Foster v. Plock

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”). 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. Foster was found guilty of violating a protection order issued in the dissolution proceedings. A deputy district attorney prosecuting the protection order matter filed the PREs with the criminal court for use in sentencing. Plock filed a motion in the dissolution proceedings, admitting that he had disclosed the PREs to the deputy district attorney. 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. 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 defendants each moved to dismiss the case. Foster subsequently amended his complaints. 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. The issue this case presented for the Colorado Supreme Court’s review centered on whether mutuality was a necessary element of defensive claim preclusion. Multiple divisions of the court of appeals concluded that mutuality need not be established for the defensive use of claim preclusion, but the Supreme Court disagreed, instead concluding that mutuality was a necessary element of defensive claim preclusion. The Court also concluded that mutuality existed in this case, as did the remaining elements of claim preclusion, and therefore affirmed the judgment of the court of appeals on other grounds. View "Foster v. Plock" on Justia Law