This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1997

Christina Wagner, 

Appellant, 

vs. 

Mark Sowl, 

Respondent.

Filed May 18, 2015

Affirmed

Bjorkman, Judge

St. Louis County District Court

File No. 69DU-CV-14-737

Christina Wagner, Barnum, Minnesota (pro se appellant)

Mark Sowl, Duluth, Minnesota (pro se respondent)

Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and 

Bjorkman, Judge. 

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

BJORKMAN, Judge

Plaintiff-appellant challenges the district court’s determination that she did not 

prove her fraud claim against defendant-respondent and that the action is otherwise

barred by res judicata and collateral estoppel. We affirm. 
2

FACTS

Respondent Mark Sowl owned and operated the Takk for Maten Café in Duluth. 

Appellant Christina Wagner was a patron. In 2010, the restaurant was not doing well. 

On November 9, Wagner gave Sowl a check for $3,000. The check was made out to the 

restaurant; Sowl deposited it in the restaurant’s bank account. Wagner’s payment was 

not otherwise memorialized. 

The relationship between the parties deteriorated. In June 2012, Wagner filed a 

conciliation court claim against the restaurant. According to the claim statement, Wagner

loaned the money to the restaurant based on an oral agreement that she would be treated 

as an investor with the rights to review the restaurant’s financial records and to meet with 

the restaurant’s attorney. Wagner alleged that the restaurant had not met these terms and 

demanded repayment of the $3,000. 

On July 1, Sowl and his co-owner transferred ownership of the restaurant to 

Sandra Thompson. But both Sowl and the co-owner remained on the board of governors 

of Takk for Maten, LLC until December 2012, when they discontinued their involvement 

in the corporation. 

Wagner’s conciliation court claim was heard in late August. On November 15, the 

conciliation court entered judgment in favor of Wagner in the amount of $3,075. The 

judgment identifies the debtor as “Takk for Maten Café.” Shortly after the judgment was 

entered, the restaurant closed.1 Wagner attempted to collect on the judgment through a 

writ of execution. Wagner contends that Thompson agreed to satisfy the judgment 

 

1 Wagner asserts that the restaurant closed sometime in January 2013. 
3

through periodic payments, but Wagner only received one $500 payment. Thompson 

later filed for bankruptcy. On May 29, 2013, the bankruptcy court discharged all of 

Thompson’s personal debts and any debts of Takk for Maten, LLC to which she extended 

a personal guaranty.

On December 31, Wagner filed a conciliation court claim against Sowl, seeking to 

recover the $3,000 she provided to the restaurant. Wagner described her claim as seeking 

[r]ecovery of damages incurred due to [Sowl’s] role in 

intentionally neglecting duty of care, duty of full disclosure, 

knowledge of false information and not correcting to my 

detriment. Actions include holding monies unfairly under the 

guise of “investment,” without transparency, business 

meeting, paperwork, intentionally withheld information, and 

denied agreed upon specified participation. Actions derived 

from malice, and breach of agreement to prevent any mirror 

image.

The conciliation court dismissed the claim with prejudice, determining that Wagner gave 

the $3,000 to the restaurant, not to Sowl, and that Wagner had already obtained a 

judgment against the restaurant. 

Wagner removed the matter to district court for a trial de novo. She filed a new 

complaint seeking $3,200 from Sowl based on: 

A). Intentional misrepresentation; B). Intentional breach of 

LLC duty; C). Intentional breach of Loyalty; D). Intentional 

deceit with malice; E). Intentional breach of LLC grounds; 

F). Fraudulent Inducement; G). Clandestine disposition; 

H). Convoluted language that frequently contradicted himself; 

I). Intentional unjust enrichment for owners at plaintiff’s 

expense; and J). Flagrant disregard for the civil process and 

judgment ordered.
4

Wagner asserted that these claims are not identical to those litigated in the 2012 action 

against the restaurant because “[t]he claim against Mark Sowl is fraud.” She alleged 

Sowl’s sale of the restaurant to Thompson was a fraudulent transfer because it allowed 

Thompson to discharge Wagner’s judgment against the restaurant. 

