The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
T.D. WILLIAMSON, INC.,
Plaintiff,
v.
Court No. 4:21-cv-00153-JCG-SH
LINCOLN ELECTRIC
AUTOMATION, INC. d/b/a WOLF
ROBOTICS,
Defendant.
OPINION AND ORDER
Before the Court are cross-motions for summary judgment filed by
Defendant Lincoln Electric Automation, Inc. d/b/a Wolf Robotics (“Defendant” or
“Wolf Robotics”) and T.D. Williamson, Inc. (“Plaintiff” or “TDW”). [Def.’s]
Mot. Summary J. (“Def.’s Mot. Summary J.”) [Doc. 105]; [Def.’s] Mem. Supp.
Mot. Summary J. (“Def.’s Moving Br.”) [Doc. 106]; Pl.’s Mot. Summary J. (“Pl.’s
Mot. Summary J.” or “Pl.’s Moving Br.”) [Doc. 111].
Also before the Court are motions to file under seal and motions to exclude
expert testimony. [Def.’s] Mot. Leave File Mot. Exhs. Mot. Exclude Under Seal
(“Defendant’s Motion to File Under Seal”) [Doc. 109]; [Def.’s] Mot. Limine
Exclude Testimony Opinions Dr. Craig Forest (“Defendant’s Motion to Exclude
Testimony”) [Doc. 112]; [Def.’s] Mot. Limine Exclude Testimony Opinions Dr.
Craig Forest [Doc. 113]; [Pl.’s] Mot. Exclude Testimony Def.’s Expert Michael
Davis (“Plaintiff’s Motion to Exclude Testimony”) [Doc. 110]; [Pl.’s] Mot. Leave
File Mots. Exhs. Mot. Summary J. Mot. Exclude Under Seal (“Plaintiff’s Motion
to File Under Seal”) [Doc. 114].
For the following reasons, the Court grants summary judgment in favor of
Plaintiff for Plaintiff’s claim of breach of contract (Count I). The Court dismisses
Defendant’s claim of breach of contract (Counterclaim I), Plaintiff’s claim for
constructive fraud/deceit (Count II), Plaintiff’s claim for violation of the Oklahoma
Consumer Protection Act (Count III), and Plaintiff’s claim for unjust enrichment
(Count IV).
The Court grants Defendant’s Motion to File Under Seal and Plaintiff’s
Motion to File Under Seal.
The Court denies as moot Defendant’s Motion to Exclude Testimony and
Plaintiff’s Motion to Exclude Testimony.
BACKGROUND
This matter was first brought by TDW against Wolf Robotics in Oklahoma
state court on March 8, 2021, and removed to the District Court for the District of
Oklahoma on April 6, 2021. See Notice of Removal [Doc. 2].
TDW filed its First Amended Complaint on February 15, 2022, alleging
breach of contract (Count I); constructive fraud/deceit (Count II); violation of the
Oklahoma Consumer Protection Act (“OCPA”) (Count III); and unjust enrichment
(Count IV). Am. Compl. ¶¶ 22-51 [Doc. 27].
On March 15, 2022, Wolf Robotics moved to dismiss Counts II to IV of
Plaintiff’s Amended Complaint. Def.’s Part. Mot. Dismiss Pl.’s First Am. Compl.
[Doc. 32]. On September 16, 2022, Judge Frizzell granted in part and denied in
part Defendant’s partial motion to dismiss, concluding that Plaintiff sufficiently
pled claims asserted in Counts II to IV, but dismissed Count II “to the extent it is
based on post-contractual representations and/or omissions identical to those
underlying the contract claim.” Order (Sept. 16, 2022) at 6 [Doc. 39].
On September 30, 2022, Wolf Robotics filed its Answer and Counterclaim,
raising 32 affirmative defenses and the counterclaim of breach of contract
(Counterclaim I). Def.’s Answer [Pl.’s] Am. Compl. Counterclaims (“Def.’s
Answer & Counterclaims”) [Docs. 40, 41].
TDW filed its Answer on October 25, 2022, raising seven affirmative
defenses for: (1) failure to state a claim upon which relief may be granted; (2) lack
of damages suffered; (3) damages, if any, caused in whole or in part by Wolf
Robotics’ own actions, breach of contract, wrongdoing, or the negligence or
wrongdoing of third parties from whom TDW is not responsible and in no way
were caused by or were otherwise attributable to TDW; (4) failure to mitigate
damages; (5) barring of claims, in whole or in part, by the doctrines of estoppel,
laches, waiver, and/or unclean hands; (6) TDW’s entitlement to set-off for any
amounts that may be determined to be owed to Wolf Robotics; and (7) assertion of
any and all defenses, which become available or appear during discovery
proceedings in this action, with the right to amend its answer for the purpose of
asserting such additional affirmative damages. Pl.’s Answer Def.’s Counterclaims
[Doc. 46].
This matter was re-assigned on July 25, 2024 to the undersigned Judge
sitting by designation in the Northern District of Oklahoma. Order [Doc. 97].
On January 17, 2025, Wolf Robotics filed its motion for summary judgment.
Def.’s Mot. Summary J.; Def.’s Statement of Undisputed Material Facts (“Def.’s
SUMF”) [Doc. 105]. TDW filed its opposition brief, along with a supplement to
its opposition brief.1 Pl.’s Resp. Def.’s Mot. Summary J. & Mem. Supp. (“Pl.’s
Opp’n Br.”) [Doc. 118]; Pl.’s Statement of Disputed Material Facts (“Pl.’s
SDMF”) [Doc. 118]; Suppl. [Pl.’s] Resp. Def.’s Mot. Summary J. Mem. Supp.,
[Doc. 124]. TDW also provided “Additional Material Facts Precluding Summary
Judgment” along with its Statement of Disputed Material Facts. Pl.’s Opp’n Br. at
1 On March 13, 2025, TDW filed a Notice of Correction of the Record, striking
footnotes pertaining to two declarations in its opposition briefs based on mistaken
representation. Notice Correction R. [Doc. 130]. TDW filed its supplement to
accompany its Response and Objection to Defendant’s Motion for Summary
Judgment with an unexecuted version of Exhibit 12 (Affidavit of Jeff Wilson).
The supplement was filed to update the record with an executed version of this
document.
10-14. Wolf Robotics filed its reply brief and did not respond to TDW’s
“Additional Material Facts Precluding Summary Judgment.” [Def.’s] Reply Supp.
Mot. Summary J. (“Def.’s Reply Br.”) [Doc. 129].
On January 24, 2025, TDW filed its motion for summary judgment, as well
as a motion for leave to file its motions and exhibits to motion for summary
judgment and motion to exclude under seal. Pl.’s Mot. Summary J.; Pl.’s Mot.
Exclude Testimony; Pl.’s Statement of Undisputed Material Facts (“Pl.’s SUMF”)
[Doc. 111]; [Pl.’s] Mot. Leave File Mots. Exhs. Mot. Summary J. Mot. Exclude
Under Seal (“Pl.’s Mot. File Under Seal”) [Doc. 114]. Wolf Robotics opposed the
motion for summary judgment, and TDW filed a reply brief. [Def.’s] Mem. Opp’n
[Pl.’s] Mot. Summary J. (“Def.’s Opp’n Br.”) [Doc. 122]; Def.’s Statement of
Disputed Material Facts (“Def.’s SDMF”) [Doc. 122]; [Pl.’s] Reply Supp. Mot.
Summary J. (“Pl.’s Reply Br.”) [Doc. 128]. Wolf Robotics also opposed TDW’s
motion to exclude expert testimony and TDW filed a reply brief. [Def.’s] Mem.
