plains’s motion for judgment as a matter of law on Oklahoma’s two-year statute of limitations. We fi nd the verdict unsupported by the evidence, and accordingly vacate and remand for retr ial 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 va lidity, 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). Case: 23-10635 Document: 105-1 Page: 5 Date Filed: 07/11/2024A. “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 findin gs of fact are revi ewed on the whole record and are affirmed if supported by substantia l evidence; a scintilla of evidence is insufficient to presen t 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 limit ations for fraud claims does not begin until the fraud is discovered, i.e., “when, in the exercise of reasonable diligence, it could have or sh ould have been discovered.” 10 To prove that First knew or should ha ve 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” an d “demons.” Because First did not fi le 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. Case: 23-10635 Document: 105-1 Page: 6 Date Filed: 07/11/2024C.
We fi nd that the evidence presented was insu ffi cient 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-speci fi c, but the trial evidence spoke in general terms. Witnesses referred to holiday week ends, seasons, and months when describing the malfunctions, but the jury was tasked with identifying a speci fi c date that began the limitations peri od. The jury was asked to select a speci fi c date without the evidentiary basis to do so. Its confusion is evident from its inquiry to the court, asking “t he date that Mr. Fi rst 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 speci fi c date. The jury chose the only date presen ted 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 caus e 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 testi fi ed that the main issue at that time— computer problems that caused the en gine to idle—was part-and-parcel of setting up the Combine. 11 Further testimony explained that maintenance issues with combines ar e “common” and often ta ke time to “straighten out.” First, an experien ced 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 th e computer, and examined the Combine’s component parts. Based on this inspection, First belie ved the Combine’s condition matched that represented to him. At the time of purchase, therefore, reasonable diligence did not cause First to suspect fraud. Case: 23-10635 Document: 105-1 Page: 7 Date Filed: 07/11/2024life, went so far as to say that mainte nance issues were “routine” and did not suggest fraud. Similarly, Berry was not concerned because “a lot of times new equipment has problems, but we fi gured they would work them [sic] out.” 12 Rolling Plains fostered this understandin g by assuring First that any problem “would work itself out” and encour aging First to continue using the Combine in the meantime. Because main tenance issues were expected, First would not then reasonably suspect fraud from these routine repairs of used equipment. Moreover, the jury’s selected da te—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 distri ct court erred by granting AGCO Corporation, AGCO Service, and AGCO Finance’s motion to dismiss the

_____________________

12 Berry’s testimony as to “gremlins” ca nnot support the verdict for the same reason: harvesters expect problems and presum e any quirks will work themselves out.

13 No party challenges the jury’s independen t factual finding that First was entitled to $96,000 in actual damages. We say nothing th at strikes at that award. It is not apparent that the remand on the limitations issue requir es a new trial of the jury award on damages should First prevail on the limitations ques tion, a determination we leave to the sound discretion of the able district court. Case: 23-10635 Document: 105-1 Page: 8 Date Filed: 07/11/2024fraud claims for lack of particularity. Re latedly, First also argues the district court erred by dismissing hi s claims with prejudice.
Grants of a motion to dism iss 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 includ es suggestions or as sertions 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. Case: 23-10635 Document: 105-1 Page: 9 Date Filed: 07/11/2024duty which, without an actually fraudul ent intent, gains an advantage to the person in fault, or any one claiming un der him, by misleading another to his prejudice.” 22
We fi nd that the complaint fails to st ate 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 th at the Combine had 438 hours; as First concedes on appeal. 23 Lacking direct statements from thes e Defendants, First alternatively argues that AGCO Corporation is lia ble for Rolling Plains ’s employee Jack Handley’s statements that the Combine was Certi fi ed Pre-Owned. But we cannot impute Handley’s statements to AGCO Corporation. Handley worked for Rolling Plains, a diffe rent company and legal entity. “Corporations are distinct legal entiti es, 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 sugge sts AGCO Service and AGCO Finance are liable purely because they are subsidiaries of AGCO Corporation. Allegations of common ownership and shared profits, without more, ca nnot state a claim for fraud because these claims fail Rule 9(b)’s particularity requiremen t 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 (consider ing franchise agreements).

