UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BRUCE G. JONES, JR., Plaintiff - Appellee,

v. JOHN CASTELLUCCI, Defendant - Appellant. No. 14-8060 (D.C. No. 1:13- CV-00203-NDF) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ John Castellucci appeals the district court’s grant of summary judgment to Bruce G. Jones, Jr. on (1) Jones’ claim that Castellucci br eached a settlement agreement and (2) Castellucci ’s counterclaim for reformat ion of the agreement based on mutual mistake. Castellucci also app eals the district cour t’s denial of his post-judgment motion to reconsider. Exer cising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### July 6, 2015
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Jones owned B&B Drilling Co. (B&B), wh ile Castellucci is the president and a shareholder of USA Explora tion & Production, LLC (USA). In 2008, Jones sold B&B to USA. But USA failed to pay J ones as agreed, and in December 2012 Jones obtained a Wyoming judgment against B&B and USA for more than $3.6 million. Shortly thereafter, B&B filed a bankruptc y petition. A dispute arose over B&B’s handling of certain revenue during the ba nkruptcy proceeding, and Jones objected when B&B moved to dismiss it s petition. Also, during this time, Castellucci filed an action against Jones in California. On February 25, 2013, Jones, Caste llucci, USA, and B&B entered into a settlement agreement to resolve all of these disputes. Castellucci agreed to “arrange for payment to Jones of $1.5 million (the ‘Settlement Amount’),” which was to be paid on or before April 1, 2013. Aplt. App. at 15. Castellucci al so agreed to dismiss the California lawsuit. In exchange, Jone s agreed to assign his $3.6 million judgment to a third party to be desi gnated by Castellucci and to w ithdraw his objection to the dismissal of B&B’s bankruptcy proceeding. Jones performed his obligations, and Castellucci dismissed the California action. But after Castellucci again fail ed to pay Jones as agreed, Jones sued Castellucci in Wyoming state court for bre ach of contract. Ca stellucci removed the action to federal court, wher e he argued he had signed th e settlement agreement in his individual capacity only to dismiss th e California lawsuit, not to pay the3 Settlement Amount. Castellucci also filed a counterclaim seeking reformation of the agreement based on mutual mistake. The district court granted summary judgment to Jones on both his contract claim and Castellucci’s counterclaim and en tered a $1.5 million judgment for Jones. Applying Wyoming law, the district c ourt held the agre ement clearly and unambiguously rendered Castellucci persona lly liable for paying the Settlement Amount and he breached that agreement by faili ng to pay Jones. It further held that Castellucci failed to present evidence that the agreement refl ected a mutual mistake. Castellucci filed a Fed. R. Civ. P. 59(e) motion, attaching his former attorney’s affidavit regarding the settle ment negotiations. The distri ct court denied the motion, concluding the attorney’s testimony was not new evidence justifying a Rule 59(e) motion. Further, based on the court’s findi ng that the settlement agreement was clear and unambiguous, it found the affidavit was irrelevant extrinsic evidence. Castellucci now appeals the grant of su mmary judgment and the denial of his Rule 59(e) motion. DISCUSSION I. Summary Judgment We review the grant of summary judgm ent de novo, applying the same legal standard as the district court. Digital Ally, Inc. v. Z3 Tech., LLC , 754 F.3d 802, 810 (10th Cir. 2014). Summary j udgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).4 The parties do not challenge the district court’s decision to apply Wyoming law. See MediaNews Grp., Inc. v. McCarthey , 494 F.3d 1254, 1260 (10th Cir. 2007) (holding that in diversity case, substantiv e law of forum state governs questions of existence and enforceability of contract). In Wyoming, “[t]he primary focus is on determining the intent of the parties to th e contract. The initia l question is whether the language of the contract is clear and unambiguous.” Herling v. Wyo. Mach. Co. , 304 P.3d 951, 958 (Wyo. 2013) (internal quotation marks omitted). The words used in the contract are afforded the plain meaning that a reasonable person would give to them. When the provisions in the contract are clear and unambiguous, the court l