                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0850

                                   David Brian Pemrick,
                                        Appellant,

                                             vs.

                                  Lori Ann Bucher, et al.,
                                       Respondents

                                  Filed January 17, 2016
                                         Affirmed
                                      Worke, Judge

                                Rice County District Court
                                 File No. 66-CV-15-2784

Michael B. Healey, Michael Healey Law, LLC, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Kathryn A. Fodness, Assistant Attorney General, St.
Paul, Minnesota (for respondents)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant-employee challenges the dismissal of his tort claims on the grounds of

absolute privilege, res judicata, and collateral estoppel, arguing that (1) respondent-

employer failed to comply with a subpoena to produce evidence, (2) the district court erred

by failing to consider an affidavit, (3) his complaint is legally sufficient, (4) the district
court erred in applying res judicata and collateral estoppel to bar his claims, and (5) the

district court erred in concluding that respondent-employee’s statements to an off-duty

officer were protected by absolute privilege. Because the claims are barred by collateral

estoppel, we affirm.

                                         FACTS

      Appellant David Brian Pemrick was an employee of respondent MINNCOR

Industries. Respondent Lori Ann Bucher worked alongside Pemrick in laundry services at

the Minnesota Correctional Facility (MCF) in Faribault, MN. On February 4, 2015, Bucher

reported that she was assaulted by Pemrick the previous day. She told a sergeant at the

Minnesota Department of Corrections (DOC) that Pemrick shoved her in the shoulder area

and knocked her off balance. The next day, Bucher told an officer at the Faribault Police

Department (PD) that Pemrick pushed her.

      Bucher then took steps to obtain a harassment restraining order (HRO) against

Pemrick. Bucher asserted in an HRO affidavit that she had been shoved by Pemrick. On

February 10, 2015, Bucher obtained an ex parte HRO. On March 13, 2015, a contested

HRO hearing was held; Pemrick was represented by an attorney. Following the hearing,

the district court issued an HRO that prohibited Pemrick from having direct or indirect

contact with Bucher and prohibited Pemrick’s presence in the laundry building at MCF-

Faribault. The HRO contained specific findings that Pemrick physically assaulted Bucher

on February 3, 2015. Pemrick did not appeal. MINNCOR subsequently fired Pemrick.

      The circumstances surrounding the assault were captured on MINNCOR’s video

surveillance, which was not offered or received into evidence at the HRO hearing. Pemrick


                                            2
maintained that the assault never occurred, that Bucher’s allegations were false, and that

the surveillance video showed that no assault occurred. Pemrick filed a complaint in

district court presenting four theories of recovery: (1) defamation, (2) fraud, (3) negligent

misrepresentation, and (4) negligence. Pemrick’s defamation claim was directed at both

Bucher and MINNCOR. Pemrick asserted that the following statements concerning the

assault were defamatory: (1) Bucher’s statement to the sergeant at the DOC, (2) Bucher’s

statement to the officer with the Faribault PD, (3) Bucher’s statement in the HRO affidavit,

and (4) the statements made during the HRO proceedings. Pemrick also claimed that the

aforementioned statements were published and released to various parties by the DOC,

MCF-Faribault, and the Rice County District Court.

       Pemrick’s fraud claim was directed solely at Bucher and alleged that the

aforementioned statements concerning the assault were false.                The negligent-

misrepresentation claim was directed at MINNCOR and alleged that MINNCOR fired

Pemrick despite possessing a surveillance video showing that Pemrick did not commit the

assault. Likewise, the negligence claim was directed at MINNCOR and alleged that

MINNCOR breached a duty to verify the accuracy of the assault allegations.

       MINNCOR and Bucher moved to dismiss the complaint, under Minn. R. Civ. P.

12.02(e), arguing that Bucher’s statements were protected by absolute privilege, and res

judicata and collateral estoppel barred Pemrick’s claims because the issue of the validity

of the assault allegations was decided in the HRO proceedings. The district court agreed

with those arguments and dismissed the complaint. This appeal follows.




