Filed: Jun. 11, 2009
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit June 11, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT ELAINE SPENCER MARR; ELLIOTT PAUL MOORE, Plaintiffs-Appellants, No. 08-1378 v. (D.C. No. 1:07-CV-01746-WYD-KMT) (D. Colo.) LARRY H. HUGHES; TOMMIE R. HUGHES; COLORADO DEPARTMENT OF TRANSPORTATION, Defendants-Appellees. ORDER AND JUDGMENT * Before KELLY, McKAY, and BRISCOE, Circuit Judges. Elaine Spencer Marr and Elliott Paul Moore appeal the d
Summary: FILED United States Court of Appeals Tenth Circuit June 11, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT ELAINE SPENCER MARR; ELLIOTT PAUL MOORE, Plaintiffs-Appellants, No. 08-1378 v. (D.C. No. 1:07-CV-01746-WYD-KMT) (D. Colo.) LARRY H. HUGHES; TOMMIE R. HUGHES; COLORADO DEPARTMENT OF TRANSPORTATION, Defendants-Appellees. ORDER AND JUDGMENT * Before KELLY, McKAY, and BRISCOE, Circuit Judges. Elaine Spencer Marr and Elliott Paul Moore appeal the di..
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FILED
United States Court of Appeals
Tenth Circuit
June 11, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ELAINE SPENCER MARR;
ELLIOTT PAUL MOORE,
Plaintiffs-Appellants,
No. 08-1378
v. (D.C. No. 1:07-CV-01746-WYD-KMT)
(D. Colo.)
LARRY H. HUGHES; TOMMIE R.
HUGHES; COLORADO
DEPARTMENT OF
TRANSPORTATION,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
Elaine Spencer Marr and Elliott Paul Moore appeal the dismissal of their
“Petition for Redress” as barred by the principles of claim preclusion and
res judicata. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The magistrate judge provided a detailed summary of this case’s facts and
procedural history, R., Vol. III, Doc. 33 at 2-5, and we need not restate either in
detail here. Suffice it to say that Marr and Moore’s appeal stems from their
continued efforts to challenge the 2002 modification of an easement. In
July 2004, they filed suit in Colorado state court against Larry H. Hughes,
Tommie R. Hughes, and the Colorado Department of Transportation (CDOT),
claiming trespass and seeking various forms of relief. In September 2005, the
Chaffee County Colorado District Court issued its Findings and Verdict on Trial
to the Court. Marr and Moore prevailed on three of their six claims against the
Hugheses, while the CDOT prevailed on Marr and Moore’s single claim against
it.
Then, in August 2007, Marr and Moore filed in federal district court the
“Petition for Redress,” asserting their property was taken and damaged without
notice, in violation of their state and federal due process rights. The case was
referred to a magistrate judge who recommended dismissal of the case as barred
by claim preclusion and res judicata, stating: “The two cases before the Court are
identical. The parties and subject matter are the same. The only difference in
this federal action is the legal theory upon which the plaintiffs now wish to
proceed.”
Id. at 12; see also
id. (observing that res judicata “bars relitigation not
only of all issues actually decided, but of all issues that might have been decided”
(quotation omitted)).
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On de novo review, the district court agreed with the magistrate judge’s
analysis and affirmed and adopted her recommendation. This appeal followed.
Liberally construing Marr and Moore’s pro se appellate filings, Cummings v.
Evans,
161 F.3d 610, 613 (10th Cir. 1998), they apparently assert that (1) the
interests of justice require this court to review their case, (2) the denial of their
right to due process constitutes a separate cause of action that was not mentioned
or litigated in state court, and (3) they were not given a full and fair opportunity
to litigate their due process claim(s) in state court.
We review de novo the district court’s dismissal of Marr and Moore’s case.
MACTEC, Inc. v. Gorelick,
427 F.3d 821, 831 (10th Cir. 2005) (“The application
of res judicata is a question of law which we review de novo.” (citing Satsky v.
Paramount Commc’ns, Inc.,
7 F.3d 1464, 1467-68 (10th Cir. 1993)).
“The preclusive effect of a state court judgment in a
subsequent federal lawsuit generally is determined by the full faith
and credit statute,” 28 U.S.C. § 1738, which “directs a federal court
to refer to the preclusion law of the State in which judgment was
rendered.” Marrese v. Am. Acad. of Orthopaedic Surgeons,
470 U.S. 373, 380,
105 S. Ct. 1327,
84 L. Ed. 2d 274 (1985).
Brady v. UBS Fin. Servs., Inc.,
538 F.3d 1319, 1327 (10th Cir. 2008). Colorado
rendered the judgment that the federal district court considered in dismissing
Marr and Moore’s case. We therefore apply the res judicata rules of Colorado.
Id.
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In Colorado, claim preclusion, or res judicata, “bars relitigation of claims
or issues which were or could have been raised in a prior suit between the same
parties.” Rantz v. Kaufman,
109 P.3d 132, 138 (Colo. 2005) (quotation omitted).
Indeed, it is “an absolute bar to relitigation . . . when, in both the prior and
subsequent suits, there is identity of subject matter, identity of cause of action,
identity of parties to the action, and identity of capacity in the persons against
whom the claim is made.” Upper Eagle Reg’l Water Auth. v. Simpson,
167 P.3d
729, 736 (Colo. 2007).
Having reviewed the briefs, the record, and the applicable law pursuant to
the above-mentioned standards, we hold that Marr and Moore have failed to
identify any reversible error in this case. We therefore AFFIRM the judgment of
the district court for substantially the same reasons set forth in the magistrate
judge’s recommendation and in the district court’s order accepting and affirming
the magistrate judge’s recommendation.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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