may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Gary D. Pihlstrom,
James Wolnik, et al.,
Joe Morin, et al.,
Filed December 15, 1998
Toussaint, Chief Judge
Hennepin County District Court
File Nos. 9614933 and 975550
John C. Gunderson, North Central Life Tower, 445 Minnesota Street, Suite 2200, St. Paul, MN 55101 (for respondents)
Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.
Appellant Sheila Kozar challenges the district court's (1) grant of summary judgment without first allowing discovery; (2) grant of summary judgment on her claims of defamation, negligent infliction of emotional distress, tortious interference with contract, and negligent hiring, retention, and supervision. Kozar also contends she has preserved for appeal the issues of whether certain respondents breached a duty to issue a public retraction after allegedly defaming her, and whether they are liable as the original publishers for alleged republications of defamatory statements. Kozar moves the court of appeals to strike portions of respondents' brief not referenced in their Notice of Review, and not addressed by the district court. Appellant Pihlstrom appeals the district court's award of attorney fees against him. Respondents move this court for attorney fees and costs.
Because (1) Kozar was not prejudiced by the stay of discovery; (2) all Kozar's defamation claims were either barred by res judicata or subject to a privilege; (3) Kozar's allegations of negligent infliction of emotional distress, tortious interference with contract, and negligent hiring, retention and supervision fail to state claims upon which relief can be granted; and (4) the district court did not abuse its discretion by awarding attorney fees, we affirm the grant of summary judgment and attorney fees. Because Kozar has not adequately briefed the issue of whether certain respondents breached a duty to issue a public retraction, she has waived this issue on appeal. Because (1) the issue of whether certain respondents are liable as the original publishers for alleged republications of defamatory statements was adequately briefed, Kozar has preserved this issue on appeal; (2) respondents were not required to file a Notice of Review for alternative defenses not addressed by the district court, Kozar's motion to strike these arguments from respondents' brief is denied; (3) we need not address alternative defenses raised by respondents but not addressed by the district court, Kozar's motion to strike these arguments is moot; and (4) Kozar has acted to cause unnecessary delay, a needless increase in the cost of litigation, and asserts claims not warranted by existing law, we grant respondents' motion for attorney fees and costs on appeal.
Kozar's only reference to her claim that respondents had a duty to issue a public retraction after allegedly defaming her was a mere mention that respondents made no effort to stop the rumors. Kozar gave no legal analysis or citation in support of her contention; therefore, she has waived her right to appeal this issue.
In contrast, Kozar provided an abbreviated legal analysis and citations to persuasive authority in support of her argument that the original publishers of the alleged defamatory statements would be liable for republication. Thus, she has preserved this issue on appeal.
Because the district court made references to extra-pleading material in its order, this motion was correctly treated as one for summary judgment.
Kozar served respondents with several discovery requests relating to her second lawsuit (Kozar II). She then commenced her third lawsuit (Kozar III), and brought a motion to compel discovery in Kozar II. The district court granted respondents' motion to stay all discovery related to Kozar II and to prohibit Kozar from engaging in discovery related to Kozar III, until the court decided respondents' motion for judgment on the pleadings. Kozar argues that because respondents' motion was ultimately treated as one for summary judgment, she was prejudiced by not having the opportunity to engage in discovery so she could raise genuine issues of material fact for several of her claims in Kozar II and III.
The district court granted respondent's motion for summary judgment on all Kozar's claims because they either failed to state a claim upon which relief could be granted or because they were barred by res judicata. Because Kozar's claims were not decided on factual issues, but were dismissed as a matter of law, we conclude she was not prejudiced by her inability to engage in discovery.
Res judicata acts as a bar to subsequent suits between the same parties or their privies for the same cause of action as was previously determined in a judgment on the merits. Nitz v. Nitz, 456 N.W.2d 450, 451 (Minn. App. 1990) (barring subsequent suits for negligent maintenance, inspection, and design of birdfeeder after judgment on the merits as to negligent installation of bird feeder). Res judicata bars not only every matter that was actually litigated, but also every matter that might have been litigated therein. Id. Res judicata applies where there is (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. Youngstown Mines Corp. v. Prout, 266 Minn. 450, 466, 124 N.W.2d 328, 340 (1963).
Kozar does not appeal the district court's conclusion that the first element was met. As to the second element, we conclude that Kozar's defamation claims alleged in Kozar II and III involve the same cause of action as was litigated in Kozar I. We do not agree with Kozar's argument that republications of a defamatory statement give rise to new causes of action and that the 1936 supreme court case, Lloyd v. Farmers Co-Operative Store of Cleveland, 197 Minn. 387, 389, 267 N.W. 204, 205 (Minn. 1936), allows her to sue upon these actions separately. The modern concept of "claim preclusion" is "broader than traditional notions of res judicata in that it bars prosecution of claims which have never been litigated between the parties." Anderson v. Werner Continental Inc., 363 N.W.2d 332, 334 (Minn. App. 1985) (citation omitted). "[C]laim preclusion is based upon, and limited by, the ability of [a] plaintiff under modern liberalized joinder-of-claims rules to present all of his or her claims in one proceeding." Id. "A test for determining whether two successive suits involve the same claims is to inquire whether both actions arise from the `same operative nucleus of facts,'" Nitz, 456 N.W.2d at 451, because a "change in theory cannot be used to avoid res judicata." Id. at 452.
