This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




James W. Milsap,



Special School District No. 1,

Minneapolis Public Schools,


CRSS Constructors, Inc., et al.,


Arkay Construction Company, et al.,


Filed June 15, 1999

Affirmed; motion denied

Schumacher, Judge

Hennepin County District Court

File No. 984086

James W. Milsap, 1106 Kilburn Street, St. Paul, MN 55103-1029 (pro se appellant)

Eric J. Magnuson, Stanley E. Siegel, Jr., Brian Keith Jackson, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent Special School District No. 1)

Stephen M. Warner, Fetterly & Gordon, P.A., 650 Third Avenue South, Suite 1800, Minneapolis, MN 55402 (for respondents CRSS Constructors et al.)

Barbara A. Burke, Barton C. Gernander, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for respondents Arkay Construction et al.)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.



James W. Milsap appeals the district court's grant of motions to dismiss and for summary judgment in favor of respondents Special School District No. 1, Minneapolis Public Schools, CRSS Constructors, Inc., Kyle Roth, Arkay Construction Company, Julius Rifkin, and Russell Bloomdahl and the court's denial of leave to amend his complaint and conduct further discovery. We affirm the district court's grant of motions to dismiss and summary judgment and deny Arkay's request for attorney fees.


In March 1996 the school district entered into a contract with Mavo Systems, Inc. to act as asbestos abatement contractor during the renovation of Jefferson Elementary School. On April 10, 1996, the school district entered into a contract with Arkay to act as general contractor for the mechanical work on Jefferson Elementary School to be completed during the summer break.

Arkay hired Gardner-Stone Company as the plumbing subcontractor. Gardner-Stone hired Milsap as the job foreman. Gardner-Stone was behind in completing its portion of the renovation project and in mid-July the school district became aware of the problem. On August 9 and 14, 1996 Arkay sent letters to Gardner-Stone expressing its concern that Milsap was performing deficient work and the work was not being completed in a timely manner. Arkay suggested Gardner-Stone may want to terminate Milsap.

On August 19, 1996, Gardner-Stone fired Milsap, and on August 23, 1996, Arkay terminated Gardner-Stone's contract because the work could not be completed on time. In September 1996 Milsap sued Arkay and the school district, alleging discriminatory discharge.

On February 3, 1997, the district court granted the school district's motion to dismiss Milsap's complaint. On April 28, 1997, the court granted Arkay's motion to dismiss Milsap's complaint. The court found Milsap was not an employee of either Arkay or the school district and therefore did not state a valid claim for relief. Milsap appealed the dismissal of his complaint against Arkay. This court affirmed the dismissal in an unpublished opinion. Milsap v. Arkay Constr. Co., No. C9-97-989 (Minn. App. Dec. 30, 1997) (Milsap I).

On February 10, 1998, Milsap sued the school district, Arkay, Rifkin, Bloomdahl, and new defendants CRSS Constructors and Roth. Milsap alleges wrongful termination on theories of (1) conspiracy of silence and deprivation of employment (2) fraud and deceit, (3) interference with employment/business relationship, (4) negligent supervision and retention, (5) perjury, (6) conspiracy to commit perjury, (7) obstruction of justice, and (8) conspiracy to obstruct justice.

The district court granted the school district, CRSS Constructors, Roth, Arkay, Rifkin, and Bloomdahl's motions for dismissal and summary judgment on Milsap's second complaint under theories of res judicata and collateral estoppel. Milsap appeals the court's grant of dismissal and summary judgment and its denial of his motion to amend his complaint pursuant to Minn. R. Civ. P. 15.01 and to conduct further discovery pursuant to Minn. R. Civ. P. 37.


The only question before this court when reviewing a case dismissed for failure to state a claim upon which relief can be granted is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). A complaint should be dismissed if there are no facts alleged that could support the claim. Id. If on a Rule 12 motion to dismiss "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56." Minn. R. Civ. P. 12.03.

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

Res judicata bars re-litigation of the same claim between parties where a court of competent jurisdiction has rendered a final judgment on the merits. In re Anderberg-Lund Printing Co., 109 F.3d 1343, 1346 (8th Cir. 1997).

Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceedings.

Surf & Sand, Inc. v. Gardebring, 457 N.W.2d 782, 786 (Minn. App. 1990) (citation omitted), review denied (Minn. Sept. 20, 1990). Res judicata bars claims while collateral estoppel bars issues. Holtz v. Beighley, 211 Minn. 153, 300 N.W. 445 (1941). Res judicata is applied where the plaintiff did not present the whole claim in the original suit. 3 D. McFarland & W. Keppel, Minnesota Civil Practice 2d § 2538 (1990).