                                             3
                                      DECISION

       Before addressing the merits of Pemrick’s claims, we must address two peripheral

issues. First, Pemrick requests that we order production of the surveillance video possessed

by MINNCOR. Second, Pemrick argues that the district court improperly disregarded

certain affidavit evidence.

Video-surveillance evidence

       According to Pemrick, MINNCOR failed to respond to a subpoena requesting

production of the surveillance video. Pemrick requests that we compel production of the

video if “compliance with [the] subpoena is required.” Pemrick offers no legal support for

such action, and we decline to take such action. Compelling production of the video would

effectively expand the appellate record, which should consist only of the documents,

exhibits, and transcripts filed in the district court. Minn. R. Civ. App. P. 110.01. We will

not compel production of the video.

       Further, the video was of no consequence given the district court’s resolution of this

case. The district court concluded that no evidence consistent with the complaint (even the

surveillance video) would entitle Pemrick to his requested relief. See Minn. R. Civ. P.

12.02 (noting matters outside the pleading may be excluded); N. States Power Co. v. Minn.

Metro. Council, 684 N.W.2d 485, 490 (Minn. 2004) (noting dismissal is improper if

evidence might be produced, consistent with the complaint, showing entitlement to the

requested relief). The district court did not abuse its discretion in dismissing the complaint

without requiring production of the video.




                                              4
Affidavit evidence

       Pemrick argues that the district court abused its discretion by disregarding an

affidavit on the grounds that the affidavit was improperly notarized. The district court did

not consider Pemrick’s affidavit, not because it was improperly notarized, but because,

again, the district court resolved the matter pursuant to Minn. R. Civ. P. 12.02(e), which

allows a district court to exclude matters outside the pleadings. In re Hennepin Cnty. 1986

Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995).

       The district court did take judicial notice of the HRO file, but judicial notice may

be taken at any point in a proceeding. Minn. R. Evid. 201(f). And a district court may

consider documents referenced in the complaint and authenticated copies of key documents

upon which the complaint was premised without converting a motion to dismiss to a motion

for summary judgment. N. States Power Co., 684 N.W.2d at 490; Johnson v. State, 536

N.W.2d 328, 332 (Minn. App. 1995) (quotation omitted), rev’d on other grounds, 553

N.W.2d 40 (Minn. 1996). Pemrick has not challenged the district court’s taking judicial

notice of the HRO file. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating

that issue not briefed is forfeited). In sum, the district court properly excluded Pemrick’s

affidavit because the matter was resolved according to Minn. R. Civ. P. 12.02(e).

Sufficiency of Pemrick’s claims

       We next address whether Pemrick’s complaint contains a claim upon which relief

can be granted. In reviewing a dismissal pursuant to Minn. R. Civ. P. 12.02(e) for failure

to state a claim on which relief can be granted, “the question before [an appellate] court is

whether the complaint sets forth a legally sufficient claim for relief.” Hebert v. City of


                                             5
Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008). “[Appellate courts] review de novo

whether a complaint sets forth a legally sufficient claim for relief.” Walsh v. U.S. Bank,

N.A., 851 N.W.2d 598, 606 (Minn. 2014).

       A pleading must “contain a short and plain statement of the claim showing that the

pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.

P. 8.01. “[Appellate courts] consider only those facts alleged in the complaint, accepting

those facts as true and construing all reasonable inferences in favor of the non-moving

party.” In re Individual 35W Bridge Litig., 806 N.W.2d 811, 815 (Minn. 2011). However,

legal conclusions contained in a complaint do not bind this court. Bahr v. Capella Univ.,

788 N.W.2d 76, 80 (Minn. 2010).

       The district court concluded that all of Pemrick’s claims were barred by absolute

privilege, res judicata, and collateral estoppel. Res judicata precludes a party from raising

claims that were, or could have been, raised in an earlier action. Drewitz v. Motorwerks,

Inc., 728 N.W.2d 231, 239 (Minn. 2007). The applicability of res judicata involves an

analysis of whether “the earlier claim involved the same claim for relief” as the subsequent

claim. Beaulieu v. Minn. Dep’t of Human Servs., 825 N.W.2d 716, 724 (Minn. 2013)

(quotation omitted). Answering this question involves an inquiry into whether “the same

evidence will sustain both actions.” Schober v. Comm’r of Revenue, 853 N.W.2d 102, 111

(Minn. 2013).