Opp’n [Pl.’s] Mot. Exclude Expert Testimony Michael Davis (“Def.’s Opp’n Pl.’s
Mot. Exclude Testimony”) [Doc. 120]; [Pl.’s] Reply Supp. Mot. Exclude Expert
Testimony Mike Davis (“Pl.’s Reply Pl.’s Mot. Exclude Testimony”) [Doc. 126].2
Wolf Robotics filed a motion to file under seal its motion to exclude testimony on
January 24, 2025. [Def.’s] Mot. Leave File Mot. Ex. Mot. Exclude Under Seal;
2 TDW strikes footnote 1 in its opposition brief. See Notice Correction R.
Def.’s Mot. Limine; Def.’s Sealed Mot. Limine. TDW opposed Wolf Robotics’
motion to exclude expert testimony. [Pl.’s] Resp. Def.’s Mot. In Limine Exclude
Testimony Opinions Dr. Craig Forest (“Pl.’s Opp’n Def.’s Mot. Exclude
Testimony”) [Doc. 116]; [Pl.’s] Resp. Def.’s Mot. Limine Exclude Testimony
Opinions Dr. Craig Forest (“Pl.’s Sealed Opp’n Def.’s Mot. Limine”) [Doc. 117].
Wolf Robotics filed its reply brief. [Def.’s] Reply Supp. Mot. Limine Exclude
Report Testimony Dr. Craig Forest (“Def.’s Reply Def.’s Mot. Exclude
Testimony”) [Doc. 127].
DISCUSSION
I. Motions for Summary Judgment3
Wolf Robotics moves to dismiss all of TDW’s claims under Ohio state law,
and in the alternative, Oklahoma state law. See Def.’s Moving Br.
TDW moves for summary judgment as to all of its claims in the Amended
Complaint and Wolf Robotics’ counterclaim of breach of contract. See Pl.’s
Moving Br.
3 The Court grants Plaintiff’s Motion to File Under Seal and Defendant’s Motion
to File Under Seal. Reviewing the redacted (or sealed) and unredacted versions of
the Parties’ respective documents, TDW’s and Wolf Robotics’ interests in
protecting the information outweighs the public interest in the disclosure of that
information due to the confidential nature of its business practices and the redacted
information has been narrowly tailored to protect such information. See JetAway
Aviation, LLC v. Bd. Of Cnty. Comm’rs, 754 F.3d 824, 826 (10th Cir. 2014);
LCvR 5.2-2.
A. Legal Standard
Summary judgment is appropriate only if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). Material facts are those that may affect the
outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute as to a material fact is “genuine” if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving party.” See id. The
moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Undisputed Facts
The Court finds that the following facts are undisputed:4
Wolf Robotics is a wholly-owned subsidiary of Lincoln Electric Holdings,
Inc., a global manufacturer of welding products, arc welding equipment, robotic
welding equipment, robotic cutting equipment, welding consumables, and plasma
and oxy-fuel cutting equipment. Def.’s SUMF ¶ 1; Pl.’s SDMF ¶ 1. Wolf
Robotics is a recognized leader and innovator of automated arc welding products,
metal fabrication, and assembly line solutions. Def.’s SUMF ¶ 2; Pl.’s SDMF ¶ 2.
4 The Court refers to “Wolf Robotics” in the instances that “Lincoln Electric” is
used by the Parties for consistency throughout this Opinion.
TDW provides industry-leading solutions for pressurized piping systems
worldwide, with expertise in welding and manufacturing dating back to the 1950s.
See Def.’s SUMF ¶ 3; Pl.’s SDMF ¶ 3.
In late 2016 and early 2017, TDW began soliciting proposals for the design
and building of a robotic welder to automate the welding functions for large, “split
tee” pipe fittings that TDW manufactures and uses to service pipelines (the “Large
Robotic Welder”), as well as assisting in its manufacturing of large fabricated and
extruded fittings to be installed on pipelines. See Def.’s SUMF ¶ 4; Pl.’s SDMF
¶ 4. In early 2017, TDW began interviewing companies who possessed the
expertise to design, engineer, and manufacture an automated robotic welder for
purposes of performing welds on its large fabricated and extruded fittings. Pl.’s
SUMF ¶ 1; Def.’s SDMF ¶ 1. During this time, Wolf Robotics traveled to TDW’s
manufacturing facility for the purpose of observing TDW’s processes and
evaluating its requirements in welding large fabricated and extruded fittings. Pl.’s
SUMF ¶ 2; Def.’s SDMF ¶ 2.
Previously, Wolf Robotics had successfully delivered a robotic welder to
TDW for the welding of small, spherical parts (the “Small Robotic Welder”).
Def.’s SUMF ¶ 4 n.4; Pl.’s SDMF ¶ 4. On or about February 23, 2017, Chris
Norris (from Wolf Robotics) met with Brent Whipple (from TDW) to discuss the
proposed Large Robotic Welder. Def.’s SUMF ¶ 5; Pl.’s SDMF ¶ 5; Pl.’s SUMF ¶
4; Def.’s SDMF ¶ 4. In their discussion about the Large Robotic Welder, of
particular interest to Mr. Norris were the parts that TDW sought to robotically
weld (“Incoming Parts”). Def.’s SUMF ¶ 6; Pl.’s SDMF ¶ 6.5 On or about
February 23, 2017, Wolf Robotics toured TDW’s facility in Tulsa, Oklahoma for
the purpose of gathering information and details regarding TDW’s welding
requirements for its large fabricated and extruded fittings, as well as inspecting
TDW’s manufacturing process and the physical parts. Pl.’s SUMF ¶ 5; Def.’s
SDMF ¶ 5.
1. The Project Proposal
On April 6, 2017, Wolf Robotics submitted revision number four of its
proposal for the Large Robotic Welder (the “Proposal”). Def.’s SUMF ¶ 15; Pl.’s
SDMF ¶ 15; Pl.’s SUMF ¶ 6; Def.’s SDMF ¶ 6; see Def.’s Moving Br. at Ex. 6
(the “Project Proposal”). Prior to Wolf Robotics’ submission of the Project
Proposal to TDW, TDW provided Wolf Robotics with drawings of the Incoming
Parts, such as CAD Models and print drawings illustrating the detail of the root
gaps and cross-sectional area variance of TDW’s parts to be welded.6 Pl.’s SUMF
¶ 7; Def.’s SDMF ¶ 7.
5 Wolf Robotics explains that “[r]obotic welding requires that the incoming parts
meet certain fit-up requirements (quite literally, the fit between the two parts to be
welded).” Def.’s SUMF ¶ 7.
6 Wolf Robotics disputes that these drawings accurately depicted the Incoming
Parts or how it was prepped to be welded, stating that the prints provided were
The Proposal included a depiction of the Large Robotic Welder, with an
exemplar split-tee pipe fitting to be welded; set forth several pieces of key
information, including a list of assumptions upon which it was premised; and
included a section on assumptions expressly warning TDW that “[a]ny variation
from the below assumptions limits the liability of Wolf Robotics.” Def.’s SUMF
¶¶ 16–18; Pl.’s SDMF ¶¶ 16–18.
The Proposal also expressly provided, among other assumptions, limitations,
and disclaimers, the following statements: “[f]ull penetration welds cannot be
guaranteed without manual intervention;” “[w]eld quality is a function of product
tolerances. Variance outside the range of that qualified in any process
development activity may cause degradation in weld quality. In general, gaps are
not to exceed one half of the wire diameter;” and “[w]elding and inspection
specifications have not been provided. Additional costs may apply to comply with
any welding and inspection specifications.” Def.’s SUMF ¶ 19; Pl.’s SDMF ¶ 19.
The Proposal was reviewed and approved by TDW. Def.’s SUMF ¶ 20; Pl.’s
SDMF ¶ 20.
2. Purchase Agreement and Statement of Work
On or about June 29, 2017, TDW and Wolf Robotics signed the Terms
inaccurate, and that “it is indisputable that TDW failed to manufacture the
Incoming Parts to the dimensions set forth in its prints.” Def.’s SDMF ¶ 7.
and Conditions for the Purchase of Products and Services (the “Purchase
Agreement”) wherein Wolf Robotics agreed to design, engineer, and build
the Large Robotic Welder. Pl.’s SUMF ¶ 12; Def.’s SDMF ¶ 12; Def.’s
Moving Br. at Exh. 8 (“Purchase Agreement”).
