UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CLAUDE WILKINSON; GARY L. WILLIAMS; DIXIE WILLIAMS, Plaintiffs-Appellants/ Cross-Appellees,

v. JOHN W. BODE, individually; DENISE A. BODE, individually, Defendants-Appellees/ Cross-Appellants. Nos. 11-6208 & 11-6275 (D.C. No. 5:10-CV-00392-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and MATHESON , Circuit Judges.
Plaintiffs (Buyers) contracted to purchase real property from Defendants (Sellers). Buyers appeal from summar y judgment entered against them on their breach of contract claim. Se llers appeal from the distri ct court’s failure to award attorney’s fees. We conso lidated the appeals for dispos ition; we affirm the summary

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 6, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - judgment, reverse on the issue of attorney’s fees, and re mand for a determination of reasonable fees.
I. BACKGROUND On January 14, 2008, through a written contract, Sellers ag reed to sell and Buyers agreed to buy real es tate in Canadian County, Ok lahoma. Buyers failed to secure financing by the closing date of Fe bruary 29. Sellers agreed to extend the closing date multiple times, but Buyers repeatedly failed to secure financing. On July 9 Sellers sent a noti ce of breach to Buyers advi sing them the contract had terminated because they ha d failed to secure financing and they had therefore forfeited their earnest money. On July 21 Buyers signed a waiver of objection to the forfeiture of earnest money an d submitted a new purchase o ffer for the same parcel. According to Buyers, Sellers ’ broker told them Sellers accepted the new offer. However, Sellers did not si gn Buyers’ July offer and cl aim they never accepted it. After Sellers sold the property to othe r purchasers, Buyers filed this action claiming breach of contract arising out of two alleged contracts other than the January 14 contract: (1) an April 29 cont ract set to close on May 30, which was not signed by anyone other than Buyers, and (2) a July 21 contract set to close on July 31, which was signed by Sellers’ broke r, but only in the area delineated for- 3 - receipt of earnest money. B uyers attached the signed, Ja nuary 14 contract as the only exhibit to their amended complaint. 1
II. DISCUSSION
A. Buyers’ Appeal We review a district court’s grant of summary judgment de novo, applying the same legal standards as the district court. Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004). Summary j udgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) . In applying this standard, we view the evidence and the reasonable in ferences to be drawn from the evidence in the light most favorable to th e nonmoving party. Stover , 382 F.3d at 1070. In this diversity case, we “apply Oklahoma law with the obj ective that the resu lt obtained in the federal court should be the result that w ould be reached in an Oklahoma court.” Blanke v. Alexander , 152 F.3d 1224, 1228 (10th Cir. 1998) (internal quotation marks omitted). We agree with the district court: th e evidence supports th e existence of only one executed contract, entere d into on January 14, 2008. 2 Buyers failed to close on

