               Filed 07/22/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 171

Terrance Fredericks, in his personal capacity,
as majority owner of Native Energy Construction,
and derivatively on behalf of Native Energy
Construction,                                      Plaintiffs and Appellants
     v.
Vogel Law Firm, Maurice G. McCormick,
Monte L. Rogneby, McCormick, Inc., and
Northern Improvement Co., Inc.,                    Defendants and Appellees



                               No. 20190272

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Jeffrey S. Rasmussen (argued), Louisville, CO, and Chad C. Nodland
(appeared), Bismarck, ND, for plaintiffs and appellants.

Diane M. Wehrman (argued), Monte L. Rogneby (argued), Bismarck, ND, and
Brent J. Edison (on brief), Fargo, ND, for defendants and appellees.
                       Fredericks v. Vogel Law Firm
                               No. 20190272

VandeWalle, Justice.

[¶1] Terrance Fredericks appealed from a district court order dismissing his
lawsuit against the Vogel Law Firm and its attorneys Monte Rogneby and
Maurice McCormick (Vogel), McCormick Inc. (McCormick), and Northern
Improvement Company. The district court concluded res judicata barred
Fredericks’ claims. We affirm.

                                       I

[¶2] Fredericks’ lawsuit is related to a 2016 lawsuit involving McCormick,
Northern Improvement, Native Energy, and Fredericks. In the earlier lawsuit
Northern Improvement and McCormick, individually and on behalf of Native
Energy, sued Fredericks for breaching contractual and fiduciary duties.
Fredericks counterclaimed, alleging McCormick breached fiduciary duties.
After a September 2018 trial, the jury found Fredericks breached fiduciary
duties owed to Native Energy and McCormick and awarded compensatory and
exemplary damages to Native Energy and McCormick. The jury found that
McCormick and Northern Improvement did not breach duties owed to Native
Energy or Fredericks. Judgment was entered in July 2019.

[¶3] Vogel represented McCormick and Northern Improvement in the 2016
lawsuit. Fredericks sought to disqualify Vogel after testimony revealed Vogel
may have indirectly provided services to Native Energy in 2010 and 2011 when
it reviewed certain agreements that were later executed by Native Energy and
third-party oil companies. The district court declared a mistrial and
disqualified Vogel from representing McCormick. McCormick moved for
reconsideration of the court’s decision to disqualify Vogel. After a hearing, the
court did not disqualify Vogel, ruling it had not represented Native Energy by
reviewing the agreements. See McCormick v. Fredericks, 2020 ND 161, ¶¶ 7-
8.

[¶4] In December 2017, Fredericks moved to add Vogel as a third-party
defendant, claiming it committed legal malpractice by breaching fiduciary

                                       1
duties owed to Native Energy and Fredericks. Fredericks’ motion also sought
to amend his counterclaims against McCormick and Northern Improvement.
In April 2018, the district court allowed Fredericks to amend his claims against
McCormick and Northern Improvement, but denied his motion to join Vogel as
a third-party defendant.

[¶5] Fredericks then filed a third amended answer, affirmative defenses and
counterclaims containing allegations against McCormick, Northern
Improvement, and Vogel. McCormick moved to strike Fredericks’ pleading.
The district court granted the motion, concluding the pleading was untimely,
made allegations against Vogel that were contrary to the court’s decisions not
to disqualify Vogel and disallowing claims against Vogel, and went beyond the
court’s limited leave to amend Fredericks’ claims against McCormick and
Northern Improvement. Fredericks did not raise on appeal either of the court’s
orders relating to his attempts to amend his counterclaim and join Vogel as a
third-party defendant.

[¶6] In February 2019, Fredericks, individually and derivatively on behalf of
Native Energy Construction, filed the instant lawsuit against Vogel,
McCormick, and Northern Improvement. Fredericks’ complaint alleged that
Vogel had a conflict of interest because it had provided legal services to Native
Energy in 2010 and 2011, and its current representation of McCormick was
adverse to Native Energy and Fredericks. Fredericks alleged Vogel committed
legal malpractice by disclosing Native Energy’s and Fredericks’ confidential
information to McCormick. Fredericks also alleged McCormick and Northern
Improvement breached fiduciary duties owed to Native Energy and Fredericks.