24 Gilbert , 2006 OK ¶ 22, 152 P.3d at 175. Case: 23-10635 Document: 105-1 Page: 10 Date Filed: 07/11/2024cannot establish that Handley was auth orized to act on AGCO Corporation’s behalf. Finally, we fi nd that the complaint fa ils 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,” o ff ered without a showing of the cont ours or basis of this duty, are insu ffi cient to demonstrate the “peculiar circumstances” requiring a party to disclose particular facts. 28 First failed to state a clai m of actual or constructive fraud against AGCO Corporation, AG CO 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 suppre ssion 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]o nclusory allegations or legal conclusions masquerading as factual conclusions will not su ffice to prevent a mo tion to dismiss.”) (citation omitted). Case: 23-10635 Document: 105-1 Page: 11 Date Filed: 07/11/2024B. First further argues the district court erred by dismissing his fraud claims with prejudice instead of perm itting 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 fi rst time on appeal. 29 In sum, we a ffi rm the district court’s dism issal 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 disp ute as to whether Rolling Plains was AGCO Finance’s agent.
A. We review a grant of summary judg ment de novo and “construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” 30 Summary judgment is approp riate where there is “no genuine dispute as to any material fa ct” 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 th e 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). Case: 23-10635 Document: 105-1 Page: 12 Date Filed: 07/11/2024B. Sellers establish an express warran ty of description by making any “affirmation of fact or promise” to th e buyer “which relates to the goods and becomes part of the basi s 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 agen cy 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 “resul ts from a manifestation by the principal to a third pers on 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 ag ent 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 th e 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. Case: 23-10635 Document: 105-1 Page: 13 Date Filed: 07/11/2024C. First argues Rolling Plains had ac tual or apparent authority to represent ACGO Finance. We disagree. First argues Rolling Plains had actual authority to represent AGCO Finance, as evinced by their “reta il financing agreement.” According to First, the retail financing agreement a llowed Rolling Plains to submit credit applications on customers’ behalf, inform AGCO Finance of the products’ condition for financing purposes, and si gn installment contracts. Of course, a contract may establish a principal-agen t relationship so long as the “intent and effect of the contract language an d the evidence of their actual conduct” demonstrates “actual control by the principal.” 39 Fatally here, First did not provide the retail financing agreemen t or alternative summary judgment evidence establishing the requisite co ntrol. Without evidence that AGCO Finance controlled Rolling Plains’s beha vior, First did not present a genuine issue of material fact as to whether th ere 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 Pl ains’s employee, Rhonda Henry, handled the fi nancing paperwork for purchases. This, First argues, led him to believe that Henry represented AG CO Finance. But this argument is contradicted by First’s deposition te stimony 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. Case: 23-10635 Document: 105-1 Page: 14 Date Filed: 07/11/2024Second, First points to the “numer ous 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 au thority “results from a manifestation by the principal to a third person that another is his agent.” 40 First o ff ered no such evidence; indeed, First testi fi ed during his deposition that he did not speak with AGCO Finance employees at any point before purchasing the Combine. The te stimony further suggests that First understood AGCO Finance was only obligated to “ fi nance the combine” under the Installment Contract, as opposed to extending a warranty. Third, First argues the Install ment Contract suggested apparent agency between Rolling Plains and AG CO Finance. Not so. The Installment Contract contained no warranty re presentations, and instead, AGCO Finance explicitly disavowed in the contract any such warranty. Finally, First argues that Rolling Plains con fl ated 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 insu ffi cient 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 lack ed actual and apparent authority to bind AGCO Finance to its warranties. The district court properly granted summary judgment in AG CO 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 su ch authority or have knowingly permitted the agent to act exercising that authority.”). Case: 23-10635 Document: 105-1 Page: 15 Date Filed: 07/11/2024VI. In conclusion, we VACATE the order granting Rolling Plains’s motion for judgment as a matter of law and REMAND for retrial regarding the speci fi c date that First’s fraud claim a ccrued, an issue upon which Rolling Plains bears the burden of proof. We AFFIRM the district court’s dismissal of First’s fraud claims against Defe ndants 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. Case: 23-10635 Document: 105-1 Page: 16 Date Filed: 07/11/2024