                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 22, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
VINCENT GABRIEL,

      Plaintiff - Appellant,

v.                                                          No. 15-1431
                                                   (D.C. No. 1:14-CV-02848-CBS)
WAL-MART STORES, INC.;                                        (D. Colo.)
WAL-MART STORE 1273,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

      The district court granted Wal-Mart’s motion to enforce a settlement

agreement with Vincent Gabriel and entered judgment. Mr. Gabriel appeals and

Wal-Mart moves for frivolous-appeal sanctions. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm the district court’s judgment and deny Wal-Mart’s motion.

      Mr. Gabriel had a physical altercation with police after leaving a Wal-Mart in

Colorado Springs. Alleging that a Wal-Mart employee falsely reported him to the


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
police for shoplifting, he brought suit against Wal-Mart in state court to redress his

personal injuries. Wal-Mart removed the case to federal district court under diversity

jurisdiction.

       On April 10, 2015, Wal-Mart served upon Mr. Gabriel an offer under Colo.

Rev. Stat. § 13-17-202 to resolve all claims for $60,000. Three days later, Mr.

Gabriel replied via email to opposing counsel indicating that he had “accepted the

offer under the following conditions,” which included that the terms eliminate any

impact of Medicare or Tricare on the $60,000,1 that payment be made within a week,

and that all matters relating to the case be placed on hold pending execution of the

agreement. Mr. Gabriel said that he would file a motion to compel arbitration

“should these terms fail.” R. at 82. Later that day, opposing counsel replied via

email: “Walmart’s statutory offer does not include your conditions and is inclusive of

any and all liens. Walmart’s offer remains open, so please let us know if you accept

it.” R. at 81. Seven minutes later, Mr. Gabriel replied, “Offer is accepted. Please

take also into consideration my concerns in processing the offer.” R. at 81. Counsel

for Wal-Mart responded with a joint notice of settlement, which Mr. Gabriel

approved for submission to the court, and noted that she was working on resolving

the Medicare/Tricare issues. On April 14, Wal-Mart filed the joint notice of

settlement with the district court.




       1
        Apparently, there was concern about their liens on the judgment based on
the Medicare Secondary Payer statute. See 42 U.S.C. § 1395y(b).
                                           2
      Dissatisfied with the length of time it was taking to sort out the

Medicare/Tricare issues, Mr. Gabriel filed a motion requesting more time to submit

dismissal papers because Wal-Mart was “slow in making good on its promise and

Plaintiff may have a change of mind as settlement seems unsatisfactory and slow.”

R. at 64. After a telephone conference with the magistrate judge on June 5, Wal-

Mart sent Mr. Gabriel an addendum to the settlement agreement. Rather than sign

and return the addendum, Mr. Gabriel filed a response to the phone conference,

agreeing to hold Wal-Mart harmless for any outstanding balance he owed to

Medicare and stating he wanted the case closed “without prejudice.” Mr. Gabriel

sent Wal-Mart an email on June 19, 2015, noting that he had “woken up to the fact

that unless WM pays at least $120,000.00 it makes no sense to accept dismissal of the

case with prejudice.” R. at 126 (emphasis omitted).

      As a result, Wal-Mart filed its motion to enforce the settlement agreement and

dismiss the case with prejudice on July 6, 2015 — the same day it paid Mr. Gabriel

the balance of the settlement. The magistrate judge held a hearing on the motion in

October 2015, during which he explained to Mr. Gabriel with extraordinary patience

why he was bound by his acceptance of the statutory settlement offer despite Mr.

Gabriel’s arguments based on common-law contract principles. The magistrate judge

granted Wal-Mart’s motion and dismissed the case with prejudice.

      On appeal Mr. Gabriel renews many of the same meritless arguments. But the

Colorado Supreme Court has expressly stated that common-law contract principles

are not applicable to offers of settlement under Colo. Rev. Stat. § 13-17-202. See

                                           3
Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 946 (Colo. 1993). Rather, it is “a

matter of plain statutory interpretation.” Id. at 947. Thus, we are limited to the

statute’s language: “If an offer of settlement is accepted in writing within fourteen

days after service of the offer, the offer of settlement shall constitute a binding

settlement agreement, fully enforceable by the court in which the civil action is

pending.” C.R.S. § 13-17-202(1)(a)(IV). Applying that language, the offer became a

binding settlement agreement upon Mr. Gabriel’s clear and unequivocal acceptance.

Mr. Gabriel’s common-law contract arguments are both irrelevant and without

factual foundation.

         Mr. Gabriel’s other arguments are equally unavailing because they were not

adequately preserved below, lack a factual basis, or are unsound as a matter of law.

We need address only his challenge to the magistrate judge’s authority. Mr. Gabriel

consented in writing to the jurisdiction of the magistrate judge, so there was no

reason for the magistrate judge to submit findings and recommendations to a district

judge.

         We agree with Wal-Mart that all of Mr. Gabriel’s arguments are frivolous.

But we decline to grant its motion for sanctions under Federal Rule of Appellate

Procedure 38. At the hearing on Wal-Mart’s motion to enforce, the district court

repeatedly mentioned Mr. Gabriel’s right to appeal the ruling to this court if he

disagreed with the judge’s reasoning, without any warning about frivolousness. In

this context, we are reluctant to award sanctions against a pro se litigant.



                                            4
      We affirm the district court’s judgment. Wal-Mart’s motion for sanctions is

denied. Mr. Gabriel’s motion to file exhibits under seal is granted and his motion to

defer deadlines until September 2016 is denied.


                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




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