[¶7] Vogel moved to dismiss Fredericks’ complaint in this case, claiming it
had not represented Native Energy or Fredericks. McCormick and Northern
Improvement also moved to dismiss, asserting Fredericks raised or could have
raised the same claims against them in the earlier lawsuit. Fredericks filed a
motion for summary judgment, arguing the defendants breached their
fiduciary duties to Native Energy.




                                       2
[¶8] The district court requested the parties submit briefs relating to whether
res judicata barred Fredericks’ claims. After a hearing, the court granted the
motions and dismissed Fredericks’ complaint. The court ruled Fredericks’
claims could have and should have been raised in the earlier lawsuit.

                                       II

[¶9] Fredericks argues the district court erred in concluding res judicata
barred his claims against Vogel, McCormick, and Northern Improvement.

[¶10] “Res judicata, or claim preclusion, prevents relitigation of claims that
were raised, or could have been raised, in prior actions between the same
parties or their privies.” Kulczyk v. Tioga Ready Mix Co., 2017 ND 218, ¶ 10,
902 N.W.2d 485 (quoting Missouri Breaks, LLC v. Burns, 2010 ND 221, ¶ 10,
791 N.W.2d 33). Res judicata means a valid, final judgment is conclusive with
regard to claims raised, or claims that could have been raised, as to the parties
and their privies in future actions. Kulczyk, at ¶ 10. Whether res judicata
applies is a question of law, fully reviewable on appeal. Id.

[¶11] Res judicata applies even though the subsequent claims may be based
on a different legal theory. Littlefield v. Union State Bank, Hazen, N.D., 500
N.W.2d 881, 884 (N.D. 1993). If the subsequent claims are based upon the
identical factual situation as the claims in the earlier action, then they should
have been raised in the earlier action. Id. It does not matter that the
substantive issues were not directly decided in the earlier action, the key is
that they were capable of being, and should have been, raised as part of the
earlier action. Id. (citing Hofsommer v. Hofsommer Excavating, Inc., 488
N.W.2d 380, 385 (N.D. 1992)).

      [A] judgment on the merits in the first action between the same
      parties constitutes a bar to the subsequent action based upon the
      same claim or claims or cause of action, not only as to matters in
      issue but as to all matters essentially connected with the subject
      of the action which might have been litigated in the first action.

Fettig, 2019 ND 261, ¶ 18, 934 N.W.2d 547 (quoting Perdue v. Knudson, 179
N.W.2d 416, 422 (N.D. 1970)).


                                       3
[¶12] “Privity exists if one is so identified in interest with another that he or
she represents the same legal right.” Kulczyk, 2017 ND 218, ¶ 11, 902 N.W.2d
485. This Court uses an expanded version of privity to include a person not
technically a party to a judgment, “but who is, nevertheless, connected with it
by his interest in the prior litigation and by his right to participate therein.”
Id. (quoting Ungar v. N.D. State Univ., 2006 ND 185, ¶ 12, 721 N.W.2d 16).
Fundamental fairness underlies determinations of privity and res judicata.
Martin v. Marquee Pacific, LLC, 2018 ND 28, ¶ 19, 906 N.W.2d 65.

                                        A

[¶13] The district court concluded “that all claims Fredericks had against
McCormick and Northern Improvement related to Native Energy or the facts
and circumstances around operation of Native Energy, and had to be raised in
the Original Action.” The court stated the district court in the first action
authorized Fredericks to bring additional claims against McCormick and
Northern Improvement. However, Fredericks did not bring those claims until
approximately one month before trial, which the court struck as untimely. The
court concluded that although Fredericks’ claims against McCormick and
Northern Improvement were dismissed as untimely, they could have been
raised in the first action. The court concluded, “If Fredericks disputes [the
court’s] dismissal of his Third Amended Answer [relating to McCormick and
Northern Improvement], his remedy still lies within that Action or an appeal
from that Action, not in filing a new, separate lawsuit asserting the same
claims.”

