This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Peggy C. DePetro,


Cynthia Marie DePetro,

Chad Nicholls,


Filed April 27, 2004


Peterson, Judge


Ramsey County District Court

File No. C3031450


Richard D. Kampa, Peterson, Engberg & Peterson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN  55401-2498 (for respondent)


Cynthia Marie DePetro, PO Box 120326, New Brighton, MN  55112 (pro se appellant)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D    O P I N I O N


In this appeal from a summary judgment in an eviction action, appellant argues that (a) respondent is not the owner of the property in question; (b) appellant was entitled to a jury trial, which did not occur; (c) the record does not support the district court’s rulings; and (d) respondent failed to provide discovery.  We affirm.


            Respondent Peggy DePetro is the owner of a townhome.  For several years, respondent allowed her adult daughter, appellant Cynthia Marie DePetro, to live in the townhome.  Appellant did not pay rent or assume any other financial obligations related to the townhome.  

            In April 2002, respondent’s attorney sent appellant a letter stating that appellant must vacate the townhome by June 15, 2002.  Appellant failed to vacate the townhome, and respondent began an eviction action against her.  Following a trial, the district court granted judgment for respondent.  Appellant appealed, but this court dismissed the appeal because appellant failed to file a brief after being granted an extension of time to file a brief. 

            Respondent obtained a writ of recovery against appellant, but the writ expired before appellant vacated the townhome.  The writ directed the sheriff to return the writ in 30 days, and the district court administrator interpreted the statutes governing eviction proceedings as prohibiting the reissuance of a writ that is not executed within 30 days.  As a result, respondent commenced a second eviction action against appellant.     Respondent moved for summary judgment.  Because the hearing on the motion was scheduled less than 28 days after service and filing of the notice of motion and motion, which violated Minn. R. Gen. Pract. 115.03, the district court denied the motion.  Respondent filed a motion for reconsideration of the order denying summary judgment. 

            Upon reconsideration, and following a hearing on respondent’s motion, the district court granted summary judgment for respondent under the doctrines of res judicata and collateral estoppel.  The district court found:

            5.         This action is in all pertinent respects identical to the earlier unlawful detainer/eviction action . . . .  That matter was tried before the [district court] . . . and resulted in the issuance of an Order and judgment in favor of [respondent] and against [appellant].


            6.         In the earlier action [the district court] specifically found that [respondent] was the owner of the premises in question and entitled to immediate possession thereof and a writ of restitution.  The issues in that matter were identical to the legal issues properly presented in this action.  [The order and judgment in the earlier action] was a final judgment on the merits of those issues, and both [respondent] and [appellant] were parties to that action and were given a full and fair opportunity to be heard on the adjudicated issues.


            7.         [Appellant] has not raised any claims or defenses in this action which were not presented or could not have been presented in the earlier action.


            This appeal followed.


            “On appeal from . . . summary judgment, this court must determine whether any genuine issues of material fact exist and whether the [district court] erred in its application of the law.”  Care Inst., Inc. v. County of Ramsey, 612 N.W.2d 443, 445 (Minn. 2000).  No genuine issue of material fact exists when collateral estoppel conclusively precludes relitigation of an issue.  State Farm Mut. Auto. Ins. Co. v. Spartz, 588 N.W.2d 173, 175 (Minn. App. 1999), review denied (Minn. March 30, 1999).

            This court reviews the availability of collateral estoppel as “a mixed question of law and fact subject to de novo review.”  Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996). But the decision to apply collateral estoppel is left to the district court’s broad discretion and will not be reversed absent an abuse of that discretion.  In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

            Collateral estoppel, or issue preclusion, is one of two forms of res judicata.  Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978).  Collateral estoppel is appropriate “where (1) the issue [is] identical to one [decided] in a prior adjudication; (2) there [is] 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 [had] a full and fair opportunity to be heard.”  Kaiser v. N. States Power Co., 353 N.W.2d 899, 902 (Minn. 1984).  The issue determined must have been necessary and essential to the prior adjudication.  Hauser, 263 N.W.2d at 808.  A judgment of restitution in an eviction action can have collateral estoppel effect on the issue of the right to possession.  Cole v. Paulson, 380 N.W.2d 215, 218 (Minn. App. 1986).

