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Foster v. Plock

Court of Appeals of Colorado, Sixth Division

March 10, 2016

Scott E. Foster, Plaintiff-Appellant,
John E. Plock, Defendant-Appellee.

Larimer County District Court No. 14CV30917 Honorable Julie Kunce Field, Judge

Law Office of Michael L. Glaser, LLC, Michael L. Glaser, Denver, Colorado, for Plaintiff-Appellant

Montgomery Amatuzio Dusbabek Chase, LLP, Peter S. Dusbabek, Sara K. Stieben, Fort Collins, Colorado, for Defendant-Appellee

Davidson * and Nieto [*] , JJ, concur


¶ 1 Plaintiff, Scott E. Foster, appeals the district court's judgment dismissing his action against defendant, John E. Plock, pursuant to C.R.C.P. 12(b)(5). Foster argues that the court erred in ruling that his claims were barred both by issue and claim preclusion.[1] We conclude that the district court correctly dismissed Foster's case as barred by claim preclusion. Accordingly, we do not consider the parties' arguments regarding issue preclusion. We affirm the judgment and remand with directions.

I. Background and Procedural History

¶ 2 The origins of this case lie in Foster's dissolution of marriage action and necessarily involve facts and rulings in that case as well as in related criminal and tort cases. Because the resolution of this appeal depends on matters in these proceedings, we recount the relevant facts from each of them. In so doing, we take judicial notice of the court filings in the cases referred to in Foster's briefs (i.e., the domestic relations action, a county criminal court action against Foster, and a civil case in Larimer County), as well as the record on appeal in this case. Hanlen v. Gessler, 2014 CO 24, ¶ 23 n.10. We also take judicial notice of our own court records in the Foster v. Dean appeal. CRE 201(b); McGee v. Hardina, 140 P.3d 165, 167 (Colo.App. 2005).

¶ 3 Because we review this case on an order of dismissal under C.R.C.P. 12(b)(5), we must accept the facts in Foster's pleadings as true. Kreft v. Adolph Coors Co., 170 P.3d 854, 857 (Colo.App. 2007).

¶ 4 Foster was a party in all of the relevant legal actions. Plock represented Foster's wife (Wife) in the dissolution action, but he was not a named party in any of the cases related to this one. A. Dissolution of Marriage Action and the PREs

¶ 5 Wife filed to dissolve her marriage to Foster in 2011. In May 2012, the domestic relations court issued a temporary civil protection order barring Foster from contacting Wife.

¶ 6 As part of the dissolution action, the court ordered a Parental Responsibilities Evaluation (PRE) pursuant to section 14-10-127, C.R.S. 2015. Dr. Loizeaux, a mental health professional, was appointed to conduct the PRE in order to provide the court with information regarding Foster's and Wife's parenting capabilities.

¶ 7 As part of the PRE, Loizeaux's assistant, Katie Kilian, investigated Foster's criminal history. Kilian reported to Loizeaux that Foster had an extensive criminal history, and Loizeaux repeated that history in his PRE. The PRE also contained information related to Foster's medical history.

¶ 8 In gathering data for his PRE, Loizeaux provided surveys to various persons who had knowledge of Foster's parenting abilities. The responses to these surveys contained statements that were critical of Foster and suggested that he was unable to provide a good environment in which to raise a child.

¶ 9 Loizeaux also met with and observed Foster and conducted several mental health evaluations and personality assessments. Loizeaux's conclusions regarding Foster's mental health and parenting abilities were included in the PRE. The PRE was not in Foster's favor and ultimately recommended that the court grant Wife sole decision-making authority for the minor child.

¶ 10 Foster was not satisfied with this report and requested that the court appoint a second evaluator, pursuant to section 14-10-127(1)(a)(I.5). The court did so. The second evaluator, Dr. Budd, noted in his PRE that it was questionable whether the crimes attributed to Foster in Loizeaux's report had all been actually committed by Foster. However, Budd went on to make observations and conclusions similar to those in the Loizeaux PRE, and he made the same recommendation that the court award sole decision-making responsibilities to Wife. This PRE also contained Foster's criminal, medical, and psychological histories.

