Sonrisa Holding, LLC et al v. Circle K Stores, Inc.

Filing 95

ORDER denying 94 Emergency Motion to Reconsider (and Clarify) Order to Strike Remediation Damages, by Magistrate Judge Scott T. Varholak on 6/21/2019.(jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00029-STV
SONRISA HOLDING, LLC, and
LIVING TRUST AGREEMENT OF MELODY L. ORTEGA
DATED JANUARY 21, 2002,
Plaintiffs,
v.
CIRCLE K STORES, INC.,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Plaintiffs’ Emergency Motion to Reconsider
(and Clarify) Order to Strike Remediation Damages (the “Motion for Reconsideration”).
[#94]

The Motion is before the Court on the parties’ consent to have a United States

magistrate judge conduct all proceedings in this action and to order the entry of a final
judgment. [##24, 27] For the following reasons, Plaintiffs’ Motion for Reconsideration is
DENIED.
I.

BACKGROUND
This case arises out of a gasoline spill at a gas station owned by Defendant Circle

K Stores, Inc. (“Circle K”), which migrated from Circle K’s property onto adjacent
properties (the “Impacted Properties”) owned by Plaintiffs Sonrisa Holding, LLC
(“Sonrisa”), and the Living Trust Agreement of Melody L. Ortega Dated January 21, 2002
(“Ortega”). [See generally #1] After the gasoline spill, Plaintiffs entered into a contract to

sell their properties to Trammel Crow. [#71-1, CSOF16] 1 Trammel Crow required that a
vapor intrusion barrier and mitigation system (‘vapor barrier”) be constructed at the
Impacted Properties to remediate the petroleum contamination. [Id. at CSOF22; #72-1,
SSOF19, 20] Plaintiffs and Trammel Crow agreed that Sonrisa and Ortega would each
place $150,000 of the proceeds from the purchase price in escrow (the “Environmental
Escrow”), to fund the cost of addressing “any reasonable cost of Contamination
Containment” at the Impacted Properties. [#72-1, SSOF18; #71-1, CSOF26]
Plaintiffs initiated this action in January 2017 asserting trespass and nuisance
claims and seeking to recover the $183,210 in expenses from the Environmental Escrow
for which they were not reimbursed, among other damages. [#1 at 7-10; #71-1, CSOF5657] The parties filed cross motions for summary judgment in January 2018 and Circle K
filed an additional Motion for Summary Judgment in March 2019. [##63, 64, 73] The
Court issued a detailed and lengthy order on the motions on June 12, 2019. [#93] The
Court granted Plaintiffs’ Motion for Partial Summary Judgment [#64] as to liability on the
trespass claim, but denied the Motion as to liability on the nuisance claim. [See generally
#93] The Court denied Defendant’s Motion for Partial Summary Judgment [#63], and
Motion for Summary Judgment on Plaintiffs’ Claims for Assigned Damages [#73], as to
liability on the trespass claim, but granted the Motions as to Plaintiffs’ nuisance claim.

1

The Court briefly refers to portions of the undisputed facts, drawn from the Separate
Statement of Facts filed with Defendant’s Motion for Partial Summary Judgment (the
“Circle K Statement of Facts”) [#71-1] and the Separate Statement of Facts filed with
Plaintiffs’ Motion for Partial Summary Judgment (the “Sonrisa Statement of Facts”) [#721], to provide context to the instant Order. The Court refers to the sequentially numbered
facts set forth in the Circle K Statement of Facts as “CSOF#” and refers to the sequentially
numbered facts set forth in the Sonrisa Statement of Facts as “SSOF#.” While Plaintiffs
did not label each fact by number, the Court refers to each fact numerically by the order
in which it appears.
2

[See generally #93] The Court held that with respect to Plaintiffs’ nuisance claims,
Plaintiffs had not presented sufficient evidence of any of the categories of damages that
they sought—remediation damages, transactional legal expenses, cost of capital
damages, assigned damages, and noneconomic damages. [Id. at 38] Plaintiffs filed the
instant Motion for Reconsideration on June 19, 2019. [#94]
II.