1 Sellers also filed a counterclaim in dist rict court for distra int, based on Buyers’ placement of livestock on the contract property without Se llers’ permission. Sellers prevailed on this issue, and Buyers did not appeal.
2 The district court’s order mentions an affidavit Buyers presumably attached to their opposition to Sellers’ motion for summ ary judgment in which they offered evidence that Sellers’ broker told them the transaction wo uld close (pursuant to the (continued)- 4 - that contract, which terminated according to its terms; they cannot now sue for specific performance. See In re Baldwin , 593 F.3d 1155, 1162 (10th Cir. 2010). Summary judgment was appropriate.
B. Sellers’ Appeal We review “a district court’s award of atto rney fees . . . subject to an abuse of discretion standard, but any le gal conclusions that provide a basis for the award are reviewable de novo .” Tulsa Litho Co. v. Tile & Decorative Surfaces Magazine Publ’g Inc. , 69 F.3d 1041, 1043 (10th Cir. 1995). Oklahoma follows the American Rule concerning the recovery of attorney’s fees—Sellers are en titled to attorney’s fees if a contract or statute so provides. Walden v. Hughes , 799 P.2d 619, 619 (Okla. 1990). In this case, Sellers cl aim the purchase contract expressly provides for the recovery of attorney’s fees. It provides, in re levant part: “[i]n the event any suit is instituted, the prevailing part y shall have the right to r ecover all of such party’s expenses and costs incurred by reason of such litigation including, but not limited to, attorney’s fees, court costs, and costs of suit preparation.” Aplee. Supp. App. at 60, ¶ 10(c). The district court decided the contract “terminated of its own accord” on July 21 when Buyers signed the waiver of objection to the forfeiture of the earnest putative July contract) on July 25. See Aplee. Supp. App. at 114-15. The district court had a different view of the affidavi t’s provisions. Regard less, Buyers have failed to include it, or their opposition to summary judgment, in the appendix. Accordingly, we will not consider it. See Burnett v. Sw. Bell Tel., L.P. , 555 F.3d 906, 910 (10th Cir. 2009).- 5 - money, and therefore there “[was] no supporting agreemen t on which the Court could award [Sellers’] at torney’s fees.” Id . at 140. But the contract’s attorney fee provision seems to be specifi cally directed to this situation—a party breaches a contract (by failing to cl ose according to its terms) and then files a losing suit against the non- breaching party. The district court’s premise was correct—Sellers’ obligation to sell the property to Buyers expired pursuant to the terms of the agreement. But that does not obviate Buyers’ obligations under the contract to pay a ttorney’s fees for an unsuccessful breach of contract action. The Oklahoma Supreme Court interp rets contracts in customary fashion: The primary goal of contract in terpretation is to determine and give effect to the intention of the parties at the time the contract was made. In arrivi ng at the parties’ intent, the terms of the instrument are to be given their plain and ordinary meaning. Where the language of a contract is clear and unambiguous on its face, that which stands expressed within its four corn ers must be given effect. A contract should receive a c onstruction that makes it reasonable, lawful, definite and capable of being carried into effect if it can be done without violating the intent of the parties. May v. Mid-Century Ins. Co. , 151 P.3d 132, 140 (Okla. 2006) (footnotes omitted). Here, that means the prevaili ng party shall recover its atto rney’s fees “[i]n the event any suit is instituted.” Apl ee. Supp. App. at 60, ¶ 10(c) . In other words, a plain reading of the contract’s terms means the attorney fee provision survives contract termination in cases such as this. After all, Sellers di d not disavow or repudiate the- 6 - contract; they vigorously sought to enforce it. Buyers were the breaching party, the suing party and the losing party. While the Oklahoma Supreme Court ha s not yet decided this issue, we conclude Oral Roberts University v. Anderson , 11 F. Supp. 2d 1336 (N.D. Okla. 1997), aff’d, 153 F.3d 728 (10th Cir. 1998), is pe rsuasive as to how the Oklahoma Supreme Court would likely resolve this issu e. In that case, the plaintiff sought a declaration that the defendants had not exer cised an option available pursuant to an option-to-purchase-real-estate-contract, a nd the contract had th erefore expired and the defendants’ rights in the property te rminated. The contract included the following clause: “In the even t of litigation, the prevaili ng party shall be entitled to recover its reasonable attorney’s fees.” Id . at 1337 (emphasis om itted). After the court held the contract had expired, the plaintiff requested a ttorney’s fees. The defendants argued, similar to Buyers’ argume nt here, there was no contract in effect to support an attorney’s fees award. The court in Oral Roberts defined the issue as “whe ther the termination of a contract containing an attorneys’ fees provision prevents a party prevailing in litigation from recovering attorneys’ fees.” Id . at 1338. The court held it does not. It found Usinger v. Campbell , 572 P.2d 1018 (Or. 1977), persuasive, where the Oregon Supreme Court held: [p]laintiffs contend there was a contract and ask for specific performance. This requires the defendant to come into court and defend, also relying on the contract by stating that it was not perfo rmed in accord ance with its- 7 - terms. Defendant does not disaffirm the contract but relies on the exact terms thereof. Therefore, the provision in the contract providing for a ttorney fees applies. Oral Roberts , 11 F. Supp. 2d at 1338 (quoting Usinger , 572 P.2d at 1023). Similarly in this case, Sellers have specifically relied on the cont ract in their request for attorney’s fees. “[W]ith the expiration of the [contract closing date, Buyers] lost the right to seek any remedies under the [c ontract. Buyers], however, still sought specific performance and argued that the [contract was still in force]. By prevailing in this litigation, [Sellers ar e] entitled to recover [their] reasonable attorn eys’ fees in accordance with the term s of the [contract].” Id . at 1339. 3
We therefore AFFIRM the summary judgment, REVERSE the order denying attorney’s fees, and REMAND to the district court to determine the amount of reasonable fees as guided by State ex rel. Burk v. City of Oklahoma City , 598 P.2d 659, 661 (Okla. 1979).

Entered for the Court

Terrence L. O’Brien Circuit Judge

3 Buyers’ argument that the January contr act was not in force but other contracts were in force, namely the alleged April or July contracts, is of no help to them. The only contract affixed to the complaint is th e January contract, and Buyers have failed to show any other contracts exist. In any event, all three allege d contracts contain the same attorney’s fee provision.