Kie Vang, and v. Joshua Paul Forsman, Ely Chamber of Commerce, City of Ely, Minnesota State Colleges and Universities Board of Trustees

883 N.W.2d 288, 2016 Minn. App. LEXIS 54
CourtCourt of Appeals of Minnesota
DecidedAugust 1, 2016
DocketA16-782
StatusPublished

This text of 883 N.W.2d 288 (Kie Vang, and v. Joshua Paul Forsman, Ely Chamber of Commerce, City of Ely, Minnesota State Colleges and Universities Board of Trustees) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kie Vang, and v. Joshua Paul Forsman, Ely Chamber of Commerce, City of Ely, Minnesota State Colleges and Universities Board of Trustees, 883 N.W.2d 288, 2016 Minn. App. LEXIS 54 (Mich. Ct. App. 2016).

Opinion

SPECIAL TERM OPINION

CLEARY,Chief Judge.

This appeal arises from a personal-injury action brought by respondent Kie Vang (Vang) against the City of Ely (the City), the Ely Chamber of Commerce (the Chamber), the Minnesota State Colleges and Universities Board of Trustees (MnSCU), and Joshua Paul Forsman (Forsman). On March 8, 2016, the district court issued an order ruling on the parties’ cross-motions for. summary judgment. The City filed a direct appeal under the collateral-order doctrine from the part, of the March 8, 2016 order that denies the City’s motion for summary judgment based on statutory discretionary immunity under Minn.Stat. § 466.03 (2014).

Vang filed a NORA under Minn. R. Civ. App. P. 106, challenging other rulings made in the March. 8, 2016 order, including the dismissal of Vang’s -claims against MnSCU, the district court’s ruling, that Forsman was not an agent of the joint enterprise between the City and the Chamber, and the district court’s determination of the duty of care that the City and the Chamber owed to Vang. We questioned whether the additional issues raised in Vang’s NORA are properly before this court in the City’s interlocutory appeal under the collateral-order doctrine. Vang and the City filed informal memoranda.

DECISION

Vang argues that,' as a respondent to the City’s direct appeal, he is entitled to challenge the district court’s adverse rulings by filing a NORA under Minn. R. Civ.App. P. 106. The City contends that the strict requirements for immediate appeal of an interlocutory order under the collateral-order doctrine apply to a NORA, as well as to a direct appeal.

A.

An appeal may be taken from such orders or decisions, as may be appealable under the decisions of the Minnesota appellate courts. Minn. R. Civ.App. P. 103.03(j). Generally, an order denying a motion for summary judgment is not ap-pealable. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn.1995). Our supreme court adopted the federal collateral-order doctrine as the “analytical framework to assess the immediate appealability of an order or judgment not specifically identified in the Rules of Civil Appellate Procedure.” Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 240 (Minn.2002).

For the collateral-order doctrine to apply, the order at issue must (1) conclu *290 sively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993). A district court' order or judgment that satisfies the three-part collateral-order analysis is subject to immediate appellate review. Kastner, 646 N.W.2d at 240.

An order denying a .municipality’s summary-judgment motion based on immunity is appealable under the collateral-order doctrine. Id. The part of the March 8, 2016 order denying the City’s motion for summary judgment based on statutory discretionary immunity is appealable. The City’s appeal is limited to the immunity issue, and does not involve the merits of Vang’s claims. But Vang’s NORA issues do involve the merits of his claims and are unrelated to the City’s immunity issues. Vang’s NORA is not taken from an order or judgment that is independently appeal-able. See Minn. R. Civ.App. P. 103.03 (listing appealable orders and judgments); Olmscheid v. Paterson, 425 N.W.2d 312, 313 (Minn.App.1988) (holding that a partial judgment is not immediately appealable unless entered pursuant to an order that contains the express determination required by Minn. R. Civ.App. P. 104.01 and Minn. R. Civ. P. 54.02).

B.

We next address whether Vang .is entitled to raise his NORA issues under Minn. R. CivApp. P. 106 despite the limited scope of a collateral-order appeal. The general rule governing the NORA states that after one party timely files a notice of appeal, any other party may “seek” review of a judgment or order in the same action by serving and filing a NORA. Minn. R. CivApp. P. 103.02, subd. 2. A separate appellate rule governs a respondent’s right to obtain review. After an appeal has been filed, respondent may “obtain” review of a judgment or order entered in the same underlying action that may adversely affect respondent by filing a NORA in accordance with rule 103.02, subdivision 2, and rule 104.01, subdivision 4. Minn. R. CivApp. P. 106.

The party appealing is known as the appellant, relator, or, petitioner, and the “adverse party” as the respondent. Minn. R. CivApp. P. 143.01. Vang is an adverse party and therefore a respondent to the City’s appeal. As a respondent, Vang’s right to obtain review of additional issues is governed by Minn. R. CivApp. P. 106.

In an appeal under the collateral-order doctrine, a party to a district court action who is neither an appellant nor a respondent on appeal but is aligned with an appellant may not obtain immediate appellate review of an otherwise nonap-pealable order by filing a NORA pursuant to Minn. R. CivApp. P. 103.02, subd. 2, unless the nonappealable order presents issues that are inextricably intertwined with the issues properly presented by an appellant’s appeal. Aon Corp. v. Haskins, 817 N.W.2d 737, 742 (Minn.App.2012). In Aon, we noted that rule 103.02, subdivision 2, allows a co-appellant to seek appellate review of a nonappealable order by filing a NORA, but in contrast to rule 106, “does not necessarily allow a co-appellant to obtain appellate review of a nonappealable order, as of right, simply by filing a NORA,” Id. at 741 (emphasis omitted).

Vang argues that Aon is distinguishable because he is a respondent, not a co-appellant, and his right to obtain review of adverse rulings is governed by Minn. R. CivApp. P. 106. Caselaw on the scope of the former notice of review holds that Minn. R. CivApp. P. 106 “does not condi *291 tion the right to file a notice of review on the order being an appealable order as to respondent.” Kostelnik v. Kostelnik, 367 N.W.2d 665, 669 (Minn.App.1985), review denied (Minn. July 26, 1985). The supreme court cited Kostelnik with approval in holding that a respondent is not excused from the requirement to file a notice of review on the ground that the order that was adverse to respondent was not independently appealable. Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793-94 (Minn.1986).

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Bluebook (online)
883 N.W.2d 288, 2016 Minn. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kie-vang-and-v-joshua-paul-forsman-ely-chamber-of-commerce-city-of-ely-minnctapp-2016.