This opinion will be unpublished and

may not be cited except as provided by

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







Jerald Alan Hammann,





Schwan’s Sales Enterprises, Inc.,




Filed ­­­November 2, 2004


Crippen, Judge*


Hennepin County District Court

File No. CT-03-20400



Jerald Alan Hammann, 3131 Excelsior Boulevard, Suite 701, Minneapolis, MN 55416 (pro se appellant)


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


            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant claims the district court erred in dismissing his suit on the basis of res judicata after concluding that “the matter has been fully litigated and all issues have been raised and adjudicated or should have been raised” in prior proceedings.  We affirm.


Appellant Jerald Hammann began to work for respondent Schwan Sales Enterprises, Inc. (Schwan) in 1998.  Schwan dismissed appellant when it closed his division in 1999.

In April 2000, appellant brought his first action against Schwan, claiming breach of the covenant of good faith and fair dealing, breach of contract, intentional misrepresentation, false representation, and unfair discriminatory practices.  Although appellant disputed the timing and the notice given on respondent’s summary judgment motion, the motion was granted, and this court affirmed.  Hammann v. Schwan’s Sales, No. C7-01-950 (Minn. App. Oct. 30, 2001), review denied (Minn. Jan. 29, 2002). 

In November 2001, appellant brought a second action, making a new claim of false representation and seeking to vacate the summary judgment and remove the district court judge.  On res judicata grounds, the district court denied his motion to vacate and also denied his motion to remove the judge.  Again, this court affirmed, finding that the false representation claim appeared to arise out of the same facts asserted in the first action and that, “[i]n any event, . . . [a]ppellant 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.”  Hammann v. Schwan’s Sales, No. C5-02-827, 2002 WL 31012768, at *2 (Minn. App. Sept. 10, 2002), review denied (Minn. Nov. 19, 2002).[1]

In December 2003, appellant brought his third action against Schwan, giving rise to this appeal.  In this suit, he relies on Minn. Stat. § 548.14 (2002) (judgment obtained by fraud may be set aside in an action brought within three years of the discovery of the fraud) and, for the first time, alleges fraud in respondent’s summary judgment motion and in its handling of discovery matters.   The district court dismissed on res judicata grounds and awarded Schwan $1,000 in attorney fees.  Appellant challenges both the res judicata determination and the attorney fee award.



1.         Dismissal


The district court denied appellant’s motion to set aside the summary judgment previously granted to Schwan: “[T]he matter has been fully litigated and all issues have been raised and adjudicated or should have been raised at the prior hearings at the District Court and Court of Appeals.  Res Judicata applies and the matter is dismissed.”  The applicability of res judicata is a question of law subject to de novo review.  Care Inst. v. County of Ramsey, 612 N.W.2d 443, 446 (Minn. 2000).

To bring his action under Minn. Stat. § 548.14 (2002), appellant claims that Schwan behaved fraudulently in service of its summary judgment motion and in acting before further discovery.  But appellant’s current claim is premised on facts that are essentially the same as he has stated before.  This court has already addressed claims related to respondent’s service and discovery. 

[T]he district court found no prejudice[,] noting that Hammann had time to submit a lengthy memo and supplement arguing against the motion for summary judgment.  We agree.


. . . .


Here, Hammann did not indicate that he needed information [from discovery] in order to respond to the summary judgment motion.  Moreover, he did not argue to the district court that his ability to oppose the motion for summary judgment was prejudiced, and he did not request a continuance to allow time to complete his discovery.  Because Hammann failed to raise the issue of prejudice or request a continuance at the district court, we conclude he is barred from making these arguments here.


Hammann v. Schwan’s Sales, No. C7-01-950, 2001 WL 1335704, at *1 (Minn. App. Oct. 30, 2001); see also Hammann v. Schwan’s Sales, No. A03-1496, 2004 WL 1049170, at *2 (Minn. App. May 11, 2004) (“[T]he matter has long been concluded and the file closed.  There is simply no controversy warranting judicial attention.”); Hammann v. Schwan’s Sales, No. C2-02-1675 (Minn. App. Oct. 29, 2002) (order) (“appellant has not established that it raises grounds that were not reviewable by appeal from the original judgment”).

