Foster v. Plock
394 P.3d 1119
Colo.2017Background
- Poster (Foster) and Wife underwent dissolution proceedings that produced two confidential parental responsibilities evaluations (PREs); disclosure of those PREs later became the central dispute.
- Wife’s attorney, Plock, disclosed the PREs to the prosecutor in a criminal proceeding against Poster; the PREs were used at sentencing and then sealed.
- Poster filed eleven consolidated civil suits against various participants in the PRE process (Wife was a defendant; Plock was not), which were dismissed on multiple grounds by the trial court.
- After dismissal of the consolidated civil case, Foster sued Plock for invasion of privacy, defamation, and outrageous conduct based on his disclosure of the PREs; Plock moved to dismiss asserting claim and issue preclusion.
- The court of appeals held mutuality was not required for defensive claim preclusion and affirmed dismissal; the Colorado Supreme Court granted certiorari.
- The Supreme Court held mutuality remains a required element of defensive claim preclusion, found privity between Plock and Wife, concluded all claim-preclusion elements were met, and affirmed on other grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado abolished mutuality for defensive claim preclusion | Mutuality absent because Plock was not a party in the prior consolidated civil case; thus claim preclusion shouldn’t bar his suit | Mutuality is not required for defensive claim preclusion; prior judgment should bind defendants faced with the same claims | Mutuality remains a required element of defensive claim preclusion in Colorado; prior court-of-appeals decisions abandoning it are overruled |
| Whether Foster’s suit against Plock is barred by claim preclusion | Foster argued mutuality lacking and thus his later suit against Plock is not precluded | Plock argued privity with Wife plus identity of subject matter and claims establish claim preclusion | Court found privity between Plock and Wife and that the first judgment was final, and subject matter and claims were identical; claim preclusion bars Foster’s suit |
Key Cases Cited
- Bernhard v. Bank of America Nat’l Trust & Sav. Ass’n, 19 Cal.2d 807 (Cal. 1942) (discusses abandoning mutuality for defensive issue preclusion)
- Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (U.S. 1971) (federal retreat from mutuality in defensive issue-preclusion contexts)
- Cruz v. Benine, 984 P.2d 1173 (Colo. 1999) (elements of claim preclusion in Colorado)
- Meridian Serv. Metro. Dist. v. Ground Water Comm’n, 361 P.3d 392 (Colo. 2015) (reiterating claim-preclusion elements including mutuality)
- Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604 (Colo. 2005) (discussion of identity of subject matter and res judicata terminology)