Opinion
A22-0809
12-21-2022
Aaron Olson, Appellant, v. Kappa Sigma Fraternity, Defendant, Kappa Sigma Fifth Street Brotherhood, LLC, Respondent, Matthew Joseph Freeman, Respondent, Gerald Freeman, Respondent, Regents of the University of Minnesota, Respondent.
Hennepin County District Court File No. 27-CV-22-1100
Considered and decided by Wheelock, Presiding Judge; Bratvold, Judge; and Cochran, Judge.
ORDER OPINION
DIANE B. BRATVOLD, JUDGE
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Aaron Olson appeals from a June 9, 2022 judgment entered after the district court granted Olson's request to voluntarily dismiss his complaint. Olson's brief to this court seeks to challenge an interlocutory order denying his motion to amend the complaint.
2. In January 2022, Olson filed a complaint against "Kappa Sigma" and the "Regents of the University of Minnesota" (the regents) alleging he sustained injuries while walking near a fraternity house "jointly owned . . . and sponsored by" the University of Minnesota. The complaint alleged that "a vehicle full of loud and obviously intoxicated people who had left Defendants' property" hit him, "forcing him awkwardly back, twisting his knee."
3. Olson and the regents stipulated to dismissing the claims against the regents without prejudice, and the district court issued an order as the stipulation requested.
4. Olson moved to amend the complaint, asserting claims against the regents and three new defendants: "Kappa Sigma Fifth Street Brotherhood, LLC" (the LLC); "Freeman, as president of Kappa Sigma"; and "Freeman, as managing agent of [the LLC]." The amended complaint alleged the same facts as the original complaint and included the following claims: common-law tort liability reserved under Minn. Stat. § 340A.801, subd. 6 (2022); social-host liability under Minn. Stat. § 340A.90 (2022) against the LLC and Freeman; premises liability against the LLC; an alter-ego theory to pierce the corporate veil of the LLC; and public-duty liability against the regents.
Neither Olson's motion to amend nor the amended complaint identified either "Freeman" by a first name. Olson's brief to this court refers to an individual named Matthew Joseph Freeman as the president of Kappa Sigma and an individual named Gerald Freeman as an alter ego of the LLC. Gerald Freeman submitted an affidavit to the district court identifying himself as the managing agent of the LLC, and a police report identified Matthew Freeman as "Kappa Sigma president."
5. The district court denied Olson's motion to amend the complaint, determining that the amended claims were "futile." The district court granted Olson's motion to change the name of defendant Kappa Sigma to "Kappa Sigma Fraternity" in the case caption.
6. Olson moved to voluntarily dismiss his remaining claims against Kappa Sigma Fraternity. The district court granted his motion and directed entry of judgment. Olson appealed and filed a brief with this court, challenging the district court's order denying his motion to amend the complaint.
7. Appellate jurisdiction "may be raised at any time and cannot be waived or forfeited." In re Polaris, Inc., 967 N.W.2d 397, 405 (Minn. 2021). Whether an appellate court has appellate jurisdiction is a question of law that we review de novo. Id.
8. A party may appeal from a final judgment or from a partial judgment entered under Minn. R. Civ. P. 54.02. Minn. R. Civ. App. P. 103.03(a). Generally, a district court order dismissing a complaint without prejudice is not final and not appealable. Sussman v. Sussman, 178 N.W.2d 244, 244 (Minn. 1970).
9. Here, the district court order granting Olson's request to dismiss his complaint is without prejudice because the district court did not specify otherwise. See Minn. R. Civ. P. 41.01(b) ("Unless otherwise specified in the order, a dismissal herein is without prejudice.").
10. In Abuzeni v. Mutschler, we accepted jurisdiction over an appeal from a judgment entered on an order voluntarily dismissing appellants' complaint. 926 N.W.2d 59, 60, 62 (Minn.App. 2019). The district court granted partial summary judgment, dismissing all but one claim, and the parties stipulated to dismiss the remaining claim without prejudice to "facilitate the entry of a final judgment" and allow an appeal of the summary-judgment decision. Id. at 60. To ensure the appeal was "taken from a judgment that is truly final," we deemed the order dismissing appellants' remaining claim to be with prejudice based on the appellants' statement that they would not pursue the remaining claim after the appeal. Id. at 62. We noted that the better practice would have been for appellants to "apply to the district court for an order directing entry of a final partial judgment under Minn. R. Civ. P. 54.02." Id.
11. Olson's case is unlike Abuzeni. The district court did not enter a judgment on the merits of any of Olson's claims; Olson's voluntary dismissal of his remaining claim against Kappa Sigma Fraternity was not by stipulation among the parties; and Olson made no assurance that he will forgo the claim against Kappa Sigma Fraternity after this appeal concludes. Thus, we follow the general rule that the dismissal of a complaint without prejudice is not appealable and conclude that we lack jurisdiction over this appeal.
IT IS HEREBY ORDERED:
1. The appeal is dismissed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.