“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.
Tag Archives: Preclusion
Bristol Bay Productions, f/k/a Crusader Entertainment v. Peter Lampack; The Peter Lampack Agency; Simon & Schuster; and Penguin Group USA, 2013CO60 (October 21, 2013)
“Nonmutual offensive issue preclusion” (NOIP) sounds like the kind of issue that would come out of a fight at a college party. It did. This case clarifies the requirements for asserting a NOIP: the usual elements plus 4 more: 1) did the claimant “wait and see?” 2) was there a prior incentive to litigate the issue? 3) would it be inconsistent with another decision? and 4) are there procedural protections in place? This case also warns litigators about timeliness and foresight – it’s important to bring a NOIP claim to court ASAP. In the trial court, Plaintiff lost his negligence and battery claims although defendant pled guilty in a criminal case. But he lost his appeal by waiving claims, not preserving issues for appeal, and inviting error.
No do-overs. When it comes to legal issues, courts call the no do-over rule the doctrine of collateral estoppel, or issue preclusion. It applies when there is an old order on an issue and someone wants a new order on that same issue. To prevent a court from re-visiting a decision on an old order, the opposing party must show all the following conditions: 1) the issues must be identical, and the new issue must have been actually or “necessarily” decided by the old one, 2) the parties must be identical (or nearly so), 3) a final judgment on the old issue, and 4) a full and fair opportunity to have litigated the old issue. This case examines, in the context of a water court order, if an old, but final issue “necessarily” decided the new one. Here, the Court found the old issue could have been decided on grounds different from the new one, so the new issue was not “necessarily” decided.