The alleged defamatory statements that gave rise to Kozar II and III are merely republications of the same statement involved in Kozar I and arise from the same operative nucleus of facts alleged in Kozar I. Kozar had ample opportunity to join these claims to her first lawsuit. Under Anderson, Kozar has waived her right to litigate these republications, even though she never actually litigated them in Kozar I.
As to the third element, res judicata bars a claim by the same plaintiff against different defendants where their rights and liabilities are virtually identical. Nitz, 456 N.W.2d at 452. A judgment against a corporation is in effect a judgment against the stockholders, even though the latter were not parties to the first litigation. Bifulk v. Evans, 353 N.W.2d 258, 261 (Minn. App. 1984). Furthermore, Minnesota has recognized an exception to the doctrine of privity otherwise essential to res judicata where a defendant may not have technically been in privity, but where a plaintiff has had a full opportunity to present her case. Gammel v. Ernst & Ernst, 245 Minn. 249, 257, 72 N.W.2d 364, 369 (1955); Myhra v. Park, 193 Minn. 290, 258 N.W. 515 (1935); cf. Miller v. Simons, 239 Minn. 523, 59 N.W.2d 837 (1953).
[A] plaintiff, who has selected his forum and presented his proof on an issue, is bound by the judgment rendered therein on such issue in any subsequent action, even though against another party, since public policy should not permit retrial of an issue each time a new defendant can be found.
Gammel, 245 Minn. at 257, 72 N.W.2d at 369.
Wolnik was the vice-president of St. John's, a Minnesota corporation; therefore, he was in privity with the defendant in Kozar I. Consistent with Bifulk, a judgment in favor of a corporation, St. John's, is a judgment in favor of its officer, Wolnik. Furthermore, public policy does not permit Kozar to retry her defamation claims in separate suits each time a new defendant can be found. Because Kozar chose not to litigate her claims against Wolnik, Morin, and Roe in Kozar I, she has waived her right to litigate them in any subsequent suit.
Kozar's argument that she did not know of the alleged defamation by Wolnik until after Kozar I was dismissed, and thus, she could not have joined this claim in Kozar I, is moot. Even if Kozar failed to uncover the alleged defamation by Wolnik in the course of her extensive discovery in Kozar I, Wolnik's alleged republications are protected by the same privilege the district court concluded protected St. John's in Kozar I.
Similarly, the original publishers of the alleged republications by Wolnik, Morin, and Roe, are still protected by their privilege. Therefore, we conclude Kozar's subsequent claims against the Kozar I defendants cannot stand.
Kozar does not allege she was in a zone of danger of physical impact and her reliance on Bohdan cannot support a negligent infliction of emotional distress claim because all of her defamation claims are barred by res judicata. Therefore, Kozar is unable to establish a prima facie case as a matter of law.
Kozar's tortious interference with contract claim against Mary Woida, business administrator of St. John's, John Dupont, a member of the Parish Council, and Wolnik, pastor and vice-president of St. John's corporation, also fails as a matter of law. A party cannot interfere with its own contract. Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 901 (Minn. 1982). An officer, agent, or employee of a company is privileged to interfere with another employee's employment contract with that company, if that person acts in good faith, whether competently or not, under a belief that his or her actions are in furtherance of the company's business. Nordling v. Northern States Power Co., 478 N.W.2d 498, 507 (Minn. 1991).
Woida was an employee of St. John's, Dupont was its agent, and Wolnik its corporate officer. All of the conduct alleged against them occurred in their capacities as an employee, agent, and officer, respectively. Kozar did not argue before the district court that these parties acted with malice.
Kozar's argument that the archdiocese negligently hired, retained, and/or supervised Wolnik because it should have known he was predisposed to be abusive towards women, is not warranted by existing law. These claims have only been allowed when there is an underlying tort claim. Oslin v. State, 543 N.W.2d 408, 415 (Minn. App. 1996). Because Kozar has no tort claim upon which to base her negligent hiring, retention, and supervision claims, they fail as a matter of law.
Kozar's allegations of negligent infliction of emotional distress, tortious interference with contract, and negligent hiring, retention, and supervision all fail to state claims upon which relief can be granted. Therefore, we affirm their dismissal.
All of Kozar's claims in Kozar II and III were either litigated in Kozar I, should have been litigated in Kozar I, or were unwarranted under existing law. Respondents claim they expended over $30,000 in defending the above lawsuits. We conclude the district court's award of $7,500 was not an abuse of discretion.
Minn. Stat. § 549.211, subd. 2, (1997), which replaced Minn. Stat. § 549.21, subd. 2, authorizes an award of attorney fees if a party acts to harass, or to cause unnecessary delay, or needless increase in the cost of litigation, or asserts claims not warranted by existing law. For the same reasons we affirm the district court's award of attorney fees, we grant respondents' motion for additional attorney fees and costs they incurred in responding to these appeals. Respondents shall submit documentation supporting their fees and costs within 15 days after the filing of this opinion. This shall not affect the taxation of costs and disbursements, which is governed by Minn. R. Civ. App. P. 139.
The district court made no adverse rulings against respondents, it simply elected not to rule on various alternative arguments respondents raised. Because respondents were not required to file a Notice of Review to preserve their alternative defenses, Kozar's motion to strike all such references in respondents' brief not made part of their Notice of Review is denied.
Because we need not address alternative defenses raised by respondents but not addressed by the district court, Kozar's motion to strike these arguments is denied as moot.
 Because respondents filed their motion for attorney's fees on appeal after August 1, 1997, the issue is decided under Minn. Stat. § 549.211. Cole v. Star Tribune, 581 N.W.2d 364 (Minn. App. 1998).