Kent County Board of Education v. Bilbrough

RODOWSKY, Judge. The issue here is whether respondent’s claims against petitioners are barred by claim preclusion because the same claims had previously been adjudicated adversely to the respondent. The question presented turns on the application to the facts in this case of the elusive concept, “claim,” as used in the law of claim preclusion. Before stating the facts it seems helpful to review briefly the terms used for the concepts involved.

The Supreme Court in Migra v. Warren City School District Board of Education, 465 U.S. 75 , 77 n. 1, 104 S.Ct. 892 , 894 n. 1, 79 L.Ed.2d 56 , 59 n. 1 (1984) put it this way: The preclusive effects of former adjudication are discussed in varying and, at times, seemingly conflicting terminology, attributable to the evolution of preclusion concepts over the years. These effects are referred to collectively by most commentators as the doctrine of “res judicata.” See Restatement (Second) of Judgments, Introductory Note before ch. 8 (1982); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 (1981). Res judicata is often analyzed further to consist of two preclusion concepts: “issue preclusion” and “claim preclusion.” Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Restatement, supra, § 27.

This effect also is referred to as direct or ⁴⁹⁰ collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar. See id., Introductory Note before § 24.

The prior judgment of concern here was entered in a civil rights action brought by respondent, John R. Bilbrough, Jr. (Bilbrough), and another against seven defendants, including the petitioners here, Kent County Board of Education (the Board) and William Loller (Loller), in the United States District Court for the District of Maryland. The case was tried without a jury before Honorable Joseph H. Young who entered judgment for the defendants. That judgment was affirmed in an unpublished opinion by the United States Court of Appeals for the Fourth Circuit. Bilbrough had been hired by the Board in the spring of 1978 as manager of maintenance services.

He served in that capacity until the summer of 1981 when the position was abolished and its duties consolidated with those of another job classification. Bilbrough sought to show in the federal action that he was terminated for political activity on behalf of candidates for election to the Board who were favorable to the then incumbent county superintendent of schools. Judge Young found that the decision by the successor superintendent to eliminate Bilbrough’s position “was made without any consideration of Bilbrough’s previous political activities.” The court found that the new superintendent viewed Bilbrough as “an ineffective and unproductive manager of maintenance services” and that the superintendent sought to achieve greater efficiency and cost savings. While Bilbrough’s appeal to the Fourth Circuit was pending he brought the instant action in the Circuit Court for Kent County against the Board, Loller, and four others.

The complaint contained seven counts, as to all of which Loller and the Board obtained summary judgment based on claim preclusion. After a certification under Rule 2-602, ⁴⁹¹ Bilbrough appealed the judgments in favor of the two petitioners to the Court of Special Appeals. Before that court Bilbrough limited his argument to counts I through III which claimed invasions of alleged privacy interests. The Court of Special Appeals held that the privacy claims were not precluded; it reversed as to them; and affirmed as to counts IV through VII.

Each of the first three counts also alleged that the privacy invasions had caused Bilbrough to lose his job as maintenance supervisor and to suffer reduced earnings, for which he claimed damages. The intermediate appellate court held that issue preclusion barred relitigating those claims for damages in the instant action. Petitioners obtained certiorari from this Court for review of the reversal of the circuit court judgment with respect to the privacy counts of the complaint. There was no cross-petition by Bilbrough.

We now turn to the allegations against Loller and the Board in the first three counts, as the Court of Special Appeals has limited those counts by excluding any claim, on any theory, for lost wages. In count I Bilbrough says that in June of 1980 he sought employment with the police department of Rock Hall, a municipality in Kent County. In his pre-employment interview Bilbrough disclosed a 1970 conviction in Caroline County, Maryland, for breaking and entering and petty larceny for which he had been sentenced to eighteen months probation, later reduced to one year, and as to which he had made restitution, amounting to $99. The Rock Hall police department also obtained Bilbrough’s criminal history record information from a central repository maintained by the Maryland State Police.