            The issue in this action, respondent’s right to possession of the townhome, is identical to the issue in the prior action and was necessary and essential to the prior action.  Appellant was a party in the prior action.  The district court did not abuse its discretion by applying collateral estoppel.

            Appellant argues that she was not given a sufficient opportunity to present her defense that, although respondent has title to the townhome, the townhome was purchased for appellant, and appellant is the true owner of the townhome.    “Eviction” is “a summary court proceeding to remove a tenant or occupant from or otherwise recover possession of real property.”  Minn. Stat.§ 504B.001, subd. 4 (2002).  Counterclaims and equitable defenses may be addressed in an eviction proceeding only if the eviction action presents the only forum for litigating these claims.  Fraser v. Fraser, 642 N.W.2d 34, 40-41 (Minn. App. 2002).  Appellant has not demonstrated that she could not have brought a separate action to determine her alleged ownership rights.  See Minn. Stat. § 559.01 (2002) (allowing action to determine title to property by person in possession of property); Lilyerd v. Carlson, 499 N.W.2d 803, 812 (Minn. 1993) (stating an eviction action “usually does not bar subsequent actions involving title or equitable rights of the parties”); see also Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating party seeking reversal has burden of demonstrating error), review denied (Minn. June 28, 1993); Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109 (Minn. App. 1987) (stating “[p]ro se litigants are generally held to the same standards as attorneys”).

            Appellant also refers to problems she has had with the townhome association and appears to argue that the eviction action was motivated by the townhome board.  But appellant does not explain how the alleged misconduct by the association board affects the validity of the eviction.

            Appellant argues that she was not granted a jury trial.  In an eviction action, “[e]ither party may demand a trial by jury.”  Minn. Stat. § 504B.335(b) (2002).  Appellant demanded a jury trial, and a jury trial was scheduled, but respondent moved for summary judgment, and the motion was granted under the doctrines of res judicata and collateral estoppel.  In the earlier eviction action upon which the court relied to apply collateral estoppel, appellant initially demanded a jury trial.  But, appellant could not obtain counsel, and after the court repeatedly asked appellant if she wanted a jury trial or a court trial, appellant responded, “It’s hard for me to have a jury trial at this time, I guess, because I don’t have proper representation.” Appellant did not want to waive a jury trial, but, without counsel, she did not want to proceed with a jury trial.  Appellant’s equivocal answer to the district court’s direct question was not a demand for a jury trial.

Appellant also argues that she has been denied due-process rights because she did not have access to her assets and the district court declined to appoint counsel for her.  Indigent parties generally do not have the right to court-appointed counsel in civil proceedings.  See Hepfel v. Bashaw, 279 N.W.2d 342, 344, 348 (Minn. 1979); see also In re Peters, 332 N.W.2d 10, 16-17 (Minn. 1983) (explaining Hepfel).  Appellant has not demonstrated that this is an exceptional civil case warranting court-appointed counsel.  This court will not presume error on appeal.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).

            Appellant contends that the district court erred in granting respondent’s motion to reconsider the order denying summary judgment.  “Motions to reconsider are prohibited except by express permission of the court, which will be granted only upon a showing of compelling circumstances.” Minn. R. Gen. Pract. 115.11. Respondent’s counsel represents that the denial of summary judgment resulted from a scheduling error by the district court.  The district court did not err by reconsidering the denial of summary judgment under these circumstances.

            Appellant argues that respondent did not provide adequate discovery with respect to respondent’s attorney’s representation of the board of the townhome assocation.  The discovery sought by appellant relates to matters beyond the scope of this eviction proceeding.

            The district court did not err in granting summary judgment for respondent under the doctrine of collateral estoppel.