                      UNITED STATES COURT OF APPEALS
Filed 1/24/97
                             FOR THE TENTH CIRCUIT



    LOREN WEHRENBERG; NORINA
    WEHRENBERG; DONNIE
    WEHRENBERG; and GARY
    WEHRENBERG,
                                                         No. 96-6050
                Plaintiffs-Appellants,             (D.C. No. CIV-93-2019-R)
                                                         (W.D. Okla.)
    v.

    WAYNE BOOTHE, an individual;
    MARY LEE BOOTHE, an individual;
    and CASAURANC INVESTMENTS,
    INC., a Washington, D.C. corporation,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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. 36.3.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiffs brought this action alleging RICO, fraud and breach of contract

claims in connection with various land and related transactions in Oklahoma. The

district court granted summary judgment in favor of defendants on all claims.

Plaintiffs appeal only the award of summary judgment on their breach of contract

claim. We review the grant of summary judgment de novo applying the same

legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

      Plaintiffs’ claim stems from the alleged breach of an oral contract

negotiated in September 1988 for the sale of land (and some equipment) they had

owned, but which, following foreclosure, the Boothes had purchased at a sheriff’s

sale. The district court stated that

      [t]here is evidence before the Court from which reasonable jurors
      could find the existence of an oral agreement between Plaintiffs
      Loren and Norina Wehrenberg and Defendants Wayne and Mary Lee
      Boothe in which the Boothes agreed to allow the Wehrenbergs to
      continue to live on the property; the Boothes agreed to advance
      Donnie and Loren Wehrenberg each $1,200 per month, to be treated
      as an expense, to run the farms; the Boothes would receive all farm-
      generated income and pay all farm-generated expenses, and that this
      arrangement would continue for a period of five years, at which time
      or before such time the Wehrenbergs would have the option of
      repurchasing the real property and machinery or equipment which
      Boothe and/or Casauranc then owned which had previously been
      owned by the Wehrenbergs for the total amount Boothe had invested
      therein and/or loaned the Wehrenbergs plus expenses and advances

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      plus twelve percent interest minus the income Boothe received from
      the farming operation. . . .

District court’s January 10, 1996 order at 14-15 (attached to appellants’ brief). In

granting summary judgment, the district court found plaintiffs’ claim barred

alternatively by the statute of limitations and the statute of frauds. We need

address only the statute of frauds issue.

      Plaintiffs do not challenge the district court’s determination that the alleged

oral contract is governed by Oklahoma’s statute of frauds, Okla. Stat. tit. 15, §

136. They contend only that their partial performance of the contract took it out

of the statute. To avoid the statute of frauds under Oklahoma law, the party

alleging the oral agreement has the burden of establishing clearly the terms of the

agreement as well as the acts constituting partial performance. Claiborne v.

Claiborne, 467 P.2d 157, 158 (Okla. 1970). There are four kinds of partial

performance sufficient to remove an oral contract for the sale of land from the

statute: (1) notorious and exclusive possession of the property pursuant to the

contract with the seller’s knowledge, accompanied by part payment of the

consideration; (2) the making of substantial permanent improvements to the land

with the knowledge of the seller and pursuant to the contract; (3) alteration of the

parties’ positions pursuant to the contract making restoration to their former

positions impossible or impractical; or (4) conduct by the parties that would cause

enforcement of the statute in one party’s favor to inflict unjust and

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unconscionable injury on the other party. See Sohio Petroleum Co. v. Brannan,

235 P.2d 279, 285 (Okla. 1951). Whether a party has met its burden of

establishing the terms of the alleged contract and sufficient partial performance is

a question of fact or mixed question of law and fact. Claiborne, 467 P.2d at 158.

      Even assuming, contrary to the district court’s conclusion, that plaintiffs

have adequately established the terms of the agreement, we agree with the district

court that they have not met their burden of showing partial performance. They

contend that they made valuable improvements to the property when they “put up

several permanent fences, remediated a salt water well site, rocked in the barn

foundation, and reterraced one farm.” Appellants’ Br. at 15. There is no

evidence in the record on appeal that they remediated a well or rocked in the barn

foundation. More importantly, they cite no evidence indicating that these

improvements were done with the Boothes’ knowledge or that they were pursuant

to the contract. See also Johnston v. Baldock, 201 P. 654, 658 (Okla. 1921) (“Not

only in magnitude and value, but in other respects, the improvements must

unequivocally refer to and result from the agreement.”).

      Plaintiffs also contend they partially performed the contract when they

“invested $17,500 in another farm purchased by the Boothes.” Appellants’ Br. at

15. Again, there is no evidence that this investment was pursuant to the alleged

contract or done with the Boothes’ knowledge. Additionally, to the extent


                                         -4-
plaintiffs claim this investment was partial consideration and that they had

possession of the property sufficient to satisfy the first test for partial

performance, we note that they were evicted from the property under state court

orders in 1990. This is obviously inconsistent with the requirement of exclusive

possession of the property pursuant to the alleged contract.

      Finally, plaintiffs contend that they cannot be restored to their former

position as owners of the property because the Boothes have sold it and that they

would suffer unconscionable injury if the statute is enforced. Plaintiffs do not

explain how or point to evidence showing they altered their position as a result of

the contract. They admit that there was no contract until after the Boothes had

purchased the property at the sheriff’s sale, Appellants’ Br. at 6; thus, their

position as nonowners of the property is not altered by enforcement of the statute.



      AFFIRMED.



                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




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