Charlene Y. Latham, 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This opinion is nonprecedential except as provided by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
A20-1596

Charlene Y. Latham,
Appellant,

vs.

Progressive Preferred Insurance Company, et al.,
Respondents.

Filed July 26, 2021
Affirmed
Cochran, Judge

Dakota County District Court
File No. 19HA-CV-20-646

Charlene Y. Latham, Addison, Texas (pro se appellant)

Jeffrey M. Markowitz, Steven J. Erffmeyer, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant-insured challenges the district court’s grant of summary judgment to
respondent-insurer and respondent-chief-executive-officer (CEO). Appellant argues that
the district court erred by (1) declining to consider her second amended complaint when
deciding respondents’ summary-judgment mo tion, (2) granting summary judgment in

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favor of respondent-insurer based on res ju dicata, and (3) granting summary judgment in
favor of respondent-CEO based on the absence of evidence of personal participation in the
injury-producing acts. We affirm.
FACTS
This case arises out of a car accident in volving appellant Charlene Y. Latham that
occurred on December 4, 2017. Due to injuries she sustai ned in the accident, Latham
sought benefits from res pondent Progressive Preferre d Insurance Company under a
no-fault policy. Pursuant to that policy, Progressive paid Latham several thousand dollars
in medical-expense benefits and income-loss benefits over the course of several months.
In June 2018, a doctor co nducted an independent medical examination of Latham at
Progressive’s request and conc luded that Latham was no longer in need of any medical
treatment for injuries resulting from the car a ccident. Progressive terminated Latham’s
medical-expense benefits. The parties th ereafter corresponded for several months
regarding whether Latham was entitled to further income-loss benefits. Latham ultimately
agreed to settle with Progressive for $3,500. As part of the settlement, Latham signed a
release on January 2, 2019. Latham agreed to “release and forever discharge” Progressive
and its principals, agents, and representatives from
any and all rights, claims, dema nds and damages of any kind,
known or unknown, existing or ar ising in the future, resulting
from or relating to any No-Fault benefits including but not
limited to . . . wage, and/or income loss benefits . . . or medical
expense benefits . . . arising ou t of certain person[al] injuries
allegedly received by [Latham] in an autom obile accident
occurring on 12-04-17.

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The Prior Court Action
In February 2019, Latham filed a pe tition for mandatory arbitration with the
American Arbitration Association, seeking further benefits from Progressive under the
same no-fault policy. In response, Progressive commenced a declaratory-judgment action
in district court in July 20 19 (“the prior court action”). 1 Progressive sought an order
enforcing the settlement agreement and dismissing Latham’s arbitration petition. Latham
answered the complaint and asserted several counterclaims. In her counterclaims, Latham
alleged that Progressive had “refused to pa y coverage that was approved for [w]age loss
payments since February 2018” and acted in bad faith in violation of Minnesota’s Insurance
Standard of Conduct statute, Minn. Stat. § 604.18 (2020). She further alleged that
Progressive violated provisions of the Minnesota Unfair Claims Practices Act, Minn. Stat.
§§ 72A.17-.32 (2020), by, for instance, refu sing to acknowledge receipt of medical
documentation, deny ing claims without good-faith reas ons, inducing her to settle by
cancelling her policy, and leading her to believe that the release she signed did not pertain
to her claim for income-loss benefits. Lath am requested that the district court order

1 We note that the parties’ pleadings and the district court’s order in the prior court action
are not in the record in this case. Genera lly, this court “may not consider matters not
produced and received in evidence below.” Thiele v. Stich , 425 N.W.2d 580, 582-83
(Minn. 1988). But we have the inherent powe r to take judicial notice of public records
“where the orderly administra tion of justice commends it.” Eagan Econ. Dev.
Auth. v. U-Haul Co. of Minn. , 787 N.W.2d 523, 530 (Minn. 2010) (quotation omitted).
And “[c]ourt records and files from prior ad judicative proceedings are an appropriate
subject for judicial notice by the court.” In re Welfare of D.J.N. , 568 N.W.2d 170, 174
(Minn. App. 1997) (discussing propriety of di strict court taking judicial notice of prior
court file). Because the pleadings and the district court’s order in the prior court action are
public records and their substa nce is essential for our resolu tion of this appeal, we take
judicial notice of those documents without objection.

