This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Kathleen Tokheim,





Eugene W. Pollard, individually and in his

capacity as a Minnesota State Trooper,



Francisco Rodriguez, individually and in his

capacity as a Minnesota State Trooper,



Minnesota Commissioner of Public Safety, et al.,




Filed September 11, 2001


Halbrooks, Judge


Ramsey County District Court

File No. C1989546


Kathryn R. Burke Browne, Albert T. Goins, Ward, Goins, Ward & Wood, P.A., 1919 University Avenue, Suite 116, St. Paul, MN 55104; and


Manly A. Zimmerman, Zimmerman & Bix, Ltd., 4535 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)


Eugene W. Pollard, 525 Third Avenue NE, Waseca, MN 56093 (pro se respondent)


Francisco Rodriguez, Lot 69, 3305 South Broadway Street, Alexandria, MN 56308 (pro se respondent)


Mike Hatch, Minnesota Attorney General, P. Kenneth Kohnstamm, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondents Commissioner of Public Safety and State of Minnesota)



            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant sued the state and two former state troopers after the troopers sexually assaulted her.  The district court granted the state’s motion for summary judgment and dismissed appellant’s claims against the state, finding the state not liable for the ex-troopers’ actions.  Appellant contends that (1) the district court’s summary judgment erroneously relied on a since-voided declaratory judgment; (2) there are issues of material facts as to scope of employment; and (3) she should be granted judgment based on the collateral-estoppel effect of default judgments obtained against the ex-troopers individually on appellant’s 42 U.S.C. § 1983 claims.  Because the district court did not err in denying the motion to vacate, we affirm. 


            In September 1995, Minnesota state troopers Eugene Pollard and Francisco Rodriguez attended a state-sponsored training session.  The state provided the out-of-town troopers with hotel accommodations.  After the training session ended at 4:30 p.m., the troopers went off-duty.  Later that evening, while off-duty and not in uniform, the troopers engaged in sexual activity with appellant Kathleen Tokheim.

            Appellant alleged that the sexual relations were nonconsensual, and criminal charges were filed against the troopers.  In addition, appellant filed a civil suit against the troopers individually and in their official capacities, and against the Minnesota Commissioner of Public Safety and the State of Minnesota as their employers.  The troopers requested that the state defend and indemnify them.

The commissioner determined that the troopers’ actions were outside the scope of their employment, and pursuant to Minn. Stat. § 3.736, subd. 9 (2000), the Department of Public Safety declined to certify the troopers for defense and indemnification in this matter.  The troopers chose not to appeal the decision.[1]

            The state filed a declaratory-judgment action in district court, seeking a determination that it did not need to indemnify and defend the troopers.  Appellant intervened, arguing that the court lacked subject-matter jurisdiction.  The state moved for summary judgment, and the district court granted the state’s motion.  Appellant then moved for reconsideration, the district court denied the motion, and she appealed to this court.  In an earlier decision, we held that, because the commissioner’s refusal to defend or indemnify was a quasi-judicial decision, the district court lacked subject-matter jurisdiction over the state’s declaratory-judgment action and its judgment was void ab initio.  State v. Tokheim, 611 N.W.2d 375 (Minn. App. 2000).

            Before this court’s decision was released, the state moved to amend the scheduling order.  The court granted the motion and heard summary-judgment arguments.  The state argued that, based on the district court’s declaratory-judgment decision, there were no material facts at issue.  Appellant argued that the motion was procedurally improper and the state was inappropriately relying on the results of the declaratory-judgment action, but appellant presented no fact issues in opposition to the motion.  

In November 1999, the district court granted summary judgment to the state and to the troopers in their official capacities.  After this court’s decision invalidating the district court’s declaratory-judgment order, appellant moved to vacate the summary-judgment order on the merits.  Again, appellant argued that the district court’s order improperly relied upon the since-vacated declaratory judgment.  The district court denied her motion and held that, because the troopers did not appeal the commissioner’s decision by writ of certiorari, the commissioner’s decision is final.  In addition, the court held that the summary judgment decision involved a substantive determination made by the court “independent” of the declaratory-judgment action.  This appeal follows. 




