Rohr v. Allstate Financial Services , 529 F. App'x 936 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 18, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
JOHN C. ROHR, an individual,
Plaintiff–Appellant,
No. 12-4175
v.
(D.C. No. 2:10-CV-00296-DS)
(D. Utah)
ALLSTATE FINANCIAL SERVICES, a
Delaware limited liability company,
Defendant–Appellee.
ORDER AND JUDGMENT*
Before LUCERO, EBEL, and HOLMES, Circuit Judges.
John Rohr appeals from the district court’s grant of summary judgment in favor of
Allstate Financial Services, LLC (“Allstate”). After resigning his position as an
Exclusive Financial Specialist selling financial products for Allstate because he failed to
meet minimum production requirements, Rohr asserts claims of promissory estoppel,
fraudulent inducement, and negligent misrepresentation. His claims are all based on oral
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
representations allegedly made by Allstate employee Mark Anderson that Rohr would
earn $100,000 annually in commissions. The district court concluded that Rohr could not
have reasonably relied on Anderson’s oral representations. We agree. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Allstate sells financial services products by affiliating with independent
contractors called Exclusive Financial Specialists (“EFS”). Rohr began working as an
EFS in Florida in 2006. His August 28, 2006 contract with Allstate stated that his “sole
compensation” would be based on commissions, which due to the “inherent uncertainty
of business conditions” could be increased or decreased by Allstate through written
notice.
During his first year in Florida, Rohr earned over $90,000 in commissions.
Depending on the time period, he was assigned to work with three to five Allstate
insurance agencies, which provided him with referrals to customers interested in
purchasing financial products.
In 2007, Rohr contacted Allstate regarding the availability of EFS positions in
Utah. Allstate directed him to Mark Anderson, who worked at Allstate in Utah and
whose responsibilities included affiliating with EFSs there. Anderson earned a base
salary plus a commission based on the sale of Allstate financial products sold by EFSs
within his territory.
In the fall of 2007, Anderson informed Rohr that Allstate had an EFS position
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available in Utah County. According to Rohr, Anderson made various oral
representations during these conversations guaranteeing him a successful career in Utah
County. Specifically, Rohr states that when he informed Anderson that he needed to
make $100,000 to relocate, Anderson replied that he would “easily make $100,000,” that
he would have “no problem” doing so, and that he would be given “adequate agencies
and associations” to reach this amount in commissions. Rohr also avers that Anderson
promised “a dozen times or more” that he would do “everything possible to help ensure
[Rohr’s] success.”
Before moving to Utah, Rohr visited on two occasions and met with Anderson as
well as with several Allstate insurance agencies that he would potentially work with if he
were to take the Utah County EFS position. He testified that as a result of these visits, he
“knew prior to coming to Utah” that the agencies he might be assigned to had “fairly low
numbers.” Despite the fact that he met with an agent who had never sold any financial
services and an agency that had “fairly small” business opportunities, and that all the
agencies he met with were “small,” Rohr was nonetheless “hopeful” that he could “help
stimulate their numbers and sales.” He stated that even though one of the agencies
included “a new Allstate agency owner” whose business was “not washed for financial
services yet,” he believed that the agency’s business opportunities presented “low-
hanging fruit that had not been picked.”
According to Rohr, he repeatedly requested that Anderson provide him more
information on the financial performance of the agencies to which he would be assigned
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upon moving to Utah, but Anderson evaded these requests. However, Rohr admits that
he did nothing further to verify Anderson’s representations regarding his future income.
Prior to accepting the Utah EFS position, Rohr learned that the job was open
because Larry Palmer, the previous EFS, had resigned. He assumed that Palmer’s
resignation was due to his failure to meet Allstate’s production requirements.
In January 2008, Rohr accepted the EFS position and moved to Utah. On
February 20, 2008, he signed an independent contractor agreement that was identical to
the 2006 agreement that he had entered into upon commencing his employment with
Allstate in Florida. Both agreements contained the following integration clause:
This Agreement is the sole and entire agency agreement between the
Company [Allstate] and you, and it supersedes and replaces any prior
employment, agency, or other agreement between the Company [Allstate]
and you. This Agreement also supersedes any prior oral statements and
representations by the Company [Allstate] to you and any prior written
statements and representations by the Company [Allstate] to you . . . .
