Ungar v. North Dakota State University, 20050340.

• Decision Date: 24 August 2006
• Docket Number: No. 20050340.,20050340.
• Citation: 2006 ND 185,721 N.W.2d 16
• Parties: Abraham A. UNGAR, Plaintiff and Appellant v. NORTH DAKOTA STATE UNIVERSITY, Defendant and Appellee.
• Court: North Dakota Supreme Court

721 N.W.2d 16

2006 ND 185

Abraham A. UNGAR, Plaintiff and Appellant v. NORTH DAKOTA STATE UNIVERSITY, Defendant and Appellee.

No. 20050340.

Supreme Court of North Dakota.

August 24, 2006.

COPYRIGHT MATERIAL OMITTED

John J. Gosbee, Gosbee Law Office, Mandan, N.D., for plaintiff and appellant.

Tag C. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Abraham A. Ungar appeals from a summary judgment dismissing his claims against North Dakota State University ("NDSU"). We affirm, concluding the district court did not err in applying the doctrines of res judicata and collateral estoppel, and the court properly concluded Ungar failed to give timely notice under N.D.C.C. § 32-12.2-04 and failed to exhaust his remedies, we affirm.

I

[¶ 2] Ungar is a tenured professor at NDSU. Ungar's present action against NDSU stems from a letter of reprimand that was issued to him on October 10, 2001, by the Dean of the College of Science and Mathematics and the Chair of the Department of Mathematics. The letter of reprimand addressed two performance issues, specifically that Ungar had improperly administered student evaluations and had inappropriately intimidated and harassed a junior colleague, Tuval Foguel. The letter of reprimand referred to a message written in Hebrew on the top of a document sent by Ungar to Foguel. The message also contained the Hebrew word "warning" written in red ink. Ungar does not dispute he sent the document to Foguel with a message written at the top; however, Ungar denied writing the word "warning." The letter of reprimand was amended on November 28, 2001, to include additional details regarding Ungar's failure to properly conduct student evaluations.

[¶ 3] Ungar appealed the letter of reprimand to NDSU's Standing Committee on Faculty Rights ("Committee"), an internal appeals body. After an evidentiary hearing, the Committee found by clear and convincing evidence there was a pattern of intimidation and harassment by Ungar, a full professor, against Foguel, a non-tenured, tenure-track faculty member. The Committee also found Ungar had improperly conducted student evaluations.

[¶ 4] In addition to the internal university appeal, in November 2001, Ungar sued Foguel for tortious interference with contract, alleging Foguel wrongfully caused NDSU to breach Ungar's contract when Foguel denied writing the word "warning" on the document. Ungar claimed damages for loss of salary increases, harm to his reputation, emotional distress, and costs associated with defending against the disciplinary action. The Attorney General's office, in conjunction with the Risk Management Division of the Office of Management and Budget ("OMB"), defended Foguel, arguing that under N.D.C.C. ch. 32-12.2, an action against a state employee for alleged wrongful action taken within the scope of employment is not authorized and the action must be brought against the State.

[¶ 5] On September 4, 2002, Ungar submitted a notice of claim to OMB under N.D.C.C. § 32-12.2-04(1) alleging violations of his contractual and constitutional rights and seeking damages. OMB denied Ungar's notice of claim as untimely. In September 2003, the district court dismissed Ungar's action against Foguel for lack of subject-matter jurisdiction because Ungar had not filed a timely notice of claim with OMB as required by N.D.C.C. § 32-12.2-04. In dismissing, the court found it was "undisputed that both [Ungar and Foguel] were employed by [NDSU] at the time of the occurrence of these matters." The court also found "that the incident or incidence complained of by [Ungar] occurred during and in the course of [their employment]." The court concluded that "as a result [Foguel] is a state employee under N.D.C.C. § 32-12.2-04(1)" and that Ungar failed to comply with that statute's notice requirements. Ungar did not appeal that decision.

