Ford v. New Mexico Dept. of Public Safety, 15336

CourtCourt of Appeals of New Mexico
Citation1994 NMCA 154,119 N.M. 405,891 P.2d 546
Docket NumberNo. 15336,15336
PartiesTommy FORD, Plaintiff-Appellee, v. NEW MEXICO DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
Decision Date30 November 1994

Page 546

891 P.2d 546
119 N.M. 405
Tommy FORD, Plaintiff-Appellee,
No. 15336.
Court of Appeals of New Mexico.
Nov. 30, 1994.

Page 548

[119 N.M. 407] Dick A. Blenden, Phil Blenden, Blenden Law Firm, Carlsbad, Ernest L. Carroll, Mary Lynn Bogle, Losee, Carson, Haas & Carroll, P.A., Artesia, for plaintiff-appellee.

Janet E. Clow, Carolyn R. Glick, White, Koch, Kelly & McCarthy, P.A., Santa Fe, for defendant-appellant.


HARTZ, Judge.

This appeal raises novel issues in the law of judgments. One theme permeating the law of judgments is that a litigant is ordinarily not entitled to more than one fair bite at the apple. This theme finds expression in two doctrines familiar to all litigators. The doctrine of claim preclusion (a more descriptive term for what has often been denominated res judicata) prevents a party from repeatedly bringing the same cause of action against the same person. See Three Rivers Land Co. v. Maddoux, 98 N.M. 690, 694-96, 652 P.2d 240, 244-46 (1982), overruled on other grounds by Universal Life Church v. Coxon, 105 N.M. 57, 728 P.2d 467 (1986). The doctrine of issue preclusion (a more descriptive term for what has often been denominated collateral estoppel) prevents a party from relitigating "ultimate facts or issues actually and necessarily decided [adversely to the party] in a prior suit." Silva v. State, 106 N.M. 472, 474, 745 P.2d 380, 382 (1987).

The question here is whether Plaintiff's complaint in the suit before us is barred by his loss in previous litigation. The defendants in the two lawsuits are different. Among the features of this case that create issues of first impression in New Mexico are (1) the first lawsuit was in federal court, (2) the defendant in this lawsuit is immune from suit for damages in federal court, and (3) the predicate for the claim against the defendant is vicarious responsibility for the actions of those who were defendants in the federal lawsuit. Applying Restatement (Second) of Judgments Section 51 (1980) (the Restatement), which addresses claim preclusion in the context of vicarious responsibility, we hold that Plaintiff's claim against the defendant in this case is barred by the adverse judgment in the federal lawsuit.


Tommy Ford (Plaintiff) was employed by the New Mexico Department of Public Safety (the Department) as a state police officer. After a Department employee investigated allegations of misconduct by Plaintiff, the Department notified him that he would be suspended for thirty working days. Plaintiff appealed the suspension to a disciplinary hearing panel, which affirmed the suspension and recommended that he be transferred to another post. After a further review requested by Plaintiff, the Department informed him that he would be suspended for thirty working days and transferred from Artesia to Farmington. Rather than acquiescing in the transfer, Plaintiff retired.

Plaintiff then filed suit in state court against the Department and the following individuals: John Denko, Jr., Chief of the New Mexico State Police; Richard C. de Baca, Secretary of the Department; Captain Tommy Cantou; and Lieutenant Louie Medina. (The individuals will be referred to collectively

Page 549

[119 N.M. 408] as the federal defendants.) Plaintiff sought damages under the federal civil rights statutes. His complaint alleged that the defendants had (1) violated his right to equal protection by targeting him for punishment, (2) violated his right to counsel during the disciplinary process, (3) violated his right to free speech by issuing a vague order restricting his right to contact witnesses until the Department's internal investigation had been completed, (4) violated his right to petition the government by retaliating against him (ordering his transfer) for exercising his right to appeal the proposed discipline, (5) failed to provide procedural due process during the administrative appeals process, and (6) violated his right to substantive due process by improperly depriving him of income and benefits.

The defendants removed the lawsuit to the United States District Court for New Mexico. Plaintiff then filed an amended complaint. On motion by the Department, the federal court dismissed it as a party. The court also dismissed some of the claims against the remaining defendants, and other claims were not pressed by Plaintiff. Consequently, the jury was instructed only on the claims of retaliation and denial of procedural due process. The jury returned a verdict in favor of the federal defendants. Plaintiff initially appealed the judgment but then abandoned the appeal.

