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Foster v. Plock

Supreme Court of Colorado, En Banc

May 15, 2017

Scott E. Foster, Petitioner
John E. Plock, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA346

          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


         ¶1 This case requires us to determine whether mutuality is a necessary element of defensive claim preclusion.[1] 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.

         I. Facts and Procedural History

         ¶2 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 § 14-10-127(8).

         ¶3 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.

         ¶4 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.

         ¶5 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).

         ¶6 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.[2] 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.

         ¶7 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 his claims.

         ¶8 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.

         ¶9 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 certiorari.

         II. Standard of Review

         ¶10 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, 10.

         III. ...

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