Section 1 of the Purchase Agreement states:
Acceptance of these terms binds the parties to these terms and
conditions and the conditions, including any supplement thereto, and
all specifications and other documents Buyer incorporates by express
reference in Buyer’s purchase order, or the associated Scope of Work,
(collectively, the “Contract”). Any additional or different terms or
conditions which may appear in any communications between the
parties are hereby expressly objected to, shall not become part of this
contract and shall not be effective or binding unless specifically
recognized, assented to and agreed to in writing by both parties.
Pl.’s SUMF ¶ 13; Def.’s SDMF ¶ 13.
Section 3 of the Purchase Agreement provides that the terms and conditions
contained therein can only be modified by “mutual written agreement of both
parties.” Id.
Section 5(a) of the Purchase Agreement specifically provides as follows:
5. WARRANTIES; REMEDIES; INSPECTION.
(a) Goods and Services
Warranty. Seller warrants that Goods (excluding Software, which is
warranted as specified in paragraph (d) below) shall be delivered free
of defects in material and workmanship and that Services shall be free
of defects in workmanship. Seller further warrants that the goods and
services shall conform to the purchase order and specification
requirements. The Warranty Remedy Period for Goods (excluding
Software, Spare Parts and Refurbished or Repaired Parts) shall end
twelve (12) months after installation or eighteen (18) months after date
of shipment, whichever first occurs. The Warranty Remedy Period for
new spare parts shall end twelve (12) months after date of shipment.
The Warranty Remedy Period for refurbished or repaired parts shall end
ninety (90) days after date of shipment. The Warranty Remedy Period
for Services shall end six (6) months after the date of completion of
Services.
Pl.’s SUMF ¶ 14; Def.’s SDMF ¶ 14 (emphasis added).
Section 5(b) of the Purchase Agreement provides:
(b) Goods and Services Remedy. If a nonconformity to the foregoing
warranty is discovered in the Goods or Services during the applicable
Warranty Remedy Period, as specified above, under normal and proper
use and provided the Goods has been properly stored, installed,
operated and maintained and written notice of such nonconformity is
provided to Seller within a reasonable period after such discovery and
within the applicable Warranty Remedy Period, Seller shall, at its
option, either (i) repair or replace the nonconforming portion of the
Goods or re-perform the nonconforming Services or (ii) refund the
portion of the price applicable to the nonconforming portion of Goods
or Services. If any portion of the Goods or Services so repaired,
replaced or re-performed fails to conform to the foregoing warranty,
and written notice of such nonconformity is provided to Seller within a
reasonable period after discovery and within the original Warranty
Remedy Period applicable to such Goods or Services or 90 days from
completion of such repair, replacement or re-performance, whichever is
later, Seller will repair or replace such nonconforming Goods or re-
perform the Services. The original Warranty Remedy Period shall not
otherwise be extended.
Id.
On September 19, 2017, the Parties executed a Statement of Work (“SOW”),
a document that set forth the project’s purpose, scope of work, requirements,
specifications, applicable standards, and criteria for acceptance. Def.’s SUMF
¶ 21; Pl.’s SDMF ¶ 21; Pl.’s SUMF ¶ 15; Def.’s SDMF ¶ 15. The SOW specified
welding the inner and outer diameter saddle weld and flange weld zones for large
fittings in nineteen different sizes, including sizes from 20 inch up to 56 inch
fabricated fittings, 20 inch up to 56 inch extruded fittings, and 20 inch up to 48
inch 3-WAY Tees. Pl.’s SUMF ¶ 16; Def.’s SDMF ¶ 16. The SOW set June 18,
2018 as the date for final acceptance of the Large Robotic Welder. Def.’s SUMF
¶ 23; Pl.’s SDMF ¶ 23. The SOW also included several assumptions and
exclusions, including:(1) “Ability to weld is not defined as ability to 100%
robotically weld all joints;” and (2) “[v]ariable cross-sectional area may dictate that
some joints are not 100% filled robotically and may require finish passes to be
completed manually. [TDW] will work with Wolf Robotics [a/k/a Lincoln
Electric] to optimize the joint geometry . . . .” Def.’s SUMF ¶ 22; Pl.’s SDMF
¶ 22.
Wolf Robotics sent TDW a letter dated September 19, 2017, acknowledging
and confirming the Purchase Agreement and SOW. Pl.’s SUMF ¶¶ 17–18; Def.’s
SDMF ¶¶ 17–18. Pursuant to the Purchase Agreement and SOW, TDW made
multiple payments to Wolf Robotics totaling an amount of $836, 624.16. Pl.’s
SUMF ¶ 19; Def.’s SDMF ¶ 19. Wolf Robotics accepted each payment from
TDW. Pl.’s SUMF ¶ 20; Def.’s SDMF ¶ 20.
3. The Change Order
On May 8, 2019, TDW personnel traveled to Wolf Robotics’ facility in Fort
Collins, Colorado for the purpose of meeting with Wolf Robotics to discuss the
Robotic Welder Project. Pl.’s SUMF ¶ 25; Def.’s SDMF ¶ 25. Following this
meeting, Wolf Robotics sent TDW a proposed purchase change order to amend the
scope of work for the Robotic Welder Project. Pl.’s SUMF ¶ 26; Def.’s SDMF ¶
26.
On August 13, 2019, the Parties executed the “order change request” (the
“Change Order”). Def.’s SUMF ¶ 31; Pl.’s SDMF ¶ 31; Pl.’s SUMF ¶ 27; Def.’s
SDMF ¶ 27; see Def.’s Moving Br. at Ex. 15 (the “Change Order”). At the time
that the Change Order was executed, TDW had already made payments to Wolf
Robotics for over 80% of the agreed-upon contract price. Pl.’s SUMF ¶ 29; Def.’s
SDMF ¶ 29.
4. Termination of Project
On November 11, 2019, TDW requested pricing from Wolf Robotics for
another possible scope change to the Large Robotic Welder (the “Second Scope
Change”). Def.’s SUMF ¶ 38; Pl.’s SDMF ¶ 38; see Def.’s Moving Br. at Exh. 19
(the “Second Scope Change”). On November 15, 2019, Wolf Robotics provided
TDW with several options (including pricing and a timeline for each) for the
Second Scope Change. Def.’s SUMF ¶ 39; Pl.’s SDMF ¶ 39. Wolf Robotics
ceased any further work on the project in light of the potential for yet another scope
change. Def.’s SUMF ¶ 40; Pl.’s SDMF ¶ 40.
On or about May 15, 2020, TDW terminated the Project with Wolf Robotics.
Pl.’s SUMF ¶ 32; Def.’s SDMF ¶ 32; Def.’s SUMF ¶ 41; Pl.’s SDMF ¶ 41. Wolf
Robotics received payments totaling $836,624.16 from TDW. Pl.’s SUMF ¶ 33;
Def.’s SDMF ¶ 33. On or about November 24, 2021, Wolf Robotics sold the Large
Robotic Welder to a third party, BWXT, for the sum of $593,196.00. Pl.’s SUMF ¶
35; Def.’s SDMF ¶ 35.
C. TDW’s Breach of Contract Claim (Count I)
Wolf Robotics moves for summary judgment on Count I, arguing that: (1)
TDW’s claims are time-barred under Ohio law; and (2) in the alternative, if
TDW’s claims are not time-barred, that TDW fails to prove the elements of breach
of contract under Ohio law. See Def.’s Moving Br. Wolf Robotics contends that
Ohio law applies to this action because it asserts that the Change Order modified
the Purchase Agreement and SOW. Id. at 12–16.
TDW cross-moves for summary judgment on Count I and Counterclaim I,
contending that Ohio law does not apply because the Change Order could not have
reasonably modified the Purchase Agreement and SOW, and Wolf Robotics
breached the terms of the Purchase Agreement and Statement of Work. Pl.’s
Moving Br. at 14–27.