            Appellant argues that the district court erroneously relied on the now-voided declaratory-judgment order in granting summary judgment.  Appellant also argues that it is inequitable to base a summary-judgment decision on facts developed without the participation of the party against whom the summary judgment is sought.  Absent an abuse of discretion, a reviewing court will uphold a district court’s decision regarding the vacation of judgment under Minn. R. Civ. P. 60.02.  Meyer v. Best Western Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn. App. 1997), review denied (Minn. June 26, 1997).

In its order denying the motion to vacate the summary judgment, the court acknowledged that it had referenced the commissioner’s findings.  Because it was an administrative matter between the commissioner and the troopers, appellant could not participate in the fact-development stage of the commissioner’s decision.  Instead, she subsequently intervened when the state attempted to use this decision in a declaratory-judgment action.  The district court used the facts developed by the commissioner in issuing the declaratory judgment, but the court noted that the issues in the summary judgment were slightly different from the declaratory-judgment action.  And the district court recognized that the summary judgment ruling involved a substantive determination made by the court “independent” of the declaratory-judgment action.

We are concerned about the fairness of a summary-judgment order in which a party against whom it was sought could not contribute to the development of the factual record.  But we note that appellant had the chance to challenge the facts at issue and did not do so.  At the declaratory-judgment proceedings, appellant did not argue that the facts were inaccurate or that the development process was flawed.  Instead, she argued the district court lacked subject-matter jurisdiction.  Again, at the hearing on the summary-judgment motion, appellant did not argue that the fact development was flawed or inappropriate.  Appellant neither contested the established facts nor presented any conflicting facts.  We conclude that, because appellant was given opportunities to develop the facts in proceedings after the administrative process had concluded and did not, the district court did not abuse its discretion in denying the motion to vacate.    


Appellant argues that because she received default judgments against the troopers in their individual capacities under a complaint that included 42 U.S.C. § 1983 “color of law” claims, the state is barred by the principles of collateral estoppel or res judicata from litigating the scope-of-employment issue.  Minnesota courts use a three-prong test to determine whether res judicata applies:  (1) a final judgment on the merits, (2) a second suit involving the same cause of action, and (3) identical parties or parties in privity.  Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn. 1978).

To invoke collateral estoppel, the following factors must be present:

(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. Comm’r of Revenue, 545 N.W.2d 382, 385 (Minn. 1996) (citation omitted).  Collateral estoppel operates only as to matters actually litigated, determined by, and essential to a previous judgment.  In re Application of Hofstad to Register Title to Certain Land, 376 N.W.2d 698, 700 (Minn. App. 1985).  Here, the default judgments were entered because the troopers failed to participate in the action, so the scope-of-employment issue was not an “essential” matter nor was it “actually litigated.”

In addition, appellant’s argument fails because her federal color-of-law claims are not equivalent to her state law scope-of-employment claims.  Section 1983 imposes liability on persons acting under “color of law” who deprive another of constitutional or statutory rights.  42 U.S.C. § 1983 (1994).  Under Minnesota law, an employer is liable for the intentional acts of an employee acting within the “scope of employment” if the acts were foreseeable, related to, and connected with duties of the employee, and were committed during work-related limits of time and place.  Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1982).  But courts have held that color of law and scope of employment are concepts that are analytically distinct from each another.  E.g., Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085, 1093 (7th Cir. 1990) (holding that a finding that a public employee acted under “color of law” for purposes of section 1983 does not automatically establish that the employee acted within the “scope of employment” under the state’s indemnity statute); Pitchell v. Williams, 739 A.2d 726 (Conn. 1999) (reversing summary judgment that had been granted on the basis of section 1983 claims when court did not reach issues necessary to determine the state-law scope-of-employment claim).  Because these concepts differ, a decision on one does not necessarily decide the other or result in a proper application of res judicata or collateral estoppel.         