Both agreements also provided that the only way to modify the agreement was through “a
written agreement between the Company and you which expressly states that it modifies
this Agreement.” Accordingly, the agreements provided that “no oral statements,
representations, or agreements will be effective to modify this Agreement.”
Like his 2006 agreement, the 2008 agreement also stated that “the sole
compensation” for the EFS position would be through commissions, the terms of which
Allstate could modify upon written notice “due to the inherent uncertainty of business
conditions.” Both agreements were silent as to the number of agencies that Rohr would
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affiliate with, the amount of referrals to customers that each agency would provide, and
the production levels of each agency.
In Utah, Rohr was initially assigned to five Allstate insurance agencies, at least
four of which he had met with before his move. When Rohr struggled to meet production
requirements, Allstate assigned him to additional agencies; at one point he was affiliated
with approximately ten agencies. Allstate also provided a list of accounts that were no
longer associated with an Allstate agent and worked with Rohr to obtain more referrals
from his existing agency relationships. Despite these efforts, Rohr failed to meet
Allstate’s minimum production requirements during 2008. He resigned his position in
May 2009 rather than be terminated.
In March 2010, Rohr filed suit against Allstate alleging that Anderson’s oral
representations regarding his success and income of $100,000 constituted an oral
agreement. His complaint contained five claims: (1) breach of contract; (2) breach of the
duty of good faith and fair dealing; (3) promissory estoppel; (4) negligent
misrepresentation; and (5) fraudulent inducement/intentional misrepresentation.
Allstate moved for summary judgment. The district court granted its motion,
concluding that Rohr had conceded his breach of contract and good faith and fair dealing
claims. The district court also determined that the remaining claims failed because each
required a showing of reasonable reliance, and it was unreasonable, as a matter of law,
for Rohr to have relied on the alleged representations made by Anderson. Rohr appealed.
II
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We review a grant of summary judgment de novo, applying the same standard as
the district court. Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1268 (10th Cir.
2012). Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We view all facts and evidence in the light most favorable to the
party opposing summary judgment. Morris v. City of Colo. Springs, 666 F.3d 654, 660
(10th Cir. 2012).
At issue in this appeal are three of the five claims originally asserted in the
complaint: (1) promissory estoppel; (2) negligent misrepresentation; and (3) fraudulent
inducement/intentional misrepresentation.1 The parties agree that we look to Utah law in
deciding Rohr’s claims. See High Plains Natural Gas Co. v. Warren Petroleum Co., 875
F.2d 284, 288 (10th Cir. 1989) (in a diversity case “our task . . . is to interpret and apply
the law of [Utah] as we believe the [Utah] Supreme Court would”).
Under Utah law, each of Rohr’s claims requires him to establish that he reasonably
relied on Anderson’s alleged statements. See Daines v. Vincent, 190 P.3d 1269, 1279
(Utah 2008) (fraudulent inducement requires a plaintiff to show that he “act[ed]
reasonably and in ignorance of [a representation’s] falsity” (quotation omitted));
Youngblood v. Auto-Owners Ins. Co.,158 P.3d 1088, 1092 (Utah 2007) (promissory
1
Allstate argues that Rohr has not made a fraudulent inducement claim against
Allstate; however, his complaint states a claim titled “Fraudulent Inducement /
Intentional Misrepresentation,” and the district court granted summary judgment on this
claim.
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estoppel requires the plaintiff to show he acted “in reasonable reliance on a promise made
by the defendant” (quotation omitted)); Olsen v. Univ. of Phoenix, 244 P.3d 388, 390
(Utah Ct. App. 2010) (negligent and fraudulent misrepresentation claims require
“reasonable reliance”).
A
As an initial matter, Rohr asserts that reasonable reliance is typically a question of
fact for the jury and there is a material dispute of fact rendering summary judgment
inappropriate in this case. See, e.g., Conder v. A.L. Williams & Assoc., 739 P.2d 634,
638 (Utah Ct. App. 1987) (“Reasonable reliance must be considered with reference to the
facts of each case, and is usually a question for the jury to determine.”). However, in
certain circumstances a court may determine the reasonableness of the reliance as a
matter of law. Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1067 (Utah 1996)
(“[T]here are instances where courts may conclude that as a matter of law, there was no
reasonable reliance.”).