Count I alleges that Wolf Robotics entered into the Purchase Agreement and
SOW with TDW; Wolf Robotics breached the Purchase Agreement by failing to
design and build the Large Robotic Welder in compliance with the terms of the
Purchase Agreement and SOW; Wolf Robotics subsequently entered into the
Change Order7 with TDW; and Wolf Robotics breached the Change Order, causing
TDW to incur significant monetary damages. See Am. Compl. ¶¶ 22–26. TDW
seeks monetary damages in the amount of $808,332.63, together with pre-and post-
judgment interest, until paid, the costs of this action, reasonable attorneys' fees, and
such further relief as to which it may be entitled. Id. ¶ 26.
Wolf Robotics contends that Count I should be dismissed because: (1) the
lawsuit is timed-barred under Ohio law, as the incorporation of Wolf Robotics’
terms and conditions (“Wolf Robotics’ Terms & Conditions”) to the Change Order
arguably modified the forum selection clause in the Purchase Agreement,
providing a one-year limitation of liability period for claims brought against Wolf
Robotics; and (2) in the alternative, all claims should be dismissed under Ohio law.
Def.’s Moving Br. at 15–16; id. at Exh. 15 (“Wolf Robotics’ Terms &
Conditions”).
7 The Amended Complaint uses the term “2019 Amended Scope.” The Court
uses the term “Change Order” for consistency throughout this Opinion.
1. Modification of Purchase Agreement
TDW disagrees that the Change Order modified the forum selection clause
in the Purchase Agreement because: (1) Wolf Robotics’ Terms & Conditions were
not properly incorporated into the Change Order to modify the terms and
conditions of the Purchase Agreement; and (2) Section 3 of the Purchase
Agreement expressly states that “mutual written agreement of both parties” is
required for modification of its terms and conditions. See Pl.’s Opp’n Br. at 16–
17.
It is undisputed that the Parties entered into the Purchase Agreement, the
SOW, and the Change Order. Pl.’s SUMF ¶¶ 17–18, 27; Def.’s SDMF ¶¶ 17–18,
27; Def.’s SUMF ¶ 31; Pl.’s SDMF ¶ 31. The Change Order was entered into after
the Purchase Agreement and the SOW. Id. The Purchase Agreement includes a
forum selection clause for Oklahoma law, while the Change Order includes a
forum selection clause for Ohio law. See Purchase Agreement; Change Order.
“A contract in writing may be altered by a contract in writing, or by an executed
oral agreement, and not otherwise.” 15 O.S.2021 § 237. “It is axiomatic that
parties to an existing valid contract may, by mutual consent and consideration,
modify the contract.” Johnson v. Brown, Brown, Wood, & Schoelen, Inc., 2024
OK CIV APP 18, ¶ 45, 554 P.3d 781, 790 (quoting Nat’l Interstate Life Ins. Co. v.
Thomas, 1981 OK 71, ¶ 30, 630 P.2d 779). The statute of frauds requires that
modifications to the contract must be memorialized in writing for a sale of goods
worth more than $500. Trillium Transp. Fuels, LLC v. Integral Energy, LLC, No.
CIV-20-1197-PRW, 2023 WL 5198513, at *3 (W.D. Okla. Aug. 11, 2023).
The Purchase Agreement provides the relevant sections regarding
modification of the contract and the applicable jurisdiction. Section 1 of the
Purchase Agreement provides:
Acceptance of these terms binds the parties to these terms and
conditions and the conditions, including any supplement thereto, and
all specifications and other documents Buyer incorporates by express
reference in Buyer’s purchase order, or the associated Scope of Work,
(collectively, the “Contract”). Any additional or different terms or
conditions which may appear in any communications between the
parties are hereby expressly objected to, shall not become part of this
contract and shall not be effective or binding unless specifically
recognized, assented to and agreed to in writing by both parties.
See Purchase Agreement at 1 (emphasis added).
Section 3 of the Purchase Agreement discusses modification, waiver, and
assignment.
This contract may only be modified by mutual written agreement of
both parties. Any failure of either party to exercise its rights or
remedies with respect to any installment or past performance shall not
be deemed a waiver of remedies as to subsequent performance or
installments. . . .
Notwithstanding anything to the contrary in this section, the parties at
any time shall have the right to propose changes in this contract,
including without limitation, changes to drawings, designs, or
specifications; quantity, method of shipment or packing; delivery
schedule or place of delivery, and work schedule, upon mutual written
agreement and execution of a change order to reflect adjustments in
price and schedule effectuated by such change. . . .
Seller will not perform any work on a change order until the parties
have agreed to it in writing.
Id.
Section 14(i) of the Purchase Agreement provides Oklahoma law as the
applicable jurisdiction in this case.
If buyer is TDW Services, Inc. or T.D. Williamson, Inc.: This contract
shall be governed by, and construed in accordance with, the laws of the
State of Oklahoma and the laws of the United States of America
applicable therein and shall be subject to the applicable jurisdiction of
the state or federal courts in Oklahoma.
Id. at 5.
Wolf Robotics’ Terms & Conditions included a forum selection clause,
which provided Ohio as the applicable jurisdiction, and a one-year limited liability
provision. Section 27 of the Wolf Robotics’ Terms & Conditions states, in
relevant part:
Disputes and Governing Law. In the event of any controversy, claim or
dispute arising out of or relating to this Agreement (a “Dispute”), Seller
and Buyer shall seek to resolve the matter amicably through diligent,
good faith, mutual discussions to be initiated as promptly as possible
after a Dispute arises. . . . This Agreement and any transactions arising
therefrom shall be governed and construed under the laws of the State
of Ohio, as applied to contracts entered into and performed in that State,
specifically excluding any conflict or choice of law provisions.
See Wolf Robotics’ Terms & Conditions at 4 (emphasis added).
Section 12(b) of Wolf Robotics’ Terms & Conditions provides a limitation
of liability provision:
ALL CAUSES OF ACTION AGAINST SELLER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE PERFORMANCE
OR BREACH HEREOF SHALL EXPIRE UNLESS BROUGHT
WITHIN ONE YEAR OF THE TIME OF ACCRUAL THEREOF.
Id.
For the forum selection clause in Wolf Robotics’ Terms & Conditions to
apply to this matter, Wolf Robotics’ Terms & Conditions must have first been
properly incorporated into the Change Order. Generally, when a contract expressly
refers to and incorporates another instrument in specific terms that show a clear
intent to incorporate that instrument into the contract, both instruments are to be
construed together. See 11 Williston on Contracts § 30:25 (4th ed. 1999). Under
Oklahoma law, “parties may incorporate by reference separate writings, or portions
thereof, together into one agreement” when three requirements are met: “(1) the
underlying contract makes clear reference to the extrinsic document, (2) the
identity and location of the extrinsic document may be ascertained beyond doubt,
and (3) the parties to the agreement had knowledge of and assented to its
incorporation.” Walker v. Builddirect.Com Techs. Inc., 2015 OK 30, ¶ 16, 349
P.3d 549, 554. Whether and to what extent extrinsic material has been
incorporated into an agreement presents a question of law for resolution by the
Court. CMI Roadbuilding, Inc. v. SpecSys, Inc., 550 F. Supp. 3d 1180, 1185
(W.D. Okla. 2021).
An exception to the rule of incorporation is when the contract is one of
adhesion. An adhesion contract is a standardized contract prepared entirely by one
party to the transaction for the acceptance of the other. These contracts, because of
the disparity in bargaining power . . . , must be accepted or rejected on a “take it or
leave it” basis without opportunity for bargaining.” Max True Plastering Co. v.
U.S. Fid. & Guar. Co., 1996 OK 28, ¶ 7, 912 P.2d 861, 864. Contracts are
unconscionable when “the circumstances existing at the time of making of
the contract, and in light of the general commercial background and commercial
need of a particular case, clauses are so one-sided as to oppress or unfairly surprise
one of the parties.”). Barnes v. Helfenbein, 1976 OK 33, ¶ 23, 548 P.2d 1014,
1020. Here, the Change Order is not a contract of adhesion. There is no evidence
of coercive pressure to sign or unequal bargaining power, so the exception does not
apply.