¶ 11 The PREs were confidential and were not to be "made available for public inspection" without an order of the court. § 14-10-127(8). B. Criminal Proceedings Against Foster

¶ 12 Foster violated the domestic relations court's temporary civil protection order multiple times. Two misdemeanor criminal cases arose from those violations.

¶ 13 In May 2013, the district attorney who prosecuted Foster in one of the cases contacted Plock. The prosecutor asked Plock whether he had any information that would be helpful to the criminal court in determining sentencing if Foster was convicted. Plock e-mailed the prosecutor both PREs without Foster's knowledge or consent, and without a court order releasing the PREs.

¶ 14 As relevant here, one of the misdemeanor cases proceeded to a bench trial in county court, and Foster was found guilty on August 28, 2013, of violating the terms of the civil protection order. The prosecutor filed the PREs with the criminal court on September 17, 2013, for use in sentencing. The court held the sentencing hearing on September 19, 2013, and, on Foster's motion, orally ordered the PREs sealed. The discussion regarding sealing the PREs occurred in open court.

¶ 15 In November 2013, Plock filed a motion with the domestic relations court admitting that he had disclosed the PREs to the prosecuting attorney in the criminal matter. In July 2014, the domestic relations court sanctioned Plock for violating section 14-10-127(8), and it ordered Plock to pay Foster's attorney fees associated with responding to Plock's November 2013 motion in which he admitted disclosing the PREs to the prosecutor.

C. Foster v. Dean

¶ 16 While both the dissolution of marriage action and the criminal cases were pending, Foster filed eleven separate lawsuits in Larimer County regarding Loizeaux's PRE. Foster initially filed the complaints on August 29, 2013, the day after he was found guilty in the criminal case. The complaints named each defendant individually, including, complaints against Wife, Loizeaux, Kilian, and eight people who had provided statements to Loizeaux in the surveys regarding Foster's demeanor and ability to parent. Plock was not named as a defendant in any of these complaints.

¶ 17 The Kilian and Loizeaux complaints generally alleged that Kilian provided inaccurate information to Loizeaux regarding Foster's criminal background, that Loizeaux used this information in his PRE, and that Loizeaux failed to correct the PRE after learning that the criminal history was false. Foster alleged that Loizeaux and Kilian committed the torts of libel, slander, and outrageous conduct. He made similar claims against Wife and the other "witnesses" interviewed for Loizeaux's PRE, alleging that the statements they made to Loizeaux were defamatory and constituted outrageous conduct.

¶ 18 The eleven separate cases were consolidated into one civil action, Foster v. Dean, 13CV123 (Dean).

¶ 19 The defendants each moved to dismiss the case in C.R.C.P. 12(b)(5) motions, asserting that the statements did not constitute defamation or defamation per se and did not rise to the level of outrageous conduct. The defendants further argued that their statements were protected under the rule of absolute immunity in a judicial proceeding.

¶ 20 Foster then filed eleven amended complaints in January 2014. As significant here, the amended complaints against Wife and Loizeaux alleged that each had disclosed or caused the disclosure of both PREs to the prosecutor in Foster's criminal case. Plock was not named as a defendant in any of the amended complaints. However, the complaint against Wife expressly alleged that she, through her attorney, caused the PREs to be disclosed to the prosecutor.[2] The amended complaints were filed nearly two months after Plock admitted in the dissolution action that he was responsible for disclosing the PREs to the prosecutor, and over one month after Foster had responded to that admission by requesting various sanctions against Plock.

¶ 21 The defendants subsequently filed renewed motions to dismiss regarding the amended complaints. In May 2014, the court issued an order granting the defendants' motions to dismiss all of Foster's complaints. The Dean court concluded:

• The witnesses who made the allegedly defamatory statements had absolute immunity from a defamation action because their statements were essential to the judicial decision-making process.
• The PREs were largely based on the evaluators' observations, not the statements provided by the witnesses, and thus the ...

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