* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KATHLEEN BROCKMAN,

Plaintiff-Appellant,

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

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

This case is before us for a third time for review of the district court’s enforcement of an oral compromise agreement. Plain tiff continues to argue, as she did in the district court, that if the agreemen t is to be enforced it must be enforced as agreed to by the litigants and cannot b e modified by the district court and that the statute of frauds should have applied. We affirm. This case has a lengthy procedural history. We pro vide only a brief summary here. On August 28, 1991, plaintiff filed a wrongful termination action against defendant. On September 8, 1992, the parti es settled the case on the record before a magistrate judge. The settlement a greement, 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 ret irees. Although the parties contemplated that the settlement agreement would be reduced to writing, plaintiff refused to sign a written settlement. Defendant fi led a motion to enforce the agreement. On June 9, 1993, the district court gra nted 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 t o 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 notreduced to writing and a-3-

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 Ci r. 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 insuran ce 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. Th e 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, 199 6) (Brockman
II ). On February 9, 1996, plaintiff filed the motion rel evant 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 th e settlement agreement because it precluded her from employment and declare that t he 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 conten tions were untimely and foreclosed because plaintiff had a full and fair op portunity to challenge the June 9 order on appeal and to raise other objections on ap peal from the denial of Rule1 Plaintiff also suggests that the settlement agreeme nt violates the statute of

frauds. The district court thoroughly addressed th is 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 st atute of frauds did not apply. See Brockman I , 1994 WL 170795, at **3 n.4. Although plaintiff l ater 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 rais ed 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 ad dress a statute of frauds issue in this appeal. -4- 60(b) relief. Additionally, the district court det ermined that the language “under the same terms as retirees” did not alter the settl ement agreement or preclude plaintiff from seeking other employment. With rega rd to the two year opt-in period, the district court concluded that because t here will never be a signed agreement, due to enforcement of the oral compromis e 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 s tay of the opt-in date pending appeal. On appeal, plaintiff argues that the district courtimproperly modified the settlement agreement because (1) the opt-in time wa s to begin when the agreement was signed, and (2) she was not to be und er the same terms as retirees since that will foreclose her from seeking employme nt. 1 Any issues regarding the wording of the settlement agreement either were rai sed or could have been raised-5-

in the prior proceedings and, thus, are barred unde r 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 reli tigating 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 ca nnot defeat application of res judicata merely by alleging new legal theories in subsequent proceedings when all of the claims arise out of the same transa ction. 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 plainti ff is allowed to seek employment without jeopardizing her right to healthinsurance 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 reasonprecluding 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 sou nd in contract.” Brockman , 826 F. Supp. at 1333. Although the parties originally contemplated that t he settlement agreement would be signed, the district court, as affirmed bythis court, enforced the oral-6-

agreement. No settlement agreement will ever be si gned. Because the oral agreement is being enforced, the district court cor rectly set a date for the opt-in time to commence in order to preclude the opt-in pe riod 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 B rockman I was an appropriate date to commence the two-year time peri od. 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 is suance 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 fri volous. Defendant argues plaintiff should be enjoined from filing any further motions or appeals in this matter and shoul d 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-7-

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 o rders. See Brief of Appellees at 14. Although we decline to impose further sanct ions 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 incl ude bringing litigation to end, avoiding vexation of parties, and conserving judici al resources). The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge