Wilkinson et al v. Bode et al
ORDER granting in part 27 Defendants' Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 5/24/11. (lg, )
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CLAUDE WILKINSON, GARY A.
WILLIAMS, and DIXIE WILLIAMS,
JOHN W. BODE, Individually, and
DENISE A. BODE, Individually,
Case No. CIV-10-0392-C
MEMORANDUM OPINION AND ORDER
Defendants were owners of a tract of real estate in Canadian County, Oklahoma.
Desiring to sell the property, Defendants placed the property on the market and eventually
entered into a contract with Plaintiffs for the sale of the property. The contract was entered
into on January 14, 2008, with a scheduled closing date of February 29, 2008. Despite the
agreement, Plaintiffs were unable to secure financing to complete the sale. Defendants
generously granted numerous extensions of the closing date.
eventually terminated the contract in accordance with its terms. Plaintiffs signed a waiver
recognizing the termination and the forfeiture of their earnest money. Plaintiffs then made
a second offer to purchase the property. According Plaintiffs, Defendants accepted this offer
but failed to close the sale. Relying on the alleged second contract, Plaintiffs filed the
present action, asserting claims for breach of contract. Defendants filed a counterclaim for
distraint, based on the trespass of livestock which Plaintiffs allegedly placed on Defendants’
property without permission.
Arguing the undisputed material facts entitle them to judgment, Defendants filed a
Motion for Summary Judgment seeking a determination that no second contract existed, that
they are entitled to monetary damages for the trespass of the cattle, and seeking judgment in
their favor on these issues. Plaintiffs object, arguing the parties entered into a new contract
in July of 2008 and that Defendants are in breach for failure to fulfill that contract.*
The following facts are undisputed:
On January 14, 2008, Plaintiffs submitted an offer to purchase the property from
Defendants. On January 24, 2008, Defendants accepted the offer and executed the contract
for sale. The contract was to close on February 29, 2008. On February 29, 2008, Plaintiffs
failed to secure adequate funding to close the contract; however, Defendants agreed to extend
the time for closing. That extension was until May 30, 2008. When that date came and
passed with no funding by Plaintiffs, Defendants agreed to a second extension granting a new
closing date of June 12, 2008. Once again, on June 12, 2008, Plaintiffs failed to close the
contract. Defendants once again granted an additional extension of time, agreeing to a fourth
closing date of June 30. That date came and went without Plaintiffs securing the funding
necessary to close the contract. On July 9, the transactional broker sent a notice of breach
to Plaintiffs, advising them that they had breached the contract and therefore forfeited the
earnest money posted. That letter further advised Plaintiffs that if they were still interested
Plaintiffs’ response brief is in violation of LCvR56.1(c), in that it fails to contain
a section setting forth the material facts to which the parties assert a genuine issue of fact
exists. Accordingly, for purposes of this Order, the Court has deemed those well-supported
facts submitted by Defendants as admitted.
in completing the contract, they would have to submit a new offer. On July 21, 2008,
Plaintiffs signed the waiver and objection to the forfeiture of the earnest money. On that
same date, Plaintiffs submitted a new offer for purchase to Defendants, along with a second
earnest money deposit. On approximately July 15, 2008, Plaintiffs placed 128 head of cattle
on Defendants’ property without Defendants’ authority. Plaintiff Gary Williams admitted
that he had placed the cattle on the property. However, the date the cattle were removed is
in dispute. The accepted and common rate for pasture lease in Canadian County is $3.00 per
day per animal.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “[A] motion for summary judgment should be granted
only when the moving party has established the absence of any genuine issue as to a material
fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir.
1977). The movant bears the initial burden of demonstrating the absence of material fact
requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper disposition of the claim. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party must then refute this
showing “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves.” Celotex, 477 U.S. at 324. Such evidentiary materials include
affidavits, deposition transcripts, or specific exhibits. Thomas v. Wichita Coca-Cola Bottling
Co., 968 F.2d 1022, 1024 (10th Cir. 1992). “The burden is not an onerous one for the
nonmoving party in each case, but does not at any point shift from the nonmovant to the
district court.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All facts
and reasonable inferences therefrom are construed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
Defendants argue they never executed or accepted the July 21, 2008, offer; that the
only contract entered into between the parties was the January 24, 2008, contract, which was
terminated according to its terms on July 21, 2008. Thus, according to Defendants there was
no contract and consequently there could be no breach. In contrast, Plaintiffs argue the
existence of two purported contracts which could be enforced. First, Plaintiffs contend that
the letter sent by the transactional agent on July 9, 2008, was not a termination of the contract
but rather provided a mechanism by which Plaintiffs could cure their earlier breach. In the
alternative, Plaintiffs argue a “contract” was entered into on April 29, 2008, and signed on
behalf of Defendants by the transactional broker
Ultimately each of Plaintiffs’ arguments fails for lack of evidence. As for the
purported April 29, 2008, contract: Plaintiffs argue the contract was accepted on behalf of
Defendants by the transactional agent, as evidenced by her signature on the document.
