This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






James E. Scott,





Foreign Affairs of Duluth, Inc.,



Filed April 11, 2000


Anderson, Judge



St. Louis County District Court

File No. C299600461



Peter J. Nickitas, Nickitas Law Office, 1507 Tower Avenue, Suite 301, Superior, WI  54880-2562 (for appellant)


John H. Bray, Clure, Eaton, Butler, P.A., 222 West Superior Street, Suite 200, Duluth, MN  55802 (for respondent)



            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant seeks review of a judgment dismissing his claims of misrepresentation and consumer fraud on the ground that the claims constituted a collateral attack on a prior judgment.  Appellant also challenges the district court’s denial of his motion to vacate.  We affirm.


            On a number of occasions in 1996 and 1997, appellant James Scott brought his automobile to respondent Foreign Affairs of Duluth, Inc. (Foreign Affairs) for repairs.  Scott paid only one-third of the amount he was billed.  Consequently, Foreign Affairs filed a conciliation court action seeking recovery of the unpaid amount.  On September 8, 1998, the conciliation court ruled in favor of Foreign Affairs finding that Scott failed to rebut the evidence that the repairs were reasonable and necessary.

            Entry of judgment in the conciliation court action was stayed until October 2, 1998.  On October 14, 1998, Scott wrote a letter to the conciliation court requesting that the judgment be vacated because he had not received notice of the court’s decision prior to the entry of judgment.  The conciliation court denied the motion.

            On November 2, 1998, Scott filed a conciliation court action against Foreign Affairs, alleging that Foreign Affairs had not performed the repair work they had claimed.  On November 4, the court administrator notified Scott that the scheduled hearing had been cancelled because it duplicated the original conciliation court action.  In response, Scott filed a demand for limited removal to district court for a new hearing on the issue of whether the conciliation court judgment should be vacated.  On December 10, 1998, the district court denied Scott’s request to vacate the judgment.  Scott did not appeal the judgment or either order denying his motions to vacate the judgment.

             On May 4, 1999, Scott filed a complaint in district court against Foreign Affairs.  Scott asserted claims for damages under the Deceptive Trade Practices Act, the Truth in Repairs Act, and the Consumer Fraud Act.  Scott also included claims for misrepresentation.  Scott’s claims all related to the same repair work that had been litigated in the conciliation court action.  Scott alleged, however, that he was unaware that Foreign Affairs had misrepresented the repair work until after the conciliation court hearing.  According to his complaint, Scott learned of Foreign Affairs’ misrepresentations after a mechanic employed by another automobile repair firm worked on his vehicle and discovered problems.

            Foreign Affairs filed a motion to dismiss or, in the alternative, for summary judgment.  On July 14, 1999, the district court granted Foreign Affairs’ motion for summary judgment.  The court reasoned that Scott’s complaint was improper because it constituted a collateral attack on the conciliation court judgment.  Scott later moved to vacate the summary judgment.  The motion was denied on September 13, 1999 on the grounds that Scott failed to show any change in circumstances since the entry of summary judgment.



            In reviewing summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The evidence must be viewed in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Scott challenges the district court’s ruling that the conciliation court judgment had a res judicata effect, which barred the present action.

            Res judicata has two distinct aspects: (1) merger or bar, and (2) collateral estoppel.  Sundberg v. Abbott, 423 N.W.2d 686, 690 (Minn. App. 1986), review denied (Minn. June 29, 1988).  Under the res judicata principle of merger or bar:

A judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and privies, not only as to every other matter, which was actually litigated, but also as to every matter, which might have been litigated therein.


Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn. 1978) (emphasis added) (quotation omitted). 

The doctrine of collateral estoppel operates to prevent the relitigation of issues actually decided in a prior action.  Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).  To invoke collateral estoppel, the following circumstances must exist:

(1) The issue was identical to one in a prior adjudication; (2) There was a final judgment on the merits; (3) The estopped party was a party or in privity with a party to the prior adjudication; and (4) The estopped party was given a full and fair opportunity to be heard on the adjudicated issue.