The Change Order, in addition to amending the scope of the work to be
performed by Wolf Robotics, included a website link to Wolf Robotics’ Terms &
Conditions. 8 The Court observes that the Change Order expressly provided that
8 Courts generally approach the validity of electronic agreements using basic
contract law principles, but Wolf Robotics’ Terms & Conditions are not considered
to be an electronic agreement. It is not a clickwrap agreement (where a computer
the agreement “is governed by the terms and conditions of Wolf Robotics, LLC,
which can be viewed at http://www.wolfrobotics.com/terms-conditions/.” See
Change Order. Clicking on the website link leads to a webpage document with the
heading “Automation Terms and Conditions of Sale (US)” and lists the terms and
conditions for sale. This website link is located above the signature line, clearly
referenced, and was not hidden in the contract. The Change Order made clear
reference to the extrinsic document.
However, it is clear to the Court that Plaintiff did not intend to incorporate
the terms of the Change Order into the Purchase Agreement, and more specifically,
Plaintiff did not agree to change the forum to Ohio when it signed the Change
Order. Online terms and conditions cannot be incorporated into a written
agreement when there is no clear intent to include these terms and conditions. See,
e.g., Manasher v. NECC Telecom, No. 06-10749, 2007 WL 2713845, at *5–6
(E.D. Mich. Sept. 18, 2007), aff’d in part, 310 F. App’x 804 (6th Cir. 2009). TDW
provides evidence in the form of affidavits that demonstrate the lack of mutual
assent to incorporate Wolf Robotics’ Terms & Conditions. These affidavits
user must click a dialogue box, such as an “I agree” button, to signify their assent
to terms or conditions on a separate screen or internet page before they can proceed
on a transaction) or a sign-in wrap agreement (where a computer user’s assent can
be inferred from the fact that they were notified that proceeding with a transaction
would signify their agreement to terms or conditions stated on a separate computer
screen or internet page, usually accessible through a hyperlink). Smith v. Whaleco
Inc., 741 F. Supp. 3d 1104, 1107 (W.D. Okla. 2024).
indicate that TDW did not intend to amend, modify, or otherwise change the terms
and conditions of its Purchase Agreement and Wolf Robotics did not discuss the
altering or modification of the general terms and conditions of the Purchase
Agreement during the conversations, meetings, and negotiations in connection with
the Change Order. See Pl.’s Reply Br.; Aff. Brent Whipple [Doc. 128-1]; Aff. Jeff
Wilson [Doc. 128-3]. For example, the affidavits of Jeff Wilson and Brent
Whipple both state that “TDW did not intend to alter the terms and conditions
previously agreed upon by the Parties under the Purchase Agreement and
Statement of Work.” Aff. Brent Whipple at ¶ 13; Aff. Jeff Wilson at ¶ 14.
Wolf Robotics argues that the affidavits of Brent Whipple and Jeff Wilson
are “sham affidavits” that should be excluded. Def.’s Reply Br. at 4–6.
A district court must first “determine whether the conflicting affidavit is
simply an attempt to create a ‘sham fact issue’” before excluding it from summary
judgment consideration. Durtsche v. Am. Colloid Co., 958 F.2d 1007, 1010 n.2
(10th Cir. 1992). “[A]n affidavit may not be disregarded [solely] because it
conflicts with the affiant’s prior sworn statements. In assessing a conflict under
these circumstances, however, courts will disregard a contrary affidavit when they
conclude that it constitutes an attempt to create a sham fact issue.” Franks v.
Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (internal citation omitted). The
U.S. Court of Appeals for the Tenth Circuit has described cases in which an
affidavit raises but a sham issue as “unusual.” Id. In determining whether an
affidavit creates a sham fact issue, the Court considers whether: “(1) the affiant
was cross-examined during his earlier testimony; (2) the affiant had access to the
pertinent evidence at the time of his earlier testimony or whether the affidavit was
based on newly discovered evidence; and (3) the earlier testimony reflects
confusion which the affidavit attempts to explain.” Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001) (quotation omitted).
Wolf Robotics contends that “[d]espite its corporate representative’s
admission on cross-examination that Brent Whipple had authority to sign the
Change Order, TDW proffers two sham affidavits directly contradicting that
binding, sworn testimony: ‘Q. . . . Brent approved this change order? A. I do see
that, yes. * * * Q. So he had the authority? A. Yes.’” Def.’s Reply Br. at 1 (citing
Deposition of Jeff Wilson as Corporate Representative for TDW (“Deposition of
Jeff Wilson” or “Wilson Dep.”) [Doc. 129-1]). There is no question that Jeff
Wilson was cross-examined during his deposition and had access to the pertinent
evidence at the time of this deposition (the agreement). The Deposition of Jeff
Wilson does not reveal material contradictions in the affidavits of Brent Whipple
and Jeff Wilson concerning Brent Whipple’s limited authority to amend or modify
the terms and conditions of the Change Order. In the Deposition of Jeff Wilson,
Jeff Wilson was asked if Brent Whipple approved of the Change Order, and Jeff
Wilson answered in the affirmative. Wilson Dep. at 109:5–7. Jeff Wilson was
then asked if Brent Whipple had the authority to do so on behalf of TDW, and Jeff
Wilson answered in the affirmative. Id. at 109:8–18.
The relevant statements in the Affidavit of Jeff Wilson regarding Brent
Whipple’s authority to approve the Change Order are as follows:
• Brent Whipple was given the narrow and limited authority to enter into
the [Change Order] on behalf of TDW with Wolf Robotics.
• Brent Whipple only had the authority to enter into the [Change Order]
to reduce the scope of work to be done under the Parties’ original
Agreement pursuant to the terms contained in the Purchase Agreement
of Statement of Work.
• Brent Whipple did not have the authority to amend, modify or
otherwise change the terms and conditions of the Parties’ original
Agreement.
Aff. Jeff Wilson at ¶¶ 11-13.
The relevant statements in the Affidavit of Brent Whipple regarding his
authority to approve the Change Order are as follows:
• While I was at TDW, I was given the narrow and limited authority to
enter into the Change Order on behalf of TDW[,] which was requested
and necessitated by Wolf Robotics.
• I only had the authority to enter the [Change Order] to reduce the scope
of work, or the number of parts and/or fittings which were to be welded
by the Robotic Welder, under the Parties’ original Agreement pursuant
to the terms contained in the Purchase Agreement and Statement of
Work.
• I did not have the authority to amend, modify or otherwise change the
terms and conditions of the Parties’ Agreement.
Aff. Brent Whipple at ¶¶ 9-11.
Because Jeff Wilson was cross-examined and there are no material
contradictions, these affidavits do not fall within the ambit of creating a sham fact
issue and may be relied upon.
Based on the evidence before the Court, there was no clear intent to
incorporate Wolf Robotics’ Terms & Conditions. Wolf Robotics did not discuss
altering or modifying the general terms and conditions of the Purchase Agreement
during the conversations, meetings, and negotiations in connection with the
Change Order. This demonstrates that TDW did not intend to amend, modify, or
otherwise change the terms and conditions of its Purchase Agreement based on
Wolf Robotics’ Terms & Conditions. Therefore, the Court concludes as a matter
of law that Wolf Robotics’ Terms & Conditions with the Ohio choice of law
provision did not modify the Oklahoma choice of law provision in the Purchase
Agreement, and the forum selection clause and limited liability provision in Wolf
Robotics’ Terms & Conditions is unenforceable. Due to the lack of mutual
consent, the terms and conditions of the Purchase Agreement have not been
modified by Wolf Robotics’ Terms & Conditions. The Court holds that this matter
is neither governed by Ohio law nor barred by a one-year limited liability
provision. Oklahoma law will apply.
2. Validity of the Change Order
TDW also contends that the Change Order was not a valid or enforceable
contract because it lacked new consideration. TDW asserts that it did not receive
anything of value in exchange for its agreement to enter into the Change Order,
which reduced Wolf Robotics’ obligations under the terms of the Parties’ original
contract contained in the Purchase Agreement and SOW, and was never intended
to be a wholesale change of the Contract and Project, rather it was sought to
mitigate TDW’s damages from Wolf Robotics’ failure to meet its terms and
conditions agreed upon in the original contract. Pl.’s Moving Br. at 14–16; Pl.’s
Opp’n Br. at 18.