However, the document clearly indicates that the agent’s signature served only as a receipt
of a $5,000 earnest money deposit. Nothing in the signature nor the surrounding text of the
contract could be found by any reasonable juror to support acceptance of the contract by
Defendants. Even were the document by some measure deemed a contract, the closing date
on that document is clearly stated as Friday, May 30. By Plaintiffs’ own admission, no
attempt at closing was made on that date and therefore even were the Court to construe the
April 29th document as a contract for sale, Plaintiffs would be in breach for failure to close
in accordance with the terms of the “contract.” Consequently, Plaintiffs could not now seek
to enforce that document against Defendants.
Plaintiffs next point to the July 9, 2008, letter from the transactional agent, arguing
that it notified them of the breach, along with a mechanism for curing that breach. Again,
no reasonable juror could read the document to support such an argument. First of all, the
last sentence of the second paragraph of the document (Dkt. No. 32, Exh. 5) states, “Thus,
I regret to inform you that you are in breach of the purchase agreement.” The next paragraph
states, “Sellers are now entertaining discussions with other prospective purchasers of the
property. If you have further interest in purchase of this property, please sign the waiver
statement below and submit a new purchase offer.” (emphasis added). The plain language
of this document offers Plaintiffs nothing more than an opportunity to submit a new offer.
No reasonable juror could interpret any of the language in this document to provide an
agreement by Defendants to sell the property or agree to the terms of some as-of-yet unmade
offer. Finally, the Plaintiffs argue that they were notified by the transactional broker,
presumably at the request of the Defendants, that the property would close on July 25, 2008.
However, a close reading of the affidavit submitted by Plaintiffs offers no support for their
assertion that the transactional agent made the statement. Rather, the affidavit clearly states
that the statement was made by an employee of the title company, who notified Plaintiffs of
the purported acceptance of the July offer and that a closing would occur on the 25th.
Plaintiffs offer no evidence that the employee of the title company who allegedly made the
statement was in any way authorized by Defendants. Further, the alleged statement by the
title company employee is hearsay and consequently insufficient evidence. See Thomas v.
IBM, 48 F.3d 478, 485 (10th Cir. 1995) (“hearsay testimony that would be inadmissible at
trial may not be included in an affidavit to defeat summary judgment because ‘[a] third
party’s description of [a witness’] supposed testimony is not suitable grist for the summary
judgment mill.’” (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990))).
The evidence before the Court supports a finding of the existence of only one contract,
that entered into on January 14, 2008. That contract was terminated on July 9, 2008, when
Plaintiffs failed to close as outlined in the contract. Even when viewed in a light most
favorable to Plaintiffs, the remaining evidence before the Court supports, at most, an
additional offer made by Plaintiffs on July 21, 2008, which was never accepted by
Under Oklahoma law, the essential elements for the formation of every contract are:
parties capable of contracting, consent, a lawful object, and sufficient cause or consideration.
15 Okla. Stat. § 2. Plaintiffs’ arguments regarding the oral agreements between the parties
regarding extending the closing date as sufficient to remove the contract from operation of
the statute of frauds are simply immaterial, as Plaintiffs have not and cannot provide
evidence of the existence of a valid contract for sale of the property. Additionally, none of
the questions of fact argued by Plaintiffs in their response brief are supported by the evidence
before the Court. Rather, they are, at best, distortions of fact and unsupported attempts to
breathe life into a nonexistent case. Consequently, Defendants are entitled to entry of
judgment in their favor on Plaintiffs’ claims.
As for Defendants’ counterclaims: It is undisputed that Plaintiffs placed cattle on
Defendants’ property without permission. Oklahoma law provides a mechanism to recover
for such trespass:
A. Within forty-eight (48) hours after stock has been distrained, Sunday not
being included, the party distraining, or such party’s agent, shall notify the
owner of the stock when known, or, if unknown, the party having them in
charge. If the owner fails to satisfy the person whose lands are trespassed
upon, the party injured shall, within twenty-four (24) hours thereafter, notify
in writing the county sheriff to come upon the premises to view and assess the
B. The county sheriff shall, within forty-eight (48) hours after receiving such
notice, Sundays and holidays excepted, proceed to view and assess the
damages, and determine a reasonable amount to be paid for seizing and
keeping said stock. If the person owning the distrained stock fails to pay the
damages as assessed, the sheriff shall provide for the public notice and sale of
the distrained stock as provided by Section 85.6 of this title.
C. Any money or stock left after satisfying such claims shall be returned to the
owner of the stock sold.
4 Okla. Stat. § 135. The evidence before the Court establishes that Defendants complied
with the requirements of this statute. It is also undisputed that the custom in Canadian
County, the location of the trespass, is to pay $3.00 per day per head for cattle grazing.
However, the length of time the cattle were on Defendants’ land is in dispute. Plaintiff’s
affidavit relays a different date for placing the cattle and removing the cattle than that
asserted by Defendants. Accordingly, the amount of damages Defendants are entitled to
recover for the trespass of the cattle is in dispute, and must be resolved by a jury.
As set forth more fully herein, Defendants’ Motion for Summary Judgment (Dkt. No.
27) is GRANTED in part. Defendants are entitled to judgment on Plaintiffs’ claims. A jury
trial will be held on the amount of damages Defendants are entitled to recover on their
counterclaim. A separate judgment will enter at the close of this case.
IT IS SO ORDERED this 24th day of May, 2011.
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