Reasonable reliance may be decided as a matter of law when “there is no material
fact question about [plaintiff’s] reasonable reliance.” Anderson v. Larry H. Miller
Commc’ns Corp., 284 P.3d 674, 680 (Utah Ct. App. 2012). Such is the case here. Rohr
makes the conclusory argument that there is a dispute of material fact regarding the
reasonableness of his reliance; however, he fails to point to what material facts are
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disputed and we find no such evidence in the record.2 We therefore consider his
argument waived. See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007)
(“[A] party waives those arguments that its opening brief inadequately addresses.”); see
also Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024-25 (10th Cir.
1992) (to avoid summary judgment, “sufficient evidence (pertinent to the material issue)
must be identified by reference to an affidavit, a deposition transcript or a specific exhibit
incorporated therein” because “we will not search the record in an effort to determine
whether there exists dormant evidence which might require submission of the case to a
jury”).
B
The majority of Rohr’s opening brief is devoted to his contention that the
integration clause in the 2008 agreement does not bar his claims. We agree that the 2008
agreement, by itself, does not necessarily establish that his reliance was unreasonable as a
2
We also do not rely on Rohr’s factual assertions regarding prior EFSs’ past
performance in Utah that are based solely on his unverified complaint and unverified
interrogatories and are otherwise not supported in the record. See Bryant v. Farmers Ins.
Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (the substance of the evidence submitted at
summary judgment must be admissible at trial); Comm. for First Amendment v.
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (unverified assertion by counsel does
not “suffice for evidence or fact” for purposes of summary judgment); Parkinson v. Cal.
Co., 233 F.2d 432, 438 (10th Cir. 1956) (“Where a complaint is unverified and plaintiff
does not traverse defendants’ affidavits or other proof showing that there is no claim
upon which relief can be granted, summary judgment is proper.”).
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matter of law. However, the district court did not rely solely on the 2008 agreement in
holding that his reliance was unreasonable; rather, it based its determination on a number
of undisputed, material facts.
We agree with the district court and conclude that the following undisputed facts
render Rohr’s reliance unreasonable: (1) Rohr’s past experience working as an EFS with
Allstate on commission provided him notice that he would work on commission as an
EFS in Utah; (2) the 2006 EFS independent contractor agreement informed Rohr, before
he moved to Utah, that the agreement could not be modified orally and that his
compensation was based on commission of an unspecified amount that was subject to
change with written notice due to the uncertainties of the market; (3) Rohr would have
concluded that the 2006 EFS independent contractor agreement would continue after his
transfer or that he would sign a new, but identical, agreement because the 2006
agreement was a generic, form contract; (4) Rohr’s personal visits with the agencies in
Utah made him aware of their low production before his move; and (5) his failure to
investigate Anderson’s statements about his future income, after the aforementioned facts
placed him on notice that he should do so.
Rather than addressing these factors, Rohr instead makes several arguments based
solely on the relevancy of the 2008 EFS agreement’s integration clause. He argues that
the 2008 agreement’s integration clause is legally irrelevant with respect to his claims of
fraud and negligent misrepresentation, citing Ong International (U.S.A.) Inc. v. 11th
Avenue Corp., 850 P.2d 447, 452 n.6 (Utah 1993), and the Restatement (Second) of
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Contracts § 196 for the proposition that parties cannot contract around a fraud defense.
But Rohr misses the point: All three of his claims require a showing of reasonable
reliance. And the district court did not grant summary judgment on the basis that the
2008 contractual provisions released Allstate from liability from fraud; rather, it held that
Rohr failed to establish reasonable reliance as required to assert a fraudulent inducement
claim. See Daines, 190 P.3d at 1279.
In the alternative, Rohr argues that even if we do consider the 2008 agreement’s
integration clause, it is insufficient to render his reliance unreasonable. He relies on
Anderson, 284 P.3d 674, in which the Utah Court of Appeals held that a written
agreement stating that employment was at-will did not render the plaintiff’s reliance on
an oral promise of three years’ employment unreasonable. In that case, the court
determined that the agreement at issue contained “key language” that explicitly reserved
the employer’s right to depart from the agreement at its discretion and made no mention
that changes must be in writing. Id. at 680. Therefore, the court held that the employer’s
oral statements were consistent with the agreement because the company representative
who allegedly made the statements had the authority to alter the agreement. Id. at 680-
81.
