[¶ 1] John Witzke appeals from a district court judgment dismissing his lawsuit against the City of Bismarck (“City”). We affirm.
I
[¶ 2] Witzke was charged with attempted criminal mischief when he entered his neighbor’s yard with a shovel intending to damage his neighbor’s security camera. Witzke believed his neighbors were spying on him. A jury found Witzke guilty of
[¶ 3] Witzke then sued the City requesting $100,000.00 in damages. Witzke claimed the city attorney that prosecuted him lied and misled city officials, perjured himself in court, committed abuse of process, violated rules of professional conduct, and made defamatory statements. The City responded to Witzke’s complaint by requesting a dismissal of the lawsuit claiming the City was immune from liability, the rules of professional conduct do not provide a basis for relief, and collateral es-toppel barred his claim. The City also requested an award of attorney fees for defending a frivolous lawsuit. The district court dismissed the case with prejudice concluding: “Witzke’s action against Bismarck is clearly barred by collateral es-toppel as he is simply trying to get around his conviction which was affirmed.” In a later order, the district court awarded the City $500.00 for attorney fees and costs.
[¶ 4] On appeal, Witzke alleges the district court erred in dismissing his complaint because he can prove numerous individuals made misleading and false statements. The City responds arguing the district court properly dismissed Witzke’s lawsuit and that this Court should award costs and attorney fees for having to defend a frivolous appeal.
II
[¶ 5] Although the City’s motion to dismiss referenced N.D.R.Civ.P. 12, on appeal, the City argues this case should be treated as dismissed under N.D.R.Civ.P. 56, because Witzke presented exhibits that were outside the pleadings. Under N.D.R.Civ.P. 12(c): “If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.”
[¶ 6] Witzke did present exhibits that were outside the pleadings. The district court did not explicitly exclude those exhibits. Because the district court received exhibits that were outside pleadings, we consider the issues raised in this appeal in the posture of summary judgment.
Livingood v. Meece, 477
N.W.2d 183, 187 (N.D.1991);
Miller Enterprises, Inc. v. Dog N’ Cat Pet Centers of America, Inc.,
[¶ 7] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law.
Johnson v. Nodak Mut. Ins. Co.,
[¶ 8] The district court concluded this case could be dismissed because the doctrine of collateral estoppel barred all of Witzke’s claims. Through the doctrines of
Although collateral estoppel is a branch of the broader law of res judicata, the doctrines are not the same. Res judica-ta, or claim preclusion, is the more sweeping doctrine that prohibits the re-litigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by final judgment in a court of competent jurisdiction. On the other hand, collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.
[¶ 9] We have delineated a four-part test to determine whether collateral estop-pel will bar relitigation of a fact or issue involved in an earlier lawsuit: “(1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?”
Hofsommer v. Hofsommer Excavating,
[¶ 10] The only question in this case is whether the same issues were decided in the previous criminal proceeding. The City has the burden of establishing that the issue sought to be foreclosed from consideration in the second case was resolved in the City’s favor in the prior proceeding.
State v. Lange,
[¶ 11] Witzke’s complaint appears to have alleged four separate causes of action: (1) abuse of process, (2) perjury, (3) violation of the rules of professional conduct, and (4) defamation. To determine whether collateral estoppel applies, we must ascertain what facts were necessarily decided in the previous case and then determine whether Witzke is attempting to relitigate the same facts. Witzke’s civil complaint alleged in part:
5. Prosecutor for the City of Bismarck Paul Fraase maliciously and deliberately misused the court process to secure an unfounded criminal conviction against the Plaintiff. As a result there has been an “Abuse of Process”. The City of Bismarck led by Paul Fraase pursed [sic] a criminal complaint when there was no justification or sufficient evidence.
6. Prosecutor for the City Paul Fraase knowingly misled the mayor, city administrators and city commissioners about these spying security cameras. Paul Fraase knowingly misled Judge Risked-alh [sic] and the Jurors with false and misleading evidence. He did this verbally, with written letters and by producing false courtroom exhibits.
7. Paul Fraase allowed the City of Bismarck witnesses to lie under oath by asking questions that he knew would lead to perjured testimony.
Our summary dismissal of Witzke’s criminal appeal stated:
Witzke argues that the trial judge was biased against him, did not respond to his pretrial motion, and allowed theprosecutor to go beyond the scope of the trial in his examination of witnesses. Witzke also argues the prosecutor presented a case that was misleading and asked questions of witnesses he knew would result in false or misleading answers.
City of Bismarck v. Witzke,
[¶ 12] We cannot say, however, that collateral estoppel applies to Witzke’s remaining three claims. Nevertheless, the district court reached the correct result in dismissing the claims although the district court did not fully articulate the appropriate rationale.
[¶ 13] Two of Witzke’s allegations do not create a private cause of action. In
Riemers v. Peters-Riemers,
[¶ 14] Witzke’s remaining complaint appears to be for defamation. Witzke’s complaint states he has “endured defamation of his character.” To be defamatory, a statement must be false.
Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Twp.,
[¶ 15] Assuming Witzke could prove false statements were made, he still would not have a viable claim against the City because any statement made during the course of the criminal prosecution would be privileged communication. An individual is not liable for defamatory statements if the statements are privileged.
Rykowsky v. Dickinson Pub. Sch. Dist.
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1,
[¶ 16] Even if statements made by the city prosecutor were not privileged, the city prosecutor would be immune from liability for initiating and pur- ' suing the criminal charge. Prosecutors may be entitled to either absolute or quali
A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.... Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.
Id.
(citing
Imbler v. Pachtman,
[¶ 17] We recognized that absolute immunity covers prosecutorial functions such as the initiation and pursuit of a criminal prosecution, the presentation of the State’s case at trial, and other conduct intimately associated with the judicial process, but that prosecutors have only the protection of qualified immunity when functioning in the role of an administrator or investigative officer rather than in the role of an advocate. Id. The procedural difference between the two immunities is significant. Id. Absolute immunity defeats a suit at the outset, while an official with qualified immunity must establish his or her conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. (citing
Harlow v. Fitzgerald,
[¶ 18] We determine the city prosecutor is absolutely immune from civil liability because Witzke is suing the City for the “initiation and pursuit of a criminal prosecution, the presentation of the state’s case at trial, and other conduct intimately associated with the judicial process.”
The Perry Center, Inc.,
III
[¶ 19] The City requests sanctions for defending a frivolous appeal. Under N.D.R.App.P. 38, if this Court determines an appeal is frivolous, “damages and single or double costs, including reasonable attorney’s fees” may be awarded. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.
Riemers v. O’Halloran,
IV
[¶ 20] We affirm the judgment of dismissal.