Wolf Robotics argues that consideration was given for the Change Order,
such as additional equipment and attendant design hours that were not included in
the SOW, Proposal, or Purchase Agreement. Def.’s Opp’n Br. at 10–17; Def.’s
Reply Br. at 8.
The formation of a contract requires: (1) parties capable of consenting; (2)
their consent (i.e., meeting of minds); (3) a lawful object; and (4) sufficient cause
or consideration. 15 O.S.2011 § 2.9 An essential element of a contract is sufficient
9 The Court finds that there is no question of actual or apparent authority by Brent
Whipple to enter the Change Order because he had signed it on behalf of TDW and
Jake Hansen on behalf of Wolf Robotics. See Change Order; see also Def.’s
SUMF ¶ 31; Pl.’s SDMF ¶ 31; Pl.’s SUMF ¶ 27.
consideration. Id. Generally, consideration exists as long as there is a benefit to
the promisor or a detriment to the promisee. Thompson v. Bar-S Foods Co., 2007
OK 75, ¶ 19, 174 P.3d 567, 574. It is undisputed that Wolf Robotics sent TDW a
proposed purchase change order that would amend the scope of the Robotic
Welder Project. Pl.’s SUMF ¶ 26; Def.’s SDMF ¶ 26. The Parties executed the
Change Order on August 13, 2019. Def.’s SUMF ¶ 31; Pl.’s SDMF ¶ 31; Pl.’s
SUMF ¶ 27; Def.’s SDMF ¶ 27. At the time that the Change Order was executed,
TDW had already made payments to Wolf Robotics for over 80% of the agreed-
upon contract price. Pl.’s SUMF ¶ 29; Def.’s SDMF ¶ 29.
The Court concludes that there was sufficient consideration for the Change
Order to be a valid agreement. TDW, as the promisor, received the benefit of a
change in scope work to be finished by Wolf Robotics, and Wolf Robotics, as the
promisee, had the detriment of accommodating the change of scope as outlined in
the Change Order. It is undisputed that Wolf Robotics and TDW agreed to a
purchase change order that amended the scope of the Robotic Welder Project,
whether by adding or reducing work for certain aspects of the project. See Pl.’s
SUMF ¶¶ 26–27; Def.’s SDMF ¶¶ 26–27. The Parties executed the Change Order
on August 13, 2019. Def.’s SUMF ¶ 31; Pl.’s SDMF ¶ 31.
The Change Order solely modified the scope of work, and did not modify
the terms and conditions in the Purchase Agreement because Wolf Robotics’
Terms & Conditions were not properly incorporated due to the lack of mutual
consent. The Court views the Contract at issue to be collectively the Purchase
Agreement, the SOW, and the Change Order (to the extent that it modified the
SOW).
3. Failure to Perform
To establish a breach of contract, a plaintiff must show: (1) the formation of
a contract; (2) breach of the contract; and (3) damages as a result of the breach.
Cates v. Integris Health, Inc., 2018 OK 9, ¶ 4, 412 P.3d 98, 103. “A breach of
contract is a material failure of performance of a duty arising under or imposed by
agreement.” Bennett v. Allstate Life Ins. Co., 623 F. Supp. 3d 1236, 1248 (W.D.
Okla. 2022) (quoting Lewis v. Farmers Ins. Co., 1983 OK 100, ¶ 5, 681 P.2d 67,
69).
“Every contract in Oklahoma contains an implied duty of good faith and fair
dealing.” Wathor v. Mut. Assur. Adm’rs, Inc., 2004 OK 2, ¶ 5, 87 P.3d 559, 561.
Under this duty, neither party may “act to injure the parties’ reasonable
expectations nor impair the rights or interests of the other to receive the benefits
flowing from their contractual relationship.” First Nat’l Bank & Tr. Co. of Vinita
v. Kissee, 859 P.2d 502, 509 (Okla. 1993) (per curiam); see also Devery
Implement Co. v. J.I. Case Co., 944 F.2d 724, 728 (10th Cir. 1991) (“The covenant
requires that no party destroy or injure another party's right to receive the fruits of
the contract.” (internal quotation marks omitted)). Under Oklahoma law, “‘a party
to a contract may not by his deliberate act prevent the happening of a condition
therein and then take advantage of the condition to defeat liability upon the
contract.’” Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319,
1323 (10th Cir. 1987) (citation and brackets omitted). In other words, if a
contractual benefit for party A depends on the occurrence of a condition under the
control of party B, party B may be in breach of contract if it acts in bad faith to
prevent the occurrence of the condition. Grubb v. DXP Enters., Inc., 85 F.4th 959,
966–67 (10th Cir. 2023).
TDW contends that Wolf Robotics breached the Contract by failing to
design, engineer, and build the Large Robotic Welder according to the
requirements and specifications of TDW. See Pl.’s Moving Br. at 23. TDW states
that “the print drawings provided to Wolf Robotics prior to entering the Purchase
Agreement illustrated the detail of the root gap and cross-sectional area variance of
the fabricated fittings,” which were critical to understanding the design,
engineering, and building of the Large Robotic Welder, so that Wolf Robotics had
all the information deemed necessary to evaluate the Project prior to submitting the
Project Proposal to TDW. Id. at 23–24.
Wolf Robotics contends that TDW prevented Wolf Robotics from
performing its contractual obligations by: (1) failing to provide Incoming Parts
within the tolerances set forth by Wolf Robotics, and (2) terminating the Robotic
Welder Project when Wolf Robotics was on track to perform its obligations set
forth in the Change Order. See Def.’s Moving Br. at 20. Wolf Robotics states that
TDW failed to manufacture the Incoming Parts to its prints or to the tolerances that
Brent Whipple represented they would meet after TDW “revamped” the cutting
process for Incoming Parts. Def.’s SDMF ¶ 24.
Wolf Robotics met with TDW to discuss that it could not build the Large
Robotic Welder to perform the welds as set forth in the Purchase Agreement and
SOW. Pl.’s SUMF ¶ 22; Def.’s SDMF ¶ 22.10 The Change Order was executed
and modified the SOW, as discussed above. Wolf Robotics then attempted to
modify the initial SOW and Change Order again, with a second proposed change
order to amend the scope of work to be performed by Wolf Robotics to meet its
contractual obligation to design, engineer, and build the Large Robotic Welder.
Def.’s SUMF ¶ 38; Pl.’s SDMF ¶ 38. TDW did not agree to enter into a second
proposed change order with Wolf Robotics. Pl.’s SUMF ¶ 32; Def.’s SDMF ¶ 32;
Def.’s SUMF ¶ 42; Pl.’s SDMF ¶ 42.
10 Wolf Robotics states that TDW did not have the Incoming Parts, as cut by the
Cloos robot, available for Wolf Robotics to inspect until March 2019, and upon
inspection, informed TDW that the Incoming Parts were not within the tolerances
that TDW had represented they would be produced. Def.’s SDMF ¶ 22.
The Court holds that it is undisputed that Wolf Robotics did not complete
production of the Large Robotic Welder and failed to perform its contractual
obligations, ultimately breaching the contract terms. Wolf Robotics breached the
Contract by failing to design, engineer, or manufacture a Large Robotic Welder
that satisfied the contractual requirements and specifications established by the
Parties.
Therefore, the Court grants summary judgment in favor of TDW on its
breach of contract claim (Count I).