[¶ 6] In October 2004, Ungar commenced the present action against NDSU, asserting breach of contract, retaliation, and fraud. After receiving Ungar's discovery requests, NDSU moved to stay discovery and for dismissal under N.D.R.Civ.P. 12 and 56, arguing Ungar's action was barred by res judicata and collateral estoppel, and to the extent the complaint could be construed as raising claims against NDSU arising after the prior action was dismissed, those claims were barred by Ungar's failure to exhaust administrative remedies and timely file a notice of claim.

[¶ 7] The district court granted NDSU's motion for summary judgment. The court concluded Ungar's notice of claim filed in September 2002 with OMB was more than 180 days after the discovery of the injury and was properly denied by OMB as untimely. The court held it lacked subject-matter jurisdiction over Ungar's claims, other than his breach of contract claims, because he failed to give timely notice to OMB and had not exhausted his remedies through the administrative process at NDSU. The court further held Ungar's breach of contract claim was barred by the doctrines of res judicata and collateral estoppel. The court concluded that these claims were barred by the unappealed judgment dismissing Ungar's prior action against Foguel. The court reasoned that NDSU was in privity with Foguel, and therefore, Ungar's present claim is barred by res judicata and collateral estoppel because Ungar's claims in the present action stemmed from the conduct of NDSU and Foguel, which was adjudicated in Ungar's action against Foguel.

II

[¶ 8] Whether a district court properly granted summary judgment is a question of law, which we review de novo on the entire record. Peterson v. North Dakota Univ. Sys., 2004 ND 82, ¶ 6, 678 N.W.2d 163.

[S]ummary judgment . . . is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and that, under applicable principles of substantive law, [the movant] is entitled to judgment as a matter of law.

Id. (quoting Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257 (citations omitted)).

III

[¶ 9] Ungar argues his action against Foguel does not preclude this action against NDSU and he has the right to appeal NDSU's discipline once he exhausted his internal remedies at NDSU. NDSU argues the district court properly held Ungar's claims are barred by res judicata and collateral estoppel.

[¶ 10] The doctrines of res judicata and collateral estoppel bar courts from relitigating claims and issues in order to promote the finality of judgments, which increases certainty, avoids multiple litigation, wasteful delay and expense, and ultimately conserves judicial resources. Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 8, 693 N.W.2d 612; Riemers v. Peters-Riemers, 2004 ND 153, ¶ 9, 684 N.W.2d 619. The applicability of res judicata or collateral estoppel is a question of law, fully reviewable on appeal. See Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D.1992).

[¶ 11] "Although collateral estoppel is a branch of the broader law of res judicata, the doctrines are not the same." Id. 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. Id. Thus, res judicata means a valid, existing final judgment from a court of competent jurisdiction is conclusive with regard to claims raised, or those that could have been raised and determined, as to their parties and their privies in all other actions. Peacock v. Sundre Twp., 372 N.W.2d 877, 878 (N.D.1985). Res judicata applies even if subsequent claims are based upon a different legal theory. See Littlefield v. Union State Bank, 500 N.W.2d 881, 884 (N.D.1993). Collateral estoppel, or issue preclusion, forecloses relitigation of issues of either fact or law in a second action based on a different claim, which were necessarily litigated, or by logical and necessary implication must have been litigated, and decided in the prior action. Hofsommer, 488 N.W.2d at 383. For purposes of both res judicata and collateral estoppel, only parties or their privies are bound by an earlier judgment. Id. at 384.

[¶ 12] This Court has adopted an "expanded" version of privity for res judicata and collateral estoppel. Simpson, 2005 ND 55, ¶ 10, 693 N.W.2d 612. "[P]rivity exists if a person is so identified in interest with another that he represents the same legal right." Hofsommer, 488 N.W.2d at 384 (internal quotation omitted). In Hofsommer, at 384 (quoting Stetson v. Investors Oil, Inc., 176 N.W.2d 643, 651 (N.D.1970)), we said:

"The strict rule that a judgment is operative, under the doctrine of res judicata, only in regard to parties and privies, is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by prosecution of the action, employment of counsel, control of the defense, filing of an answer, payment of expenses or costs of the action, the taking of an appeal, or the doing of such other acts as are generally done by parties."

"Fundamental fairness underlies any determination of privity." Hofsommer, at 384. A judgment on the merits exonerating a party from liability...