                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 11, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ELAINE SPENCER MARR;
    ELLIOTT PAUL MOORE,

                Plaintiffs-Appellants,
                                                         No. 08-1378
    v.                                      (D.C. No. 1:07-CV-01746-WYD-KMT)
                                                          (D. Colo.)
    LARRY H. HUGHES; TOMMIE R.
    HUGHES; COLORADO
    DEPARTMENT OF
    TRANSPORTATION,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Elaine Spencer Marr and Elliott Paul Moore appeal the dismissal of their

“Petition for Redress” as barred by the principles of claim preclusion and

res judicata. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



*
       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)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The magistrate judge provided a detailed summary of this case’s facts and

procedural history, R., Vol. III, Doc. 33 at 2-5, and we need not restate either in

detail here. Suffice it to say that Marr and Moore’s appeal stems from their

continued efforts to challenge the 2002 modification of an easement. In

July 2004, they filed suit in Colorado state court against Larry H. Hughes,

Tommie R. Hughes, and the Colorado Department of Transportation (CDOT),

claiming trespass and seeking various forms of relief. In September 2005, the

Chaffee County Colorado District Court issued its Findings and Verdict on Trial

to the Court. Marr and Moore prevailed on three of their six claims against the

Hugheses, while the CDOT prevailed on Marr and Moore’s single claim against

it.

      Then, in August 2007, Marr and Moore filed in federal district court the

“Petition for Redress,” asserting their property was taken and damaged without

notice, in violation of their state and federal due process rights. The case was

referred to a magistrate judge who recommended dismissal of the case as barred

by claim preclusion and res judicata, stating: “The two cases before the Court are

identical. The parties and subject matter are the same. The only difference in

this federal action is the legal theory upon which the plaintiffs now wish to

proceed.” Id. at 12; see also id. (observing that res judicata “bars relitigation not

only of all issues actually decided, but of all issues that might have been decided”

(quotation omitted)).

                                          -2-
      On de novo review, the district court agreed with the magistrate judge’s

analysis and affirmed and adopted her recommendation. This appeal followed.

Liberally construing Marr and Moore’s pro se appellate filings, Cummings v.

Evans, 161 F.3d 610, 613 (10th Cir. 1998), they apparently assert that (1) the

interests of justice require this court to review their case, (2) the denial of their

right to due process constitutes a separate cause of action that was not mentioned

or litigated in state court, and (3) they were not given a full and fair opportunity

to litigate their due process claim(s) in state court.

      We review de novo the district court’s dismissal of Marr and Moore’s case.

MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (“The application

of res judicata is a question of law which we review de novo.” (citing Satsky v.

Paramount Commc’ns, Inc., 7 F.3d 1464, 1467-68 (10th Cir. 1993)).

             “The preclusive effect of a state court judgment in a
      subsequent federal lawsuit generally is determined by the full faith
      and credit statute,” 28 U.S.C. § 1738, which “directs a federal court
      to refer to the preclusion law of the State in which judgment was
      rendered.” Marrese v. Am. Acad. of Orthopaedic Surgeons,
      470 U.S. 373, 380, 105 S. Ct. 1327, 84 L. Ed.2d 274 (1985).

Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1327 (10th Cir. 2008). Colorado

rendered the judgment that the federal district court considered in dismissing

Marr and Moore’s case. We therefore apply the res judicata rules of Colorado.

Id.




                                           -3-
      In Colorado, claim preclusion, or res judicata, “bars relitigation of claims

or issues which were or could have been raised in a prior suit between the same

parties.” Rantz v. Kaufman, 109 P.3d 132, 138 (Colo. 2005) (quotation omitted).

Indeed, it is “an absolute bar to relitigation . . . when, in both the prior and

subsequent suits, there is identity of subject matter, identity of cause of action,

identity of parties to the action, and identity of capacity in the persons against

whom the claim is made.” Upper Eagle Reg’l Water Auth. v. Simpson, 167 P.3d

729, 736 (Colo. 2007).

      Having reviewed the briefs, the record, and the applicable law pursuant to

the above-mentioned standards, we hold that Marr and Moore have failed to

identify any reversible error in this case. We therefore AFFIRM the judgment of

the district court for substantially the same reasons set forth in the magistrate

judge’s recommendation and in the district court’s order accepting and affirming

the magistrate judge’s recommendation.



                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




                                           -4-