We reject Rohr’s contention that similar to the facts in Anderson, his 2008
agreement with Allstate expressly permitted Allstate to modify the compensation that it
paid him and was silent as to his affiliation with agents and the amount of referral
business he was guaranteed; therefore, it was reasonable for him to rely on Anderson’s
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oral statements because they were consistent with the agreement. But the 2006
agreement, which put Rohr on notice of the identical terms of the 2008 agreement,
contained no language permitting an Allstate employee to unilaterally modify the terms
of the written agreement as was the case in Anderson. To the contrary, both agreements
contained express language stating that it was the “sole and entire agency agreement,”
and that it “supersedes any prior oral statements and representations.” Both agreements
also provided that “[n]o representative of the Company” had authority to alter the terms
of the agreements “except by a written agreement between the Company and you which
expressly states that it modifies this Agreement.” Moreover, the agreements stated that
the sole compensation for the EFS position would be commissions, the terms of which
Allstate could modify with written notice “due to the inherent uncertainty of business
conditions.”
The district court relied on Gold Standard, 915 P.2d 1060, in which the court held
that “a party cannot reasonably rely upon oral statements by the opposing party in light of
contrary written information.” Id. at 1068. Rohr argues that this holding does not apply
because Anderson’s oral statements did not contradict the contract. Nevertheless, the
contracts explicitly superseded all oral representations. Further, the presence or lack of a
direct conflict is not dispositive under Gold Standard. Instead, that case establishes that a
plaintiff “[can]not reasonably rely on [a] promise in light of [other information that]
explicitly indicated that the situation was not as [the plaintiff] understood it to be.” Id. at
1067. In light of the other information known to Rohr regarding his future income, it was
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unreasonable for him to believe that he was guaranteed $100,000 in commissions.
We similarly reject Rohr’s reliance on Robinson v. Tripco Investment, Inc., 21
P.3d 219 (Utah Ct. App. 2000). In Robinson, the defendant made objective
misstatements about the currently existing condition of a building that was for sale. Id. at
224. In contrast, Anderson’s alleged statements were opinions predicting uncertain
future conditions. “A misrepresentation of intended future performance is not a presently
existing fact upon which a claim for fraud can be based unless a plaintiff can prove that
the representor, at the time of the representation, did not intend to perform the promise
and made the representation for the purpose of deceiving the promisee.” Andalex Res.,
Inc. v. Myers, 871 P.2d 1041, 1047 (Utah Ct. App. 1994) (quotation omitted). Moreover,
statements of opinion that are not capable of being proven true or false cannot form the
basis of a claim for fraudulent misrepresentation. Boud v. SDNCO, Inc., 54 P.3d 1131,
1138-39 (Utah 2002). And representations of value “do not ordinarily constitute fraud”
even if they later turn out to be wrong because they are usually regarded as “mere
expressions of opinion . . . involving matter of judgment and estimation as to which men
may differ.” Wright v. Westside Nursery, 787 P.2d 508, 512 (Utah Ct. App. 1990)
(quotation omitted).
Each of Anderson’s alleged representations concerned predictions, rather than
claims about current conditions. Both Rohr and Allstate knew that existing production
numbers in Utah were low and hoped that Rohr would be able to increase production, yet
neither could have actual knowledge about future events. And the record does not
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support the contention that Anderson intentionally misrepresented known facts or failed
to do what he could to ensure Rohr’s success. The record belies this contention: it was
in Anderson’s interest that Rohr succeed because Anderson’s own income was tied in
part to the sale of financial products sold by EFSs within his territory. And when Rohr
was struggling to meet his production requirements, Anderson took steps to assist him,
such as assigning him to additional agencies.
