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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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. 

F I LED

United States Court of Appeals

Tenth Circuit

July 11, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STEVEN T. STEIN;

JOLEEN K. STEIN,

Plaintiffs-Appellants,

v.

GREGORY L. STEIN; SHARON W.

STEIN; MERIDIAN PLACE, Meridian

Place, LLC; PL WEST, LLC;

WESTERN FRONT DEVELOPMENT

INC.,

Defendants-Appellees.

No. 05-3421

(D.C. No. 04-CV-1311-JTM)

(D. Kan.)

ORDER AND JUDGMENT

*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Plaintiffs Steven and Joleen Stein appeal from district court’s entry of

summary judgment in favor of defendants, Gregory and Sharon Stein and business

entities formed by Gregory Stein. We exercise jurisdiction and affirm.
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On September 20, 2004, Steven and Joleen (a married couple) filed a

complaint alleging that Gregory and Sharon (Steven’s brother and his wife) were

liable for damages for breach of contract, fraud, unjust enrichment, breach of the

duty of good faith and fair dealing, and breach of fiduciary duty. The complaint

also requested an accounting. 

Plaintiffs’ claims arose from a plan for Gregory’s real-estate development

company (defendant Western Front Development) to purchase and develop the

Meridian Town Center, a partially completed shopping center in the State of

Washington. Steven (a career banker) and Joleen asserted that they had an equity

interest in the project. Gregory (a developer) and Sharon maintained that

plaintiffs were involved as lenders and that by March 2004 the $1.4 million loan

had been repaid, along with $200,000 in interest. 

Defendants moved for summary judgment, based in part on a

statute-of-limitations argument. In analyzing the undisputed facts, the district

court determined that plaintiffs’ contract claim accrued in the early months of

2000, when the parties allegedly reached a partly oral and partly written

agreement; and that the fraud and breach of duty claims accrued by May 2001

at the latest, when Steven and Gregory had a heated argument about Steven’s role

in the project. Therefore, the court concluded, plaintiffs’ claims were barred by

the applicable statutes of limitations. See Kan. Stat. Ann. § 60-512(1) (three-year

limitation period for oral-contract claims, applying to agreements which do not
See 1 Chilson v. Capital Bank, 692 P.2d 406, 408 (Kan. Ct. App. 1984)

(stating that a contract which is partly in writing and partly oral is in legal effect

an oral contract). 

-3-

contain all material terms in writing);1id. § 60-513(a)(3) (two-year limitation

period for fraud claims); id. § 60-513(a)(4) (two-year limitation period for

“[a]n action for injury to the rights of another, not arising on contract, and not

[previously] enumerated,” which applies to breach of duty claims). The court

also decided that plaintiffs had no claim of unjust enrichment because the loan

had been satisfied. It therefore granted defendants’ summary judgment motion. 

Plaintiffs appeal, presenting three issues for review: 

1. Whether the District Court erred in finding there was not a

written agreement by and between the parties and/or there was

not a meeting of the minds as to the agreement between the

parties.

2. Whether the District Court erred by making the factual finding

that Plaintiffs knew or should have known their causes of

action accrued in May of 2001 so as to start the statute of

limitations to run in regards to all of Plaintiffs’ claims.

3. Whether the District Court erred in failing to find there had

been equitable tolling in these claims between these two

brothers which made Plaintiffs’ claims timely.

Aplt. Br. at 1. As a general matter, plaintiffs also assert that the district court

failed to resolve all inferences in their favor. 

“We review the grant of summary judgment de novo and affirm only if the

record, considered in the light most favorable to the plaintiff, establishes no

genuine issue of material fact,” Bastible v. Weyerhaeuser Co., 437 F.3d 999, 1004
-4-

(10th Cir. 2006) (quotation omitted), and the defendant is entitled to a judgment

as a matter of law, Fed. R. Civ. P. 56(c).

We have examined the record on appeal and reviewed the district court’s

summary judgment order against the backdrop of plaintiffs’ appellate issues. 

We conclude that the district court properly sorted through the parties’ factual

contentions, decided which facts were material to plaintiffs’ claims, and viewed

the undisputed facts in a light most favorable to plaintiffs. And we discern no

error in the district court’s legal determinations. Accordingly, we AFFIRM for

substantially the reasons stated by the district court in its thorough and thoughtful

memorandum and order dated October 12, 2005.

Entered for the Court

Stephen H. Anderson

Circuit Judge