                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           DEC 9 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KATHLEEN BROCKMAN,

                Plaintiff-Appellant,

    v.                                                   No. 97-8032
                                                    (D.C. No. 91-CV-218-J)
    SWEETWATER COUNTY SCHOOL                               (D. Wyo.)
    DISTRICT NO. 1, a unified school
    district,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.


         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before us for a third time for review of the district court’s

enforcement of an oral compromise agreement. Plaintiff continues to argue, as

she did in the district court, that if the agreement is to be enforced it must be

enforced as agreed to by the litigants and cannot be modified by the district court

and that the statute of frauds should have applied. We affirm.

      This case has a lengthy procedural history. We provide only a brief

summary here. On August 28, 1991, plaintiff filed a wrongful termination action

against defendant. On September 8, 1992, the parties settled the case on the

record before a magistrate judge. The settlement agreement, in relevant part,

provided that plaintiff had two years from the date of signing the agreement to opt

in to the defendant’s health insurance plan for retirees. Although the parties

contemplated that the settlement agreement would be reduced to writing, plaintiff

refused to sign a written settlement. Defendant filed a motion to enforce the

agreement. On June 9, 1993, the district court granted the motion. See Brockman

v. Sweetwater County Sch. Dist. No. 1, 826 F. Supp. 1328 (D. Wyo. 1993). The

court found unpersuasive plaintiff’s argument that the compromise was not

enforceable because it was not reduced to writing. See id. at 1332. The district

court also indicated that plaintiff had two years to opt in to the health insurance

plan, “under the same terms as retirees.” Id. Plaintiff appealed arguing that the

agreement should not be enforced because it was not reduced to writing and a


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final agreement had not been reached. See Brockman v. Sweetwater County Sch.

Dist. No. 1, 25 F.3d 1055, 1994 WL 170795, at **2-**3 (10th Cir. May 5, 1994)

(Brockman I). This court affirmed. See id. at **1, **3.

       On September 23, 1994, defendant notified plaintiff it intended to treat the

date of this court’s mandate, June 15, 1994, as the date for commencement of the

two-year period for opting in to the health insurance plan, “under the same terms

as retirees.” On January 5, 1995, plaintiff filed a motion alleging the compromise

agreement was void under the statute of frauds. The district court construed the

motion as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) and

denied the motion. This court affirmed. See Brockman v. Sweetwater County

Sch. Dist. No. 1, 74 F.3d 1248, 1996 WL 1129 (10th Cir. Jan. 2, 1996) (Brockman

II).

       On February 9, 1996, plaintiff filed the motion relevant to this appeal. She

sought to have the district court delete the phrase “under the same terms as

retirees” from its June 9, 1993, order enforcing the settlement agreement because

it precluded her from employment and declare that the two year opt-in date did

not commence until she signed a written settlement agreement. On April 10,

1997, the district court determined that the contentions were untimely and

foreclosed because plaintiff had a full and fair opportunity to challenge the June 9

order on appeal and to raise other objections on appeal from the denial of Rule


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60(b) relief. Additionally, the district court determined that the language “under

the same terms as retirees” did not alter the settlement agreement or preclude

plaintiff from seeking other employment. With regard to the two year opt-in

period, the district court concluded that because there will never be a signed

agreement, due to enforcement of the oral compromise agreement, the date of this

court’s mandate in Brockman I is an appropriate date to commence the two-year

period, leaving seventy-nine days from the court’s April 10, 1997, order to opt in.

Plaintiff appealed. The district court granted a stay of the opt-in date pending

appeal.

      On appeal, plaintiff argues that the district court improperly modified the

settlement agreement because (1) the opt-in time was to begin when the

agreement was signed, and (2) she was not to be under the same terms as retirees

since that will foreclose her from seeking employment. 1 Any issues regarding the

wording of the settlement agreement either were raised or could have been raised



1
        Plaintiff also suggests that the settlement agreement violates the statute of
frauds. The district court thoroughly addressed this issue in its June 9, 1993,
order. See Brockman, 826 F. Supp. at 1332-33. Plaintiff did not argue on appeal
that the district court erred in ruling that the statute of frauds did not apply. See
Brockman I, 1994 WL 170795, at **3 n.4. Although plaintiff later raised a
statute of frauds issue in Brockman II, 1996 WL 1129, at **2 & n.3, this court
declined to reach the issue because it was not raised in Brockman I and because
Rule 60(b) may not be used as a substitute for an appeal. Again, for the reason
that it was not raised previously, we decline to address a statute of frauds issue in
this appeal.

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in the prior proceedings and, thus, are barred under the doctrine of res judicata.

See King v. Union Oil Co., 117 F.3d 443, 445 (10th Cir. 1997) (“Res Judicata, or

claim preclusion, precludes a party . . . from relitigating issues that were or could

have been raised in an earlier action, provided that the earlier action proceeded

to a final judgment on the merits.”). Plaintiff cannot defeat application of

res judicata merely by alleging new legal theories in subsequent proceedings

when all of the claims arise out of the same transaction. See, e.g., Nwosun v.

General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997); Clark v.

Haas Group, Inc., 953 F.2d 1235, 1238-39 (10th Cir. 1992).

      Nonetheless, defendant has expressly stated plaintiff is allowed to seek

employment without jeopardizing her right to health insurance benefits. She

merely is required, like retirees, to pay premiums. Because defendant ensures the

agreement permits plaintiff to seek other employment, plaintiff is receiving what

she wants and there appears to be no further reason precluding her from deciding

whether to opt in to the health insurance plan. As the district court indicated in

its order enforcing the agreement, if plaintiff is dissatisfied with defendant’s

performance of the agreement “her remedies will sound in contract.” Brockman,

826 F. Supp. at 1333.

      Although the parties originally contemplated that the settlement agreement

would be signed, the district court, as affirmed by this court, enforced the oral


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agreement. No settlement agreement will ever be signed. Because the oral

agreement is being enforced, the district court correctly set a date for the opt-in

time to commence in order to preclude the opt-in period from remaining open

indefinitely. Under the circumstances of this case, where plaintiff should have

signed the agreement long before this court’s mandate issued in Brockman I, the

district court’s supplying of an opt-in starting date after enforcing the oral

compromise agreement was within the district court’s authority.

      We agree that the date of this court’s mandate in Brockman I was an

appropriate date to commence the two-year time period. Because the district

court stayed the time period during the pendancy of this appeal, the remaining

seventy-nine days begins to run from the date of issuance of the mandate in this

appeal.

      Plaintiff further argues that the district court’s alleged modification of the

agreement evidences disparate treatment between men and women litigants. This

argument is conclusory, wholly unsupported, and frivolous.

      Defendant argues plaintiff should be enjoined from filing any

further motions or appeals in this matter and should be sanctioned pursuant to

10th Cir. R. 46.6.1. In its June 9, 1993, decision the district court enjoined

plaintiff from pursuing further litigation against defendant after defendant




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complied with the orders the district court set forth. See Brockman, 826 F. Supp.

at 1334. Plaintiff has never challenged this part of the district court’s decision.

Defendant maintains that it has complied with the orders. See Brief of Appellees

at 14. Although we decline to impose further sanctions at this time, we do note

that this repetitive litigation must come to an end, see Nwosun, 124 F.3d at 1258

(policy considerations underlying res judicata include bringing litigation to end,

avoiding vexation of parties, and conserving judicial resources).

      The judgment of the United States District Court for the District of

Wyoming is AFFIRMED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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