D. Wolf Robotics’ Counterclaim (Counterclaim I)
Wolf Robotics’ Counterclaim alleges that “TDW breached the [Purchase
Agreement], SOW, and Change [Order]”; “TDW’s breaches of the [Purchase
Agreement, SOW and Change Order] include, but are not limited to, the following:
(a) its May 20, 2020 repudiation of those agreements; (b) its failure to make the
final payments required by these agreements, totaling $380,446.04; and (c) its
failure to accept delivery of the [Large] Robotic Welder;” and “TDW’s breaches
are a direct and proximate cause of [Wolf Robotics’] damages, which include but
are not limited to: (1) the remainder of the purchase price for the [Large] Robotic
Welder; (2) fair rent for the valuable floor space taken by the Robotic Welder from
November 15, 2019 to November 2021; (3) all expenses related to the work that
went into updating the [Large] Robotic Welder in accordance with the modified
contract; (4) compensation for the significant time and resources expended by
[Wolf Robotics’] to gain clarity about the finalization and delivery of the [Large]
Robotic Welder, as well as expenses incurred in marketing of the Robotic Welder
to third parties; and (5) all other incidental and overhead costs available.” Def.’s
Counterclaim ¶¶ 27–29.
As discussed above, Wolf Robotics did not complete production of the
Large Robotic Welder, and in turn, breached the Contract by failing to design,
engineer, or manufacture a Large Robotic Welder that satisfied the contractual
requirements and specifications established by the Parties. Because Wolf Robotics
breached the Contract, TDW did not need to agree to a second proposed change
order. TDW did not breach its contractual obligations by terminating the project,
not paying the rest of the remaining balance, or refusing the delivery of a product
that did not meet its specifications according to the relevant contract terms.
Accordingly, Wolf Robotics’ counterclaim for breach of contract
(Counterclaim I) is dismissed.
E. Constructive Fraud/Deceit (Count II)
The Amended Complaint alleges that “[o]n or about February 23, 2017,
Wolf Robotics made a sales presentation to TDW regarding its ability to design
and build a robotic welder that would perform the specific welding functions
requested and required by TDW. The representations made by Wolf Robotics at
the sales presentation were made by its project manager, marketing person, and
engineers.” Am. Compl. ¶ 30. The Amended Complaint further alleges that: (1)
“[Wolf Robotics] misrepresented its technology and ability to design and build the
Robotic Welder, and failed to disclose critical problems and issues with the design
and building of the Robotic Welder, until it had nearly been completed, and TDW
had paid nearly all of the contract price to [Wolf Robotics]”; (2) “[Wolf Robotics]
intentionally concealed material facts and information from TDW for the purpose
of obtaining payments from TDW”; (3) TDW continued to make payments to Wolf
Robotics pursuant to the terms of the Agreement as it was “unaware of the material
facts concealed by [Wolf Robotics] and in reliance on [Wolf Robotics’]
representations that it could design and build the Robotic Welder as set forth in the
Agreement and SOW”; (4) “[Wolf Robotics] misrepresented its technology and
ability to design and build the Robotic Welder, and failed to disclose critical
problems and issues with the design and building of the Robotic Welder in
connection with inducing TDW into the [Change Order]; and (5) “as a result of
TDW’s reliance on representations from [Wolf Robotics] that induced TDW into
entering the [Purchase] Agreement, SOW, and [Change Order], TDW suffered
non-contract monetary damages, including but not limited to, lost time and labor
damages.” Id. ¶¶ 31–35.
The Amended Complaint alleges that “TDW incurred lost time and expenses
meeting with [Wolf Robotics] engineers and project managers to discuss the
[Change Order]” between March 20, 2019 and May 8, 2019. Id. ¶ 36. TDW seeks
monetary damages in an amount in excess of $75,000.00 for compensatory,
consequential, incidental, and punitive damages, together with pre-and post-
judgment interest, until paid, the costs of this action, reasonable attorneys' fees,
and such further relief as to which it may be entitled. Id.
Under Oklahoma law, a fraud claim requires: (1) a false material
misrepresentation; (2) made as a positive assertion which is either known to be
false or is made recklessly or without knowledge of the truth; (3) with intent that it
be acted upon; and (4) which is relied upon by the other party to his own detriment.
Bowman v. Presley, 2009 OK 48, ¶ 13, 212 P.3d 1210, 1217-18. Constructive
fraud is “the concealment of material facts which one is bound under the
circumstances to disclose.” Bankers Trust Co v. Brown, 2005 OK CIV APP 1, ¶
14, 107 P.3d 609, 613 (quoting Varn v. Maloney, 1973 OK 133, ¶ 18, 516 P.3d
1328, 1332). To seek recovery on a theory of constructive fraud, TDW must prove
that: (1) Wolf Robotics owed TDW a duty of full disclosure; (2) Wolf Robotics
misstated a fact or failed to disclose a fact to TDW; (3) Wolf Robotics’
misstatement or omission was material; (4) TDW relied on Wolf Robotics’
material misstatement or omission; and (5) TDW suffered damages as a result of
defendant's material misstatement or omission. Specialty Beverages, L.L.C. v.
Pabst Brewing Co., 537 F.3d 1165, 1180–81 (10th Cir. 2008). There is no
requirement that the plaintiff must prove that the defendant acted with the intent to
deceive. See State ex rel. Okla. Bar Ass'n v. Lloyd, 1990 OK 14, ¶ 16 n.16, 787
P.2d 855, 860 n.16.
A party cannot allege simultaneous breach of contract and fraud claims
unless the two are “sufficiently distinct.” To be sufficiently distinct, a fraud claim
must be based on different facts and must have resulted in different actual
damages. Key v. Exxon Mobil Corp., 508 F. Supp. 3d 1072, 1086 (E.D. Okla.
2020); McGregor v. Nat’l Steak Processes, Inc., No. 11-CV-0570-CVE-TLW,
2012 WL 314059, at *3 (N.D. Okla. Feb. 1, 2012). TDW can satisfy the different
damages requirement if its allegations “could potentially support an award of
extra-contractual damages.” Edwards v. Farmers Ins. Co., No. 08-CV-730-TCK-
PJC, 2009 WL 4506218, at *5 (N.D. Okla. Nov. 24, 2009).
The Court considers whether the facts supporting each claim and the
damages arising as a result of each claim are different. Brown v. Elephant Talk
Commc’ns Corp., No. CIV-18-00902-PRW, 2020 WL 7220793, at *8 (W.D. Okla.
Dec. 7, 2020). Simultaneous pursuit of fraud and breach of contract claims can be
appropriate when “the formation of the contract is premised upon an intentionally
deceptive promise to act; i.e., fraud in the inducement of a contract.” Atkinson,
Haskins, Nellis, Brittingham, Gladd & Fiasco, P.C. v. Oceanus Ins. Grp., 2014 WL
3891267, at *4–5 (N.D. Okla. Aug. 7, 2014) (citing F.D.I.C. v. Hamilton, 122 F.3d
854, 863 (10th Cir. 1997)).
Fraud can be predicated upon a promise to do a thing in the future when
the promisor’s intent is otherwise. The basis of fraudulent
misrepresentation is the creation of a false impression and damage
sustained as a natural and probable consequence of the act charged. The
fraudulent representation need not be the sole inducement which causes
a party to take the action from which the injury ensued. The key is that
without the representation the party would not have acted. The liability
for misrepresentation depends upon whether the person relying thereon
was in fact deceived.
F.D.I.C., 122 F.3d at 858 (quoting Tice v. Tice, 672 P.2d 1168, 1171 (Okla.
1983)).
The Court holds that the facts alleged in TDW’s breach of contract claim in
Count I are not sufficiently distinct from the facts alleged in support of TDW’s
claim of constructive fraud and deceit in Count II. While Count I alleges breaches
of the Contract, and Count II concerns fraud in the inducement or Wolf Robotics’
misrepresentations to TDW regarding the Contract, both Counts I and II rely on the
same set of facts regarding TDW’s decision to enter into the agreements with Wolf
Robotics to produce the Large Robotic Welder. Even though Count II purports to
seek different damages than Count I, these two Counts are based on the same set of
facts. Therefore, TDW’s claim for constructive fraud/deceit (Count II) is
dismissed.