       In this case, Pemrick’s claims for defamation, fraud, negligent misrepresentation,

and negligence are causes of action that were not raised and could not have been raised

during the HRO proceedings, and the evidence that sustained the HRO would not sustain


                                             6
any of Pemrick’s present claims. An HRO is a limited form of relief designed to protect

and available only to victims of harassment. Minn. Stat. § 609.748, subds. 2, 5 (2016).

Res judicata is inapplicable here because Pemrick’s claims were not raised and could not

have been raised in the HRO proceedings.

Collateral estoppel

       Collateral estoppel bars relitigation of “specific issues that have previously been

adjudicated.” Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 927 (Minn. 2015).

Whether collateral estoppel applies is a mixed question of fact and law, and once it is

determined that collateral estoppel is applicable, the decision to apply the doctrine is left

to the district court’s discretion. Reil v. Benjamin, 584 N.W.2d 442, 444 (Minn. App.

1998), review denied (Minn. Nov. 17, 1998). If there is no factual dispute, appellate courts

may determine whether claims are barred by collateral estoppel as a matter of law. Id.

Under the doctrine of collateral estoppel, an issue cannot be relitigated if (1) the issue is

the same as one presented in a prior proceeding; (2) a final judgment on the merits was

reached in the prior proceeding; (3) the estopped party was either a party or in privity with

a party to the prior judgment; and (4) the estopped party received a full and fair opportunity

to be heard on the issue. Barth v. Stenwick, 761 N.W.2d 502, 508 (Minn. App. 2009).

       Here, Pemrick is attempting to relitigate the issue of whether he assaulted Bucher

on February 3, 2015. A final judgment was reached in the HRO proceedings; an HRO was

issued after a contested hearing; a specific finding was made that Pemrick shoved Bucher

on February 3, 2015, thereby physically assaulting Bucher; and Pemrick did not appeal the

HRO or otherwise seek relief from the judgment. Pemrick was a party to the HRO


                                              7
proceedings. He received a full and fair opportunity to be heard on the issue; he appeared

at the contested HRO hearing; he was represented by an attorney; and testimony was taken

at that contested hearing. See Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995)

(noting that the hearing requirements for an HRO include the right to examine and cross-

examine witnesses and to produce documents).

       The surveillance video was not submitted into evidence during the HRO hearing,

though testimony was taken as to the contents of the video.           Pemrick could have

subpoenaed the surveillance video, or if the video was subpoenaed and not produced,

requested a continuance or taken other actions to obtain the video from MINNCOR. See

Minn. R. Civ. P. 45.05 (allowing findings of contempt for failure to respond to a subpoena).

Instead, Pemrick decided to go forward with the contested HRO hearing. Whether Bucher

was assaulted by Pemrick on February 3, 2015, was decided in the HRO proceedings; a

final judgment on the merits was reached; Pemrick was a party to that judgment; and

Pemrick received a full and fair opportunity to be heard on the issue. Thus, collateral

estoppel bars relitigation of that issue.1

       Having determined that collateral estoppel is applicable here regarding whether the

assault occurred, we must now determine which of Pemrick’s claims are barred. If


1
 The district court concluded that MINNCOR was in privity with Bucher as to the HRO
result, however, privity is not required here for purposes of applying collateral estoppel to
bar claims against MINNCOR. Collateral estoppel requires only that the estopped party
be the same in both proceedings. Barth, 761 N.W.2d at 508. In this case, Pemrick is
estopped and was a party to both proceedings. Minnesota does not require mutuality of
parties for purposes of collateral estoppel. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d
648, 650 (Minn. 1990).


                                             8
relitigation of an issue that is central to a claim is barred by collateral estoppel, then the

claim is effectively barred. See Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 119

(Minn. 1991) (holding collateral estoppel barred defamation action when alleged

defamatory statements were found to be true in previous proceeding). Here, all of

Pemrick’s claims are barred.

