UNITED STATES COURT 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 summary judgment entered against them on their 

breach of contract claim. Sellers appeal from the district court’s failure to award 

attorney’s fees. We consolidated the appeals for disposition; we affirm the summary 

 

*

 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 

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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 6, 2012

Elisabeth A. Shumaker 

Clerk of Court
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judgment, reverse on the issue of attorney’s fees, and remand for a determination of 

reasonable fees. 

I. BACKGROUND

 On January 14, 2008, through a written contract, Sellers agreed to sell and 

Buyers agreed to buy real estate in Canadian County, Oklahoma. Buyers failed to 

secure financing by the closing date of February 29. Sellers agreed to extend the 

closing date multiple times, but Buyers repeatedly failed to secure financing. On 

July 9 Sellers sent a notice of breach to Buyers advising them the contract had 

terminated because they had 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 and submitted a new purchase offer for the same parcel. 

According to Buyers, Sellers’ broker told them Sellers accepted the new offer. 

However, Sellers did not sign Buyers’ July offer and claim they never accepted it. 

 After Sellers sold the property to other 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 contract 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’ broker, but only in the area delineated for 
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receipt of earnest money. Buyers attached the signed, January 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 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). In applying this standard, we view the 

evidence and the reasonable inferences to be drawn from the evidence in the light 

most favorable to the nonmoving party. Stover, 382 F.3d at 1070. In this diversity 

case, we “apply Oklahoma law with the objective that the result obtained in the 

federal court should be the result that would 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: the evidence supports the existence of only 

one executed contract, entered into on January 14, 2008.2

 Buyers failed to close on 

 

1

 Sellers also filed a counterclaim in district court for distraint, based on Buyers’ 

placement of livestock on the contract property without Sellers’ 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 summary judgment in which they offered 

evidence that Sellers’ broker told them the transaction would close (pursuant to the 

(continued) 
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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 attorney fees . . . subject to an abuse of 

discretion standard, but any legal 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 entitled 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 claim the purchase contract expressly provides for the 

recovery of attorney’s fees. It provides, in relevant part: “[i]n the event any suit is 

instituted, the prevailing party shall have the right to recover 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 affidavit’s provisions. Regardless, 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). 
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money, and therefore there “[was] no supporting agreement on which the Court could 

award [Sellers’] attorney’s fees.” Id. at 140. 

But the contract’s attorney fee provision seems to be specifically directed to 

this situation—a party breaches a contract (by failing to close 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 attorney’s fees for an unsuccessful breach of contract 

action. The Oklahoma Supreme Court interprets contracts in customary fashion: 

The primary goal of contract interpretation is to determine 

and give effect to the intention of the parties at the time the 

contract was made. In arriving 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 corners must be given effect. A 

contract should receive a construction 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 prevailing party shall recover its attorney’s fees “[i]n the event 

any suit is instituted.” Aplee. 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 did not disavow or repudiate the 
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contract; they vigorously sought to enforce it. Buyers were the breaching party, the 

suing party and the losing party. 

 While the Oklahoma Supreme Court has 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 persuasive as to how the Oklahoma 

Supreme Court would likely resolve this issue. In that case, the plaintiff sought a 

declaration that the defendants had not exercised an option available pursuant to an 

option-to-purchase-real-estate-contract, and the contract had therefore expired and 

the defendants’ rights in the property terminated. The contract included the 

following clause: “In the event of litigation, the prevailing party shall be entitled to 

recover its reasonable attorney’s fees.” Id. at 1337 (emphasis omitted). After the 

court held the contract had expired, the plaintiff requested attorney’s fees. The 

defendants argued, similar to Buyers’ argument here, there was no contract in effect 

to support an attorney’s fees award. 

The court in Oral Roberts defined the issue as “whether 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 performed in accordance with its 
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terms. Defendant does not disaffirm the contract but relies 

on the exact terms thereof. Therefore, the provision in the 

contract providing for attorney 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 contract 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 [contract. Buyers], however, still sought 

specific performance and argued that the [contract was still in force]. By prevailing 

in this litigation, [Sellers are] entitled to recover [their] reasonable attorneys’ fees in 

accordance with the terms 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 contract 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 the January contract, and Buyers have failed 

to show any other contracts exist. In any event, all three alleged contracts contain the 

same attorney’s fee provision.