Similarly unavailing is Rohr’s argument that because he relied on Anderson’s
statements by moving to Utah before he signed the agreement, we need not consider its
integration clause in our analysis. Like the district court, we treat the 2008 agreement as
relevant, but not dispositive, as to whether Rohr’s reliance was reasonable. Prior to
moving to Utah, Rohr must have thought that either his 2006 EFS agreement would
continue or that an updated version of the generic form agreement for the EFS position
would govern his new position in Utah. And the 2006 agreement stated that
compensation was based on commissions that were subject to change only by written
notice, and that oral agreements were not part of the employment contract.
We conclude that the district court did not err in considering the 2008 agreement
along with the identical 2006 agreement and the other record evidence to determine that
Rohr’s reliance was unreasonable as a matter of law. See Gold Standard, 915 P.2d at
1067 (holding that when there is notice that “the situation was not as [the plaintiff]
understood it to be,” reliance is unreasonable).
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C
Finally, Rohr challenges the district court’s conclusion that he was put on notice
that further investigation of Allstate’s alleged misrepresentations would be prudent and
that his failure to do so rendered his reliance unreasonable. In general, “a plaintiff may
justifiably rely on positive assertions of fact without independent investigation”;
however, “where, under the circumstances, the facts should be apparent to one of his
knowledge and intelligence from a cursory glance, or he has discovered something which
should serve as a warning that he is being deceived, [a plaintiff] is required to make an
investigation of his own.” Conder, 739 P.2d at 638-39. A plaintiff asserting false
representation has “the duty of exercising such degree of care to protect his own interests
as would be exercised by an ordinary, reasonable and prudent person under the
circumstances; and if he fails to do so, is precluded from holding someone else to account
for the consequences of his own neglect.” Gold Standard, 915 P.2d at 1068 (quotation
omitted).
We conclude that Rohr had ample warning that he was not guaranteed $100,000 in
commissions, giving rise to a duty to investigate Anderson’s representations under
Conder, 739 P.2d at 638-39. For example, Rohr knew that his income would be based on
commissions, an inherently uncertain form of income. He also met with five different
Allstate agencies before he decided to move and personally concluded from his meetings
that their numbers were “fairly low.” Because Rohr “ha[d] discovered something which
should serve as a warning that he [was] being deceived, [he was] required to make his
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own investigation.” Id. at 638.
Rohr principally relies on Conder to argue that he lacked a duty to investigate. In
Conder, the plaintiff accepted a position in reliance on his employer’s oral promise that
he would be able to work in the areas of securities and investment at a later date, despite
having signed an agreement that limited his work to selling insurance. Id. at 636. The
court held that he had no duty to investigate because the record did not contain
contradictory information that put him on notice that the oral assurances were false. Id.
at 639. In the case at bar, there was ample evidence suggesting to an “ordinary,
reasonable and prudent person under the circumstances,” Gold Standard, 915 P.2d at
1068 (quotation omitted), that Rohr was not guaranteed $100,000 in income.
The factual circumstances presented in the other cases Rohr relies on also differ
materially from those before us. In two of the cases he cites, there were no facts that
served as a warning to the plaintiffs to investigate further. See Ong Int’l (U.S.A.) Inc.,
850 P.2d at 453 (contrary information was “not easily ascertainable”); Timothy v.
Keetch, 251 P.3d 848, 851 (Utah Ct. App. 2011) (“Nothing in the transaction, in
Defendants’ representations, in [plaintiff’s] visit to the ranch, or in the inquiries Plaintiffs
made suggested anything that would serve as a warning . . . .” (quotation omitted)). And
in the third, Robinson, 21 P.3d 219, there was a material question of fact regarding the
duty to investigate because the defendant “held himself out as someone with superior
knowledge . . . and then lent support to his representations by providing an inspection
report.” Id. at 225. By contrast, Anderson’s representations were not based on a
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technical report or expert evidence, and the asymmetry of access to information in
Robinson is lacking here given Rohr’s previous work as an EFS and his visits to Utah
before his move.
Because Rohr had sufficient information to “serve as a warning that he [was]
being deceived . . . [he was] required to make his own investigation.” Condor, 739 P.2d
at 638. He is thus “precluded from holding someone else to account for the consequences
of his own neglect.” Gold Standard, 915 P.2d at 1068 (quotation omitted). We conclude
that Rohr’s reliance on Anderson’s statements, without further investigation, was
unreasonable.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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