“The fox chases the rabbit around the tree and down the hole. That’s how the tie works buddy.” Dirk Pitt – Sahara. Plaintiff Bristol Bay (BB) produced Sahara, based on a Clive Cussler novel. Cussler told BB he had sold over 100 million books; actually it was 40 million. The movie failed and BB lost around $50 million. BB sued Cussler in California for fraudulent inducement. A CA jury found that BB’s damages were not caused by Cussler’s lie. BB then sued different defendants – Cussler’s agents – in Colorado for the same exact claim. Defendants moved to dismiss, arguing the claims were precluded by the CA action and won. The Court agreed because the identity of the defendant is irrelevant to whether plaintiff’s reliance caused damages. But, the trial court should have converted the CRCP 12 motion to CRCP 56 because preclusion was an affirmative defense based on matters outside the pleadings.
http://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2013/89BC44OCT.21.13.pdf
http://www.cobar.org/opinions/opinion.cfm?opinionid=9110&courtid=2
Colorado Litigation Report ™ 