United States Tenth Circuit

In an action seeking a declaration that defendant was barred from collecting delay damages under the parties' construction subcontract, summary judgment for plaintiff is reversed where the district court erred by: 1) refusing to consider discovery documents produced by plaintiff in its initial disclosures; and 2) discounting two affidavits submitted by defendant without first analyzing their admissibility under the sham affidavit rule.

Appellate Information

• Decided 08/17/2009
• Published 08/17/2009

Judges

• LUCERO, Circuit Judge., Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellees:
  
• David E. White (Joshua C. Dickinson and Barry L. Pickens, Spencer Fane Britt & Browne LLP;  and Richard W. Saxe, Jr., Babst, Calland, Clements & Zomnir, P.C., with him on briefs), Babst, Calland, Clements & Zomnir, P.C., Pittsburgh, PA, for Defendant/Counter-Claimant-Appellant., Ron Campbell (Lyndon W. Vix with him on the briefs), Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Plaintiff/Counter-Defendant-Appellee.