STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1783

Shelley Hanson,

Appellant,

Friends of Minnesota Sinfonia

d/b/a Minnesota Sinfonia, et al.,

Respondents.

Filed June 27, 2006

Affirmed

Ross, Judge

Hennepin County District Court

File No. 05-005552

Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellant)

Frederick E. Finch, Matthew J. Franken, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondents)

Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

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

ROSS, Judge

Appellant Shelley Hanson challenges the district court’s dismissal of her negligence suit against respondents Friends of Minnesota Sinfonia and Jay Fishman. Because the district court correctly concluded that Hanson’s claim is barred under the doctrine of res judicata, we affirm.

FACTS

Appellant Shelley Hanson is a professional clarinet player. Respondent Friends of Minnesota Sinfonia is a non-profit corporation that hires musicians to perform concerts. Hanson contracted to perform with Sinfonia. Respondent Jay Fishman is a co-founder of Sinfonia and serves as its executive director, artistic director, and conductor.

At a Sinfonia rehearsal on March 16, 1999, a light fixture that Fishman placed on a utility table fell on Hanson, injuring her. Hanson participated in a few Sinfonia concerts after the incident but then took a medical leave, claiming that the effects of the accident impaired her judgment and her performing ability. In May 1999, while she was on leave, Hanson received a letter from Fishman rescinding Sinfonia’s offer of summer work and suggesting that she contact Sinfonia when her recovery was complete.

In August 2000, Hanson filed a lawsuit in federal court against Fishman and Sinfonia alleging disability discrimination under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). Hanson also asserted other state-law claims, including negligent infliction of emotional distress, invasion of privacy, defamation, interference with prospective business relations, breach of contract, and promissory estoppel. The court granted summary judgment in favor of respondents on the ADA and MHRA claims and dismissed the remaining state-law claims without prejudice. Hanson v. Friends of Minnesota Sinfonia, 181 F. Supp. 2d 1003, 1010 (D. Minn. 2002), aff'd sub. nom. Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003), cert. denied, 540 U.S. 983 (2003).

Hanson then brought suit in February 2002 against respondents in state court, asserting state-law claims for disability discrimination under the MHRA, negligent infliction of emotional distress, invasion of privacy, defamation, interference with prospective business relations, breach of contract, and promissory estoppel. The complaint’s factual allegations—describing the March 16, 1999 rehearsal and appellant’s injury—were lifted verbatim from Hanson’s earlier federal complaint. Respondents moved for summary judgment on all claims. Hanson’s memorandum in opposition to summary judgment argued, with respect to her claim for negligent infliction of emotional distress, that she “was physically injured by the light pole as a result of the negligence of Fishman . . . .” The district court granted respondents’ motion, and we affirmed. Hanson v. Friends of Minnesota Sinfonia, No. A03-1061, 2004 WL 1244229 (Minn. App. June 8, 2004).

In March 2005, Hanson brought a suit in negligence against respondents again in state district court. The complaint’s factual allegations—describing the March 16, 1999 rehearsal and Hanson’s injury—were taken verbatim from the complaints filed in Hanson’s prior federal and state suits against respondents. The complaint asserted that because of respondents’ negligence, Hanson “suffered damages, including but not limited to the loss of income, physical injury, emotional distress and mental anguish, pain and suffering, medical bills, and other harm.” Respondents moved to dismiss Hanson’s claim pursuant to Minn. R. Civ. P. 12.02(e) (failure to state a claim upon which relief can be granted), arguing that the claim was barred by the doctrine of res judicata. The district court granted the motion. This appeal follows.

D E C I S I O N

Hanson challenges the district court’s decision to dismiss her third lawsuit for failure to state a claim. In reviewing a dismissal for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), we consider de novo whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). “A complaint should only be dismissed for failure to state a claim if it appears to a certainty that no facts consistent with the pleading exist that support granting the relief demanded.” Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).

The district court dismissed Hanson’s claim after concluding that it was barred by res judicata. “The doctrine of res judicata bars a claim where litigation on a prior claim involved the same cause of action, where there was a judgment on the merits, and where the claim involved the same parties or their privies.” Wilson v. Comm’r of Revenue, 619 N.W.2d 194, 198 (Minn. 2000). “In addition, the party against whom res judicata is applied must have had a full and fair opportunity to litigate the matter in the prior proceeding.” Id. Res judicata is also an equitable doctrine that must be applied fairly in light of the facts of each individual case. R.W. v. T.F., 528 N.W.2d 869, 872 n.3 (Minn. 1995). The court must focus on whether applying res judicata would work an injustice on the party against whom it is applied. Id. Whether res judicata should apply is a question of law, which we review de novo. State v. Joseph, 636 N.W.2d 322, 326 (Minn. 2001).

Under res judicata, “[a] judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and privies, not only as to every matter which was actually litigated, but also as to every matter which might have been litigated therein.” Youngstown Mines Corp. v. Prout, 266 Minn. 450, 466, 124 N.W.2d 328, 340 (1963) (quoting Veline v. Dahlquist, 64 Minn. 119, 121, 66 N.W. 141, 142 (1896)). The doctrine requires parties to “assert all alternative theories of recovery in the initial action.” Dorso Trailer Sales, Inc. v. Am. Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn. 1992); see Anderson v. Werner Continental, Inc., 363 N.W.2d 332, 334 (Minn. App. 1985) (“To the extent that a given state of facts is susceptible to alternative interpretation and analysis, plaintiff must seek and exhaust all alternative grounds or theories for recovery in one action.” (quotation omitted)), review denied (Minn. June 24, 1985). We will consider Hanson’s appeal in this framework.

1. Did the earlier claim involve the same cause of action?

Hanson maintains that her earlier lawsuit did not involve the same cause of action as her present suit. We cannot agree. This prong of the res-judicata test derives from the principle that “a plaintiff may not split his cause of action and bring successive suits involving the same set of factual circumstances.” Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn. 1978); see also Liimatainen v. St. Louis River Dam & Imp. Co., 119 Minn. 238, 242, 137 N.W. 1099, 1100 (1912) (observing that a party “is not at liberty to split up his demand, and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fail”). A “claim” or “cause of action” is defined as “a group of operative facts giving rise to one or more bases for suing.” Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn. 2002) (quoting Black’s Law Dictionary 214 (7th ed. 1999)); see Jenson v. R.L.K. & Co., 534 N.W.2d 719, 724 (Minn. App. 1995) (defining “cause of action” as “a situation or state of facts that entitle a party to bring an action and to seek judicial relief”), review denied (Minn. Sept. 20, 1995). The focus of res judicata is therefore whether the second claim “arise[s] out of the same set of factual circumstances.” Hauser, 263 N.W.2d at 807; see also Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004) (stating that “the facts surrounding the occurrence which constitutes the cause of action—not the legal theory upon which [plaintiff] chose to frame his complaint—must be identical in both actions to trigger res judicata” (quotation omitted)).

The “common test for determining whether a former judgment is a bar to a subsequent action is to inquire whether the same evidence will sustain both actions.” McMenomy v. Ryden, 276 Minn. 55, 58, 148 N.W.2d 804, 807 (1967). Claims cannot be considered the same cause of action if “the right to assert the second claim did not arise at the same time as the right to assert the first claim.” Care Inst., Inc.- Roseville v. County of Ramsey, 612 N.W.2d 443, 447 (Minn. 2000).

The record before us establishes clearly that Hanson’s February 2002 state-court complaint (asserting, among other things, negligent infliction of emotional distress) involved the same cause of action as her current negligence claim (filed in March 2005). The factual allegations of the earlier claims concerning the circumstances of Hanson’s injury are repeated verbatim in the 2005 negligence claim. The operative facts giving rise to the claim for negligent infliction of emotional distress are plainly identical to those giving rise to the negligence claim. Hanson conceded as much in her memorandum in opposition to summary judgment in her earlier case when she claimed damages for negligent infliction of emotional distress because she “was physically injured by the light pole as a result of the negligence of Fishman . . . .”

In her present brief, Hanson argues that the earlier suit did not involve the same cause of action because negligent infliction of emotional distress and simple negligence are different torts with different elements, distinguishing the claims on the grounds that they “do not litigate the same precise issue.” At oral argument, Hanson’s counsel acknowledged that the two suits arose from the “same incident,” but attempted to distinguish between an “incident”—understood as a factual occurrence—and a cause of action, or legal claim. But the cause of action, for the purposes of applying res judicata, refers not to the theory of liability, but quite literally to the cause of the action. That is, it regards the “group of operative facts giving rise to one or more bases for suing.” Martin ex rel. Hoff, 642 N.W.2d at 9. And although Hanson may be correct that “different facts are necessary to prove the two claims,” it is also correct that the same set of underlying facts give rise to both claims regardless of whether Hanson would emphasize or include certain of those facts, and omit others, in asserting different bases for recovery. See Anderson, 363 N.W.2d at 335 (adopting the “same transaction” test to determine whether, for purposes of res judicata, identical claims are asserted in two lawsuits, and stating that the test is met “if the same operative nucleus of facts is alleged in support of the claims”).

One purpose of res judicata is to prevent successive suits involving the same set of factual circumstances but which are based on different legal theories. See Hauser, 263 N.W.2d at 807; Porta-Mix Concrete, Inc. v. First Ins. East Grand Forks, 512 N.W.2d 119, 122 (Minn. App. 1994) (observing that “[a] change in theory of liability cannot be used to avoid the application of res judicata”), review denied (Minn. Apr. 28, 1994). Reviewing the allegations carefully, we conclude that Hanson’s negligence claim involved the same cause of action—the respondents’ involvement in the falling light fixture—as the earlier claim for negligent infliction of emotional distress.

