This opinion will be unpublished and

may not be cited except as provided by

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






Jerald Alan Hammann,





Schwan’s Sales Enterprises, Inc.,



Filed September 10, 2002


Harten, Judge


Hennepin County District Court

File No. 01-17788


Jerald A. Hammann, 3131 Excelsior Boulevard, Minneapolis, MN 55416 (appellant pro se)


Randy A. Sharbono, Schwan’s Sales Enterprises, Inc., Law Department, 115 West College Drive, Marshall, MN 56258 (for respondent)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N



Appellant, a former employee whose employment was terminated, brought this action against respondent, his former employer. The district court granted respondent summary judgment and awarded attorney fees, this court affirmed, and the supreme court denied further review.  Appellant moved the district court for reconsideration, to reverse costs and for recusal; the district court denied the motion.  Appellant then sought removal of the district court judge and also brought another action against respondent based on the same facts.  The chief judge denied the motion for removal and dismissed the second action on grounds of res judicata.  Because we see no abuse of discretion in the denial of the motion and no error of law in the dismissal, we affirm.



In May 1998, appellant Jerald Hammann began employment as financial director of the Back Home Foods division of respondent Schwan’s Sales.  In 1999, appellant’s employment ended when respondent eliminated that division. 

In April 2000, appellant brought this action against respondent, alleging breach of contract, intentional misrepresentation, breach of covenant of good faith and fair dealing, false representation, and unfair discriminatory practices.  Respondent moved for and was granted summary judgment.  Appellant unsuccessfully challenged that judgment.  Hammann v. Schwan’s Sales Enterprises, Inc., No. C7-01-950 (Minn. App. 30 Oct. 2001), review denied (Minn. 29 Jan. 2002).

While the supreme court’s decision to review was pending, appellant petitioned the district court for reconsideration.  After his petition was denied, he filed a motion for relief under Minn. R. Civ. P. 60.02 and moved for the recusal of the district court judge who had granted the summary judgment.  The judge denied the recusal motion, and appellant moved the chief judge to remove the judge.  Appellant also brought a second action against respondent, alleging the same claims arising out of the same facts. 

The chief judge denied the motion for removal and dismissed appellant’s second action on res judicata grounds.   Appellant challenges the denial and the dismissal.[1]



1.            Denial of the Motion to Remove


Minn. R. Civ. P. 63.03 provides that a judge many not be removed “except upon an affirmative showing of prejudice on the part of the judge.”  The district court has discretion in deciding whether to honor a request for removal of a judge based on allegations of actual prejudice.  Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. 16 Nov. 1988). 

Appellant requested the chief judge to remove the judge who had granted respondent’s summary judgment motion, and the chief judge denied appellant’s request. Appellant believes that both judges are biased against him. 

But removal is warranted only where the judge’s impartiality might “reasonably” be questioned; therefore, a judge should not * * * be removed simply because a litigant subjectively believes the judge is biased.


State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993).  Appellant offers no basis for reasonably questioning the impartiality of either judge; he asserts only that both judges are biased because they ruled against him.  “Prior adverse rulings, however, clearly cannot constitute bias * * *.”  Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). 

            Absent any other basis for questioning the impartiality of the district court judge, the chief judge did not abuse his discretion in denying appellant’s motion to remove.

2.            Dismissal of the Second Action

This court reviews de novo whether the doctrine of res judicata applies to a given set of facts.  Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).  “If the doctrine applies, the decision whether to actually apply it is left to the discretion of the trial court.”  Id. (citation omitted).

Appellant asserts that the false representation claim in his second case “is based on an entirely new argument” and differs from the false representation claim in the first case.[2]  The record does not support this assertion.  In the first action, appellant alleged that respondent was liable for false representation because appellant was induced to change employment by respondent’s representation that appellant’s position “would be on a peer level with that of the Vice President of Marketing.”  In the false representation claim in the second action, appellant says he received a document stating that “the position would be on a peer level with several other officers of the company, including the Vice President of Marketing” and that he accepted employment at the salary offered “exactly because it placed him on a peer level with his fellow executives.”  It is at least arguable that appellant’s false representation claim is the same in both actions.

In any event, the requirement for res judicata is satisfied not only when the claim was addressed in a prior action but also when it could have been addressed in a prior action.  See Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 198 (Minn. 2000).   Appellant offers no explanation as to why his second false representation claim, if it does differ from the first, could not have been addressed in the first action.

Res judicata applies to appellant’s second action, and the chief judge did not abuse his discretion in deciding to apply it.


[1] The order challenged on appeal pertains only to the motion to remove and the dismissal of appellant’s second case on grounds of res judicata. Therefore, only these two issues are properly before us, although appellant mentions many other issues in his brief.


[2] Appellant concedes that the other claims in his second action are subject to res judicata and should be withdrawn.