This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 6 ). 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

. U N P U B L I S H E D O P I N I O N WORKE , Judge Appellant

- employee challenges the dismissal of his tort claims on the grounds of absolute privileg e, 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 district2

court erred in applying res judicata and collateral estoppel to bar his claims, and (5) the district court erre d in concluding that respondent

- employee’s statements to an off

- duty officer were protected by absolute privilege

. Because the claims a re barred by collateral estoppel, we affirm. FACTS Appellant David Brian Pemrick was an employee of respondent MINNCOR Ind ustries

. R espondent Lori Ann Bucher work ed alongside Pemrick in laundry services at the Minnesota Correctional Facility (MCF) in Fari bault, MN . O n February 4, 2015, Bucher reported that she was assaulted by Pemrick the previous day . S he told a sergeant at the Minnesota D epartment of Corrections (DOC) that Pe mrick shoved her in the shoulder area and knock ed 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 a n HRO affidavit that she had been shoved by Pemrick. On February 10, 2015, Bucher obtained an ex parte HRO. O n March 13, 2015 , a contested
HRO hearing was held ; Pemrick was represented by an attorney. Following the hearing, the district court issued a n HRO that prohibited Pemrick from having direct or in direct contact with Bucher and prohibited Pemrick ’s presence in the laundry building at MCF

Faribault

. The HRO contained specific finding s 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

. Pemrick3

maintain ed that the assault never occurred, that Bucher’s allegations were false, and that the surveillance video show ed that no assault occurred. Pemrick filed a complaint in district court presenting four theories of recovery : (1) defamation, (2) fraud, (3) negligent misrepre sentation, and (4) negligence. Pem rick’s defamation claim was directed a t b oth Bucher and MINNCOR. Pemrick assert ed 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 Farib ault 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 Co unty District Court. Pemrick’s fraud claim was directed solely a t Bucher and allege d that the aforementioned statements concerning the assault were false. T he negligent

misrepresentation claim was directed a t MINNCOR and allege d that MINNCOR fired Pemrick despite possessing a surveillance video showing that Pemrick did not commit the assault

. Likewise , the negligence claim was directed a t MINNCOR and allege d that MINNCOR breached a duty to verify the accuracy of the assault allegations.
MIN NCOR 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 th e assault allegations was decided in the HRO proceedings. The district court agreed with those arguments and dismissed the complaint . This appeal follows

.4 D E C I S I O N Before addressing the merits of Pemrick’ s claims, we must address two peripheral issues. First, Pemrick request s that we order production of the surveillance video possessed by MINNCOR. Second, Pemrick argues that the district court improperly disregarded certain affidavit evidence

. Video
- s urveillance e vidence According to Pemrick, MINNCOR failed to respond to a subpoena requesting production of the surveillance video

. Pemrick request s that we compel production of the video if “compliance with [the] subpoena is required.” Pemrick offer s no legal support for

s u ch action , and we decline to take such action. C ompelling 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. T he 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 pr oduced, consistent with the complaint, showing entitlement to the requested relief). T he district court did not abuse its discretion in dismissing the complaint without requiring production of the video.5

Affidavit e vidence Pemrick argues that the district court abused its discretion by disregarding an affidavit on the grounds that the affid avit was improperly notarized. The district court did not consider Pemrick’s af fidavit, not because it was improperly notarized , but bec ause , again, the district court resolve d the matter pursuant to Minn. R. Civ. P. 12.02 (e) , which allows a district cour t to exclude matters outside the pleadings. In re Hennepin Cnty. 1986 Recycling Bond Litig. , 540 N.W.2d 494, 497 (Minn. 1995).
T he dis trict 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 c laims We next address whether Pemrick ’s complaint contain s a claim upo n which relief

c an be g ranted

. 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.” Hebe rt v. City of6

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 complai nt, 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 judi cata, and collateral estoppel. R es judicata precludes a party from raising claims that were, o r 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 r elief” as the subsequent
claim. Beaulieu v. Minn. Dep ’ t of Human Servs. , 825 N.W.2d 716, 724 (Minn. 2013) (quotation omitted). A nswering this question involves an inquiry into whether “ the same evide nce will sustain both actions. ” Schober v. Comm’ r of R evenue , 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 t he HRO proceedings , and the evide nce that sustain ed the HRO would not sustain7

any of Pemrick’s present claims . A n HRO is a limited form of relief designed to protect and available only to victims of harassment . Minn. Stat. § 609.748, subd s . 2 , 5 (201 6 ).
R es judicata is inapplicable her e because Pemrick’s claims were not raised and could not have been raised in the HRO proceeding s. Collateral e stoppel Collateral estoppel bars relitigation of “ specific issues that h ave 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 a pplicable , the decision to apply the doctrine is left to the district court’s discretion. Rei l 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 coll ateral 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 part y 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 assault ed Buche r on February 3, 2015. A final judgment was reached in the HRO proceeding s ; a n 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 H RO8

proceeding s . 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 conte sted hearing. See Anderson v. Lake , 536 N.W.2d 909, 911 (Minn. App. 1995) (no ting that the hearing requirement s for a n 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 t estimony 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 contem pt for fail ure to respond to a subpoena). Instead, Pemrick decided to go forward with the contested HRO hearing. W hether Bucher was assaulted by Pemrick on February 3, 2015 , was decided in th e HRO proceeding s ; a final judgment on the merits was reached ; Pemrick was a party to th at judgment; and Pemrick received a full and fair opportunity to be heard on the issue

. Thus , c ollateral estoppel bar s 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 estoppe d 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, I nc. , 452 N.W.2d 648, 650 (Minn. 1990).9

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, 1 19 (Minn. 1991) (holding collateral estoppel barred defamation action whe n 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 Buc her are barred by collateral estoppel because Bucher’s statements were determined to be true

. See id. ; s ee also U.S. Bank N.A. v. Cold Spring Granite Co. , 802 N.W.2d 363, 37 3 (Minn. 2011) (noting a

common - law claim of fraud requires proof of a false repre sentation); 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 ag ainst MINNCOR, t o establish such a claim, a plaintiff must show that: (1) the defendant owe d the pl aintiff a duty of care; (2) the defendant supplied false informa tion 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’s10

negligent

- misrepresentation claim is barred by collateral estoppel because, at its heart, it seeks to relitigate whether the assault occurred. Regarding the negligen ce claim, t he 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.” Ag ain, the alleged nonoccu r r e nce 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 ar e differences b etween the burden of proof in HRO proce eding s and civil proceedings. While there is no express burden of proof in Minnesota’s HRO statute, issuance of a n HRO is not discretionary, as Pemrick asserts. See Minn. Stat. § 609.748 (201 6 ). A di strict court may issue a n 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 (201 6 ). MINNCOR asserts that, according to a “relevant collective bargaining agreement,” a wr it of certiorari is Pemrick’s exclusive method of review for challenges to MINNCOR’s decision to terminate Pemrick’s em ployment. See Williams v. Bd. o f Regents of Univ. of Minn. , 763 N.W.2d 646, 651

- 52 (Minn. App. 2009) (noting that “certiorari is the exc lusive 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.11

has engaged in harassment.” Id. , subd. 5(b)(3). The petitioner bears the burden of proof
to esta blish grounds for issuance of a n 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”). Furth er, 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 b y Humphrey v. Alpine Air Prod s, Inc. , 500 N.W.2d 788, 79 0 (Minn. 1993). The Minne sota L egislature has not identified the standard of proof to be used in HRO case s; therefore, the preponderance

- of

- the

- evidence standard applies. In fact,
t he district court that presided over the HRO hearing noted during the hearing that the applicable s tandard 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.