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Batson v. Shiflett3/12/1992
A.
Shiflett argues that petitioners' defense of collateral estoppel is an affirmative defense which was not raised in the answer to his complaint and has been waived under Maryland Rule 2-323(g), which identifies those "Affirmative Defenses" which "shall be set forth by separate defenses" in an answer to a complaint. Collateral estoppel is such a defense. Although petitioners in their answer raised nine separate "affirmative defenses," they failed to plead either collateral estoppel or res judicata. Indeed, it is unclear from the record whether the defense of collateral estoppel was properly raised at any point in the trial court.
Md.Rule 8-131(a) provides that " rdinarily" the appellate court will not decide any issue unless it plainly appears by the record to have been raised in or decided by the trial court. The Court of Special Appeals, however, in the exercise of its discretion under that rule, expressly decided the question of collateral estoppel now posed to us by the petitioners. That question was squarely raised in the petition for certiorari. The respondent did not file a cross-petition for certiorari and, therefore, did not raise the issue of whether the Court of Special Appeals abused its discretion under Md.Rule 8-131(a) by addressing the question. In reviewing a decision rendered by the Court of Special Appeals, this Court ordinarily will consider only an
issue that has been raised in the petition for certiorari or any cross-petition. Md.Rule 8-131(b)(1). Compare Neal v. Fisher, 312 Md. 685, 691 n. 5, 541 A.2d 1314, 1317 n. 5 (1988); Dean v. State, 291 Md. 198, 202, 434 A.2d 552, 554 (1981); First Nat'l Bank v. Fid. & Dep. Co., 283 Md 228, 230-31, 389 A.2d 359, 361 (1978); Coleman v. State, 281 Md. 538, 547, 380 A.2d 49, 55 (1977); Mazor v. State, Dep't of Correction, 279 Md. 355, 370-71 n. 8, 369 A.2d 82, 92 n. 8 (1977); McMorris v. State, 277 Md. 62, 65 n. 2, 355 A.2d 438, 440 n. 2 (1976); Dempsey v. State, 277 Md. 134, 142-43, 355 A.2d 455, 459 (1976); Walston v. Sun Cab Co., 267 Md. 559, 564-69, 298 A.2d 391, 394-97 (1973). Under these circumstances, we shall address petitioners' arguments based upon collateral estoppel.
B.
The Court of Special Appeals used the following test for determining whether the NLRB decision is entitled to preclusive effect:
"Whether an administrative agency's declaration should be given preclusive effect hinges on three factors: '(1) whether the [agency] was acting in a judicial capacity; (2) whether the issue presented to the district court was actually litigated before the [agency]; and (3) whether its resolution was necessary to the [agency's] decision.'"
Batson, 86 Md. App. at 356, 586 A.2d at 799 (quoting West Coast Truck Lines v. American Industries, 893 F.2d 229, 234-35 (9th Cir.1990)). This test was first enunciated in Exxon Corp. v. Fischer, 807 F.2d 842, 845-46 (9th Cir.1987), and its three prongs are supported by the Supreme Court caselaw on issue preclusion.
In United States v. Utah Constr. Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), the Court spoke particularly to the preclusive effect of administrative law rulings, stating that:
"When an administrative agency is a
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