Count I further alleges that two of the defendants, respectively a policeman and a councilman of Rock Hall, took the criminal history record information from the police files, made photocopies of it, and provided it to Loller who in turn made it available to other members of the Board. Bilbrough asserts that this conduct violated a number of statutes and regulations, including § 524(b) of the Omnibus Crime Con ⁴⁹² trol and Safe Streets Act of 1968, now codified as 42 U.S.C. § 3789g(b), and gives rise to a private cause of action. 1 In count II Bilbrough avers that Loller caused one of the individual co-defendants to obtain the docket entries of Bilbrough’s conviction from the Circuit Court for Caroline County, avers that this was done in order to hide the fact that the information had been illegally obtained from the Rock Hall police department files, and concludes that it was tortious to obtain a copy of the public court record for that purpose. 2 Bilbrough’s complaint labels count III: “Invasion of Privacy, False Light.” There he alleges that he had ordered inscribed ballpoint pens and business cards which described him as “ ‘Manager of Maintenance and Security, Kent County Schools,’ ” but that the defendants falsely characterized these purchases as “a misuse or embezzlement of state funds or as an unauthorized impersonation of a police officer.” He further avers that he had been authorized to drive his own vehicle from school to school on security rounds for which he received an allowance of fourteen cents per mile but that the defendants had characterized his expense vouchers as dishonest and had also accused him of stealing gasoline from Kent County pumps. Count III additionally asserts that in March 1981 when Bilbrough “had just come from target practice,” he responded to a report of a break-in at a county high school. He says he met police officers at the scene, that they had their guns drawn, and that he also drew the target pistol which he happened still to have with him.

Bilbrough alleges that the defendants publicized this conduct in such a way as to make it appear that he “was a maniacal, gun-toting, dangerous person.” 3 ⁴⁹³ In each of these three counts Bilbrough claims that the acts complained of caused, inter alia, emotional and mental distress. The opinion of the Court of Special Appeals relied heavily on our decision in MPC, Inc. v. Kenny, 279 Md. 29, 33 , 367 A.2d 486, 489 (1977), where we observed: Courts elsewhere have applied a variety of tests in determining whether two causes of action are the same for purposes of invoking res judicata. The measure which seems to find favor with most courts, and one which we have applied, is whether the same evidentiary facts would sustain both actions. See Mettee v. Boone, 251 Md. 332, 340-41 , 247 A.2d 390 (1968); Alvey v. Alvey, [ 225 Md. 386 ,] 390[, 171 A.2d 92 (1961)]; Williams v. Messick, 177 Md. 605, 613 , 11 A.2d 472 (1940).

The intermediate appellate court analyzed whether the same evidentiary facts would sustain both of Bilbrough’s actions. The analysis proceeded in much the same fashion as one would apply the required evidence test to determine whether multiple convictions had offended double jeopardy. Cf. Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932); Mason v. State, 302 Md. 434, 441-42 , 488 A.2d 955, 958-59 (1985).

In the court’s view counts I and II concerned alleged public disclosure of private facts, the publication of which would be offensive and objectionable to a reasonable person of ordinary sensibilities. The court considered count Ill’s allegations to involve public disclosure of a fact which falsely portrayed the fact and which unreasonably placed Bilbrough in a false light before the public. The Court of Special Appeals concluded that it was “evident that the evidence required to establish [Bilbrough’s] wrongful discharge claim based upon the violation of his first amendment rights is different from that necessary to sustain his invasion of privacy counts in this action.” Petitioners attribute preclusive effect to the judgment of the United States District Court for the District of Mary ⁴⁹⁴ land. “Federal law determines the effects under the rules of res judicata of a judgment of a federal court.” Restatement (Second) of Judgments § 87 (1982). No party has argued that federal law differs from Maryland law.

Therefore we assume that the federal law of claim and issue preclusion is the same as Maryland law. 4 Although we agree with the result reached by the Court of Special Appeals, we are concerned that sole reliance on the same evidence or required evidence analysis to determine if the same claim is involved in two actions may improperly narrow the scope of a “claim” in the preclusion context. In the history of Anglo-American law, the law of claim preclusion has undergone a considerable evolution. At common law, when the forms of action were narrow and rigid, a plaintiff generally could not join one form of action with another. On the other hand a plaintiff who had selected a writ which was inappropriate to the facts of that plaintiffs case could in general sue again by utilizing the appropriate writ.