Minnesota courts use a three-prong test to determine whether res judicata applies. The court considers whether the following three factors are present: (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. Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn. 1978).

Our affirmance of the district court's dismissal in Milsap I acts as a final judgment on the merits and satisfies the first prong of the test. The test to determine if the second suit involves the same cause of action is whether the same evidence will support both judgments. McMenomy v. Ryden, 276 Minn. 55, 58, 148 N.W.2d 804, 807 (1967). The same nucleus of facts relating to the Jefferson Elementary Project is used by Milsap to prove the cause of action in Milsap I and this case. The cause of action in both suits is Milsap's termination of employment related to the Jefferson Elementary project. The second prong is met. The third prong is met because Milsap, the school district, and Arkay, Rifkin, and Bloomdahl were all parties in the previous action. We therefore affirm the district court's conclusion that this case is barred by the doctrine of res judicata as it relates to the school district, Arkey, Rifkin, and Bloomdahl.

Milsap is unable to show a genuine issue of material fact or that the district court misapplied the law. Milsap's only new evidence relates to the contract between Mavo Systems and the school district and Roth's second affidavit. The contract was discoverable in the first action. According to a statement written by the president of Gardner-Stone for Milsap I, Milsap was aware of the contract during the summer of 1996. Milsap does not raise a genuine issue of material fact that he was terminated for discriminatory reasons or that he was an employee of anyone other than Gardner-Stone.

Roth's second affidavit is not contradictory to the affidavit Roth filed in Milsap I as Milsap contends. Both affidavits state the school district had turned control over to the general contractors. According to the contracts, Arkay was the general contractor for construction and Mavo Systems was the general contractor for asbestos abatement. Further, the affidavit does not contain evidence that Milsap was fired for discriminatory reasons and does not show that he was an employee of the school district or Arkay. Milsap shows no genuine issues of material fact and the district court properly applied the law.

We now turn our attention to Milsap's complaint against CRSS Constructors and Roth. The doctrine of collateral estoppel applies to legal or factual issues that were actually and necessarily determined in prior litigation. The determination becomes "conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Anderberg-Lund, 109 F.3d at 1346 (citation omitted).

Collateral estoppel applies if:

(1) the issue was identical to one in a prior adjudication; (2) there was 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 was given a full and fair opportunity to be heard on the adjudicated issue.

Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983) (quotation omitted).

First, Milsap is attempting to litigate the identical issue here that was litigated in Milsap I. Both actions pertain to Milsap's alleged wrongful termination. Second, Milsap I is a final adjudication on the merits for purposes of the doctrine of collateral estoppel. Third, the fact that CRSS Constructors and Roth were not parties in Milsap I does not preclude them from utilizing the doctrine of collateral estoppel. Minnesota does not require mutuality of parties as a prerequisite to invoke collateral estoppel. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn. 1990). Milsap's status as a party in the previous adjudication is all that is required to satisfy the third factor. Finally, Milsap was given a full and fair opportunity to be heard by the district court during Milsap I. Milsap is barred by the doctrine of collateral estoppel from relitigating the issue of his alleged wrongful termination against CRSS Constructors and Roth.

The decision to permit a party to amend pleadings rests within the discretion of the trial court and will not be reversed except for an abuse of discretion. Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989).

The district court did not abuse its discretion when it granted the school district, CRSS Constructors, Roth, Arkay, Rifkin, and Bloomdahl's motions to dismiss and for summary judgment and determined that Milsap's motion to amend his complaint was moot because it would not have saved this case from being dismissed.

Absent a clear abuse of discretion the trial court's decisions on discovery requests will not be reversed. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). The district court did not abuse its discretion in finding Milsap's motion for discovery moot when the court had determined this case was barred by res judicata and collateral estoppel.

Arkay's request for attorney fees and costs related to this appeal is governed by Minn. Stat. § 549.211, subd. 4 (1998), which provides that a request for attorney fees must be made by a separate motion and may not be filed with this court unless opposing counsel does not withdraw the challenged action within 21 days of service. Arkay has not met this requirement and therefore is not entitled to attorney fees and costs related to this appeal. The procedural errors committed by Milsap do not waive Arkay's responsibility to follow the procedures outlined in Minn. Stat. § 549.211, subd. 4.

Affirmed; motion denied.