1993-10-28_GENERAL DOCUMENTS - C1981017

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requirement is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claim relies." State Eng'r v. Smith Cattle. Inc., 780 P.2d 546 (Colo. 1989) (holding that the state engineer's subsequent enforcement of the Arkansas River Rules against the well owner was barred by res judicata when the water court had previously determined that the wells took their water from a source independent of the Arkansas River). See also Lehr v. Guild, 71 Colo. 349, 206 P. 803 (1922) (holding that when plaintiff elected to pursue his remedy in tort, he was then barred from suing a second time on the same injury upon a contract theory); Clark v. Haas Group. Inc., 953 F.2d 1235 (10th Cir. 1992), cert. denied, — U.S. _ 113 S. Ct. 98, 121 L .Ed. 2d 58 (1992) (stating that parties cannot avoid res judicata by simply alleging new legal theories). Mid - Continent Answer Brief Colorado's adoption of the same - injury rule is consistent with its law that a second proceeding is barred by res judicata when it is based on the same evidence considered in the former action. In Fort v. Bietsch, 85 Colo. 176, 182, 284 P. 812 (1929) (quoting Pomponio v. Larsen, 80 Colo. 318, 321, 251 P. 534 (1926)), the Colorado Supreme Court stated: The best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, according to the authorities, is whether the same evidence would sustain both, and if it would, the two actions are the same, and this is true although the two actions are different in form. WQCD's civil enforcement proceeding against Mid - Continent constitutes the same claim for relief as previously asserted and determined by MLRD. WQCD's proceeding arises out of the same operative facts and injury addressed in MLRD's previous civil penalty proceeding. The evidence considered in MLRD's proceeding was - 19 - Appeal No. 93 CA 297