LEGAL STANDARDS
The Federal Rules of Civil Procedure do not specifically provide for motions for

reconsideration. Hatfield v. Bd. of Cty. Comm’rs for Converse Cty., 52 F.3d 858, 861
(10th Cir. 1995).

“A motion for reconsideration is an extreme remedy to be granted in

rare circumstances.” Stoney v. Cingular Wireless L.L.C., No. 06-cv-02003-WYD-KLM,
2009 WL 1394260, at *1 (D. Colo. May 19, 2009) (quoting Brumark Corp. v. Samson Res.
Corp., 57 F.3d 941, 944 (10th Cir. 1995)). “Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants
of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

“A motion to

reconsider . . . should be denied unless it clearly demonstrates manifest error of law or
fact or presents newly discovered evidence.” Nat’l Bus. Brokers, Ltd. v. Jim Williamson
Products, Inc., 115 F. Supp. 2d 1250, 1256 (D. Colo. 2000) (quotation omitted).
“The Tenth Circuit has made it abundantly clear that a motion for reconsideration
is not a vehicle for a losing party to revisit issues already addressed.” Seabron v. Am.
Family Mut. Ins. Co., No. 11-cv-01096-WJM-KMT, 2012 WL 3028224, at *1 (D. Colo. July
24, 2012) (citing Does, 204 F.3d at 1012).

Accordingly, “[a]bsent extraordinary

circumstances, arguments that could have been raised in the original briefing on the

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dispute in question may not be made in a motion for reconsideration.” Id. (citing Does,
204 F.3d at 1012).
III.

Analysis
In the instant Motion for Reconsideration, Plaintiffs present three arguments. [#94]

First, Plaintiffs argue that the Court should have awarded remediation damages, because
irrespective of how funds from the Environmental Escrow were used, Plaintiffs suffered a
decrease in the sales price of the Impacted Properties. [#94 at 3] Plaintiffs contend that
it was beyond their control how Environmental Escrow funds were used, and that the jury
can determine without specialized knowledge whether there was a reduction in sales
price. [Id. at 3-5] Second, Plaintiffs assert that the transactional legal expenses are not
special damages that had to be pleaded in the Complaint. [Id. at 5-6] Third, Plaintiffs
attempt to adjust their cost of capital damages request, and argue that these damages
should go to the jury.2 [Id. at 7-8]
Plaintiffs’ Motion for Reconsideration provides no new evidence and does not cite
to any new case law. The “recent” case that Plaintiffs contend supports their position on
cost of capital damages is a decision from this District in 2012. [See #94 at 7] Plaintiffs
also point to no clear error in the Court’s analysis, nor can the Court find any. Instead,
the bulk of Plaintiffs’ Motion is an attempt to rehash arguments already addressed at
length in extensive briefing and hearings before the Court, or to raise new arguments that
could have been addressed in the original briefing. [See, e.g., ##54, 64, 66, 70, 72, 76,
79] Again, a motion for reconsideration “is not a vehicle for a losing party” to reiterate

Although framed as a “Motion to Reconsider (and Clarify),” Plaintiffs do not present any
issues for clarification in the Motion.
2

4

prior arguments, or to raise new theories that should have been raised previously.
Seabron, 2012 WL 3028224, at *1. By the same token, to the extent Plaintiffs have not
addressed whether transactional legal expenses had to be pleaded in the Complaint as
special damages, and seek to do so now, Plaintiffs do not present any intervening
changes in the law, new evidence, or clear error on that issue.

Moreover, any briefing

on that issue would be futile because this Court held that even if Plaintiffs were not
precluded from seeking transactional legal expenses by their failure to plead those
damages in the Complaint, Plaintiffs nevertheless failed to present evidence that those
expenses were reasonable, or proximately caused by Circle K’s conduct. [#93 at 23]
For the foregoing reasons, Plaintiffs have failed to demonstrate the extraordinary
circumstances warranting a motion for reconsideration and Plaintiffs’ Motion for
Reconsideration [#94] is DENIED.

DATED: June 21, 2019

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

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