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Moffat v. Branch5/18/2005
ral court in the context of an FTCA settlement); Jaslow v. United States, 308 F. Supp. 1164 (E.D.N.Y. 1970) (same); see also Hanna Paint Mfg. Co. v. Rodey, Dickason, Sloan, Akin & Robb, 298 F.2d 371, 372-73 (10th Cir. 1962) (affirming a federal district court's resolution of an attorney fee dispute between attorney and client, in the context of a substantial judgment against the United States). Therefore, for purposes of claim preclusion, we conclude that Moffat, through his amended complaint, is attempting to bring the "same claim" in state court that he brought in federal court.
Other Arguments
Moffat points to other aspects of this case that he argues prevent claim preclusion from applying. First, he contends that the decision in the federal action would "not foreclose subsequent litigation based upon alternative remedies." He relies on the attorney charging lien case of Sowder v. Sowder, 1999-NMCA-058, 16, 127 N.M. 114, 977 P.2d 1034, for the proposition that, even if a charging lien fails, an attorney is "free . . . to seek recovery of . . . fees through another method." While this is an accurate statement of the law, it does not alter claim preclusion principles that generally require a plaintiff to raise all legal theories in a single action. Sowder did not consider the issue; therefore, it does not stand for the idea that a creditor attorney may serially bring lawsuit after lawsuit on any theory after losing on a charging lien. See Fernandez v. Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (explaining that "cases are not authority for propositions not considered" (internal quotation marks and citation omitted)). The general rule remains that " ifferent legal theories arising out of a given episode do not create multiple transactions and hence multiple claims." Three Rivers Land Co., 98 N.M. at 695, 652 P.2d at 245 (internal quotation marks and citation omitted); see also Restatement § 25 (stating that a plaintiff is barred from raising any new evidence or theories or asking for any remedies that he or she failed to raise in the first action). We decline to create a special exception to claim preclusion doctrine for attorney charging liens and we see no discord in stating that an attorney is free to pursue both a charging lien and equitable remedies while adhering to established claim preclusion principles. See Thompson v. Montgomery & Andrews, P.A., 112 N.M. 463, 467, 816 P.2d 532, 536 (Ct. App. 1991) (stating that in the context of an attorney charging lien "a district court may freely afford the claimant an opportunity to amend in order to assert viable alternative causes of action").
Second, Moffat implies that the federal court reserved Moffat's ability to bring contract-related claims in state court when the federal magistrate stated that " he issue of other remedies, if any, is not before the Court." We do not agree. To provide safe harbor from claim preclusion, a court must "expressly reserve the plaintiff's right to maintain the second action." Restatement § 26(1)(b). It is clear that the federal court was not expressly reserving Moffat's rights to bring a second lawsuit, but was simply noting that Moffat had raised no other remedies for consideration.
Finally, the Restatement provides other exceptions to the rule against claim splitting, such as where the parties have agreed to split claims, where the judgment in the first action was plainly contrary to a legal scheme, where a plaintiff suffers a continuing wrong, or where it is clearly and convincingly shown that an extraordinary reason (such as an invalid restraint on personal liberty or an incoherent judgment in the prior action) justifies departing from the rule. Restate
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