Christopher Gary Baylor, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1063

Christopher Gary Baylor,
Appellant,

vs.

Johnson & Greenberg, PLLP, et al.,
Respondents.

Filed April 5, 2021
Affirmed
Smith, John, Judge*
Hennepin County District Court
File No. 27-CV-20-4935

Christopher G. Baylor, Springfield, Pennsylvania (pro se appellant)

Steven J. Sheridan, Olivia A. Moe, Stephen F . B u t e r i n , F i s h e r B r e n & S h e r i d a n L L P ,
Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Frisch, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s dismissa l of appellant Christ opher Gary Baylor’s
malpractice claims against respondents Johnson & Greenberg, PLLP; Lee R. Johnson; and
Jill D. Greenburg, because the district court correctly concluded that appellant’s claims
were barred by res judicata.
FACTS
Appellant hired respondent Lee John son of respondent law firm Johnson &
Greenberg to represent him in connection with a petition for an order for protection (OFP)
against appellant filed by appellant’s then-wife, E. Following a hearing, the district court
determined that appellant had committed domestic abuse against E. and their child. The
district court issued an OFP granting E. sole -legal and sole-physical custody of the child,
limiting appellant’s contact with E., limiting his parenting time, ordering him to pay child
support, and requiring him to receive counseling before having contact with the child.
Appellant brought an action in federal di strict court (the federal action) against
respondent Johnson, claiming in effective assistance of counsel. 1 The magistrate judge,
after noting that appellant’s claim was actually legal malpractice because there is no right
to effective assistance of counsel in a civil case, issued a report. The report set out the four
elements of legal malpractice: (1) an attorney-client relationship; (2) acts of the defendant
constituting negligence or breach of contract; (3) that such acts are the proximate cause of

1 The federal action also involved claims ag ainst several other defendants, none of which
is relevant to this appeal.

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the plaintiff’s damages; and (4) that, but fo r the defendant’s conduct, the plaintiff would
have been successful in the action. Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281
(Minn. 1983). The magistrate concluded th at “[Appellant] has not alleged any acts
constituting negligence or breach of contract , any facts that would suggest causation of
damages, or any facts that would support a reasonable inference that [appellant] would
have succeeded in the state court proceedi ngs, absent [respondents’] conduct”; and
recommended that “the claim against [respondents] be dismissed.” A federal district court
judge adopted the recommendation and dismisse d the claim with prej udice on August 1,
2019.
Appellant subsequently brought this action against respondents Johnson,
Greenberg, and their law firm, claiming: (1) professional negligence and malpractice;
(2) breach of an attorney-client retainer agreement; (3) breach of duty; and (4) conversion,
or failure to present certain evidence, in the OFP matter. Respondents moved to dismiss
for failure to state a claim on which relief coul d be granted. Following a Zoom hearing,
the district court granted respondents’ moti on to dismiss on the ground of res judicata.
Appellant challenges the dismissal, arguing that res judicata does not apply.
DECISION
The application of res judicata is a ques tion of law that an ap pellate court reviews
de novo. Brown-Wilbert Inc., v. C opeland Buhl & Co., P.L.L.P. , 732 N.W.2d 209, 220
(Minn. 2007). Res judicata requires that: (1) the prior claim involv ed the same factual
circumstances; (2) it involved the same parties or their privities; (3) there was a final
judgment on the merits; and (4 ) the party against whom it is alleged had a full and fair

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opportunity to litigate the matter. Id. Because appellant argues in his brief only that he did
not have a full and fair opportunity to litigate this matter in the federal action, he has waived
(forfeited) his right to ch allenge satisfaction of the first three elements. See Peterson v.
BASF Corp., 711 N.W.2d 470, 482 (Minn. 2006) (“[F]ailure to address an issue in [a] brief
constitutes waiver of that issue.”); see also State v. Tomassoni 778 N.W.2d 327, 334 (Minn.
2010) (noting that an appellate court does not address pro se unsupported claims on appeal).
Whether a party had a full a nd fair opportunity to litigat e a matter is an objective,
not a subjective, test. State v. Joseph, 636 N.W.2d 322, 328 (Minn. 2001) (concluding that
party opposing res judicata “had a full and fair opportunity to litigate the coverage defense
in the . . . declaratory judgment proceeding”).
The question of whether a party had a full and fair
opportunity to litigate a matter generally focuses on whether
there were significant procedur al limitations in the prior
proceeding, whether the party had the incentive to litigate fully
the issue, or whether effectiv e litigation was limited by the
nature or relationship of the parties. The record here indicates
that there were no significant procedural limitations placed on
[the party opposing res judicata] in the . . . declaratory
judgment proceeding, that [the ] party had every incentive to
litigate the matter, and effectiv e litigation was not limited by
the nature or relationship of the parties.

Moreover, a litigant’s disagr eement with a legal ruling
does not necessarily mean that the court denied the litigant a
full and fair opportunity to litigate a matter. Here, if [the party]
believed that the decision of the [court in the prior action] was
erroneous, it had both the right and the opportunity to appeal.
For reasons known only to [itself], it chose not to appeal. Had
it successfully appealed, it would not be in the position it finds
itself in now. . . .When a litigan t is willing to gamble on the
outcome of a lawsuit and sit[ s] silent when he has an
opportunity to presen t evidence, he shou ld be bound by the
result, whatever it may be. . . . [T]he same may be said when a

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litigant sits silent on the oppor tunity to appeal. Thus, we
conclude that the fourth requirement for the application of res
judicata has been met.

Id. at 328-29 (quotation and citations omitted).
Appellant brought the federal action against parties he chose, asserted the claims he
chose, made the arguments he chose, chose to proceed pro se rather than with an attorney,
and chose not to appeal. He now argues on a ppeal that he did not have a full and fair
opportunity to litigate this matter because “[the district court] . . . failed to recognize [his]
argument.” The argument demonstrates that appellant does not understand that the issue
for res judicata was whether he had the opportun ity to litigate in the federal action, not in
the subsequent district court action.
The district court correctly concluded that appellant:
has already litigated his claims arising out of [respondents’]
representation and provision of legal services to him in the
OFP [m]atter. Since [he] does not allege that this action arises
out of any new or different facts other than [respondents’] legal
representation of him in the OFP [m]atter, and the [f]ederal
[a]ction has been dismissed purs uant to the [federal district
court judge’s] order entered on August 1, 2019, this claim is
barred by the doctrine of res judicata.

There was no error in the district court’s analysis.

Affirmed.