The matter came before the district court on August 22, 2014. At the beginning of 

the hearing, the district court indicated that it believed res judicata and collateral estoppel 

barred Wagner’s claims, but permitted Wagner to argue why her claims should proceed. 

Wagner acknowledged that she was seeking to recover the same $3,000 for which she 

obtained a judgment against the restaurant, but she explained that her action against Sowl 

is based on a different theory (fraud). Based on the parties’ arguments, written 

submissions, and additional exhibits, the district court dismissed Wagner’s complaint. 

The district court concluded that her claims are barred by res judicata and collateral 

estoppel. It also determined that to the extent Wagner asserted new claims, they 

essentially allege fraud and Wagner did not meet her burden of proof. Wagner appeals. 

D E C I S I O N

I. The district court did not clearly err in finding that Wagner did not prove

that she is entitled to recover damages based on fraud. 

“On appeal from the decision of a district court sitting without a jury, this court 

determines whether the evidence sustains the findings of fact and whether the findings 

sustain the conclusions of law and judgment.” Roberts v. Brunswick Corp., 783 N.W.2d 

226, 230 (Minn. App. 2010). We do not set aside a district court’s findings of fact unless 

they are clearly erroneous. Id.; see also Minn. R. Civ. P. 52.01. “If there is reasonable 
5

evidence to support the district court’s findings, we will not disturb them.” Rogers v. 

Moore, 603 N.W.2d 650, 656 (Minn. 1999).

Wagner challenges the district court’s findings that she did not present a prima 

facie case of fraud by Sowl. To prove fraud by misrepresentation, a claimant must show: 

(1) there was a false representation by a party of a past or 

existing material fact susceptible of knowledge; (2) made 

with knowledge of the falsity of the representation or made as 

of the party’s own knowledge without knowing whether it 

was true or false; (3) with the intention to induce another to 

act in reliance thereon; (4) that the representation caused the 

other party to act in reliance thereon; and (5) that the party 

suffer[ed] pecuniary damage as a result of the reliance.

Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 736 N.W.2d 313, 318 (Minn. 2007) 

(quotation omitted).

The district court found that Wagner failed to establish fraud because (1) she did 

not produce evidence that she gave the money to the restaurant based on any 

representations by Sowl; (2) most of Sowl’s claimed misrepresentations and other 

fraudulent conduct occurred after Wagner provided the money to the restaurant; and 

(3) the only damages Wagner sustained are the loan proceeds, for which Wagner already 

obtained a judgment against the restaurant. And the court further found that Wagner 

failed to prove that Sowl is personally liable for the judgment. The evidence supports 

these findings. 

Wagner does not dispute the fact that her allegations against Sowl are based on 

conduct that occurred two years after she provided money to the restaurant. But she 

argues that Sowl should be held liable because he is “the most reprehensible party in [a] 
6

fraudulent sell of LLC ownership” carried out to escape liability for the judgment. We 

are not persuaded. Wagner’s argument is premised on the claim that Sowl sold the 

restaurant to Thompson to avoid personal liability. But at the time of the sale, there was 

no judgment, only a conciliation court claim against the restaurant. The record also 

indicates that Sowl informed Wagner of his plan to transfer ownership of the restaurant to 

Thompson in July 2012, prior to the first conciliation court hearing. Moreover, Wagner 

does not explain how the transfer of ownership would allow the judgment to be 

discharged. 

Based on our careful review of the record, we conclude that the district court did 

not clearly err in determining that Wagner did not prove that Sowl committed fraud or 

that she suffered resulting damages.