Moreover, both res judicata and collateral estoppel require identical parties or parties in privity.  Privity does not follow one specific definition but rather expresses the idea that, in some situations, a judgment should determine the interests of certain non-parties closely connected with the litigation.  Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).  Privity requires that the estopped party’s interests have been sufficiently represented in the first action so that the application of collateral estoppel is not inequitable.  Id.  But “privity does not necessarily exist in the employer-employee relationship.”  Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn. 1984) (citations omitted).

Reasons militating against finding employer-employee privity include that the first action was not brought on behalf of the party sought to be precluded; that the party to be precluded did not control the first action; that the party did not have a direct financial interest in the prior lawsuit; and that the party did not have the right to appeal from the prior judgment. 


Id.  (citation omitted).

Here, the state did not represent or indemnify the troopers in their individual capacities.  Moreover, the state did not have a direct financial interest or control in the first action, or the right to appeal.  Therefore, there is no privity because the state’s interests were not sufficiently represented in the default proceedings.  Because the default judgment and this suit assert dissimilar claims and there is a lack of privity, appellant’s res judicata or collateral estoppel arguments fail.


Alternatively, appellant argues, based on Minn. Stat. § 3.736, subd. 9 (2000), that whether the troopers’ conduct was within the scope of employment is an issue of material fact that cannot be decided by summary judgment.  Minn. Stat. § 3.736, subd. 9, provides in part:

The state shall defend, save harmless, and indemnify any employee of the state against expenses, attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the employee in connection with any tort, civil, or equitable claim or demand, or expenses, attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the employee in connection with any claim or demand arising * * * out of an alleged act or omission occurring during the period of employment if the employee provides complete disclosure and cooperation in the defense of the claim or demand and if the employee was acting within the scope of employment.  * * *  The determination of whether an employee was acting within the scope of employment is a question of fact to be determined by the trier of fact based upon the circumstances of each case:


* * * *


(iii) if an unfavorable certification is made * * * .


This statutory section, the indemnification provision of the Tort Claims Act, has been previously interpreted by this court.  See Johnson v. Miera, 433 N.W.2d 926 (Minn. App. 1989), review denied (Minn. Jan. 31, 1989).  We held in Johnson that a judgment creditor has no standing to assert a cause of action under Minn. Stat. § 3.736, subd. 9, when the judgment-debtor state employee has not sought indemnification.  Id.  Neither Pollard nor Rodriguez challenged the commissioner’s determination that they were acting outside the scope of their employment when these acts occurred.  As in Johnson, appellant in this case is an injured third party who is claiming to be a beneficiary of this statute.  Because this statutory section was intended to “shield the employee from financial ruin resulting from an act committed within the scope of employment” and not to benefit injured third parties, appellant’s attempt to evade summary judgment on this basis fails.  Id. at 927.

Under the common law, “scope of employment” does not have a set definition and is usually a question of fact for the jury.  Marston, 329 N.W.2d at 311.

But when the evidence in the record is conclusive on all of the necessary elements or there is an absence of evidence to support a necessary element, no fact issue is presented for the jury and the scope of employment is determined as a matter of law.


Hentges v. Thomford, 569 N.W.2d 424, 427 (Minn. App. 1997) (citations omitted).

For an employer to be vicariously liable for an intentional wrong of an employee, as in the present case, the conduct must occur within work-related limits of time and place, and the conduct should be foreseeable from the nature of the employment and the duties relating to it.  Marston, 329 N.W.2d at 311.  Here, the troopers met appellant at a hotel pool.  Although they were at the hotel for work-related training, the troopers met appellant when they were off-duty and not in uniform.  Later, appellant and the troopers consumed alcohol at the hotel bar and then engaged in sexual conduct.  None of these activities could reasonably be described as work-related in time or place for a state trooper. 