ooks only to the “four corners” of the document in arriving at the intent of the parties. In the absence of any ambiguity, the contract will be enfor ced according to its terms because no construction is appropriate. Hopkins v. Bank of the West , 311 P.3d 151, 156 (Wyo. 2013) (brackets and citations omitted) (quoting Amoco Prod. Co. v. EM Nominee P’ship Co. , 2 P.3d 534, 540 (Wyo. 2000)). “An ambiguous contract is one which either contains a double meaning or is obscure in it s meaning because of indefin iteness of expression. A difference in interpretation alone, however, does not render a contract ambiguous.” Id. at 155 (citation and internal quotation marks omitted). Castellucci argues the district court erred in concluding that the entire settlement agreement clearl y and unambiguously applied to him in his individual capacity. We disagree. As the district court pointed out, the agreement names Castellucci as a party, and he signed it both in his indivi dual capacity and on behalf of B&B and USA. The agreement clearly st ates that “Castellucc i shall arrange for5 payment to Jones of $1.5 million (the ‘S ettlement Amount’),” and that “Castellucci shall provide adequate proof of the exis tence and availability of the Settlement Amount sufficient to Jones no later than Febr uary 27, 2013.” Aplt. App. at 15, 16. Further, the agreement gives Castellucci the abil ity to designate the recipient of Jones’ assignment of his earl ier Wyoming judgment. And contrary to Castellucci’s argument, the agreement cont ains no language limiting Cast ellucci’s participation in the settlement to the dismissal of the California laws uit. As the district court concluded, while “the parties could have used more define d or definite language, this does not mean the language in the Sett lement Agreement is ambiguous.” Id. at 92. Although Castellucci contends the parties’ intent and un derstanding are questions of fact, because the agreement was clear and unambiguous, the district court could interpret it as a matter of law a nd summary judgment was appropriate. See Hopkins , 311 P.3d at 155. Castellucci also contends the distri ct court erred in determining that no genuine issue of material fact remains regarding his claim of mutual mistake. Again, we disagree. Under Wyoming la w, “[a] mutual mistake is one that is reciprocal and common to both parties in which each part y is under the same misconception as to the terms of the written instrument. Like fraud, mutual mistake must be shown by clear and convincing evidence.” Lee v. LPP Mortg. Ltd. , 74 P.3d 152, 158 (Wyo. 2003) (citation omitted). The dist rict court appropriate ly granted summary judgment because Castellucci failed to pr esent clear and conv incing evidence that6 Jones believed Castellucci was not persona lly liable for the Settlement Amount, which would be required to establish a mutual mistake. II. Rule 59(e) Motion We review the denial of a Rule 59( e) motion for abuse of discretion. Monge v. RG Petro-Mach. (Grp.) Co. Ltd. , 701 F.3d 598, 610 (10th Ci r. 2012). “A district court abuses its discretion if it made a clear error of j udgment or exceeded the bounds of permissible choice in the circumstances.” Id. at 610-11 (internal quotation marks omitted). Castellucci asserts that his former at torney’s affidavit, attached to his Rule 59(e) motion, created genuine issues of material fact as to his personal liability. But we reject this argument for the same reasons as the di strict court. First, the information contained in the affidavit was not newly discovered ev idence, but rather was known and available during the summary judgment proceedings. See Monge , 701 F.3d at 611 (“To support a Rule 59(e) motion with a dditional evidence . . . the moving party must show (1) that the evid ence is newly discovered, or (2) if the evidence was availabl e at the time summary judgmen t was granted, that counsel made a diligent yet unsuccessful attemp t to discover the ev idence.” (internal quotation marks omitted)). Second, because the district court correctly found the settlement agreement to be clear and unambiguous, it appropriately refused to consider extrinsic evidence in de termining the parties’ intent. See Hopkins , 311 P.3d at 156.7 Conclusion Castellucci’s motion to waive oral argum ent is granted. The judgment of the district court is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge