* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

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

LOREN WEHRENBERG; NORINA WEHRENBERG; DONNIE WEHRENBERG; and GARY WEHRENBERG,

Plaintiffs-Appellants,

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

Defendants-Appellees. No. 96-6050 (D.C. No. CIV-93-2019-R) (W.D. Okla.)

ORDER AND JUDGMENT *
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiffs brought this action alleging RICO, fraudand 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 Boothe s had purchased at a sheriff’s sale. The district court stated that [t]here is evidence before the Court from which rea sonable jurors could find the existence of an oral agreement betwe en Plaintiffs Loren and Norina Wehrenberg and Defendants Wayne an d Mary Lee Boothe in which the Boothes agreed to allow the Weh renbergs to continue to live on the property; the Boothes agree d 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 farmgenerated income and pay all farm-generated expense s, and that this arrangement would continue for a period of five yea rs, at which time or before such time the Wehrenbergs would have the option of repurchasing the real property and machinery or equ ipment which Boothe and/or Casauranc then owned which had previo usly been owned by the Wehrenbergs for the total amount Booth e had invested therein and/or loaned the Wehrenbergs plus expenses and advances-3-

plus twelve percent interest minus the income Booth e 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 foundplaintiffs’ 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 de termination that the alleged oral contract is governed by Oklahoma’s statute of frauds, Okla. Stat. tit. 15, § 136. They contend only that their partial performa nce of the contract took it out of the statute. To avoid the statute of frauds und er Oklahoma law, the party alleging the oral agreement has the burden of estab lishing 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 k inds of partial performance sufficient to remove an oral contract f or 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 b y part payment of the consideration; (2) the making of substantial perman ent improvements to the land with the knowledge of the seller and pursuant to th e contract; (3) alteration of the parties’ positions pursuant to the contract making restoration to their former positions impossible or impractical; or (4) conductby the parties that would cause enforcement of the statute in one party’s favor to inflict unjust and-4-

unconscionable injury on the other party. See Sohio Petroleum Co. v. Brannan , 235 P.2d 279, 285 (Okla. 1951). Whether a party ha s 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 fac t. Claiborne , 467 P.2d at 158. Even assuming, contrary to the district court’s con clusion, that plaintiffs have adequately established the terms of the agreem ent, we agree with the district court that they have not met their burden of showin g partial performance. They contend that they made valuable improvements to the property when they “put up several permanent fences, remediated a salt water w ell 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 remediat ed a well or rocked in the barn foundation. More importantly, they cite no evidenc e 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 th e contract when they “invested $17,500 in another farm purchased by the Boothes.” Appellants’ Br. at 15. Again, there is no evidence that this investme nt was pursuant to the alleged contract or done with the Boothes’ knowledge. Addi tionally, to the extent-5-

plaintiffs claim this investment was partial consid eration and that they had possession of the property sufficient to satisfy th e first test for partial performance, we note that they were evicted from th e 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 res tored 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 i s enforced. Plaintiffs do not explain how or point to evidence showing they alter ed their position as a result of the contract. They admit that there was no contrac t until after the Boothes had purchased the property at the sheriff’s sale, Appel lants’ Br. at 6; thus, their position as nonowners of the property is not altere d by enforcement of the statute.

AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge