*1 863A.2d 926 ROURKE, Representative Edna O. as Personal Adams, Estate of Franklin for the et al. PRODUCTS, INC.,
AMCHEM et al. Sept. Term,
No. 130 2003. Appeals Maryland. Court of
Dec. *3 (David Mulroney Layton Gerel, William F. M. of Ashcraft & L.L.P., brief), Baltimore, on for Petitioners. (Michael Rubin, B. Stodghill
Ronald Rubin A. of Rubin & Chartered, Rockville, MD; Radcliffe, R. DeHay Thomas Jr. of Elliston, L.L.P., Baltimore, MD; Sheehan, & William F. Rich- III, ard M. L. Wyner, Matheny, Richard and Matthew J. Gardner, Washington, DC), brief, Wilshire of Shea & all on Respondents.
Argued BELL, C.J., RAKER, WILNER, before CATHELL, HARRELL, GREENE, BATTAGLIA and JJ.
WILNER, Judge.
This case arises from a consolidated
of
settlement
several
personal injury
hundred asbestos-related
and wrongful death
actions. The issue
us is
dispute
before
whether
from
agreement
emanated
the settlement
and that forms arbitration,
that,
basis of this
subject
turn,
lawsuit is
and
on
depends
part
required
give
whether we are
full faith
and
or common law
estoppel
credit
effect to a
Supreme
Virginia involving
of the
Court of
none
plaintiffs
only
and
three of the thirteen
in this
defendants
City
case. The Circuit Court for Baltimore
it
concluded that
apply
would not
the doctrine of offensive non-mutual collateral
that,
judgment,
on that
Maryland
based
and
under
law,
dispute
subject
Upon
Federal
was
to arbitration.
conclusions,
granted
compel
those
the court
a motion to
arbi-
tration.
of Special Appeals, addressing
The Court
as well the
credit,
issue of full faith and
ruling,
affirmed that
Rourke v.
Amchem,
153 Md.App.
(2003),
BACKGROUND September, a number of asbestos manufacturers that had multiple been named defendants in pend- lawsuits ing in several States entered into a Agreement Producer Concerning For Among Center Claims Resolution. other things, agreement non-profit created a entity known as (CCR), the Center for Claims Resolution to act as a claims agent respect with all against asbestos-related claims made participating participating members. Each member des- ignated administer, CCR as its agent evaluate, settle, sole pay, and agreement defend such claims. The required CCR to handle each claim on behalf of all precluded members and it from settling a claim on behalf fewer than all members. apprized We argument, were oral apparently as a result of requirement, claim, whenever CCR settled a participating members, obtained release of all even those who had not been named as defendants in particular case. A
Attachment Agreement Producer apportioned among the members respective their catego- shares three (sums expenses liability ries of payments paid in settlement — of asbestos-related claims or in judgments satisfaction of on claims), such expenses, allocated expenses unallocated (overhead, administrative, CCR). operating expenses anticipated The Attachment prospect of new members *5 terminating member- joining CCR and current members their apportioned it provision reducing and made for shares ship, and increasing new were admitted shares when members withdrew.1 when members Agreement permitted III termi-
Article of the Producer (1) membership only by voluntary in CCR termi- nation of upon days notice and a determination the CCR nation or withdrawing paid Board of that the member had Directors payment of all due from provision made for the amounts (2) or Agreement; filing bankruptcy protection under the for law; Federal protection other from creditors under or State (3) Board if was or action of the of Directors a member involuntarily or was to be placed bankruptcy determined material- insolvent or if the Board found that the member had III ly Agreement. provided, breached the Article further however, that, membership, notwithstanding termination of “shall to and to honor the terminated member continue have its obligations all of the incurred it hereunder or on behalf membership date of prior as a member the effective its termination....” April, represented plaintiffs two law firms that personal wrongful or claims injury
with asbestos-related death Maryland global courts into a pending entered settlement time, which, claims with CCR at the had 16 members.2 those Paragraph A "In the provided, part: F of Attachment relevant signatory, corresponding event the Producer becomes shares Participating reduced appropriately the other Producers shall be Participating room the shares of the new Producer. In the make Participating membership in event that a Producer shall withdraw from pursuant Agreement to Section IV the have its mem- the Center or III, bership pursuant Paragraph 3 of the corre- terminated Section Participating sponding shares of the other Producers shall be increased withdrawing terminating appropriately pick up the shares of Participating Producer.” CCR, agreement, parties actual other than were William F. 2. The Rice, individually Mulroney, Layton, Joseph F. and as David M. firms, Ness, agents respective law Ashcraft & for their Gerel Poole, Loadholt, agents Motley, plaintiffs Richardson & for the may presently represented represented by or that in the future be those personal injury litigation Maryland. firms in asbestos with mesotheli- categories plaintiffs were five There —those (29), with other cancer those (5), lung with cancer oma those *6 (essentially asbesto- I (20), non-malignant diseases those with 359), and those thickening, pleural significant bilateral sis or (469) II conditions non-malignant significant with less —and to each respect with agreed upon amount was settlement money, each In order to receive category. in each plaintiff that met the to would have establish plaintiff individual he/she amount, and agree to the settlement payment, criteria for conditions and because of those a release. Because execute ac- as the firms being added plaintiffs of new prospect to be clients, actually aggregate amount additional quired certain, but, represen- counsel’s based on entirely not paid was $10,089,400. The time, to be it was estimated tations at the to payments aggregate for CCR to make agreement called specified after the counsel, change to as “subject plaintiffs’ $4,500,000 July on review,” in three installments: qualification 2001; on any and balance 2000; $4,000,000 on June September forth of claims was set payment for procedure required, That Agreement.
Appendix C to the Settlement sign a full settling plaintiff things, among other specified to conditions release, subject form and members, prior payment. to of all Appendix, CCR Agreement particu- have of the provisions Three Settlement that the 7 made Paragraph to this case. clear lar relevance for of the companies payment liability of the CCR member joint, gave not amounts was several settlement of the if or more options one Plaintiffs’ Counsel certain share. pay apportioned its companies member failed ¶ part: regard, provided, relevant Para- by the CCR under “Payments to Plaintiff Counsel Agreement shall be funded 5 of this graph Settlement the terms companies in accordance with member the CCR Concerning Center For Claims Agreement of the Producer 1994) (as amended, February Resolution effective this shall be liable under company member each CCR Agreement only Settlement its individual share such payments determined under that Agreement.” Producer added). (Emphasis
In the event because of a default one more CCR members, payment CCR failed make a due under the Agreement, plaintiffs’ Settlement counsel op- was tion, any plaintiffs as to yet whose claim had not paid been full, of continuing either the settlement as to the non-default- ing or, by CCR members written election 30 days made within default, after declaring notice the entire settlement agreement election, void. Upon plaintiffs would have year bring one a tort action. If counsel elected continue ¶ the settlement as to the non-defaulting member companies, 7 provided: defaulting only,
“[A]s CCR any member and all *7 plaintiffs whose claims paid by have not been in full (a) Agreement CCR under this shall option have the electing to enforce the Defaulting CCR company’s member obligations (b) Agreement under this electing Settlement or pursue plaintiffs such injury claims for asbestos-related against Defaulting CCR company member in the tort ” system.... ¶ note, provision The second contained in was the requirement that parties good a make faith effort any disputes may resolve that implementing arise while agreement settlement parties “[i]f are unable to dispute, resolve a shall the issue be to a mutually referred ¶ agreeable binding arbitrator for Finally, resolution.” provided that disputes concerning all interpretation performance of agreement were be resolved accor- Maryland dance with law.
It appears that anticipated CCR that each installment would full, pay, aggregate claims of about one-third of plaintiffs plaintiffs by chosen signed counsel whose re- —the leases were installment, forwarded to CCR. first The under view, was discharge intended to plain- the claims of 208 represented by tiffs Ashcraft & Gerel. When the time for member, arrived, that first installment one CCR Asbestos (ACMC), Management Corporation pay Claims had failed to apportioned $679,348. its in- Accordingly, share of the first stallment, 5, 2000, on sent CCR October did not include check, $3,822,501, that amount. the amount was Gerel, payable attorneys made to “Ashcraft for 208 claim- & ants.”
Ashcraft & Gerel either had or formed a different intent. Perceiving legal a problem drawing or ethical distinctions among they its as to paid, clients when would be the firm necessary that it to pay decided would be all of its clients on a pro rata basis from pay any the three installments and not claims in problem, as, full from the first one. That created protocol, plaintiffs under the settlement all who would be receiving any payment required sign were and submit when, fact, releases acknowledging payment in they full might not payment receive full claim their until the final paid years installment was two later. After the CCR check deposited, was Mulroney, firm, William an attorney with that requested that stop payment CCR on the check and issue a new one to “Ashcraft attorneys & Gerel as for plain- various tiffs.” In an follow-up October letter to Michael Rooney, CCR, then the Chief Claims Officer for Mulroney Mr. advised that he had identified 88 plaintiffs whose claims were default, unaffected requested ACMC and he check $581,246 payment as the first for those clients. He also asked (1) acknowledge CCR all Ashcraft Maryland & Gerel subject clients to the CCR settlement are beneficiaries of the *8 (2) first payment, installment and each of those clients “retains his or her remedies under agreement the settlement until such time as paid the settlement is in full.”
In an effort to problem, resolve the Mr. Rooney agreed to at part least of Mulroney’s request. In a letter to the two law firms dated October he advised that CCR consented to using the firms’ partial the installments to payment make to qualified all plaintiffs payment rather than to make full to separate groups three of them. to implement order approach, agreed CCR that: for settling plaintiff
“Each will execute release to the CCR first prior receiving the full of the the amount settlement however, installment; specifically understood agreed releases not evidence of full satisfac- that these are CCR the obligation pay tion of contractual qualified the settlement values that have been plaintiffs any or agreed timely and should the fail to make upon, CCR required payments all of Master Settlement settling Agreement, in that each who plaintiff then event payment may pursue remedy has not full received any If deficiency. the CCR for against contract members respon- required, such action is the CCR members shall be annum, deficiency pay per sible with interest 8% settling and the will each CCR members reimburse such attorneys’ plaintiff expenses for reasonable fees deficiency may be to collect this be lawsuit required otherwise.” remedy
“This in contract on the release will be the sole legal plaintiff who has executed a release remedy each full but to receive consideration his settlement fails full, timely exception plaintiffs with payment those who of the elect to renuncíate the settlement because non-payment accepting ACMC before the first settlement payment.”3 installment added).
(Emphasis Between 25 and November sent new October CCR $8,822,501 aggregate replace checks amount of which, Mulroney’s request, payment on at Mr. had been check amount, before, stopped. aggregate represented That agreement first due under the settlement less the installment of ACMC. assume that checks apportioned share We those funds deposited were and the disbursed. exception arrangement It seems one was made to this in that the non-malignant plaintiffs injury least II with the serious —those —were paid full from the first installment. *9 Armstrong member, December, another CCR stopped Industries, Inc., bankruptcy and into went
World On settlements. previously negotiated its share of paying due, CCR came second installment when the June For 250 Attorneys “As to Ashcraft & Gerel sent a check covering $879,874, in a claiming, amount of Plaintiffs” final of payment full and letter, “constitutes that the check on of the claims for each the settlement amounts due under other companies member of the CCR list each the enclosed ¶ that, the settle- under of noted than ACMC.” The letter liable company will be member agreement, “each CCR ment of individual share only for its agreement under the settlement Agree- Producer under the CCR payment as determined mem- ment,” that, none of the other CCR “[a]ccordingly, and that ACMC has failed for share amounts bers is liable Armstrong bankruptcy noted the pay.” Although the letter earlier, Armstrong’s share appear not six months it does was deducted. check, stating that was returned the
Ashcraft & Gerel for, $181,195 contract called even after than what the less 13, 2001 letter August In an Armstrong defaults. ACMC CCR, firm, for the Myer, Director Claims Daniel 31, 2000 letter time, Rooney’s that Mr. October first asserted joint and by creating a Agreement modified the Settlement pay part on the of all CCR members obligation several by giving additional remedies amounts and settlement balance alleged unpaid firm an plaintiffs. The demanded $677,498 (together with interest from the first installment interest, annum) $4,000,000, plus due per and the entire 8% the second installment. this forthcoming, plaintiffs filed was not payment
When City against CCR for Baltimore action the Circuit Court members, declaratory then-remaining seeking a and its 12 severally liable jointly were judgment that CCR members and a agreement payments for all due under the settlement amount of principle on that money based costs, claim $6,023,336 interest, attorney fees.4 The plus filed, other CCR appears by the time the suit was two It withdrawn, leaving 12 had current members had been terminated members. joint liability only and several was based not on Mr. *10 31, Rooney’s provision October 2000 letter but also on the final Agreement, stating in Attachment A to the Producer’s if participating membership a withdraws from or has member its terminated, membership corresponding “the shares of the Participating other shall be appropriately Producers increased pick up withdrawing to the shares of the or terminating Participating Producer.” responded complaint
The
with a motion
defendants
the
¶ 12
compel
Agreement
arbitration under
of the Settlement
and,
arbitrable,
dispute
because the
was
to dismiss the com-
contended,
motion,
plaint.
plaintiffs
opposition
The
in
31, 2000,
Rooney expressly
that the
from Mr.
October
letter
gave
plaintiffs
judicial remedy
the
a
for
of contract
breach
That,
against
any deficiency.”
they
“for
CCR members
averred, superseded
provision
original
the arbitration
in the
agreement. They pointed
very
settlement
out that this
issue
of arbitrability, hinged
Rooney,
on a similar letter from Mr.
Virginia
arose in
with
respect
CCR and
number of
Virginia plaintiffs
Virginia Supreme
and that the
Court held
subject
dispute
was not
arbitration. See Amchem
Products,
Cases,
Newport
Inc. v.
News Circuit
Asbestos
Court
(2002).
89,
plaintiffs argued
264 Va.
Aggrieved, plaintiffs appealed, arguing in the (1) Special Appeals Court of that the Circuit in Court erred failing Agreement to find that initial Settlement had been 31, 2000, Rooney’s modified Mr. and that October letter provided judicial modification remedy any deficiency (2) payment, giving not estoppel collateral effect to the Virginia decision. The branch or form of collateral posited by plaintiffs was offensive non-mutual collateral estoppel. estoppel, Traditional preclusion, issue i.e., “in mutuality parties, a second suit between the requires different, any if of action is same even the cause parties, actually litigated fact that was and was determination of (Em- and final is conclusive.” essential to a valid added). Products, v. Gerber Md. phasis Welsh (1989) 486, there; 555 A.2d and cases cited also Colandrea (2000); Lake, 361 Md. 761 A.2d Wilde Swenson, Ashe v. 397 U.S. 90 S.Ct. Obviously, mutuality
L.Ed.2d there was no parties Maryland Virginia litigation; none of the plaintiffs Maryland litigation parties Virgi- in the were case, and, actions, although party only nia was a in both CCR three the CCR members named as defendants Maryland parties Virginia were action.5 case *11 mutuality require courts have modified the Some B, an action A by precluding, relitigation ment between B, in an to A of an issue decided earlier case which either both, plaintiff not a If party. but was the the second case to the from relitigating seeks foreclose defendant an issue that previously litigated unsuccessfully against the defendant other plaintiffs, invoked is non-mutual collat the doctrine offensive estoppel; preclude eral if the defendant plaintiff seeks relitigating plaintiff from an that previously litigated issue defendants, unsuccessfully against other the doctrine is re ferred to as non-mutual estoppel. See defensive Welsh, 517-18, supra, 315 Md. at n. 555 A.2d at n. 6. case, plaintiffs this invoked non-mutual collateral offensive estoppel, they sought preclude as the defendants from relitigating arbitrability the issue of that some of them raised Virginia and lost in the case. estoppel existing judgment
5. Under no branch of collateral
would an
preclusive
against
person
party,
have
effect
a
who was not a
or in
privity
party,
leading
judgment.
presume
with a
action
to the
We
plaintiffs
seeking preclusive
against
that the
are
effect
the defendants
Virginia
parties
ground
they
which were
in the
not
case on the
that
privity
persons
parties
were in
validity
with
who were
in that case. The
any
questioned
appeal,
of
such assertion is not
in this
and we shall not
address it.
effort,
on
largely
Appeals rejected
Special
of
The Court
although it
principles,
conflict of laws
of common law
basis
discussion,
briefly,
to the
references
into its
albeit
injected
of
which none
requirement,
full faith
credit
Constitutional
or the Court
in either the Circuit Court
parties had raised
M., Md.
v. Hector
Citing Jessica G.
Appeals.6
Special
(1995),
under
the court noted
A.2d
laws,
judicata
res
of conflict of
Maryland law
which the
is that
judgment of another State
given to the
be
it was rendered.
in the State where
would have
judgment
Co., 221
Lumber
Ry.
Bailey
& W.
Co.
Referencing Norfolk
(1980),
further observed
the court
272 S.E.2d
Va.
non-mutual collateral es-
recognize
not
offensive
Virginia did
part
as
mutuality
parties
require
continued to
toppel but
held,
Thus,
Virginia
would not
law.
its collateral
prevent
Amchem decision and
effect to its
give preclusive
arbitrability
Virginia
in a
litigating
from
here
defendants
not
court,
effect should
be
preclusive
Maryland court.
court
arbitrability,
appellate
substantive issue
On the
Rooney
did not
that the
letter
with the Circuit Court
agreed
initial
provision in the
Settle-
modify
the arbitration
suffice
provisions
on two
plaintiffs
relied
Agreement.
ment
did not
letter,
settling plaintiff
that a
who
stating
one
remedy
in contract
“pursue
full
could
payment
receive
deficiency”
other
any
and the
against the CCR members
plaintiffs
and costs if the
recovery of interest
permitting the
*12
that,
petition
by plaintiffs in their
for certiorari
We are informed
parties
Special Appeals directed the
during
argument, the Court of
oral
whether,
plaintiffs
where the
supplemental
file
briefs on
issue
to
estoppel to
non-mutual collateral
invoked the doctrine of offensive
have
arbitrability
joint
and
and several
relitigation of issues of
preclude
Virginia
give
obligated to
effect to the
liability, the trial court was
having
recognition
made a
to refuse
without
or had discretion
opportu-
fair
defendants did not have a full and
determination that the
brief,
supplemental
plaintiffs
litigate
In their
nity
those issues.
to
and Credit
in terms of the Full Faith
principally
that issue
addressed
Clause,
estoppel
law collateral
rather than in the context of common
by
they
response
in
to
made
principles. Whether
did so
comments
argument
not clear to us.
panel at oral
is
deficiency “by
lawsuit
otherwise.”
required to collect
are
provision
negating
court did not view either
The
extent,
substantively
and,
disagreed
clause
to that
arbitration
Virginia
of the
court.
with the conclusion
for our review:
plaintiffs
presented
questions
four
have
(1) whether,
apply Maryland
to
law
light
agreement
in
of the
Agreement,
any dispute arising
from the Settlement
applying Virginia
in
collateral
Special Appeals
Court of
erred
give
Virginia
estoppel
refusing
law as a basis for
(2)
effect;
the Full Faith and
judgment preclusive
whether
statute, 28 U.S.C.
implementing
Credit clause and the
Federal
prohibits Maryland
giving greater
§
from
(3)
it;
Virginia
give to
whether
Virginia judgment than
would
estoppel
Maryland recognizes offensive non-mutual collateral
and,
so,
failing
if
to make a
whether the lower courts erred
Hosiery
with Parklane
“fairness” determination
accordance
Shore,
(1979);
99 S.Ct.
DISCUSSION Estoppel Full Faith and CreditICollateral noted, As full faith and although the Constitutional requirement upon by was not in or ruled credit raised Court, Special Circuit was addressed the Court Appeals, briefly. agree ap with intermediate albeit We court, that, pellate under both a full faith and credit and not estoppel analysis, Maryland common law collateral and, indeed, give, any required give, may ordinarily not Virgi greater preclusive Virginia judgment effect to the than it, issue, resolving we must give nia would apply Virginia, Maryland, not law. IV, provides § 1 of Constitution that full
Article the U.S. acts, public faith and credit shall be each State to the *13 State, records, every in other and judicial proceedings and laws, may, by general “prescribe the Manner in Congress that Acts, Proceedings proved, which such Records and shall be added). Congress enact- (Emphasis and the Effect thereof.” fact, session, 1790, and, in very such a law in its first in ed law, through expanded by requiring has the Clause the and to court give Federal courts to full faith credit State § judgments. prescribes Title 28 the method U.S.C. acts, records, judicial proceedings are to legislative which “effect,” proved. respect to the be authenticated With records, acts, judicial proceed- provides statute that such authenticated, “shall full faith and ings, so have the same and its Territo- every credit court within the United States they usage have law or ries and Possessions as the State, Territory they of such or Possession from which courts interpreted is clear and has are taken.” The statute been meaning says: very what with certain limited precisely showing rendering a that the court had exceptions, such as jurisdiction, a court or subject personal matter and Federal give preclusive the court of another State must the same judgment of a court as would courts of State the judgment, no more and no less. State rendered plaintiffs, In contrast to the view of the the United that, in Supreme determining has made clear States Court court, judgment of a preclusive effect be State preclusion claim and rules of the that rendered issue State judgment govern. point must The was first made College, Board Public Works Columbia Wall. 521, 21 U.S. L.Ed. 687 College complex,
The Columbia
case was bit
but essential-
ly it involved an effort in District Columbia court
reach
partner
estate of a
of an insolvent
property
deceased
recover,
firm.
had to
plaintiff
In order
show
certain, and,
obligation
for a
to make that
partner’s
was
sum
on a
of a
York
showing,
plaintiff
relied
New
turn,
Virginia
court
had relied on a decree of a
trial
problem
Virginia appellate
court.
was that a
court had
*14
interlocutory
to be
and therefore
held the trial court decree
given
would not be
Virginia
the
decree
non-final. Because
Supreme
held that it
Virginia,
the
Court
preclusive effect
York or
effect in New
the
given preclusive
could not be
case,
York
Citing
Suy-
an earlier New
District of Columbia.
Barber,
468,
(1858),
254
the Court
v.
18 N.Y.
75 Am.Dec.
dam
any judgment of
greater
given
can be
held that
effect
“[n]o
given
than is
to it in the
of
in another State
a court
one State
rendered,”
“[a]ny other rule would contravene
where
State
and laws of
provisions
of
of the Constitution
policy
subject.”
84
College,
States on that
Columbia
U.S.
United
529,
have
involved the extent
Federal
give preclusive
judgments,
court
and that has
effect
State
1738)
(§
hinged on
than the Constitutional
the statute
rather
analysis,
applies,
but
is
provision,
the extent the statute
In Kremer v. Chemical
456
Corp.,
the same.
Construction
461, 481-82,
1883, 1897,
262,
102
72
280
U.S.
S.Ct.
L.Ed.2d
(1982),
Court,
holding
judgment
that a
York
New
review,
affirming,
judicial
on
an administrative determination
employment
that an
discrimination claim had no merit was
preclusive
subsequent
entitled to
in a
effect
Federal court
1964,
Rights
action under Title VII of the Civil
Act of
noted
long
§
has
been established that
1738 does not allow
“[i]t
employ
judicata
federal courts to
their own rules of res
Barber,
Suydam
plaintiff
partners
v.
sued three
in New York on
exchange.
partners
ground
bill
a
of
One of the
defended on the
that the
plaintiff
partners
had sued another of the
Missouri
recovered a
law,
judgment,
recovery
judgment
New
under
York
of a
against
partner extinguished
against
one
the debt
the others. Missouri
however,
contrary,
applied
law was to the
and the New York court
determining
judgment
law in
Missouri
that the Missouri
did not have
preclusive effect. The court observed:
case can be found
“[N]o
where
greater
judgment
any
a
of
State in the courts of
Indeed,
belongs
another than
to it in the State where it was rendered.
reason,
against
only
policy
such a rule would be
all
and not
of the
out
provisions
of the
of the constitution and laws of the United States on
against
subject,
policy
but
and irreconcilable with all
and with the
plainest
principles
justice.”
and fundamental
determining
effect of state
court
beyond
common law and commands
federal
from which the
rules chosen
the State
accept the
been confirmed on
number
is taken.” That view has
449
101 S.Ct.
McCurry,
Allen v.
U.S.
occasions. See
Prosise,
(1980);
103
Haring v.
462 U.S.
In a teacher recovered for against the school board breach State court Ohio the individual board members Although contract. she sued contract, did not and with her she conspiracy interference them, done. against § action as she could have bring a 1983 of con- judgment a for breach court awarded her The State claims the individual board against dismissed the tract but in court §a 1983 action Federal Migra then filed members. whether, members, question arose board and the against the was litigation, claim in the she having failed to make that Ohio bringing action in Federal by preclusion claim from barred judicata the action on res court. The Federal court dismissed plaintiff’s made clear that the Supreme The Court grounds. claim litigation in this has the same judgment “state-court would judgment court that preclusive effect federal 85, 898, 104 at 79 courts.” Id. at S.Ct. have in the Ohio state had the District Court L.Ed.2d at 64. Uncertain whether own, preclusion Supreme law of or its applied the Ohio apply trial court to the Ohio the case for the Court remanded Marrese, Court, discussing observed Migra, law. unnecessary obviously a would have been remand “[s]uch preclusive effect to a give greater court free to were a federal judgment judgment-rendering than would the state court Marrese, 384, 1334, at 105 at 84 supra, 470 U.S. S.Ct. State.” § 1738 at 284. Marrese Court added that “em- L.Ed.2d The
347 that allow the States comity and federalism bodies concerns statute and determine, requirements of the subject to the Clause, judgments preclusive Process the Due 1332, at 380, 84 L.Ed.2d Id. at 105 S.Ct. own courts.” their § are holdings in these 1738 cases expressions Supreme of the pronouncements with the entirely consistent See, for full faith and credit cases. Court Constitutional 273, 276, Ford, 187, 192, 9 83 Ford v. 371 U.S. S.Ct. example, (1962) (“The Clause, if Full Faith and Credit L.Ed.2d 244 decree, Carolina custody require would South applicable to binding only Virginia if a order as recognize Virginia Co., it.”); v. New York Trust by Riley court would be bound (1942) L.Ed. 62 S.Ct. U.S. (“That so that that controversies be stilled compels clause subject jurisdiction parties of the a state court has where matter, to the same judgment its controls other states rendered.”); Morris v. as it does in the state where extent Jones, U.S., 545, 91 L.Ed. S.Ct. (“The
(1947)
faith and credit to which
full
it
has in the
from which is
is the
which it
State
entitled
credit
taken,
circumstances and
not the credit
that under other
had.”).
hold-
might
expressions
have
Those
conditions
courts and
various
ings have been echoed
lower Federal
courts8,
language
with
from our
and are consistent
State
faith and
issue
full claim
the full
credit
involves
cases.9 Where
*16
Cir.1969);
(3rd
Clyde Hodge,
48
United States v.
8. See
v.
413 F.2d
Productions,
Cir.2004);
(6th
Dominguez,
Far Out
Inc. v.
preclusion judicata), res there seems be little or disagreement proposition rendering no with the preclusion apply, State’s rules will and that seems to be the (collateral majority only preclusion rule as well when issue Getschow, estoppel) Gregory is at stake. See S. At First If Recognition You Do Not Succeed: Preclusive State Laws Actions, (1990). Subsequent Multistate 35 L. Rev. 253 Vill. however, courts, applied preclusion Some have their ovm rules in the latter context. Id. Getschow views first approach as effectively merging preclusion judgment; rules into the rendering preclusion applied State’s law is it has because part judgment. approach, says, become of the The second he preclusion credit, views full independent faith and allow- ing apply the second State to its own rule. other, analysis
Whether one uses that or some we believe Supreme that the view enunciated Court is the better rule, Constitutionally if it is not a required even one. The full faith and credit clause was taken from a similar clause Article 4 of Brengle the Articles of Confederation. See v. (Md.1836). McClellan, 7 Although, G. & J. 439 as noted 581, 584, 474, 476, Muelberger, Johnson v. U.S. S.Ct. (1951), legislative 95 L.Ed. there is little or no history to explain purpose meaning of either the Constitution- statute, provision judicial al experience from has “there emerged the succinct conclusion that the Framers intended it help independent by giving weld the states into a nation judgments jurisdiction within rendering state the they same faith and credit in sister states as have the state original of the forum.” also Magnolia See Petroleum v.Co. Hunt, 430, 439, 208, 214, 320 U.S. 64 S.Ct. 88 L.Ed. 155- (1944) (“It altered the status of the several states as independent foreign sovereignties, ignore rights each free to (1995) (“By giving to the New York the same effect which the give judgment, thereby courts of New York would to that we also honor Clause.”); Wernwag Faith Pawling, Full and Credit also v. 5 G. & J. (Md.1833); McClellan, Brengle 7 G. & J. 440-41 (Md.1836); Cosden, Madden v. 271 Md. 314 A.2d *17 obligations laws or created under the established others, by integral of an judicial proceedings making each nation, part single rights judicially of a in which established in any part given application.”).10 are nation-wide of unifying complemen-
Neither that
role
the clause nor its
tary
preserving
power
function of
to
to deter-
the States the
judgments
to
to
mine the effect
be
their own
well
when,
truly compelling
served
absent some
and Constitutional-
ly permissible circumstance,
States treat
of a
differently than it would
sister State
be treated
the State
especially
respect
failing
rendition. That is
the case with
to
to
respect
rendering
preclusion
State’s issue
law. Whether
depart
and how far
requirement
to
from the traditional
estoppel
mutuality
been,
collateral
has
parties
there be
ought
remain,
to
policy
decision for each State to make.
gone
recognize
This Court has
so far
non-
defensive
estoppel,
party sought
mutual collateral
at least where the
existing judgment
opportu-
be bound
had a full and fair
nity
litigate
in question.
the issues
See Pat Perusse Realty
(1968).
33,
249 Md.
Lingo,
departed
mutuality
from the
requirement, although in Park
Co.,
Shore,
Hosiery
lane
Inc. v.
U.S.
S.Ct.
about,
L.Ed.2d
expressed
some concerns
and refrained
of,
from blessing
application
the broad
offensive non-mutuali
ty. The Court
posited
why
articulated two reasons
offen
non-mutuality
sive and defensive
should not be treated the
holding Magnolia, supra,
person having
The actual
that a
received
compensation
workers
benefits
one state could not then receive them
injury,
significantly
another State for the same
was
limited in
McCartin,
Industrial Comm’n Wisconsin v.
330 U.S.
67 S.Ct.
(1947),
Washing
A second defendant, for several may unfair to the is that it be estoppel (1) first a noted that defendant “[i]f The Court reasons. may little damages, he have for small or nominal action is sued if future suits are vigorously, particularly to defend incentive (2) “if may unfair as well foreseeable,” use be offensive not is itself as a basis for the upon relied in favor of previous judgments more with one or inconsistent (3) may unfair “where the defendant,” such use be and procedural opportunities action affords the defendant second readily cause first action that could in the unavailable 330-31, 651, L.Ed.2d at at Id. at 99 S.Ct. different result.” ques- policy court should resolve these supreme Each State the effect not have other courts determine for itself and tions Pro- courts of that by the State. judgments rendered point Wright appropriate makes the Alan fessor Charles to limit the effect of power have the first court should “[t]he power “would be de- and that proceedings,” its own mutuality rule rely could not on the stroyed parties if the Wright, first court.” 18B Charles adopted Alan H. Cooper Arthur R. Miller & Edward Practice Federal (2d 2002). observes Wright § at 50 ed. Procedure elsewhere: deny nonmutual judgment would that rendered
“If the court policy. honor that Assertion courts should preclusion, later make circumstances would preclusion such of nonmutual policies give first court impossible freedom selecting parties, may include broad freedom own needs without according case to its litigate particular cases, acceptance impact on other concern about the particular parties even just between results that seem an least or directed verdict —or though a new trial greater.” if were required the stakes appeal be —would Wright, Procedure Federal Practice 18A Alan Charles 2002). (2d § at 806 ed. 4465.5 *19 v. Ry. Co. its choice. In and W.
Virginia has made
Norfolk
(1980),
217, 218
Co., 221
272
Lumber
Va.
S.E.2d
Bailey
favoring
explored the reasons
Virginia Supreme Court
the
non-mutual collateral
adoption of offensive
disfavoring the
requirement of
to retain the traditional
estoppel and decided
case,
Virginia’s
mutuality.
In that
the court “reaffirmed
‘a
mutuality which holds that
principle of
adherence to the
invoking
preclusive
from
the
generally prevented
litigant
had the
he would have been bound
judgment
of a
unless
force
”
opposite
the
result.’
litigation of the issue reached
prior
(2004),
691, 591 S.E.2d
Lopez,
v.
Va.
Rawlings
Devers,
667, 202
Bates v.
214 Va.
S.E.2d
quoting
part
in
from
(1974).
court maintained
Rawlings,
Virginia
Center,
TransDulles
principle.
to that
See also
its adherence
Sharma,
For all of these
we hold
Maryland
court
Virginia judgment,
faith and credit
as it would be
judgment precisely the same
must treat
court,
requires
apply
that we
Virginia
in a
treated
Virginia.11
in
That is
applied
rules that would be
preclusion
Airlines, Inc.,
rely
61 Misc.2d
plaintiffs
on Hart v. American
Finley
Kesling, 105
(Sup.Ct.N.Y.Co.1969) and
Whether
any
not
way
Because the Circuit Court was
bound
by
Virginia judgment,
it had to
decide for itself whether
plaintiffs
subject
the claims asserted
were
to arbitra
(or both)
(Title
tion under either
the Federal Arbitration Act
court,
earlier
was rendered
a Federal
not the court of
State, and,
any
holding
another
event seems inconsistent with the
America,
*20
Boy
Appeals
the New York
Court of
v.
Scouts
Schultz
of
Inc.,
189,
90,
(1985). Finley
65 N.Y.2d
491 N.Y.S.2d
A.2d and cases cited there. can provi There be no doubt that the arbitration ¶ sion forth in 12 of Agreement set the Settlement is an all- one, requiring “any disputes inclusive that may arise carrying Agree while out the terms and conditions this not parties amicably ment” resolved be submitted to binding provision arbitration. That certainly enough broad dispute to include a over non-defaulting whether members of unpaid CCR are defaulting liable shares of members. provision The issue is whether that abrogated has been mitigated by Rooney’s Mr. letter of October
We dealt with a similar
issue Allstate. Two issues were
(1)
in that
framed
case:
whether
is for the court or the
arbitrator to
arbitrability
determine
parties
when the
entered
general
agreement
into a
arbitration
but subsequently bound
themselves to a consent
that contemplated
judicial
order
a
(2)
remedy;
agreement
of an
contemplates
judicial remedy
a
particular
for the
dispute upon
prior
general
agreement
arbitration
that would
required
have
arbi-
dispute.
concluded,
tration of
issue,
We
as to the first
“courts,
arbitrators,
not
prior
should decide
whether
agreement
disputes applies
to arbitrate
subsequent
when a
agreement
judicial
calls for a
particular
resolution
Allstate,
controversy.”
supra,
As to the second remedy dispute for the did, indeed, judicial provide order arbitration general superseded the earlier and therefore hand provision. Al- as well. presented is here issue Allstate
The first contract construction —the a matter of it on though rests directly to issue relates Rooney letter —the of the effect agree- currently viable there is whether indeed determines must arbitrate, an the court which is issue ment decide.12 contracts, follows the ob Maryland construing con of the language If the principle.
jective interpretation meaning and plain to its give we unambiguous, is tract may subjectively parties have into what do not delve 232, Bank, F.S.B., 368 Md. Chevy v. Chase intended. Wells (2001). contract com 620, 250-51, 630 Where 768 A.2d documents, are to be the documents or more prises two possi harmoniously, so to the extent together, construed Rocks v. See can be effect. ble, provisions all of the (1966); Rothman Brosius, 612, 637, A.2d 545 217 241 Md. (1967); Bach Silver, 226 A.2d 310 Md. Glazer, Inc., A.2d 316 Md. v. Glazer & mann us, (1989). requires the issue before In terms of what, in it anything, if Rooney letter see looking at the ¶ Agreement. 12 of the Settlement giving effect to precludes noted, letter, was intended to resolve Rooney as to execute a release settling plaintiffs all requiring problem in advance respective settlements amount of their the full scope of an keep that the issue here is not important clear It is dispute. Where applies particular arbitration clause —whether any ambiguity to whether there is scope the issue and dispute, we have held that the issue agreement particular covers is, initially, to determine. Gold arbitrability for the arbitrator at least Corp., Md. 468 A.2d Larmar Coast Mall v. letter, whether, by Rooney the arbitration virtue of the here is The issue apply. That clearly dispute continues to agreement covered this existence, scope, of an arbitration rather than goes to the continued agreement. *22 of the settlement. Some receiving only partial payment a they if reserving rights for their provision needed to be made to receive ultimately they receive all that were entitled did not end, agreement. To that the letter the settlement under stated:
“[Sjhould timely any fail to make or all the CCR Agreement, required by the Master Settlement payments not re- settling plaintiff in that who has then event each payment may pursue remedy a in contract ceived full If such any deficiency. for against the CCR members required, responsible action is members shall be the CCR annum, pay deficiency per to with interest at 8% and the settling plaintiff will reimburse each such CCR members may that be re- attorneys’ expenses reasonable fees and or otherwise.” quired deficiency by to collect this lawsuit added). (Emphasis remedy in plaintiffs language italicized
The view the —-“a action,” contract,” “by lawsuit or as “such and otherwise” in full providing judicial remedy any in the event of shortfall agree. Permitting remedy “a in con- payment. We do not remedy. not arbitration as To state tract” does foreclose deficiency if required “such action” is collect the fees, interest, plaintiffs attorneys’ will entitled to be expenses does not indicate that the collection action is to be Indeed, if the other than a claim submitted to arbitration. harmoniously, together two are to be read “such sentences necessarily “remedy in contract.” action” would refer contract, general of a arbitration clause in the the absence provisions certainly permit judicial would action to those they deficiency ancillary expenses, collect the but are provision can be way no inconsistent with the arbitration given meaning harmony provision. full with that language gave pause the Circuit Court some was provision, requiring pay last the CCR members to ancillary may required to collect the expenses fees and be deficiency “by language lawsuit or otherwise.” That —the necessarily to “lawsuit”—is not inconsistent with the reference however, provision, arbitration and can read in full be harmo- ny Agreement, plaintiffs’ with it. Under the Settlement coun- options an sel certain the event installment is short because one more CCR members failed contribute their share the installment. Counsel could declare the entire void, agreement plaintiffs settlement in which event the could the defendants in tort. sue
If agreement counsel elected to “continue” the settlement members, non-defaulting plaintiffs CCR had the “(a) members, option, defaulting as to the electing to the, Defaulting company’s enforce *23 obligations CCR member (b) Agreement electing under this or to pursue Settlement plaintiffs such injury against claims for asbestos-related the Defaulting company system.” Im- CCR member the tort that, plicit that construct is if counsel elected “continue” members, non-defaulting the settlement with the CCR the and, it, agreement, requirement, with the arbitration would be defaulting allow, terminated as to the That members. would action, as an alternative to a tort a lawsuit for of breach against defaulting contract the members to collect the defi- and, interest, ciency Rooney letter, expenses, under the and manner, attorneys’ fees as in that language well. Read the entirely maintaining require- with consistent the arbitration any dispute members, ment as to with non-defaulting CCR precisely which is what this case involves.
That of Rooney only construction letter is favored not requirement all provisions of a contract be read together harmoniously, given effect, so that each can be but ordinary also mandate where an arbitration exists, agreement ambiguities arbitrability as to be resolved favor of arbitration. Notwithstanding contrary conclusion Virginia decisions, of the courts in Amehem their we find no ¶ refusing basis the record before us for to enforce of the Agreement. Settlement
BELL, C.J., CATHELL, J., and Dissent. CATHELL, J., dissenting in which BELL, Judge, Chief joins. prior of a estoppel
This case involves the
in this
in which the defendants
in a case
judgment, entered
agreement,
interpreting a settlement
participated,1
case
virtually
which,
plaintiffs, was
except that it was with different
a
issue would be
at issue
this case. The
identical to the one
applying
of a
its
simple, issue
State
straight-forward, even
seemingly
complicating
preclusion, but for
rules of issue
factor,
judgment was entered
confusing
prior
perpetually
I do not
that that
court. While
believe
by neighboring
State
should,
does,
change
analysis,
majority
does.
factor
rationale,
affirms,
judgment of
Thus,
and on the same
which,
affirming
Special Appeals,
the Court
court,
City,
Baltimore
but unlike
the Circuit Court for
faith
credit clause of the United States
invoked the full
Amchem,
116-18,
Md.App.
Rourke v.
Constitution.
(2003).
Amchem,
Rourke v.
384 Md.
A.2d
207-208
332, 343-52,
926, 928,
863 A.2d
934-40. For the reasons
follows,
I dissent.
finality
judgments
“aspect
is an
of the
Collateral
Prods.,
parties”
litigation.
Welsh v. Gerber
between the
Inc.,
315 Md.
555 A.2d
Often
id.; Kent
Bd.
preclusion,
County
characterized as issue
*24
(1987).
490,
232,
487,
525
233
Bilbrough,
Educ. v.
309 Md.
A.2d
“[cjlaim
judgment
in
preclusion
While
refers
the effect
a
litigated,
foreclosing litigation of a matter that never has been
a
that it should
because of determination
have been advanced
suit,”
490,
233,
in
second actually different, of fact that was any determination action is is to a valid and final and was essential litigated Welsh, 516, A.2d at 489. See 315 Md. 555 conclusive.” Graham, 543, 547, A.2d v. 315 Md. 555 International Murray (Second) 502, (1989), Judgments, quoting Restatement 504 (1982) (“[w]hen actually litigated fact law is an issue of § 27 judgment, final and the deter by a valid and and determined is judgment, the determination mination is essential whether subsequent parties, action between the conclusive in a claim.”). State, a also Janes v. same or different See on the MPC, 295, 1319, (1998); Inc. v. 284, 711 A.2d 1324 Md. 350 29, 486, (1977); 32, A.2d 489 Frontier Van 279 Md. 367 Kenny, Co., 621, 624, 778, 336 A.2d 780 B. Tr. 274 Md. Lines v. Md. & 676, 669, 273 (1975); v. 260 Md. Godsey, Travelers Insur. Co. 438, etc., 132, 143, (1971); 207 Md. Sterling v. Local A.2d 431 denied, 100 cert. 350 U.S. S.Ct. 113 A.2d (1955). L.Ed. 773 by the the formulation of the test
This is consistent with Swenson, In Ashe v. Supreme Court. United States principle as follows: stated the Court “ phrase, an awkward but it stands estoppel’ ‘Collateral adversary sys- in our extremely important principle for an simply It that when an issue of justice. means tem by a valid and final fact has once been determined ultimate again litigated between the that issue cannot be judgment, any lawsuit.” parties same future 1189, 1194, 25 L.Ed.2d S.Ct. U.S. differently in Montana principle It little stated 970, 973, U.S., 147, 153, 59 L.Ed.2d 99 S.Ct. U.S. States, (1979), R. Co. v. United quoting Southern Pacific 376-377(1897): 1, 48-49, 42 L.Ed. 18 S.Ct. 168 U.S. em- precept adjudication, of common-law “A fundamental estoppel and res related doctrines of collateral bodied question distinctly put or fact judicata, ‘right, is that *25 by competent a court of directly determined issue
359 subsequent in a suit disputed ... cannot be jurisdiction privies....”’ parties or their the same between Shore, 322, n. Co., 326 Inc. v. 439 U.S. Hosiery Parklane See (1979) 552, n. 5 645, 5, L.Ed.2d 559 5, 649 n. 58 99 S.Ct. (“Under ... a second action estoppel collateral the doctrine of of action and the upon a different cause actually litigated relitigation of issues prior precludes suit action.”). of first necessary to the outcome as its estoppel, as well Underlying the doctrine of collateral necessity justice cousin, practical judicata, policy, are res Lingo, v. 249 Md. Realty Pat Perusse considerations. Messick, 177 100, (1968), v. quoting A.2d 106 Williams 238 (1940). Thus, have stated: 605, 615, 11 we Md. A.2d doctrine, of res and the allied doctrine functions of this “The multiple expense and vexation judicata, are to avoid the resources, on lawsuits, and foster reliance judicial conserve minimizing possibilities of inconsistent judicial by action decisions.” 504, citing
Graham,
ings, on issues raised” and decided. Colandrea Wilde Lake Ass’n, Inc., Community 391, 909, 361 Md. citing at 761 A.2d at Department Thompson, Md.App. Human Resources v. 103 of (1995). 175, 194, 1183, 652 A.2d 1192 Supreme Court has articulated purpose of collateral estoppel in a similar manner: estoppel, judicata,
“Collateral like the related doctrine of res has dual of purpose protecting litigants from the burden relitigating party of an identical issue with the or his same privy promoting and of judicial economy by preventing litigation.” needless 326, 649, Hosiery,
Parklane
439
at
99
at
U.S.
S.Ct.
58 L.Ed.2d
559,
Laboratories,
at
citing Blonder-Tongue
Inc. v. University
Foundation,
313, 328-29,
1434,
Illinois
402
91
U.S.
S.Ct.
(1971).
1442-1443,
concluded,
28
799
It
L.Ed.2d
has
moreover, that
“[application
both doctrines is central to the
purpose
established,
for which civil courts have been
disputes
jurisdictions.”
conclusive resolution of
within their
Montana,
440
147
U.S.
at
“Collateral
concerned with the
conse
quences
judgment,
only
of a
...
with
findings
of ultimate
necessarily lay
fact ...
judgment.”
behind that
Colan
Inc.,
Ass’n,
Community
drea v.
Lake
Md. at
Wilde
361
State,
citing
Md.App.
A.2d
Burkett v.
(1993),
633 A.2d
cert. denied 334 Md.
638 A.2d
is, rather,
It
a tool
designed
that is
to facilitate
promote
productive
the most efficient and
process
most
ing
system.
applied effectively,
of cases
a court
When
it
productive
results
the most effective and
allocation of
Thus,
judicial
estoppel,
resources.
collateral
true also of res
judicata,
judiciary’s
device;
is a
docket and workload control
is not
designed
a tool
to assess the effect or
effectiveness
foreign judgments.
This is evident
the test that this Court
developed
applicability
has
to test the
estoppel
given
fact
That
Washington
situation.
test
is set out in
Associates,
Commission v. TKU
281 Md.
Sanitary
Suburban
(1977):
1, 18-19, 376 A.2d
prior adjudication
identi-
“1. Was the issue decided
presented
question?
cal with
one
in the action
judgment on
“2.
there a final
the merits?
Was
party against
plea
“3.
whom the
is asserted
Was
privity
party
prior adjudication?
with a
party or
party against
plea
whom
is asserted
“4. Was the
opportunity
a fair
to be heard on the issue?”
judicata
corollary
A
to the rule of res
and collateral
*27
Perusse,
is,
been,
theory mutuality.
of
Pat
249
and has
35,
is,
at
corollary
“estoppels
Md. at
238 A.2d
102. That
must
prior
... who
be mutual and one
himself was bound
judicata against him to whom it
judgment cannot assert res
straightforward:
was
Id. Its
is
adverse.”
rationale
requires
every
fairly
impar-
be
and
“Justice
cause
once
tried;
tially
public tranquility
having
but
demands
tried,
litigation
question,
been once so
all
of that
and
parties,
between those
should be closed forever.
It is also a
principle
justice,
most
of
ought
obvious
no man
to be
by proceedings
stranger.”
bound
to which he was a
Cecil,
72,
79,
2345,
Thus,
Cecil v.
19 Md.
1862
*5
WL
form,
rigid
in its
mutuality requirement provided
most
“the
a
party
litigated
previous
who had
and lost
action an
opportunity
relitigate
parties.”
identical issues with new
327,
649,
Parklane
Hosiery,
U.S. at
Like the rules to which it is of mutuali- ty is also: upon policy practical and necessity justice
“based
...
grounds
policy
justice
and on the same
of
there would
objection
no
to departing
party
be
from it where affect-
adequate opportunity
ed has been
an
to be heard
personally
by or
representation.”
either
Perusse,
to the
at
Id. at
Id. at
While it out developed by set the test this Court to deter- applicability mine of collateral estoppel, addressed some of factors, arguments enumerated the point counsel on and reviewed some of pertinent concerning facts Virginia litigation, contrasting case, it to that in this id. at 108-115, 202-206, 835 A.2d rather than determining correctness of the trial court’s refusal to apply offensive non-
365 estoppel, appellate mutual collateral the intermediate court decided the case on the basis of a full faith and credit analysis,4 adopting arguments thus one of the two advanced appellees. the suit, majority follows “agreeing] with the intermediate that,
appellate court
under both a full faith and credit and a
majority
Special Appeals'
4. The
characterizes the Court of
consider-
ation of the Constitutional full faith and credit
issue as brief and
suggests that that court also decided this
on
case
the basis of common
Products, Inc.,
329,
estoppel.
law collateral
Rourke v. Amchem
384 Md.
343,
926,
While,
863 A.2d
when
considered
the context of the
discussion,
brief,
may
entire
portion
the full faith and credit
have been
approximately
pages
2
subject
of the
devoted to the
of “Offensive
1016
Products, Inc.,
Estoppel,”
Non-mutual Collateral
Rourke v. Amchem.
91, 108-118,
193,
is,
(2003),
Md.App.
153
835 A.2d
202-208
the fact
dispositive.
was that discussion that was
support
majority's suggestion
The record does not
the
that the inter-
appellate
estoppel
mediate
court relied on common law collateral
indicated,
the decision in this case. As
the discussion of offensive non-
sure,
estoppel
pages.
mutual collateral
covered some
To be
appellate
acknowledged
intermediate
estoppel, noting
court
pedigree
of collateral
109,
203,
beginnings,
common law
its
id. at
835 A.2d at
Ass’n, Inc.,
371,
citing
387,
Community
Colandrea v. Wilde Lake
361 Md.
899,
however,
(2000);
discussion,
761 A.2d
the balance of the
Md.App.
see 153
at
835 A.2d at
involved the review of the
arguments of counsel and of
doctrine of
non-mutual collateral
estoppel
Hosiery,
discussion of Parklane
and Welsh v. Gerber.
Then,
stating
going
after
it was
to "find use of the doctrine
case,”
inappropriate
Md.App.
circumstances of this
at
Special Appeals
835 A.2d at
the Court of
discussed the test for
estoppel,
Virginia Supreme
collateral
argu-
Court decision and the
appropriateness
ments of counsel on the
applying
issue of the
113-115,
estoppel.
offensive non-mutual collateral
Id. at
835 A.2d at
introduced,
portion
205-206. The last
of the discussion was
as follows:
arguments
"We
they [presumably,
appellees]
address
two
pres-
pertinent
ent that we find
conflicting opinions
this case: the effect of
proper application
and the
of Full Faith and Credit.” Id. at
rationale,
rejecting
conflicting prior opinions
A.2d at 205. After
id.
115-116,
835 A.2d at
the court concluded:
“Although Maryland may
require mutuality
parties
not
in actions
invoking
estoppel, Virginia
collateral
does. Full Faith and Credit
apply Virginia
commands that we
preclusive
law to determine the
Virginia
permit
effect of the Amchem
appellants
decision.
would not
estoppel
to invoke collateral
prevent appellees
in order to
from
¡gating
arbitrability
dispute
relit
liability
of the
over the
of CCR's
We, therefore,
Producer Members for he debts of former members.
appellants’
give
Virginia
greater
decline
invitation to
decision
effect than it would have in that state.” Id. at
More
the
which,
Court,
it
reasoning
Supreme
of the
required by the
determining
the
says,
preclusive
made clear
“has
court,
claim
judgment
of a State
effect to be
of the
preclusion
and issue
rules
State
rendered
344,
It
govern.”