See F. James & G. Hazard, Civil Procedure § 11.7, at 540 (2d ed. 1977). This allowed for some multiplicity of suits to redress a single grievance or wrong, but at least it did not compound the hardship of the formulary system by piling substantive injustice on procedural technicality, [id] In the nineteenth century, a fairly narrow definition of “cause of action” was used for claim preclusion, reflecting the limitation on joinder of causes of action at common law. Id., § 11.8, at 541. A summary of the effects of the forms of action on the substantive law of claim preclusion is found in Restatement (Second) of Judgments § 24, comment a, at 197 which reads: ⁴⁹⁵ [T]here was also some adherence to a view that associated claim with the assertion of a single primary right as accorded by the substantive law, so that, if it appeared that the defendant had invaded a number of primary rights conceived to be held by the plaintiff, the plaintiff had the same number of claims, even though they all sprang from a unitary occurrence.

There was difficulty in knowing which rights were primary and what was their extent, but a primary right and the corresponding claim might turn out to be narrow. Thus it was held by some courts that a judgment for or against the plaintiff in an action for personal injuries did not preclude an action by him for property damage occasioned by the same negligent conduct on the part of the defendant—this deriving from the idea that the right to be free of bodily injury was distinct from the property right. Still another view of claim looked to sameness of evidence; a second action was precluded where the evidence to support it was the same as that needed to support the first. Sometimes this was made the sole test of identity of claim; sometimes it figured as a positive but not as a.negative test; that is, in certain situations a second action might be precluded although the evidence material to it varied from that in the first action.

Even so, claim was not coterminous with the transaction itself. See also C. Clark, Handbook of the Law of Code Pleading § 19 (2d ed. 1947); IB J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice ¶ 0.410 (2d ed. 1984); Schopflocher, What is a Single Cause of Action for the Purpose of the Doctrine of Res Judicata?, 21 Or.L.Rev. 319 (1942); Vestal, Res Judicata/Claim Preclusion: Judgment for the Claimant, 62 Nw.U.L.Rev. 357 (1967). The Maryland law of claim preclusion has moved far enough from the influence of the common law forms of action that it seems to be settled here that a mere change in the legal theory, applied to the same set of facts previously litigated, will not in and of itself avoid claim preclusion. For example, where the owner of a newly constructed house ⁴⁹⁶ sued the builder alleging that leaking pipes had been fraudulently concealed or negligently installed, the action was barred by judgment for the builder in a previous action between them in which the owner alleged breach of their express contract based on leaking pipes.

Mettee v. Boone, 251 Md. 332 , 247 A.2d 390 (1968). Similarly illustrative is Alvey v. Alvey, 225 Md. 386 , 171 A.2d 92 (1961). In the prior action the plaintiff had sought specific performance from his brother and sister-in-law of a contract to convey land then titled in the defendants’ names as tenants by the entireties. The plaintiff’s theory was that his sister-in-law was estopped to deny her obligation to him, although only the plaintiff’s brother had signed the contract.

After the sister-in-law’s demurrer to the complaint in the first action had been sustained, the plaintiff dismissed and brought another action which sought (1) voiding of the straw conveyances by which his brother and sister-in-law held title as tenants by the entireties, and then (2) specific performance of the same contract with his brother. We said that the plaintiff uses the same facts as in the first case but only seeks different conclusions. He claims that since the first bill did not allege fraud, res judicata does not apply. If this were so, it would strike at the essence of res judicata and the stability of legal decisions. [Id. at 390, 171 A.2d at 94 .] And in Whitaker v. Whitaker, 60 Md.App. 695 , 484 A.2d 314 (1984) a divorced wife who had previously failed to establish an interest in her former husband’s real estate based on an alleged partnership between them was barred from claiming in a subsequent action a constructive trust in that same real estate.

See also Williams v. Messick, 177 Md. 605 , 11 A.2d 472 (1940) (minority shareholder's derivative action against, inter alia, majority shareholder barred by judgment against minority shareholder in prior action against the corporation alleging waste by the majority shareholder and seeking appointment of a receiver); Moodhe v. Schenker, 176 Md. 259 , 4 A.2d 453 (1939) (second ⁴⁹⁷ action to obtain gift, based on constructive delivery, barred by failure to show delivery in prior action). On the other hand, it is also clear that the scope of a cause of action for claim preclusion purposes is not as broad as the scope of permissible joinder under modern pleading codes. Maryland Rule 2—303(c) permits a party to “state as many separate claims or defenses as the party has, regardless of consistency and whether based on legal or equitable grounds.” And see Fed.R.Civ.P., Rule 18(a) (“A party ...