[¶14] We agree with the district court’s analysis. In its earlier decision in April
2018, the district court allowed Fredericks to bring additional claims against
McCormick and Northern Improvement; however, he did not bring those
claims until August 2018, thirty-four days before trial. Fredericks’ claims
against McCormick and Northern Improvement in this case are nearly
identical to the claims raised in his stricken pleading in the earlier action.
Fredericks’ claims raised here are based on the same facts that were litigated
and decided in the earlier lawsuit. Although untimely, Fredericks’ claims were
capable of being raised in the earlier action. We conclude res judicata bars


                                        4
Fredericks’ claims against McCormick and Northern Improvement in this
action.

                                       B

[¶15] The district court also concluded res judicata barred Fredericks’ claims
against Vogel because Vogel was in privity with McCormick and Northern
Improvement. The court stated the only difference between this case and the
earlier action is the addition of Vogel as a defendant and the alternative
theories pled to justify recovery against them. The court concluded the claims
against Vogel relied on the same factual allegations involved in the first action
and should have been brought in that action.

[¶16] We have held that under our expanded version of privity, attorneys are
in privity with their client for purposes of res judicata. Simpson v. Chicago
Pneumatic Tool Co., 2005 ND 55, ¶ 10, 693 N.W.2d 612 (citing Geringer v.
Union Elec. Co., 731 S.W.2d 859, 866 (Mo. App. 1987); Merchants State Bank
v. Light, 458 N.W.2d 792, 794 (S.D. 1990); 47 Am.Jur.2d Judgments § 691
(1995)). Here, Fredericks alleged Vogel acted wrongfully by working with
McCormick to withhold confidential information from Fredericks and breached
its duty of loyalty by favoring one client, McCormick, over another client,
Native Energy. Fredericks alleged Vogel’s actions constituted legal
malpractice. Under this Court’s expanded version of privity, privity exists
between Vogel and McCormick and Northern Improvement in the earlier
action for purposes of res judicata.

[¶17] Fredericks’ claims against Vogel in this action rely on facts that were
litigated in the earlier action. One of the primary issues in the action was
McCormick’s receipt of a management fee from Native Energy. McCormick
provided certain services to Native Energy in exchange for a fee of five percent
of Native Energy’s revenues. Fredericks alleged Vogel represented Native
Energy on the basis of Maurice McCormick’s affidavit and Steve McCormick’s
testimony that Vogel reviewed agreements that were executed by Native
Energy and third-party oil companies in 2010-2011. McCormick and Vogel
stated that Vogel reviewed the agreements on McCormick’s behalf as part of
McCormick’s management services. The district court in the earlier action

                                       5
found Vogel was representing McCormick not Native Energy when it reviewed
the agreements and did not disqualify Vogel from representing McCormick and
Northern Improvement. Fredericks appealed the decision not to disqualify
Vogel and this Court affirmed. McCormick v. Fredericks, 2020 ND 161, ¶ 46.
Additionally, the jury found that McCormick’s receipt of the management fee
was not a breach of a fiduciary duty owed to Native Energy or Fredericks.

[¶18] Fredericks attempted to bring the claims against Vogel he is raising here
in the earlier action when he moved to join Vogel as a third-party defendant.
The district court denied Fredericks’ motion to join Vogel, stating it would be
confusing if Vogel was a party to the lawsuit. Fredericks did not raise on appeal
the court’s order denying Fredericks’ motion to join Vogel.

[¶19] “A party with a single cause of action generally may not split that cause
of action and maintain several lawsuits for different parts of the action.” Lucas
v. Porter, 2008 ND 160, ¶ 10, 755 N.W.2d 88. Res judicata is premised upon
the prohibition against splitting a cause of action. Id. “[T]he facts that establish
the existence of a right in a plaintiff and an invasion of that right by the
defendant constitute a cause of action, and if a right of recovery rests on the
same state of facts, the cause of action may not be split.” Id. at ¶ 18.

[¶20] Fredericks’ claims against Vogel in this action rely on the same set of
facts litigated in the earlier action. Fredericks’ failure to raise on appeal the
district court’s denial of his motion to join Vogel in the earlier action precludes
him from splitting his cause of action by bringing a separate lawsuit against
Vogel. We conclude the district court did not err in holding res judicata barred
Fredericks’ lawsuit against Vogel.




                                         6
                                      III

[¶21] We have considered Fredericks’ remaining arguments and conclude they
are either without merit or not necessary to our decision. The order is affirmed.

[¶22] Gerald W. VandeWalle
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




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