Md. at
At I want to be way, of the impacts, any the “effect” collateral valid and effec- judgment. judgment That remains Virginia it would be tive, appellees, just as against enforceable has, offensively to be Application of the doctrine Virginia. not consequences do sure, but those consequences, collateral full Those being given not effect. judgment in the result driven, a or intent by not desire consequences are effect, but full faith and credit give not to and the management rationale aimed at policy case/docket resources, judicial judicious use of scarce economical and justice counter-balanced, course, to ensure that desire of the collateral purpose That is the same accomplished. *32 Virginia, I would submit. policy adopted by estoppel non-mutual collateral use of offensive By permitting not the or, indeed, to ren- render, intend Virginia does not estoppel, der, as to the judgment it entered invalid ineffective the entered, case, in the judgment was this parties as which the judicial to its simply it has chosen utilize scarce appellees; has, Maryland to reliti- in a manner than resources different because, decided, given its already presumably gate issues it, the ends of to do so will serve conception of believes policy Virginia that the justice. certainly I do not believe in was not done the case any justice is to sense that choice tied in that is the source of the issues judgment which resulted the moreover, nothing, is sought offensively. to used There be estoppel Virginia that collateral suggest this record to the Virginia to those with policy premised is on an intent shield estoppel poli- preclusive from stricter judgments the 368 event, any give foreign of other In to judgment
cies States. receiving full faith and credit not mean that court does the is compelled policies to its local to policies subordinate the v. State. Williams State North rendering laws of the of Carolina, 287, 296, 63 U.S. S.Ct. 87 L.Ed. (1942) (“Nor any authority is there which support lends full faith and compels the view credit clause state, courts of one policy state subordinate the local of that domiciliaries, respects its any to the statutes of other state.”).
Critical to policy objective the achievement of collat- ensuring eral is party who will be bound opportunity litigate the doctrine has a fair and full the issue question. appellees unhappy While the are with the result Virginia litigation, in the is nothing there this record to they indicate that did not a full fair opportunity have litigate They the case. have had the of a benefit review the And, proceedings by highest course, court. State’s defendants, reflects, Virginia as far as try the record did not Virginia lose, with an expectation they case should they would Virginia receive the benefit the more lenient preclusion not, an expectation simply rule. Such is and would been, not have reasonable. addition, v. I Finley Kesling, persuaded by am (1982).5
Ill.App.3d
“Finley has cited no and we have Full Faith and is barred either holds that a state 1738 of the Code by section United States Credit Clause (Title 1738), s Judiciary and Procedure U.S.C. of Judicial mandate, enacted, (which, to the constitutional pursuant acts, judicial proceedings requires that such records full faith and credit as the courts have the same taken) they applying from its own from which were state give estoppel but instead must doctrine of collateral but to the rules of only not to the of the first state applied.” is to estoppel that as to collateral be state when Kesling Id. v. court cited Hart v. American Finley The Airlines, (Sup.Ct.1969)6 61 Misc.2d 304 N.Y.S.2d (1964) Clark, as recognizing v. 80 Nev. 389 P.2d Clark own may apply forum state its rules estoppel. Hart, put thusly: the court reliance on ‘full faith and credit’ to defeat the
“Defendant’s
application
misplaced.
of collateral
herein is
This
such,
judgment,
is not
a situation where the
the Texas
sought
court is
enforced.
is
is a
be
What
here involved
policy
by our courts that
who has had
determination
‘One
day not
permitted
litigate
his
court should
be
and, further,
question
...
‘to
a condi-
anew’
refusal
tolerate
where,
facts,
relatively
tion
on
the same set of
fact-
one
finder,
jury’ may
party
be it court or
find a
liable while
leading
another exonerates him
results
‘inconsistent
always ways
judicial system’....
which
on a
are
blemish
carry
policy
It is in order to
out these
determinations in the
Airlines,
majority
unimpressed
v.
Hart American
61 Misc.2d
1969)
decision,
(Sup.Ct.
disposition particular of a issue determination made being use is made action.” in the Texas (citations
Id., at at 813-814 61 Misc.2d N.Y.S.2d omitted). with court reached a similar conclusion The Clark question on to of full faith credit respect the effect of law: choice
“However, com- do not believe that the constitutional we prob- law poses faith and credit a choice of mand of full Rather, of full faith and credit to .... the mandate lem judicata, and to their effect as res judgments is limited of law questions to include of choice should not be extended may which later arise.” omitted). (citations
Clark,
I am
persuaded
P.2d at 71
not
many of
Majority
which
relies.
I find
cases on
Virgi-
College,
example,
inapposite.
them
Columbia
highest
court of
Appeals,
nia
at
time the
Court
by the
Virginia,
judgment
in its order that the
rendered
stated
final,
interlocutory and not
and thus non-
was
Circuit Court
that the Court commented:
It was
this context
appealable.
court
relying upon
“...
the decree of the
complainant,
[T]he
Withers, invoking for it
against
of his demand'
evidence
Constitution,
faith and credit under the clause of the
full
court of
object
highest
to the character which the
cannot
it,
any
that it
Virginia
given
has
or insist
is entitled
can
weight.
greater
No
effect
be
other consideration
of a court of one State
another
given
any judgment
Any
given to it in the State where rendered.
State than is
policy
provisions
of the
other rule would contravene
on
and laws of the United States
the Constitution
subject.”
(footnote omitted).
529,
84 U.S. at Barber, relied, Suydam was to College on which Columbia judg- limitation of the having Rather than similar effect. order, clearly the law of Missouri ment noted the court limitation, plaintiff and the defendant stated the thus both the case, on of that limitation. In this to the action were notice in the of the of the effect a notation is neither there passed by that effect a law to order, nor is there court Legislature. Virginia federal requires § 1738 acknowledges, majority
As the judg- court to state preclusive give the same courts in which in the states judgments are as those ments Kremer, 934-35; 343-14, A 2d at 384 Md. at entered. contrast, By at 270. 1889, L.Ed.2d at 102 S.Ct. U.S. *35 right to determine have the of each State courts There- in that State. judgments to applicable preclusion rules analysis is the same. fore, that the agree I do not foreign giving to and their reference Maryland cases The from has the State judgment that the same effect judgment The my position. inconsistent with it are not which issued itself, not judgment they pertains refer to which to when of that State policy rules or any collateral made point is well may applied. be The scope stated the wherein the Court Brengle, the Court has never “the doctrine requirement: full faith and credit judgment of another further, give to the than to carried been every effect, obligatory force State, and conclusive the same it was Union, had in the State where that it in the State 439-40, *1. at Stated at WL 7 G. & J. rendered.” Comm, on the Constitution Story’s 3d differently, quoting U.S. 183:
“ it was where conclusive in the State judgment ‘If a If re- every where. equally conclusive it is pronounced, every there, inquiries same open it is examinable footing as a the same put upon It other State. is therefore credit,’ and as used ‘faith judgment.’ The terms domestic evidently point to the congress, and act of the Constitution judicial and such records qualities, and which attributes evidence, appears to and such have as proceedings shall to them in the Commen- construction have been the taries.” opined on what *4. Court also at 1836 WL at
Id. context: and credit in the full faith does not mean “effect” “ supposed, ‘can it intended, be founding [the fathers] or contemplated to in Congress power vest giving to a State, obtained in one all legal properties, rights, attributes, State, and when used in another to which it was entitled the law of the State where it was rendered? We think that such could not have been the purpose or intention of enlightened those who men framed instrument; especially, more as such principle in its tendency operation, might lead to a conflict and collision States, between the laws of the different in the administra- tion of their policy, concerns; internal and domestic effect, would in put State, it in power pass one laws regulate and control the administration of assets in State; another which anomaly would be an in jurisprudence, and a violation of genius spirit of all our institu- ” tions.’ 441-442, Id. 1836 WL at *5. believe,
IWhile am inclined to given the office of collateral estoppel and the fact that appellees these already have once litigated issue, the identical the record in this case *36 presents good at least a apply reason to the doctrine of offensive estoppel, non-mutual collateral very least, at I would remand the case to the Court of Special Appeal for its review, merits, on unobscured full faith and credit and concepts, other such of the trial court’s refusal to apply the doctrine.
Judge CATHELL joins in the expressed. views herein