2. Was there was a judgment on the merits?

The district court’s grant of summary judgment in the earlier state suit was entered into judgment in June 2003. This court then affirmed the district court’s judgment. Hanson forwards multiple arguments relevant, but unpersuasive, as to this issue. She argues that the earlier judgment was final only as to the merits of the claim for negligent infliction of emotional distress, and not as to the merits of the simple negligence claim she now brings. She challenges as “flawed in several respects” the district court’s “notion that res judicata precludes any claim that ‘might’ have been filed” at the same time as other claims arising from the same set of facts. Specifically, Hanson contends that because res judicata is an equitable doctrine, it should not operate to unjustly bar negligence claims, such as her own, that were not previously brought by reason of the very injury allegedly caused by the negligence. She maintains that the simple-negligence claim was “not in fact litigated . . . due to the problems caused . . . by the injury itself.”

Hanson’s arguments are without merit. Her contention that the earlier judgment disposed of a legally distinct cause of action for the purposes of res judicata is contrary to precedent explicitly defining “cause of action” as the “group of operative facts giving rise to one or more bases for suing,” Martin ex rel. Hoff, 642 N.W.2d at 9, as opposed to the legal theory upon which a prior claim was based. Also, it is well settled that res judicata applies to claims that might have been filed, not just to claims that actually have been filed. See, e.g., Youngstown Mines Corp, 266 Minn. at 466, 124 N.W.2d at 340. Next, while res judicata is an equitable doctrine that must not be applied where it would work an injustice against a claimant, see R.W., 528 N.W.2d at 872 n.3, Hanson does not explain why equity should excuse her failure to bring the negligence claim along with the assorted other claims that she asserted in the 2002 complaint. The crux of Hanson’s argument on this issue is that because the claim was not actually litigated, fairness mandates that she now be allowed to bring it. This is exactly the type of claim-splitting that res judicata exists to prevent.

3. Did Hanson have a full and fair opportunity to litigate the matter in the prior proceeding?

Hanson asserts that she did not previously have a chance to litigate the issues related to her present claims. Whether a party had a full and fair opportunity to litigate a matter “generally focuses on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.” State v. Joseph, 636 N.W.2d 322, 328 (Minn. 2001). Hanson argues that she was denied a full and fair opportunity to litigate the matter not because of procedural limitations, but because of her erroneous belief at the time of her federal suit that she was an employee of Sinfonia and because various injury-related debilitations prevented her from realizing and articulating the gravity of her injury. She cites no authority to support the proposition that her misunderstanding of her legal status with respect to Sinfonia constitutes a legally significant limitation. As to whether Hanson had an incentive to fully litigate the issue, the record indicates that she was aware of the nature of her injuries within the first week after the accident occurred. Additionally, a plaintiff need not wait to learn the full extent of her injury to sue for damages. See Olson v. Aretz, 346 N.W.2d 178, 183 (Minn. App. 1984) (“Uncertainty as to the fact of whether any damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not.”) (quotation omitted), review denied (Minn. Oct. 30, 1984). The record contains no evidence that Hanson’s ability to litigate this matter was limited by the nature or relationship of the parties. It is clear that Hanson had a full and fair opportunity to litigate the matter in the prior proceeding.

Hanson chose not to assert her simple-negligence claim along with her other claims in 2002. Allowing that claim now would frustrate the policies underlying the doctrine of res judicata, including the interest in avoiding unnecessary litigation, the conservation of judicial resources, the establishment of certainty in legal relations, and the elimination of the expense, vexation, waste, and possible inconsistent results of duplicitous litigation. Wessling v. Johnson, 424 N.W.2d 795, 799 (Minn. App. 1988), review denied (Minn. July 28, 1988). Res judicata prohibits Hanson from splitting her action into successive suits arising from the same allegedly negligent act.

We are unpersuaded by Hanson’s argument that equity requires that she have “her day in court” to assert the negligence claim and that barring her claim on res judicata grounds would “prejudice [her] and make technical defenses more important than the truth.” It is true that res judicata must be applied equitably. But where, as here, a claimant brings serial claims from the same event and injury, and simply relies on strategic considerations or has a mistaken appreciation for how the preclusive doctrine works, application of the doctrine is neither arbitrary nor unjust. See Gollner v. Cram, 258 Minn. 8, 13, 102 N.W.2d 521, 525 (1960) (observing that “[t]he policy requiring that every party be given his ‘day in court’ should not, of course, be defeated by an arbitrary application of the doctrine of res judicata”). We therefore agree with the district court’s decision to dismiss Hanson’s third lawsuit concerning these facts.

Affirmed.