F. Violation of the Oklahoma Consumer Protection Act
(Count III)
The Amended Complaint alleges that: (1) “[Wolf Robotics] made
representations regarding [the Large] Robotic Welder’s conformance with TDW’s
specifications and standards, and [Wolf Robotics] made representations regarding
its ability to design and build the [Large] Robotic Welder as set forth in the
[Purchase] Agreement and SOW”; (2) “[t]he representations made by [Wolf
Robotics] were false or misleading and [Wolf Robotics] knew or had reason to
know that its representations were false or misleading in violation of 15 O.S.
§ 753; (3) [Wolf Robotics’] actions constitute deceptive trade practices as defined
by 15 O.S. § 752 of the Oklahoma Consumer Protection Act”; and (4) “[a]s a result
of [Wolf Robotics’] deceptive trade practices and violations of the Oklahoma
Consumer Protection Act, TDW has incurred significant non-contract monetary
damages resulting from significant lost time and expenses related to the pre-
contract activities as well as time and expense incurred related directly to [Wolf
Robotics’] inducement of TDW to enter into the [Change Order].” Am. Compl.
¶¶ 37–40.
The OCPA provides a private right of action to consumers when they can
show: “(1) that the defendant engaged in an unlawful practice as defined [by the
statute]; (2) that the challenged practice occurred in the course of defendant's
business; (3) that the plaintiff, as a consumer, suffered an injury in fact; and (4)
that the challenged practice caused the plaintiff’s injury.” Braver v. Clear Sky
Fin., LLC, No. CIV-22-710-R, 2024 WL 3488082, at *3 (W.D. Okla. July 18,
2024) (citing Patterson v. Beall, 2009 OK 92, ¶ 30, 19 P.3d 839, 846).
TDW argues that Wolf Robotics violated the OCPA by committing “an
unfair or deceptive trade practice as defined in Section 752 of this title.” 15 O.S.
§ 753(21). Section 752 defines “deceptive trade practice” as a “misrepresentation,
omission or other practice that has deceived or could reasonably be expected to
deceive or mislead a person to the detriment of that person. Such a practice may
occur before, during or after a consumer transaction is entered into and may be
written or oral.” 15 O.S. § 752(13). TDW contends that Wolf Robotics engaged in
deceptive trade practices by entering into contractual agreements for robotic
systems that it was not capable of providing because Wolf Robotics failed to: (1)
complete its due diligence at the initial stages of preparing its bid, and undertook
the design and manufacturing of a robotic welder that could not meet the
specifications (as per the conclusion of its expert); and (2) disclose the
impossibility of meeting TDW’s expectations from the start of the project. Pl.’s
Moving Br. at 29–31.
There is no evidence that Wolf Robotics failed to complete its due diligence
in preparing the proposal or to disclose that it could not meet the specifications set
forth by TDW for the Large Robotic Welder. Prior to the execution of the
Purchase Agreement and SOW, it is undisputed that Wolf Robotics was provided
print drawings of the Incoming Parts that illustrated the detail of the root gaps and
cross-sectional area variance of the TDW’s parts to be welded, which depicted the
Incoming Parts and how it was prepped to be welded. See Pl.’s SUMF ¶ 7; Def.’s
SDMF ¶ 7. There is no evidence demonstrating that Wolf Robotics engaged in
“misrepresentation, omission or other practice that has deceived or could
reasonably be expected to deceive or mislead a person to the detriment of that
person” under the Oklahoma Consumer Protection Act.
Accordingly, TDW’s claim for violation of the Oklahoma Consumer
Protection Act (Count III) is dismissed.
G. Unjust Enrichment (Count IV)
The Amended Complaint alleges that Wolf Robotics has unjustly benefited
from TDW’s payment of $808,332.63, as well as from the sale of the Robotic
Welder to a third party and Wolf Robotics’ retention of those funds. Am. Compl.
¶¶ 41–51. TDW seeks monetary damages in excess of $75,000.00 for
compensatory, consequential, incidental, and punitive damages, together with pre-
and post-judgment interest, until paid, the costs of this action, reasonable attorneys'
fees, and such further relief as to which it may be entitled. Id. ¶ 51.
Oklahoma recognizes that implied-in-law contracts (“quasi-contracts” or
“constructive contracts”) are mere legal fictions when the intention of the parties is
disregarded, and an implied-in-law contract is “imposed in order to adapt the case
to a given remedy.” T & S Inv. Co. v. Coury, 1979 OK 53, ¶ 5, 593 P.2d 503,
504–05. A breach of an implied-in-law contract, otherwise known as a claim for
unjust enrichment, arises “from the failure of a party to make restitution in
circumstances where it is inequitable,” or one party holds property “that, in equity
and good conscience, it should not be allowed to retain.” Harvell v. Goodyear Tire
& Rubber Co., 2006 OK 24, ¶ 18, 164 P.3d 1028, 1035.
The Purchase Agreement, SOW, and Change Order were valid and
enforceable agreements and not implied-in-fact contracts. The Contract is not an
implied-in-fact contract. Because the Court is granting summary judgment in
favor of TDW for its breach of contract claim, and TDW is entitled to damages
from the breach of contract claim, the Court dismisses TDW’s unjust enrichment
claim.
Accordingly, the Court grants TDW’s Motion for Summary Judgment as to
Counts I and Counterclaim I. The Court denies TDW’s Motion for Summary
Judgment as to Counts II, III, and IV, and grants Wolf Robotics’ Motion for
Summary Judgment as to Counts II, III, and IV based on Oklahoma law.
II. Motions to Exclude Expert Testimony
Each party moves to exclude expert testimony from the opposing party.
TDW moves to exclude the testimony of Wolf Robotics’ expert Michael Davis
(“Davis”) and seeks to have the Court strike and/or preclude Davis from testifying
as an expert at the trial of this matter. Pl.’s Mot. Exclude Testimony. Wolf
Robotics moves to exclude the testimony and opinions of Dr. Craig Forest
(“Forest”) as inadmissible. See Def.’s Mot. Exclude Testimony.
Because the Court grants summary judgment in favor of TDW on Count I,
and dismisses Counterclaim I and Counts II, III, and IV, the Court denies
Defendant’s Motion to Exclude Testimony and Plaintiff’s Motion to Exclude
Testimony as moot.
CONCLUSION
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
(1) The Court grants in part and denies in part Plaintiff’s Motion for
Summary Judgment [Doc. 111] and Defendant’s Motion for Summary
Judgment [Doc. 105]. Summary judgment is entered in favor of Plaintiff
for Plaintiff’s claim of breach of contract (Count I). Defendant’s claim
of breach of contract (Counterclaim I), and Plaintiff’s claims for
constructive fraud/deceit (Count II), violation of the Oklahoma
Consumer Protection Act (Count III), and unjust enrichment (Count IV)
are dismissed.
(2) The Court denies as moot Plaintiff’s Motion to Exclude Testimony of
Defendant’s Expert Michael Davis [Doc. 110] and Defendant’s Motion in
Limine to Exclude Testimony and Opinions of Dr. Craig Forest [Docs.
112, 113].
(3) The Court grants Defendant’s Motion for Leave to File Motion and
Exhibits to Motion to Exclude Under Seal [Doc. 109] and Plaintiff’s
Motion for Leave to File Exhibits and Motion for Summary Judgment
and Motion to Exclude Under Seal [Doc. 114].
(4) A status conference will be held on June 5, 2025 at 3:00 p.m. CST/4:00
p.m. EST via videoconference to discuss potential settlement/mediation,
trial, and any other remaining issues.
(5) The Parties shall submit pretrial disclosures on or before June 17, 2025.
(6) The Parties shall submit a pretrial order on or before June 24, 2025.
(7) A pretrial conference will be held on July 1, 2025 at 1:30 pm CST/2:30
p.m. EST via videoconference.
(8) A jury trial on damages will be held at the Page Belcher Courthouse in
Tulsa, Oklahoma starting on July 21, 2025 at 9:00 a.m.
IT IS SO ORDERED this 30th day of May, 2025.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves
U.S. District Court Judge*
* Judge Jennifer Choe-Groves, of the United States Court of International Trade, sitting
by designation.