Appellant’s current fraud claim, which may be flawed on its face,[2] offers only a new theory premised on the same facts previously presented.  “A change in legal theory cannot be used to avoid res judicata.”  Paulos v. Johnson, 597 N.W.2d 316, 319 (Minn. App. 1999) (citation omitted), review denied (Minn. Sept. 28, 1999); see, e.g., Antonson v. Ekvall, 295 Minn. 558, 559, 204 N.W.2d 446, 446 (1973) (per curiam) (holding that a prior tort claim could not be relitigated as a contract claim); Dollar Travel Agency v. Northwest Airlines, 354 N.W.2d 880, 882-83 (Minn. App. 1984) (concluding that res judicata precluded tort action based on same facts as prior contract action), review denied (Minn. Dec. 21, 1984).

Moreover, if appellant alleges any new information, it is evident that it was or could have been known when he sued respondent in 2000.  Res judicata applies when the claim could have been litigated in a prior action, even if it was not actually litigated.  See Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 198 (Minn. 2000).  Again, “[a]ppellant offers no explanation as to why his . . . claim . . . could not have been addressed in the first action.”  Hammann v. Schwan’s Sales, No. C5-02-827, 2002 WL 31012768, at *2 (Minn. App. Sept. 10, 2002), review denied (Minn. Nov. 19, 2002).

            There was no error in the dismissal of appellant’s action on res judicata grounds.

            2.         Attorney Fees

               An award of attorney fees will not be reversed absent an abuse of discretion.  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  At the conclusionof appellant’s second lawsuit, the district court imposed on appellant an award of $5,000 in attorney fees “stayed so long as [appellant] does not file additional lawsuits arising under the same set of facts in which the first two suits were brought.”  Appellant then filed this third lawsuit arising under the same set of facts, and at its conclusion, the district court referred to the prior attorney fee award and imposed an additional award of $1,000.

               Minn. Stat. § 549.211, subd. 3 (2002), provides that a court may impose sanctions on a party who violates Minn. Stat. § 549.211, subd. 2, which provides that a paper signed and presented to the court certifies that “it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” and that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”  Appellant has been
informed by the district court and on appeal that his claims are not warranted by existing law.  The court did not abuse its discretion in imposing a $1,000 sanction.



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

[1]Appellant has had other, extensive involvement with the district court and has repeatedly challenged its decisions.  See, e.g., Hammann v. Schwan’s Sales, No. A03-1496 (Minn. App. May 11, 2004) (affirming district court’s refusal to schedule a hearing in this action); Hammann v. Schwan’s Sales, No. A03-719 (Minn. App. July 22, 2003) (order op.) (dismissing appeal from the district court’s denial of appellant’s second motion to remove the judge on the ground that the motion was moot because nothing was pending before the district court), review denied (Minn. Sept. 24, 2003); Hammann v. Schwan’s Sales, No. C2-02-1675 (Minn. App. Oct. 29, 2002) (order op.) (dismissing appeal because order denying motion to vacate is unappealable).

[2] Appellant alleges fraud because he says that he received the motion for summary judgment from a courier and the affidavit of service says respondent’s attorney mailed it.  But appellant does not explain why the conduct he alleged constitutes fraud.  To establish fraud, appellant must demonstrate that Schwan made a false representation having to do with a fact that is material and able to be known, that Schwan knew its representation was false or made the representation without knowing, that Schwan intended to induce appellant to act and that appellant was in fact induced to act in reliance on the representation, and that appellant suffered damages attributable to the representation.  See Heidbreder v. Carton, 645 N.W.2d 355, 367 (Minn. 2002) (setting out the elements of fraud).  Appellant does not meet the burden of making a prima facie fraud claim.