FILED

United States Court of Appeals

Tenth Circuit

October 7, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUNDAI BALANDER,

Plaintiff-Appellant,

and

KRISTIE ADRIAN, individually and

as parent and Guardian of Z. Brooks;

TESSA BOGGS; BARRY BULTENA;

GLORIA BULTENA; DONALD

CLINTON; GRACE CLINTON; VIDA

DAHL; SHIRLEY DEMERRITT;

TERRY ELLIOTT; JANET ELLIOTT;

MICHELLE HAMBY; MICHAEL

HAWLEY, individually and as parent

and guardian for J. Hawley; ROBIN

HAWLEY, individually and as parent

and guardian of J. Hawley; RICHARD

HENKLE, parent and natural guardian

and next friend of R.M. Henkle, R.J.

Henkle, S. Henkle, A.M. Henkle, A.L.

Henkle; LAURIE HENKLE, parent

and natural guardian and next friend of

R.M. Henkle, R.J. Henkle, S. Henkle,

A.M. Henkle, A.L. Henkle; STEVEN

HILL, individually and as parent and

guardian of J. Hill; DORIS HILL,

individually and as parent and

guardian of J. Hill; AMY HUGHES,

individually and as parent and

guardian of D. Hughes; CATHY

JONES; JUANITA MILLS;

VERNARD MILLS; DARRELL

PETTY, individually and as legal

custodian on behalf of S. Petty;

JEAN PETTY, individually and as

No. 08-8023

(D.C. No. 2:06-CV-00078-CAB)

(D. Wyo.)
* 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

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legal custodian on behalf of S. Petty;

AMANDA PURVIANCE; TODD

PURVIANCE; JUSTINE RUSSELL;

FRANK SCHRODER; LYNNDA

SCHRODER; DEBRA SOLIS,

individually and as parent and

guardian of A. Solis; SUSAN

VARNER, individually and as parent

and guardian of T. Varner; CAROL

WOLFE; ANDREW WRIGHT,

individually and as parent and

guardian of J. Wright and T. Wright;

LETEA WRIGHT, individually and as

parent and guardian of J. Wright and

T. Wright; RUTH MIRANDA, 

Plaintiffs,

v.

HERMES CONSOLIDATED INC.,

doing business as Wyoming Refining

Company, 

Defendant-Appellee.

ORDER AND JUDGMENT*

Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.
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Plaintiff-appellant Sundai Balander, proceeding pro se, appeals the district

court’s order enforcing a settlement between all plaintiffs and defendants in the

underlying case based on a 2002 accidental release of catalyst from an oil

refinery. Ms. Balander maintains that her attorney exceeded his authority in

entering a settlement agreement on her behalf because she interprets the

agreement to waive or release rights she never intended to relinquish. 

We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that

the district court did not abuse its discretion in enforcing the settlement, we

affirm. 

Background

Plaintiffs in the underlying lawsuit are residents of Newcastle, Wyoming. 

Defendant operates an oil refinery in Newcastle. Plaintiffs sought damages based

on the discharge of thirty-three tons of catalyst from the refinery’s fluid catalytic

cracking unit on March 24, 2002. The litigation was settled through mediation

for a lump sum payable to the plaintiffs as a group, with a special master to

decide how much of the settlement sum each plaintiff would receive. 

Before attending the mediation session, the plaintiffs’ lead attorney Jeremy

Michaels sent a letter to each plaintiff explaining the mediation process and

requesting him or her to opt out if he or she did not wish to be bound by any

settlement reached through mediation. Thereafter, the plaintiffs’ attorneys held a

meeting to further explain the process and to answer plaintiffs’ questions. They
1 Four other plaintiffs also initially refused to sign the settlement agreement,

but they later acquiesced. 

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reviewed the mediation process and informed the plaintiffs that they intended to

settle the entire case for all plaintiffs if they could secure a sufficient sum. 

Ms. Balander attended the meeting and expressed her intention not to be bound by

a settlement that released the refinery from future damages for any future events;

prevented her from advocating for state or federal agencies to impose clean-up

requirements on the refinery; or kept her from speaking about problems with the

refinery, past, present, or future. 

The settlement provided that defendant would pay the lump-sum settlement

amount only after every plaintiff signed the settlement agreement. Ms. Balander

refused to sign. Consequently, two of the forty-four signing plaintiffs brought a

motion to enforce the settlement agreement.1

 Ms. Balander responded, asserting

that she had not given the plaintiffs’ attorneys authority to enter into such a broad

settlement on her behalf, and requesting to be excluded from the settlement. 

