Bristol Bay Prods., LLC v. Lampack
| Decision Date | 26 January 2012 |
| Docket Number | No. 10CA2039.,10CA2039. |
| Citation | 313 P.3d 674 |
| Court | Colorado Court of Appeals |
| Parties | BRISTOL BAY PRODUCTIONS, LLC, f/k/a Crusader Entertainment, LLC, Plaintiff–Appellant, v. Peter LAMPACK; Peter Lampack Agency, Inc.; Simon & Schuster, Inc.; and Penguin Group USA, Inc., Defendants–Appellees. |
OPINION TEXT STARTS HERE
Rothgerber, Johnson & Lyons, LLP, Frederick J. Baumann, Jesús M. Vásquez, Jr., Denver, Colorado; O'Melveny & Meyers, LLP, Marvin S. Putnam, Los Angeles, California, for Plaintiff–Appellant.
Haddon, Morgan and Forman, P.C., Ty Gee, Denver, Colorado, for Defendants–Appellees Peter Lampack and Peter Lampack Agency, Inc.
Husch Blackwell, LLP, N. Reid Neureiter, Elizabeth L. Harris, Denver, Colorado, for Defendant–Appellee Simon & Schuster, Inc.
Dorsey & Whitney, Gregory Tamkin, Van Hughes, Denver, Colorado, for Defendant–Appellee Penguin Group USA, Inc.
Opinion by Judge DAILEY.
Bristol Bay Productions, LLC, formerly known as Crusader Entertainment, LLC (Bristol Bay), appeals the district court's judgment dismissing its tort action against defendants, Peter Lampack and Peter Lampack Agency, Inc. (together, Lampack); Simon & Schuster, Inc. (Simon & Schuster); and Penguin Group USA, Inc. (Penguin). We affirm the judgment and remand for further proceedings.
This case concerns the fallout from a failed attempt to convert one of author Clive Cussler's “Dirk Pitt” adventure novels into a commercially successful movie. Bristol Bay was the movie's producer; Lampack was Cussler's literary agent; and Simon & Schuster and Penguin were two of Cussler's publishers.
Bristol Bay and Cussler sued each other in California over the failed venture. During discovery, Bristol Bay learned that Cussler's fan base was not what it had been led to believe it was: only 40 million, and not 100 million, of Cussler's books had been sold. Bristol Bay added claims of deceit against Cussler, alleging that his or his agent Lampack's misrepresentation caused it to enter into a contract with Cussler and produce the movie Sahara at a loss in excess of $50 million.
Several weeks later, Bristol Bay filed the present action in Colorado against Lampack based on allegations nearly identical to those made in the California case. Bristol Bay later amended the complaint to add Simon & Schuster and Penguin, based on allegations that they misrepresented Cussler's readership, books in print, and books sold.1
The California jury returned verdicts in favor of Cussler on Bristol Bay's deceit claims. Upon defendants' motion, the Colorado court stayed its proceedings pending the outcome of an appeal in the California case.
Following the California Court of Appeal's affirmance of the judgment on Bristol Bay's deceit claims, see Cussler v. Crusader Entertainment, LLC, 2010 WL 718007, *1 (Cal.Ct.App. No. B208738, Mar. 3, 2010), the Colorado district court (acting through a different judge) granted, on issue preclusion grounds, defendants' C.R.C.P. 12(b)(5) motion to dismiss the complaint.
Bristol Bay contends that the district court erred in dismissing its complaint on issue preclusion grounds. We disagree.
Issue preclusion is a question of law that we review de novo. Stanton v. Schultz, 222 P.3d 303, 307 (Colo.2010).
“The doctrine [of issue preclusion] is intended to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 84 (Colo.1999) ().
Issue preclusion bars relitigation of a legal or factual matter already decided in a prior proceeding when:
(1) the issue sought to be precluded is identical to an issue actually and necessarily determined in a prior proceeding;
(2) the party against whom [preclusion] is asserted was a party to or is in privity with a party to the prior proceeding;
(3) there was a final judgment on the merits in the prior proceeding; and
(4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
In re Tonko, 154 P.3d 397, 405 (Colo.2007).
As a practical matter, only the first element (that is, identity of issues) is in question on appeal. To satisfy this element, “[a] party must have actually litigated the issue in the prior proceeding and the adjudicatory body must have necessarily decided the issue.” Id. “An issue is actually litigated and necessarily adjudicated when a party properly raised the issue and a determination on that issue was necessary to the judgment.” Id.
In granting defendants' motion to dismiss, the district court relied, to a great extent, upon the following analysis provided by another judge in resolving the motion to stay proceedings:
[S]everal issues of fact germane to [Bristol Bay's] claims in the case at bar were actually litigated and were necessarily decided in the California action, and which resulted in final judgment at the trial court level ..., in particular:
1. The representation that Cussler had sold 100 million books was a false representation of important fact....
2. [Bristol Bay] reasonably relied upon this false book sales representation;
3. [Bristol Bay's] reliance upon the false book sales representation did not cause [Bristol Bay] any injuries.
....
While [Bristol Bay's] claims here are based on the alleged book sales misrepresentations of [Lampack and the two publishers] rather than those of Cussler, the Court sees no meaningful difference between the content of the misrepresentation of fact alleged here and those presented to the jury in the prior litigation.
On appeal, Bristol Bay contends that the district court erred in determining that the California jury's findings on misrepresentation, reliance, and causation preclude it from proceeding here against Lampack and the publishers.
Initially, Bristol Bay argues that the issue in this case could not be identical to that in the California case because Cussler defended himself in the California action, in part, by taking the very position that Bristol Bay advances here, that is, that his agent's and publishers' misrepresentations caused Bristol Bay to enter the contract and produce the movie.
In the California trial, Bristol Bay presented evidence that Cussler and his literary agent, Lampack, had said, during contract negotiations, that 100 million of Cussler's books had been sold. Bristol Bay also presented expert testimony that, at the time of those statements, the number of new books sold by Cussler was actually about 40 million.
To counter this testimony, Cussler presented testimony by Lampack which suggested that the accuracy of the “100 million” figure depended upon what it was describing, be it new book sales, books in print (also called books published), total book sales, or readership. According to Lampack, (1) the number of new book sales is the lowest number; (2) the number of books in print is significantly higher, since only some of the books printed are sold; (3) the number of total book sales is also higher than new book sales, since a single book can be resold multiple times; and (4) the total readership is the highest number, since a single book is often read by numerous people.
In presenting this testimony, Cussler did not cast blame on his agent and publishers, but instead showed how he, through his agent, collaborated with the publishers. Lampack testified that, of all the various figures, the publication figure was the most accurate, since he and the publishers collaborated to keep track of it. And Lampack conceded that when someone asked for a figure, he readily told them how many books Cussler had published. Indeed, Lampack even conceded that, on one occasion, he handed a Cussler book to a Bristol Bay employee to show the employee the publication figure printed on the book jacket.
In closing arguments, Cussler relied on Lampack's testimony for four defenses: (1) neither Cussler nor Lampack ever told Bristol Bay that 100 million of Cussler's books had been sold; (2) even if Cussler or Lampack had said “100 million books sold,” Bristol Bay had not relied on that figure (i.e., in its reports, Bristol Bay employees cited readership and publication, not sales, figures); (3) if Cussler or Lampack had said “100 million books sold,” that statement was true, when one considers both new and used book sales; and (4) even if Cussler or Lampack had misrepresented the number of books sold, there was no evidence of damages (that is, there was no evidence that even one fewer person went to see this movie because Cussler had sold only 40, 50, or 80 million books, rather than 100 million books).
Thus, contrary to Bristol Bay's assertion, Cussler never argued that Bristol Bay entered into the contract based on the misrepresentations of Lampack or the publishers.
In special interrogatories, the California jury found that (1) Cussler misrepresented that he had sold 100 million books; (2) Cussler acted with knowledge and/or negligence as to the falsity of the statement; (3) Cussler intended to deceive and induce reliance by Bristol Bay; (4) Bristol Bay reasonably relied on Cussler's misrepresentation; but (5) Bristol Bay's reliance on Cussler's misrepresentation was not a substantial factor in causing harm.
Bristol Bay argues that the jury determined nothing about Lampack or his role in this case, nor, contrary to the district court's conclusion, did it determine that Bristol Bay actually relied on Cussler's misrepresentation.
Nothing is explicitly stated about Lampack in the California jury's findings. However, when considered in light of...
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Bristol Bay Prods., LLC v. Lampack
...the film rights to Cussler's books and producing Sahara. Again, Bristol Bay alleged damages of more than $50 million. ¶ 3 Following BristolBay's unsuccessful appeal of the California action, the trial court dismissed Bristol Bay's Colorado action under C.R.C.P. 12(b)(5) on issue preclusion ......