This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1680

Princeton Bank,

Respondent,

vs.

Minnesota Development Council, Inc.,

Defendant,

Douglas A. Marshall,

Appellant.

Filed March 18, 1997

Affirmed

Mulally, Judge

[*]

Mille Lacs County District Court

File No. C7-94-670

Jeffrey R. Ansel, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for Respondent)

Douglas A. Marshall, 9795-18th Street, Princeton, MN 55371 (Appellant Pro Se)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Mulally, Judge.

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

MULALLY, Judge

Appellant Douglas Marshall challenges the grant of summary judgment for respondent Princeton Bank (Bank). Concluding Marshall's counterclaim was similar to his counterclaim adjudicated in a prior case, the district court applied the doctrine of res judicata. We affirm.

FACTS

Bank brought an action against Cooperative Environmental Services, Inc. (CES), Donald Herbst, and Marshall alleging the defendants defaulted on certain promissory notes and guaranties (CES action). Several months later, Bank commenced the instant action against Minnesota Development Council, Inc. (MDC) and Marshall to recover on another promissory note and personal guaranty (MDC action). On a motion to consolidate the two actions, the district court ruled it would try the actions separately.

The defendants in the CES action filed separate answers and counterclaims. Two weeks later, Marshall filed his answer in the MDC action and asserted a counterclaim substantially similar to his counterclaim in the CES action.[1] Bank moved for summary judgment in the MDC action and argued that Marshall's counterclaims were identical and should not be litigated in separate proceedings. The district court granted partial summary judgment for Bank on its claims, but denied dismissal of Marshall's counterclaim until the court considered the counterclaim's merits in the CES action.

Subsequently, Bank moved for summary judgment in the CES action. The district court granted Bank's motion for summary judgment and dismissed Marshall's counterclaim; judgment was entered in the CES action. Thereafter, Bank moved for summary judgment to dismiss the sole remaining issue in the MDC action--Marshall's counterclaim. The district court granted summary judgment to Bank and dismissed the counterclaim based on res judicata.

D E C I S I O N

On appeal from summary judgment we consider (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review de novo whether the doctrine of res judicata is applicable to a given set of facts. Erickson v. Commissioner of the Dep't of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992). If the doctrine applies, the ultimate decision whether to actually apply it is left to the discretion of the district court. Id.

Marshall argues the district court erred when it ruled the doctrine of res judicata precluded consideration of his counterclaim and granted summary judgment for Bank. He contends (1) the judgment entered in the CES action lacked "sufficient finality" for res judicata purposes because the judgment was appealed, (2) Bank's pleadings were insufficient to raise res judicata as an affirmative defense, and (3) he was denied adequate discovery.

I

Res judicata is applicable when (1) there has been a final judgment on the merits, (2) there has been a second suit involving the same cause of action, and (3) the parties are identical or in privity. See In re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn. App. 1996) (enumerating three components of res judicata).

[U]nder the law, as declared by the Supreme Court of Minnesota, an appeal does not vacate or annul a judgment, and the matters determined remain res judicata until the judgment is reversed.

Simonds v. Norwich Union Indem. Co., 73 F.2d 412, 416 (8th Cir. 1934) (citations omitted). The supreme court has long held that an appeal does not affect the preclusive nature of a judgment. Wilcox Trux, Inc. v. Rosenberger, 169 Minn. 39, 43, 209 N.W. 308, 310, aff'd on reh'g, 169 Minn. 39, 44, 211 N.W. 822, 822 (1926); State ex rel. Spratt v. Spratt, 150 Minn. 5, 7, 184 N.W. 31, 32 (1921). We have applied this well-established rule and held that an appeal does not affect the finality of a judgment for res judicata purposes. See American Druggists Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 572 (Minn. App. 1984) (citing Spratt for rule that appeal after final judgment does not affect judgment as bar). Therefore, we are not persuaded by Marshall's argument that the judgment in the CES action was not final pending its appeal. The district court correctly found res judicata applicable to bar the counterclaim.

II

Marshall contends Bank's pleadings were insufficient to raise res judicata as an affirmative defense per Minn. R. Civ. P. 8.03. Marshall failed to raise this issue with the district court, however, and we will not consider this issue for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ("A reviewing court must generally consider 'only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.'") (quoting Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)); Aesoph v.Golden, 367 N.W.2d 639, 643 (Minn. App. 1985) ("Issues not raised below cannot be considered for the first time on appeal.").

Furthermore, even if we were to consider Marshall's contention, our review of Bank's responsive pleading indicates it pleaded res judicata in a section entitled "Affirmative Defenses." Bank raised the defense that Marshall's counterclaim was barred on the grounds he had already asserted the counterclaim in the CES action. This pleading gave Marshall sufficient notice of Bank's affirmative defense.

III

Marshall asserts that he was "denied adequate discovery." The district court, however, denied Marshall's motion to compel discovery after the court dismissed the sole remaining matter--the counterclaim. With no issues remaining before the district court, there was no need for further discovery. See Minn. R. Civ. P. 26.02(a) (parties may obtain discovery of relevant matter in pending action).

Affirmed.

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

[ ]1 Marshall concedes the counterclaims in both cases are similar. Moreover, Marshall failed to respond in the allotted time to Bank's request for admissions, which included an admission that his counterclaim in the MDC action was the same as his counterclaim in the CES action. Due to his untimely response, the matter was deemed admitted. See Minn. R. Civ. P. 36.01 (matter deemed admitted unless party serves timely response).