       Pemrick’s defamation and fraud claims against Bucher are barred by collateral

estoppel because Bucher’s statements were determined to be true. See id.; see also U.S.

Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363, 373 (Minn. 2011) (noting a

common-law claim of fraud requires proof of a false representation); Stuempges v. Parke,

Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980) (noting true statements are not actionable

in a defamation action). The defamation claim against MINNCOR is also therefore barred

because it is rooted entirely in the statements made by Bucher, which were determined to

be true.

       Regarding the negligent-misrepresentation claim against MINNCOR, to establish

such a claim, a plaintiff must show that: (1) the defendant owed the plaintiff a duty of care;

(2) the defendant supplied false information to the plaintiff; (3) the plaintiff justifiably

relied on that information; and (4) the defendant failed to exercise reasonable care in

communicating the information. Williams v. Smith, 820 N.W.2d 807, 815 (Minn. 2012).

Pemrick’s complaint is unclear as to what false information MINNCOR supplied. Pemrick

alleges that MINNCOR fired him despite possessing video surveillance showing that he

did not commit an assault against Bucher. Essentially, Pemrick alleges that the assault

never occurred, and that MINNCOR falsely informed Pemrick that it did. Pemrick’s


                                              9
negligent-misrepresentation claim is barred by collateral estoppel because, at its heart, it

seeks to relitigate whether the assault occurred.

       Regarding the negligence claim, the elements of a negligence claim are: “(1) the

existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of

the duty being the proximate cause of the injury.” Engler v. Illinois Farmers Ins. Co., 706

N.W.2d 764, 767 (Minn. 2005). Pemrick alleges that MINNCOR had a duty to ascertain

the validity of the assault claim, that MINNCOR has video evidence showing Pemrick’s

innocence, and that MINNCOR breached its duty of care. Pemrick asserts that he sustained

damages caused by “Bucher’s untruthful statements.” Again, the alleged nonoccurrence

of the assault is a central issue in Pemrick’s claim, and it is therefore barred by collateral

estoppel.2

       Pemrick argues that collateral estoppel is inapplicable because there are differences

between the burden of proof in HRO proceedings and civil proceedings. While there is no

express burden of proof in Minnesota’s HRO statute, issuance of an HRO is not

discretionary, as Pemrick asserts. See Minn. Stat. § 609.748 (2016). A district court may

issue an HRO if it finds “that there are reasonable grounds to believe that [an individual]


2
 MINNCOR is an employment program maintained by the DOC that is engaged in
commercial activities. Minn. Stat. § 241.27 (2016). MINNCOR asserts that, according to
a “relevant collective bargaining agreement,” a writ of certiorari is Pemrick’s exclusive
method of review for challenges to MINNCOR’s decision to terminate Pemrick’s
employment. See Williams v. Bd. of Regents of Univ. of Minn., 763 N.W.2d 646, 651-52
(Minn. App. 2009) (noting that “certiorari is the exclusive method of reviewing the
termination decisions of a state agency”). While MINNCOR’s argument may have merit,
the collective bargaining agreement is not part of the record, and we shall not address
MINNCOR’s argument.


                                             10
has engaged in harassment.” Id., subd. 5(b)(3). The petitioner bears the burden of proof

to establish grounds for issuance of an HRO. See C.O. v. Doe, 757 N.W.2d 343, 352 (Minn.

2008) (stating that when a statute does not specify the burden of proof as between the

parties, “[t]he general rule is that the burden of proof rests on the party seeking to benefit

from a statutory provision”). Further, when the legislature does not provide a standard of

proof, such silence reflects a “signal that the legislature intended the preponderance of the

evidence standard.” State by Humphrey v. Alpine Air Prods, Inc., 500 N.W.2d 788, 790

(Minn. 1993). The Minnesota Legislature has not identified the standard of proof to be

used in HRO cases; therefore, the preponderance-of-the-evidence standard applies. In fact,

the district court that presided over the HRO hearing noted during the hearing that the

applicable standard was preponderance of the evidence, and that the burden of proof was

on Bucher.

       Because Pemrick’s claims are barred by collateral estoppel, we shall not address the

issue of absolute privilege.

       Affirmed.




                                             11