The district court held a hearing on March 7, 2008, and heard statements by

the various attorneys for the parties and by Ms. Balander. In particular,

Mr. Michaels, the plaintiffs’ lead attorney who effected the settlement through

mediation, stated that all of the plaintiffs authorized him to settle the case. 

Another attorney informed the court that Ms. Balander expressed at the

pre-mediation meeting that she did not want to be restricted from speaking out
2 Although Ms. Balander complains on appeal that the district court restricted

her opportunity to state her position, she does not apprise this court what more

she would have said if given the opportunity. Moreover, she stated her position

in written pleadings which are part of the record. 

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against the refinery, but did not withdraw Mr. Michaels’ representation of her in

the lawsuit. Ms. Balander stated that her goal was to require the refinery to

install scrubbers, and that she interpreted the settlement agreement to release all

future claims, as well as past ones, to which she did not agree.2

 At the conclusion

of the hearing, the district court found that Ms. Balander was bound by the

settlement, and ordered her to sign the settlement agreement by March 14, 2008,

or her claims would be dismissed with prejudice. Ms. Balander did not sign, and

the district court entered an order dismissing her claims with prejudice and

compelling her to abide by the confidentiality terms of the settlement. 

Ms. Balander appeals. She argues to this court that she authorized her

attorneys to settle only her claims relative to the 2002 catalyst release, and she

believes the settlement agreement exceeded that authority. She also asserts that

the order requiring her to sign the settlement agreement violated her

constitutional rights to choose which documents she will sign and to avoid being

a party to an oppressive precedent. Ms. Balander does not challenge the district

court’s remedy for her refusal to sign the settlement agreement. She requests the

following relief on appeal: (1) a sign under the bridge at the southwest corner of

the refinery warning children to keep out of allegedly contaminated water;
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(2) better oversight of the refinery’s emissions and practices by federal and state

agencies; (3) leave to opt out of the settlement agreement so she can pursue action

to require the refinery to operate safely and cleanly, or an order vacating the

settlement agreement and mandating new mediation; and (4) a monetary award to

be paid by defendant, the other plaintiffs, and their attorneys to compensate her

for her expenses in collecting evidence, as well as for her mental and emotional

stress. 

Discussion

“A trial court has the power to summarily enforce a settlement agreement

entered into by the litigants while the litigation is pending before it.” United

States v. Hardage, 982 F.2d 1491, 1496 (10th Cir. 1993). This court reviews the

decision to enforce a settlement for an abuse of discretion. Shoels v. Klebold, 375

F.3d 1054, 1060 (10th Cir. 2004). “An abuse of discretion occurs when the

district court based its decision on an erroneous conclusion of law or where there

is no rational basis in the evidence for the ruling.” Id. (quotation omitted). 

“[T]he resolution of factual issues and conflicting evidence [is] solely within the

province of the district court.” Plaza Speedway Inc. v. United States, 311 F.3d

1262, 1270 (10th Cir. 2002) (quotation omitted). State law controls any issues

concerning the formation of a purported settlement agreement. Shoels, 375 F.3d

at 1060. Settlements are favored by both Tenth Circuit and Wyoming law. See

Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 758 (10th Cir. 1993),
3 She maintains that she never sought money in the litigation. 

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aff’d, 511 U.S. 863 (1994); Peters Grazing Ass’n v. Legerski, 544 P.2d 449, 456

(Wyo. 1975).

Ms. Balander concedes that she authorized her attorneys to settle her

monetary interests in the underlying litigation.3

 She contends that she did not

authorize them to release her rights to complain to state and federal agencies

about emissions from the refinery, to influence legislation relative to the refinery,

to require the refinery to install scrubbers, to talk about past or future acts or

circumstances involving the refinery, or to sue for damages caused by future

emissions. But Ms. Balander has not demonstrated that the settlement agreement

infringes those rights, particularly in the face of opinions to the contrary

expressed by all attorneys for plaintiffs in this case and the district court. The

issue properly presented on appeal is whether Ms. Balander authorized her

attorneys to engage in the settlement reached with the defendant. The record

provides ample support for the district court’s finding that she did. 

As for Ms. Balander’s requests for a warning sign at the bridge, better

oversight by state and federal agencies, reimbursement for her expenses, and

compensation for her mental and emotional stress, she has not shown that she

presented these issues to the district court and requested a ruling, so we do not

address them. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d

1135, 1141 (10th Cir. 2007) (“An issue is preserved for appeal if a party alerts the
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district court to the issue and seeks a ruling.”). Moreover, even if these theories

are related to issues raised in the district court, we “will not consider a new

theory advanced for the first time as an appellate issue.” Id. 

Ms. Balander’s Motion to Amend and Supplement the Record is denied. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge