City and County of Denver v. Adolph Coors Co., Civ. A. No. 91-F-2233.

• Decision Date: 13 January 1993
• Docket Number: Civ. A. No. 91-F-2233.
• Citation: 813 F. Supp. 1476
• Parties: The CITY AND COUNTY OF DENVER, et al., Plaintiffs, v. ADOLPH COORS COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Colorado

813 F. Supp. 1476

The CITY AND COUNTY OF DENVER, et al., Plaintiffs, v. ADOLPH COORS COMPANY, et al., Defendants.

Civ. A. No. 91-F-2233.

United States District Court, D. Colorado.

January 13, 1993.

Daniel E. Muse, T. Shaun Sullivan, Steven J. Coon; Russell E. Yates, Carolyn L. Buchholz, James D. Ellman, Denver, CO; P.B. ("Lynn") Walker, Englewood, CO, and Robert S. Treece, and Daniel S. Maus, Denver, CO, for plaintiffs.

Linda Rockwood and James L. Harrison, Denver, CO, for Earth Sciences, Inc.

ORDER REGARDING ENFORCEMENT OF SETTLEMENT AND SUMMARY JUDGMENT: 1993-2

SHERMAN G. FINESILVER, Chief Judge.

This is a case involving environmental contamination at the Lowry Landfill site ("Lowry"), operated at various times by Plaintiffs City and County of Denver ("Denver"), Waste Management of Colorado, Inc. ("WMC"), and Chemical Waste Management, Inc. ("CWM"). This matter comes before the Court on Defendant Earth Sciences, Inc.'s ("ESI") Motion for Summary Judgment, to Dismiss With Prejudice, and to Enforce Settlement Agreement. Jurisdiction is based on 28 U.S.C.A. § 1331 (West 1992). The parties have fully briefed the issues. For the reasons stated below, the motion is GRANTED.

I.

ESI and Plaintiffs dispute whether they have entered into a binding settlement agreement ("the Agreement").

ESI was initially identified by the EPA as having contributed to the environmental waste at Lowry two waste streams totaling over six million gallons. In June 1992, EPA revised ESI's share of the waste to a mere 3800 gallons, attributing the remaining six million gallons to Alumet Partnership ("Alumet"), a partnership in which ESI is a general partner. ESI subsequently wrote Plaintiffs requesting an offer of settlement as a de minimis party, in accordance with Plaintiffs' usual policy of allowing de minimis settlor status to contributors of under 300,000 gallons of waste. Plaintiffs' agreement to negotiate such a settlement was conditioned on an agreement between the parties that Plaintiffs would move to amend the First Amended Complaint to join Alumet as a defendant and that ESI would not oppose the joinder.

After considerable negotiations and correspondence back and forth, the parties achieved a final draft of the Agreement. Plaintiffs sent the Agreement to ESI for signing and instructed ESI to return the Agreement so that Plaintiffs could execute it. One of Plaintiffs' numerous counsel represented to the Court in a status conference on October 23, 1992, that the parties had reached a settlement. Before Plaintiffs executed the Agreement, however, the Court denied Plaintiffs' motion to add Alumet as a party defendant. Plaintiffs then refused to sign the Agreement.

ESI seeks summary judgment on all claims against it and enforcement of the Agreement to dismissing ESI with prejudice. ESI disputes that Plaintiffs ever made joinder of Alumet a condition of settlement. Nowhere in the Agreement is such a condition either stated or implied.

II. Summary Judgment Standard

Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir.1991); Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 416, 116 L.Ed.2d 436 (1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir.1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Dayco Prods., Inc., 758 F.Supp. 630, 631 (D.Colo.1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F.Supp. 1152, 1155 (D.Colo. 1990). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir.1991).

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986), the Supreme Court held that the language of rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. Rule 56 does not require the movant to negate the opponent's claim. Id. at 323, 106 S.Ct. at 2552-53. The moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of going forward shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23, 106 S.Ct. at 2552-53. The nonmovant must go beyond the pleadings and designate specific facts showing genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir.1991). Conclusory allegations will not establish issues of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir.1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of evidence presented in the motion and the response. Id. at 587, 106 S.Ct. at 1356.

III.

A trial court has the inherent power to summarily enforce settlement agreements entered into by the litigants in cases before the court. United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993); Dankese v. Defense Logistics Agency, 693 F.2d 13, 16 (1st Cir.1983); Bonser v. Safeway, Inc., 809 F.Supp. 799 (D.Colo. 1992). Settlement agreements are favored by the courts. Autera v. Robinson, 419 F.2d 1197, 1199 (D.C.Cir.1969). The terms of the settlement agreement must be clear, unambiguous, and capable of enforcement. Bonser, 809 F.Supp. at 803; United Mine Workers of America District No. 5 v. Consolidation Coal Co., 666 F.2d 806, 810 (10th Cir.1981). Settlement agreements are construed in the same way as contracts in determining whether and how they should be enforced. Republic Resources Corp. v. ISI Petroleum West Caddo Drilling Program 1981, 836 F.2d 462, 465 (10th Cir.1987); Mulvaney v. St. Louis Southwestern Railway Co., 1992 WL 223771 (D.Kan. Aug. 13, 1992). The question before the Court is whether the parties entered into an enforceable settlement agreement.

A. Intent of the Parties

Plaintiffs argue, first, they did not and could not have intended to release ESI from its potential partnership liability for over six million gallons of Alumet's waste for the price of 3800 gallons,¹ and second, Plaintiffs' failure to execute the Agreement is fatal to its enforcement.

Nowhere does the Agreement mention either joinder of Alumet or the Alumet waste stream. Although Plaintiffs in their brief repeatedly refer to the joinder of Alumet as a "condition precedent," joinder was never expressly made a condition in either the negotiations or the Agreement itself. Plaintiffs can find no comfort in their euphemistic assertion that "it has also been plaintiffs' practice not to clutter settlement agreements with conditions precedent that must occur before plaintiffs execute agreements." Plain. Opp. to ESI's Mot. for Summ.J., at 5 (emphasis added). Such `clutter' is the stuff of which contracts are made. No contract would be safe if a party could keep its conditions precedent close to the vest.

Distinguishing between the waste streams of ESI and Alumet was also apparently not thought to be particularly important. When the Agreement refers to ESI and dismissal, its language is unqualified and unambiguous: "Denver and Waste Management shall voluntarily dismiss ESI with prejudice from all claims in the sic City and County of Denver, et al. v. Coors, et al., to sic 91-F-2233 (D.Colo.) upon payment by Settlor pursuant to paragraph 6(a)." ESI's Mot. for Summ.J., Exh. 5 (emphasis added). ESI argues that because "all claims" includes the claims for the waste stream now attributable to Alumet, its dismissal is absolute.

There is no justification for Plaintiffs' failure to qualify the entire Agreement by stating the seemingly crucial fact that it dismisses only 3800, not six million, gallons of waste. There is also no justification for Plaintiffs' failure to place a clause in the Agreement stating that Alumet's joinder is a condition precedent. Plaintiffs imply from their stated intention to dismiss ESI only as to the 3800 gallon waste stream that they would not have dismissed ESI entirely from the case under any circumstances. However, it is clear from the Agreement that Plaintiffs did agree to dismiss ESI entirely, with prejudice, and only their failure to sign the Agreement stopped the process. The only difference between Plaintiffs' alleged pre-Agreement intent and the language of the Agreement itself is the Court's intervening denial of the attempted joinder of Alumet. Yet any potential ruling of the Court, as we have noted, was never made a condition in the...