Scott E. Foster, Petitioner
John E. Plock, Respondent
to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: The Law Office of Michael L.
Glaser, LLC Michael L. Glaser Denver, Colorado
Attorneys for Respondent: Montgomery Amatuzio Dusbabek Chase,
LLP Peter S. Dusbabek Sara K. Stieben Fort Collins, Colorado
This case requires us to determine whether mutuality is a
necessary element of defensive claim
preclusion. Multiple divisions of the court of appeals
have concluded that mutuality need not be established for the
defensive use of claim preclusion, but we disagree. Instead,
we conclude that mutuality is a necessary element of
defensive claim preclusion. We also conclude that mutuality
existed in this case, as did the remaining elements of claim
preclusion, and we therefore affirm the judgment of the court
of appeals on other grounds.
Facts and Procedural History
In 2011, Petitioner Scott Foster's former wife, Bronwen
Foster ("Wife"), filed for dissolution of marriage
and hired attorney John Plock to represent her. As part of
the dissolution proceedings, the trial court ordered a
parental responsibilities evaluation ("PRE")
pursuant to section 14-10-127, C.R.S. (2016). The PRE was
performed by Dr. Andrew Loizeaux. A second PRE was
subsequently conducted by Dr. Edward Budd. Neither evaluation
was favorable to Foster. The PREs were confidential and were
not to be "made available for public inspection"
without an order of the court. See §
As part of the dissolution of marriage proceedings, the trial
court entered a civil protection order barring Foster from
contacting Wife. Foster violated the protection order
multiple times, resulting in two misdemeanor criminal cases.
In one of the cases ("the criminal case")-after
Foster was found guilty of violating the protection order,
but before his sentencing-Plock provided the Deputy District
Attorney prosecuting the case with copies of the PREs from
the dissolution of marriage proceeding. The Deputy District
Attorney filed the PREs with the criminal court for use in
sentencing. The court held the sentencing hearing in
September 2013 and, on Foster's motion, orally ordered
the PREs sealed.
Plock then filed a motion in the dissolution proceedings,
admitting that he had disclosed the PREs to the Deputy
District Attorney. The court sanctioned Plock for violating
section 14-10-127(8) and ordered him to pay Foster's
attorneys' fees associated with responding to Plock's
motion in which he admitted disclosing the PREs.
While the dissolution of marriage proceeding and the criminal
cases were pending, Foster filed eleven separate lawsuits
against those involved in the PRE process conducted by Dr.
Loizeaux. Defendants included both individuals who prepared
the PREs and witnesses who provided information to them. Wife
was named as a defendant, but Plock was not. The lawsuits
alleged various claims, including defamation and outrageous
conduct. The eleven cases were consolidated into one case
("the consolidated civil case"). The defendants
each moved to dismiss the case under C.R.C.P. 12(b)(5).
Foster subsequently amended his complaints. As significant
here, Plock was not named as a defendant in any of those
amended complaints, but Wife was. In Foster's amended
complaint against Wife, he alleged among other things that
she, through her attorney, caused both of the PREs to be
disclosed in the criminal case. Foster's claims against Wife
included defamation in the form of libel, slander, and
outrageous acts, and he sought both economic damages and
injunctive relief. Plock's disclosure of the PREs to the
Deputy District Attorney formed the basis for one or more of
these claims against Wife.
The defendants, including Wife, subsequently filed renewed
motions to dismiss, which the trial court granted. The court
concluded that: (1) 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; (2) the PREs were largely
based on the evaluators' observations, not the statements
provided by the witnesses, and thus the defamation claims
were without merit; (3) the statements made to Dr. Loizeaux
and contained in his PRE did not rise to the level of
outrageous conduct; and (4) the statements made in the PRE
did not injure Foster or result in damages that would support
Four months later, Foster filed this action against Plock,
alleging that in disclosing the PREs in the criminal case,
Plock committed the torts of invasion of privacy, defamation,
and outrageous conduct. Plock filed a motion to dismiss,
arguing that both claim preclusion and issue preclusion
barred Foster's lawsuit because of the judgment of
dismissal in the consolidated civil case. The court granted
the motion, concluding that Foster's action was barred by
both claim preclusion and issue preclusion.
Foster appealed. As relevant here, Foster argued that the
mutuality element of claim preclusion was not met because
Plock was not a named party or in privity with any party in
the consolidated civil case. The court of appeals rejected
this argument, concluding instead that mutuality was not
required. Foster v. Plock, 2016 COA 41, ¶ 48,
__ P.3d __. Specifically, the court of appeals stated that it
could "perceive no reason why a party defensively
asserting claim preclusion must have been a party to the
prior action when the party against whom he or she is
asserting the doctrine is bound by the prior judgment."
Id. at ¶ 55. It also concluded that the
remaining elements of claim preclusion were met. Id.
at ¶¶ 33, 35, 47. Because the court of appeals
determined that Foster's claims were barred by claim
preclusion, it did not consider his arguments relating to
issue preclusion. Id. at ¶ 27. We granted
Standard of Review
We review de novo a judgment entered on the basis of claim
preclusion. See Loveland Essential Grp., LLC v.
Grommon Farms, Inc., 2012 COA 22, ¶ 13, 318 P.3d 6,