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Progressive to pay her $16,000 plus interest in income-loss benefits. The parties then filed
motions to dismiss. Progressive also moved the court for an order enforcing the settlement
agreement. And Latham subsequently filed a motion to exclude the action from the district
court’s expedited civil litigation track.
In February 2020, the district court i ssued an order granting Progressive’s motion
to enforce the settlement agreement. The court concluded that “[t]he release agreement is
binding” because Latham “knowingly entere d into the written rele ase and accepted the
$3,500 settlement check.” The court determined that Lath am was “barred, by her own
actions on January 2, 2019, from pursuing this matter further.” After determining that the
settlement agreement was enfo rceable, the district court denied Latham’s motion to
exclude the action from the expedited litigation process, concluding that the motion was
moot. The district court later dismissed the action and judgment was entered.
The Present Action
Eleven days before the district court’ s ruling in the prior court action, Latham
initiated the present action. In her complaint, Latham raised several of the same claims
that she raised in the prior court action. Latham also asserted several new claims under the
Minnesota Unfair Claims Practices Act, and she alleged that Progressive engaged in fraud
by wrongfully inducing her to sign the release. Following Progressive’s answer, Latham
filed an amended complaint with leave of court. In her amended complaint, Latham added
Progressive’s CEO, respondent Susan Patricia Griffith, as a defenda nt. In total, the
amended complaint raised 41 causes of acti on, including several new claims under the
Minnesota Unfair Claims Practices Act and the Minnesota No-Fault Automobile Insurance

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Act, Minn. Stat. §§ 65B.41-.71 (2020), as well as claims of negligent and intentional
infliction of emotional distre ss. In the amended complaint, Latham did not seek
income-loss benefits but rather sought over six million dollars in “compensatory, punitive,
unliquidated & consequential damages.”
After answering the amended compla int, Progressive moved for summary
judgment. Progressive requested that the district court dismiss the action in its entirety and
dismiss Griffith as a party to the action. Progressive argued that the undisputed facts
showed that (1) Latham had made insufficient service of process of the summons and
complaint and (2) she had failed to state a claim upon which relief could be granted.
Latham then filed a second amended complain t, this time without leave of court or
respondents’ consent.
In October 2020, the district court granted Progressive’s motion for summary
judgment. As an initial matter, the district court determined that Latham’s first amended
complaint, not the second amended compla int, was the “controlling” complaint for
purposes of deciding the motion for summary judgment. The district court did not consider
the second amended complaint because Latham did not have the court’s permission or
respondents’ consent to file her second amended complaint.
The district court further determined that no genuine issues of material fact existed
because all of Latham’s claims in the present action were “based on exactly the same
factual scenario” as in the prior court action a nd “[a]ll the facts supposedly at issue were
fully and finally addressed in this Court’s Orde r” in the prior court action. The district
court then determined that, ev en if Latham was “somehow ab le to show that there are

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material facts at issue,” Progressive was entitled to judgment as a matter of law under the
doctrine of res judicata. And the court concluded that Latham’s allegations against Griffith
were also barred as a matter of law because th ere was no evidence to show that Griffith
directed or participated in any of the alleged violations.
Latham appeals.
DECISION
Latham argues that the district court e rred by granting summary judgment in favor
of Progressive and Griffith and not gran ting summary judgment in her own favor.
Summary judgment “is appropriate when there is no genuine issue of material fact and a
party is entitled to judgment as a matter of law.” Henson v. Uptown Drink, LLC ,
922 N.W.2d 185, 189- 90 (Minn. 2019) (quota tion omitted). Appellate courts review a
grant of summary judgment de novo to determine if the district court properly applied the
law and if genuine issues of material fact remain. Montemayor v. Sebright Prods., Inc. ,
898 N.W.2d 623, 628 (Minn. 2017). “When conducting this review, [appellate courts]
view the evidence in the light most favorable to the nonmoving party.” Henson,
922 N.W.2d at 190 (quotation omitted). A grant of summary judgment may be sustained
on any grounds. Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
Latham raises three specific arguments on appeal. She contends that the district
court erred by (1) declining to consider he r second amended complaint when deciding
Progressive’s motion for summa ry judgment, (2) concluding that her claims against
Progressive were barred by res judicata, and (3) concluding that her claims against Griffith
were barred as a matter of law. We address each of these arguments in turn.

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I. The district court did not err by d eclining to consider Latham’s second
amended complaint.