II. Wagner’s claims are barred by res judicata.

Res judicata is a finality doctrine that prevents a party from bringing a claim that 

was, or could have been, raised in a prior action. Drewitz v. Motorwerks, Inc., 728 

N.W.2d 231, 239 (Minn. 2007). The doctrine applies when “(1) the earlier claim 

involved the same set of factual circumstances; (2) the earlier claim involved the same 

parties or their privities; (3) there was a final judgment on the merits; [and] (4) the 

estopped party had a full and fair opportunity to litigate the matter.” Brown-Wilbert, Inc. 

v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 220 (Minn. 2007) (quotation 

omitted). Res judicata requires a party “to assert all alternative theories of recovery in the 

initial action.” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004) (quotation 
7

omitted). The application of res judicata is a question of law that we review de novo. 

Schober v. Comm’r of Revenue, 853 N.W.2d 102, 111 (Minn. 2013). 

Same factual circumstances

“A claim or cause of action is a group of operative facts giving rise to one or more 

bases for suing.” Hauschildt, 686 N.W.2d at 840 (quotation omitted). Wagner argues 

that this action does not involve the same group of operative facts as the 2012 

conciliation court proceeding because it is based on subsequent events. We disagree. 

First, Wagner’s assertions that she was not afforded the investor rights she was 

promised—access to financial information and involvement with the restaurant’s 

attorney—and that her money was not returned on demand, appear in both her first 

conciliation court claim statement and the complaint in this case. Second, we agree with 

the district court that both actions seek recovery for the same damages. Therefore, both 

actions are premised on the factual circumstances surrounding Wagner’s initial payment 

to the restaurant and subsequent demands for repayment. 

Same parties 

Sowl was not a party to the initial action, so we consider whether he was in privity 

with the restaurant. Privity recognizes “that a judgment should also determine the 

interests of certain non-parties closely connected with the litigation.” Reil v. Benjamin, 

584 N.W.2d 442, 445 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998). 

“Because the circumstances in which privity will be found cannot be precisely defined, 

we have held that determining whether parties are in privity requires a careful 
8

examination of the circumstances of each case.” Rucker v. Schmidt, 794 N.W.2d 114, 

118 (Minn. 2011). 

The undisputed facts demonstrate that Sowl was in privity with the restaurant. 

Although not a party, Sowl was closely connected with both the underlying 

circumstances and the initial conciliation court proceeding. Sowl was a co-owner of the 

restaurant and served on the board of governors of Takk for Maten, LLC at all relevant 

times. See id. at 120 (stating that the legal interests of a corporation and its officers are 

similarly affected by the outcome of a legal proceeding). He received the check from 

Wagner, deposited it in the restaurant’s account, and allegedly made statements to 

Wagner concerning repayment and her role in the company. And Sowl appeared on 

behalf of the restaurant in the 2012 court proceeding.

Final judgment on the merits

Wagner argues that the first conciliation court judgment was not final because it 

was narrow in scope and because she submitted a letter after the judgment was entered 

indicating that she had unanswered questions. We disagree. The conciliation court 

proceeding resulted in entry of judgment in the amount of $3,075 against the restaurant.

Wagner attempted to collect on the judgment, ultimately obtaining a writ of execution.

Full and fair opportunity to litigate

Wagner argues that this res judicata element is not met because the district court 

judge in this case “redirected [her] attention to anything but the evidence” and the 

evidence was “suppressed during [the] hearing.” We are not persuaded. The focus of our 

analysis is whether Wagner had a full and fair opportunity to litigate her first conciliation 
9

court claim. State v. Joseph, 636 N.W.2d 322, 328-29 (Minn. 2001) (concluding the 

application of res judicata was proper where a party had a full and fair opportunity to 

litigate a claim in a prior proceeding). Nothing in the record indicates that Wagner 

lacked this opportunity. Indeed, the initial action resulted in judgment in her favor 

against the restaurant for the full amount she sought.

In conclusion, all four elements of res judicata are present in this case.2 While we 

understand Wagner’s frustration that she is unable to collect on her judgment against the 

restaurant, that fact does not make Sowl personally liable for the restaurant’s debt.

Affirmed.

 

2

The district court also concluded that collateral estoppel bars this action. Because we 

conclude that res judicata applies, we do not separately analyze the issue of collateral 

estoppel. See generally Hauschildt, 686 N.W.2d at 837.