Following the unsuccessful federal litigation Plaintiff filed suit in state court against the Department only. The complaint alleges that all claims are proper pursuant to the New Mexico Tort Claims Act, in particular NMSA 1978, Section 41-4-12 (Repl.Pamp.1989), which waives immunity from liability for certain acts by law enforcement officers. The misconduct alleged in the state complaint is virtually identical to that alleged in the amended complaint in federal court. The Department moved to dismiss the lawsuit, maintaining that (1) the claims were barred by the prior federal court adjudication, (2) the claims were barred under NMSA 1978, Section 41-4-21 (Repl.Pamp.1989), of the Tort Claims Act, which provides that the Act shall not affect personnel laws, and (3) immunity was not waived under Section 41-4-12 because none of the Department's employees were acting as law enforcement officers in performing the acts of which Plaintiff complains.

The district court entered an order denying the Department's motion to dismiss but included in the order the language required by NMSA 1978, Section 39-3-4 (Repl.Pamp.1991), to permit the Department to apply to this Court for leave to file an interlocutory appeal. We granted the application and now reverse, holding that the federal court judgment bars the present action. Because we rest reversal on this ground, we need not address the Department's other contentions.


A. Claim Preclusion and Vicarious Responsibility

Recognition of vicarious responsibility ordinarily favors the plaintiff. When a third party is vicariously responsible for the actions of another, the injured person is not restricted to seeking redress from the person who is primarily responsible. One clear advantage to the plaintiff is that the person vicariously responsible may be able to pay a judgment that is beyond the resources of the one who is primarily responsible. Recognition of vicarious responsibility may also provide the plaintiff with procedural advantages, enabling the plaintiff to select a more attractive forum for litigation or permitting the plaintiff to commence litigation before knowing the identities of those who bear primary responsibility (as when the tortfeasors are unidentified employees of a known business).

Yet, there is no sound reason to include among these advantages the right to litigate a claim against one who is vicariously responsible after receiving an adverse judgment in litigating the underlying claim against the person bearing primary responsibility. After noting that the claims against the primary obligor and the person vicariously responsible are "in important respects separate claims," comment b to Restatement Section 51 states:

In an important sense, however, there is only a single claim. The same loss is

Page 550

[119 N.M. 409] involved, usually the same measure of damages, and the same or nearly identical issues of fact and law. The substantive legal basis for vicarious responsibility rests largely on the notion that the injured person should have the additional security for recovery of his loss that is represented in imposition of liability on a person other than the primary obligor. The optional additional security thus afforded by rules of vicarious responsibility should not, however, afford the injured person a further option to litigate successively the issues upon which his claim to redress is founded.

Courts are committed to providing every litigant a full and fair opportunity to sue or defend. But once a judgment is rendered after such an opportunity, justice requires that there be an end to the litigation. In the context of vicarious responsibility, Restatement Section 51(1) expresses the law as follows:

If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, the judgment in the action has the following preclusive effects against the injured person in a subsequent action against the other.

(1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless:

(a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action; or

(b) The judgment in the first action was based on a defense that was personal to the defendant in the first action.1

Section 51 reflects federal law. See, e.g., Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 127-28, 32 S.Ct. 641, 642-43, 56 L.Ed. 1009 (1912); Lober v. Moore, 417 F.2d 714, 717-18 (D.C.Cir.1969); Russell v. SunAmerica Sec., 962 F.2d 1169, 1174-75 (5th Cir.1992); Citibank v. Data Lease Fin. Corp., 904 F.2d 1498, 1502-03 (11th Cir.1990); Tamari v. Bache & Co., 637 F.Supp. 1333, 1341 (N.D.Ill.1986); Davis Wright & Jones v. National Union Fire Ins. Co., 709 F.Supp. 196, 202 (W.D.Wash.1989), aff'd, 897 F.2d 1021 (9th Cir.1990). Given this authority and the sound policy underlying it, we recognize Section 51 as accurately expressing New Mexico law. In any event, we should apply Section 51 to the case before us because...

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