Latham argues that the district court e rred by concluding that her first amended
complaint was controlling and by declining to consider he r second amended complaint
when deciding Progressive’s summary-judgment motion. Under the Minnesota Rules of
Civil Procedure, once a responsive pleading has been served, a plaintiff “may amend a
pleading only by leave of court or by written consent of the adverse party.” Minn. R. Civ.
P. 15.01 (emphasis added). It is undisputed that Latham did not seek leave of court or
obtain the consent of respondents to file her second amended complaint.
Latham argues that the district court none theless should have considered her second
amended complaint because she “had no opportunity to fully develop her claims before the
Court or seek leave to amend the Comp laint” before Progressive filed its
summary-judgment motion. Latham, however, provides no support for her contention that
she was unable to fully develop her claims be fore Progressive filed its motion. Nor does
she explain why she did not seek leave of cour t to file her second amended complaint. If
Latham wished to have the district court co nsider further amendmen ts to her complaint,
she needed to again seek leave of court or ob tain the written consent of the respondents.
The district court properly declined to consider Latham’s second amended complaint.
II. The district court did not err by co ncluding that Latham’s claims against
Progressive are barred by res judicata.

Latham next argues that the district cour t erred by applying res judicata to bar her
claims against Progressive. She contends that none of the factors for applying the doctrine
are met in this case. We disagree.

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The application of res judicata is a ques tion of law, which we review de novo.
Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 220 (Minn. 2007)
(Brown-Wilbert III). Once a dispute between parties ha s been adjudicated, “res judicata
prevents either party from relitigating claims arising from the original circumstances, even
under new legal theories.” Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004).
Res judicata operates as an absolute bar to a subsequent claim when: (1) the prior claim
involved the same factual circ umstances; (2) the prior claim involved the same parties or
their privies; (3) there was a final judgment on the merits; and (4) the party against whom
res judicata is alleged had a full and fa ir opportunity to litigate the matter.
Brown-Wilbert III, 732 N.W.2d at 220. “Res judicata applies equally to claims actually
litigated and to claims that could have been litigated in the earlier action.” Id. With these
standards in mind, we consider the res judicata factors in turn.
A. Same Factual Circumstances
Under the first res judicata factor, “[t] he common test for determining whether a
former judgment is a bar to a subsequent ac tion is to inquire whet her the same evidence
will sustain both actions.” Hauschildt, 686 N.W.2d at 840-41 (quotation omitted). The
first factor is met only if the right to assert the second claim arose at the same time as the
right to assert the first claim. Id. at 841. Here, both the first and second actions arose out
of Latham’s injuries in the December 2017 car accident, Latham’s subsequent objections
to Progressive’s coverage decisions, and the resulting settlement agreement on January 2,
2019. The same evidence woul d sustain both actions, and La tham’s right to assert the

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claims raised in the present action arose at the same time as those raised in the prior court
action.
Latham argues that the factual circumstan ces of the two actions are not the same
because “[n]ew facts were brought to light” after the prior court action. Latham appears to
contend that these “new facts” relate to her alleged discovery that Progressive had
“forged/fabricated” certain documents, incl uding the settlement ag reement, and that
Griffith was personally involved in the purported legal violations.
Res judicata does not apply where new fact s intervene prior to the second dispute
that furnish a new basis for a party’s claims. Federated Mut. Ins. Co. v. Litchfield Precision
Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990). But Latham has not identified,
either in her filings to the district court or in her briefs on appeal, any specific “new facts”
or evidence that she discovere d following the prior court action. Accordingly, we agree
with the district court’s conclusion that the claims in both actions involve the same factual
circumstances. The first res judicata factor is met.
B. Same Parties or Privies
With respect to the second res judicata fa ctor, Latham does not dispute that she and
Progressive were both parties to the prior court action. Instead, she challenges the district
court’s conclusion that Griffith is in privity with Progressive. Latham’s argument misses
the mark because the district court applied res judicata only with respect to Latham’s claims
against Progressive, not Griffith. The district court addressed Latham’s claims relating to
Griffith separately, and we discuss those claims below. Because Latham and Progressive
were both parties to the prior court action, the second res judicata factor is met.

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C. Final Judgment on the Merits
Under the third res judicata factor, a final judgment is “one that ends the litigation
on the merits and leaves nothing for the court to do but execute the judgment.” All Finish
Concrete, Inc. v. Erickson, 899 N.W.2d 557, 568 (Minn. App. 2017) (discussing the third
factor in the context of collateral estoppel). Here, the district court’s order and judgment
in the prior court action ended litigation re garding the enforceability of the settlement
agreement, which fully disposed of the counterclaims.2
Latham contends that there was no final judgment on the merits in the prior court
action because some of her claims in the present action “weren’t decided at all” in the prior
court action. This argument is based on a misunderstanding of the third factor’s
requirements. The third factor focuses on whether there was a final judgment on the merits
in the prior action , not whether the prior act ion resolved all of the claims in the present
action. See Brown-Wilbert III, 732 N.W.2d at 220-22 (analyzing whether there was final
judgment on the merits in first action for purpose of applying res judicata).
Latham also argues that res judicata cannot be applied here ba sed on this court’s
decision in Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 715 N.W.2d 484 (Minn.
App. 2006) (Brown-Wilbert II), aff’d on other grounds, 732 N.W.2d 209 (Minn. 2007). In
that case, we concluded that a prior judgment was not final for the purpose of applying res