Bublitz v. Commissioner of Revenue, 545 N.W.2d 382, 385 (Minn. 1996).

The district court granted summary judgment because it found that Scott’s claims constituted an improper “collateral attack” on the conciliation court judgment.  We agree.  The evidence relating to the first conciliation court action in this case is generally limited to the complaint and the court’s memorandum.  The complaint sets forth in detail the repairs that were performed.  In ordering judgment in favor of Foreign Affairs, the conciliation court found:

[Scott] presented no evidence from anyone who had examined his car since these contested repairs were made to rebut [Foreign Affairs’] testimony that the repairs were reasonable and necessary.  [Scott’s] witness had not examined the car and had no specific knowledge.


Thus, the parties litigated, and the court found, that the “contested repairs” had been performed and that they were reasonable and necessary.

            Although Scott focuses on alleged misrepresentations, the crux of his current claims is that the repairs either were not performed or were not performed properly.  Those issues are the same as the ones previously litigated.  And, looking at the record, it is quite clear that Scott’s claims are nothing more than a thinly veiled attempt to relitigate the prior action with limited new evidence. 

            Moreover, Scott’s fraud claim is so weak that it is impossible to give it credence.  Scott alleged that Foreign Affairs told him it would install “new” parts and that new parts were not installed.  In support of his allegation, Scott presented an affidavit from a second mechanic who did work on his vehicle.  The affidavit asserts that the wrong part was used and that it was not a Mercedes part but says nothing whatever about whether the part was new or old.  Further, even assuming the affidavit accurately sets out the facts, appellant, at most, establishes mistakes or incompetence on the part of Foreign Affairs, not fraud.  Since the issues of the quality of the repair work by Foreign Affairs have already been litigated, his claims here of misrepresentation and consumer fraud are nothing more than a collateral attack on the conciliation court judgment and we affirm the district court’s judgment barring those claims. 


            Scott also challenges the district court’s denial of his motion to vacate the summary judgment.  Although Scott frames his argument in terms of challenging the summary judgment, what he is clearly seeking is the vacation of the conciliation court judgment.  Specifically, Scott makes numerous arguments relating to the propriety of the conciliation court’s October 16, 1998 denial and district court’s December 10, 1998 denial of his motions to vacate the conciliation court judgment.  Scott also challenges other actions taken by the courts and the court administrator in his two prior conciliation court actions.

            Scott could have appealed the conciliation court judgment, the dismissal of his second conciliation court action, and the denial of his motions to vacate, but chose not to do so.  Because Scott failed to appeal, any errors in the two conciliation court matters are not properly before this court.  See Graupmann v. Rental Equip. & Sales Co., 438 N.W.2d 711, 713 (Minn. App. 1989) (declining to review constitutional challenge to judgment in prior action which was not appealed); Art Goebel, Inc. v. Arkay Const. Co., 437 N.W.2d 117, 119 (Minn. App. 1989) (noting evidentiary issues from unappealed arbitration were not properly before court).

             Scott nevertheless continues his collateral attack relying on the provisions of Minn. Stat. § 548.14 (1998).  Section 548.14 authorizes the commencement of an action to set aside a judgment that was procured by fraud or perjury.  Although actions to set aside judgments are allowed by statute, Scott never requested that the judgment be set aside in his pleadings.  Simply stated, Scott did not bring an action to set aside a judgment in this case.

            The district court treated Scott’s motion to vacate appropriately.  It did not consider the motion as seeking to vacate the conciliation court judgment.  Rather, the motion was treated as one to vacate the summary judgment.  In fact, the motion submitted by Scott specifically requested relief from the August 13, 1999 summary judgment.  And, as the district court correctly noted, Scott presented nothing new in the way of facts or argument since the entry of judgment to warrant vacating it.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.