Significantly, appellant has not presented evidence that the state could have foreseen or in any way anticipated this conduct, based on duties related to law enforcement or the employment history of the troopers.  In Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 911 (Minn. 1999), the supreme court reversed a grant of summary judgment for an employer, holding that viewing the evidence in a light most favorable to the plaintiff raised a factual question about the foreseeability of sexual abuse by an employee of a group home.  The court concluded that, even though the assault on a minor was “criminal and personally motivated,” the assault would not have occurred “but for” the program counselor’s employment.  Id.  The court relied on an expert affidavit stating that sexual abuse is a “well known hazard in the group home industry” as sufficient evidence to “create a genuine issue of fact as to whether an employee’s tort is foreseeable.”  Id. at 912-13.  In contrast, in P.L. v. Aubert, 545 N.W.2d 666, 668 (Minn. 1996), the supreme court held that, based on the evidence presented, a sexual relationship between a teacher and student is not a well-known hazard, so the foreseeability necessary to hold employer liable was absent.

Here, appellant failed to meet her burden of proof.  Although the actions of the troopers were “personally motivated,” there is no evidence that sexual assault by off-duty troopers is a well-known hazard of law-enforcement employment.  Appellant did not produce any evidence that created a question of fact as to whether the troopers’ acts were foreseeable.  Where the evidence is conclusive or undisputed, this court may find that as a matter of law an employee was not acting within the scope of his employment.  Porter v. Grennan Bakeries, 219 Minn. 14, 20, 16 N.W.2d 906, 909 (1944) (affirming directed verdict for employer, finding employee as matter of law acted outside scope of employment).  Even if we assume all the facts that appellant alleges to be true, appellant fails to present any evidence to support the foreseeability element.  Accordingly, the district court did not err granting summary judgment or in denying the motion to vacate.



Appellant argues that the district court erred in finding that appellant should have sought reconsideration of the merits of summary judgment before seeking to vacate the order.  Questions of civil procedure are issues of law, which this court reviews without deference to the district court.  Carter v. Anderson, 554 N.W.2d 110, 112 (Minn. App. 1996).

In denying appellant’s motion to vacate, the district court held that appellant was required to move for reconsideration under Minn. Gen. R. Pract. 115.11 when moving to vacate under rule 60.02.  The court cited to Carter and stated that appellant was improperly attempting to vest the district court with appellate jurisdiction by requesting reconsideration or vacation of judgment past the appellate time period.  554 N.W.2d at 113 (rejecting an attempt to use rule 60.02 as a means to correct judicial error).  In Carter, a party moved for “reconsideration” by filing a 60.02 motion.  Id. at 112.  But despite labeling it a 60.02 motion, the party simply reargued its case.  The district court reversed its prior decision, “seemingly conclud[ing] that there had been judicial error.”  Id. at 113.  This court held that 60.02 motions are inappropriate for “general correction of judicial error” and can be “utilized only if one of the grounds specified in the rule exists.”  Id. (citation omitted); see also Arzt v. Arzt, 361 N.W.2d 135, 136 (Minn. App. 1985) (noting that rule 60.02 is not intended to correct judicial error).    

This was not a motion simply seeking to correct judicial error.  Instead, appellant specifically moved to vacate under 60.02(e), alleging that the district court based its summary-judgment order on the since-vacated declaratory-judgment action.  The district court erred in requiring a rule 115.11 letter before a rule 60.02 motion, but it is harmless error because the court also ruled on the merits of the motion.  See Minn. R. Civ. P. 60.01 (stating harmless error to be ignored).  Because the court ruled on the substance of appellant’s motion and she did not challenge these findings, any procedural error is harmless.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (to prevail on appeal, appellant must show both error and that error caused prejudice).



Finally, appellant argues that the district court abused its discretion by allowing the state to move for summary judgment after the scheduling-order deadline and outside of the time limits set by the Minnesota Rules of Civil Procedure.  Appellant also alleges that the court pre-judged the case and “never intended” to consider the issues on the merits.  But appellant cites no authority for these arguments.  Rather, she simply asserts that the district court anticipated granting summary judgment based on its “prior ruling as to the declaratory relief.”  Because appellant offers nothing more than mere assertions, these arguments are without merit.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (noting that party’s assertion of error, without more, is ordinarily inadequate); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919-20 n.1 (Minn. App. 1994) (noting that courts decline to address allegations unsupported by legal analysis or citation).


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

[1]  The district court issued default judgment against both Pollard and Rodriguez in their individual capacities and in January 2000 awarded appellant damages in the amount of $200,000.