2 We note that, in the prior court action, the district court entered judgment in the case
approximately one year after its February 2020 order. Latham does not rely on the timing
of the dismissal as a basis for her argument th at the prior court acti on did not result in a
final judgment on the merits. In any event, a ny error by the district court in ruling on res
judicata before the delayed entry of judgm ent in the prior court action was harmless
because judgment has now been entered.

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judicata because the appellate pro cess had not been exhausted. Id. at 488. The supreme
court disagreed, however, holding that “for res judicata purposes, a judgment becomes final
when it is entered in the district court and it remains final, despite a pending appeal, until
it is reversed, vacated or otherwise modified.” Brown-Wilbert III, 732 N.W.2d at 221.
Latham’s arguments are unavailing. The third res judicata factor is met.
D. Full and Fair Opportun ity to Litigate the Matter
The fourth and final res judicata factor “focuses on whether there were significant
procedural limitations in the prior proceedin g, whether the party had the incentive to
litigate fully the issue, or whether effect ive litigation was limited by the nature or
relationship of the parties.” Breaker v. Bemidji State Univ., 899 N.W.2d 515, 519 (Minn.
App. 2017) (quoting State v. Joseph , 636 N.W.2d 322, 328 (Mi nn. 2001)). Significant
procedural limitations exist, for instance, if the court in the first action lacked jurisdiction
to hear the claims raised in the second action. Wilson v. Comm’r of Revenue ,
619 N.W.2d 194, 198 (Minn. 2000).
Latham had a full and fair opportunity in the prior court action to litigate her claims.
The district court was not prevented fro m hearing Latham’s claims based on any
jurisdictional limitations. Latham had every incentive to litigate the matter and did so by
raising several counterclaims. Furthermore, effective litigation was not limited by the
nature or relationship of the parties.
Latham contends that, in the prior court ac tion, the district court deprived her of a
full and fair opportunity to litigate the matter when it denied her motion to exclude the case
from the expedited litigation process. This decision by the district court did not amount to

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a denial of a full and fair opportunity to litigate. “[A] litigant’s disagreement with a legal
ruling does not necessarily mean that the court denied the litigant a full and fair opportunity
to litigate a matter. . . . [I]f [the party] belie ved that the decision of the [court in the prior
action] was erroneous, it had both the ri ght and the opportun ity to appeal.” Joseph,
636 N.W.2d at 329. Latham did not appeal from the judgment dismissing the prior court
action. The fourth and final factor of res judicata is met.
In sum, all four res judicata factors are met. We therefore conclude that the district
court properly granted summary judgment to Progressive on the basis that Latham’s claims
against Progressive are barred by res judicata.
III. The district court did not err by co ncluding that Latham’s claims against
Griffith are barred as a matter of law.

Latham next contends that the district court erred by concluding that her claims
against Griffith fail as a matter of law. The district court determined that Griffith could not
be held personally liable with respect to any of Latham’s claims because there is no record
evidence of any direct contact between Griffith and Latham or any ev idence that Griffith
personally handled any portion of Latham’s benefits claims. We agree with the district
court.
A corporate officer generally cannot be liable for the wrong ful conduct of the
corporation’s other officers, agents, or employees unless the officer personally participated
in, directed, or negligently failed to learn of and prevent, the wrongful conduct.
Morgan v. Eaton’s Dude Ranch, 239 N.W.2d 761, 762 (Minn. 1976). Here, Latham did
not allege specific facts or provide any evidence to show that Griffith directed, participated

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in, or knew or should have known of any wrongful conduct. Latham merely asserted that
Griffith, as CEO of Progressive, “has been responsible, long-term in different departments
across the company, for making the business operations decisions” and therefore should be
held personally responsible for the actions of the corporation. And Latham further pointed
to a “communication” she purport edly had with Griffith, whic h appears to consist of two
emails Latham sent to Griff ith concerning her claims dispute to which Griffith did not
respond. These assertions focus on Griffith’s role as CEO, not any personal involvement
by Griffith in managing Latham’s insurance claims. The district court properly concluded
that Latham’s claims against Griffith are barred as a matter of law.
Affirmed.