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could have joined in the prior action (the plaintiff could not have joined in <br />the SEC action). <br />Offensive issue preclusion has also been used in Colorado. In the case of <br />Bassett v. State Board of Dental Examiners, 727 P.2d 864 (Colo. App. <br />1986), in a separate malpractice action brought prior to the disciplinary <br />hearing at issue in the Bassett case, a judgment was entered against Bassett <br />for negligent medical treatment of a patient. In the disciplinary action, <br />malpractice was also at issue. The court held that it was appropriate to <br />preclude Bassett from re-litigating in the disciplinary hearing the issue of <br />whether he had committed negligent malpractice since that had already been <br />tried in the prior civil suit. The court found that offensive issue preclusion <br />would promote judicial economy because the witnesses in the civil case <br />would not need to be recalled to testify about the same facts, and Bassett had <br />not asserted the existence of any procedural opportunities available to him at <br />the administrative hearing that were not available at the civil jury trial. <br />Here, as in the Bassett case, because of the prior lawsuit and appeal between <br />the Tatums and Basin Resources in which the courts found and upheld that <br />subsidence caused material damage that resulted in a diminution in value of <br />$622,000, Basin Resources should not be allowed to re-litigate the issues of <br />subsidence, material; damage or the amount of diminution in value and the <br />Board can use the court's findings on these issues to find the alleged <br />violation. Certainly,i Basin Resources had every incentive to defend itself <br />against the Tatums allegations in court, it would not be economical to retry <br />these issues, and there are no procedural opportunities that the NOV <br />procedure has that were not available to Basin Resources in the trial court. <br />Moreover, Basin Resources has exercised every opportunity to have the <br />appellate courts review the trial court's judgment. The result of Basin <br />Resources' efforts are the published Court of Appeals decision affirming the <br />trial court and the denial of Basin Resources' request for review by the <br />Colorado Supreme Court. <br />Thus, if the Board agrees to preclude Basin Resources from re-litigating the <br />above issues, the only issue for this Board to determine is whether Basin <br />Resources has failed jto pay the $622,000 in violation of § 34-33-121 and 2 <br />CCR 407-2, Rule 4.20.3. <br />19