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

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0782

Kie Vang,
Respondent and Cross-Appellant,

vs.

Joshua Paul Forsman,
Cross-Respondent,

Ely Chamber of Commerce,
Cross-Respondent,

City of Ely,
Appellant,

Minnesota State Colleges and Universities Board of Trustees,
Cross-Respondent.

Filed August 1, 2016
Notice of related appeal dismissed
Cleary, Chief Judge

St. Louis County District Court
File No. 69VI-CV-14-444

Arlo H. Vande Vegte, Neil G. Clemmer, Dovolas & Vande Vegte, PLLC, Plymouth,
Minnesota (for respondent and cross-appellant Vang)

Patrick L. Arneson, League of Minnesota Cities, St. Paul, Minnesota (for appellant City
of Ely)

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Johnson,

Judge.
 SYLLABUS

A respondent’s notice of related appeal (NORA) under Minn. R. Civ. App. P. 106

is not authorized in an appeal under the collateral-order doctrine, unless the NORA is

limited to issues that are inextricably intertwined with the collateral-order issue, or the

NORA is taken from an order or judgment that is independently appealable under Minn.

R. Civ. App. P. 103.03.

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

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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 appealable.

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) conclusively

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 (1993). A district court order or judgment that satisfies the

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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 appealable. 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. Civ. App. 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. Civ. App. 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

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adversely affect respondent by filing a NORA in accordance with rule 103.02,

subdivision 2, and rule 104.01, subdivision 4. Minn. R. Civ. App. P. 106.

The party appealing is known as the appellant, relator, or petitioner, and the

“adverse party” as the respondent. Minn. R. Civ. App. 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. Civ. App. 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 nonappealable order by filing

a NORA pursuant to Minn. R. Civ. App. 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. Civ.

App. P. 106. Caselaw on the scope of the former notice of review holds that Minn. R.

Civ. App. P. 106 “does not condition 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

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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).

The 2009 amendments to the rules of civil appellate procedure “abolish the former

notice of review, replacing it with the [NORA] for all situations where a respondent seeks

appellate review of a trial court decision.” Minn. R. Civ. App. P. 106 2009 advisory

comm. cmt. The new NORA procedure is not intended to change the scope of appellate

review and is not meant to expand what can be reviewed on appeal or to limit that review.

Id. Because the new NORA procedure does not change the scope of appellate review, the

caselaw holding that the right to file a notice of review is not conditioned on the order

being an appealable order as to respondent also applies to a NORA.

The federal circuit courts of appeal should not accept review of additional issues

in an immunity appeal under the collateral-order doctrine unless the additional issues are

“inextricably intertwined” with the issues properly raised in the collateral-order appeal.

Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51, 115 S. Ct. 1203, 1212 (1995).

Accordingly, federal courts have dismissed cross-appeals from orders that are not either

independently appealable or inextricably intertwined with the collateral-order appeal.

See, e.g., Mitchell v. Shearrer, 729 F.3d 1070, 1073 (8th Cir. 2013) (dismissing cross-

appeal for lack of jurisdiction on the ground that a district court had not issued a final

decision and the cross-appeal issue was not inextricably intertwined with the immunity

issue raised by the collateral-order appeal); Breakthrough Mgmt. Group, Inc. v.

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Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1197-99 (10th Cir. 2010) (dismissing

cross-appeal for lack of jurisdiction on the ground that the cross-appeal issue was not

closely related to the sovereign-immunity issue raised by the collateral-order appeal);

Doe v. Holy See, 557 F.3d 1066, 1075-76 (9th Cir. 2009) (dismissing cross-appeal on the

ground that it did not raise issues inextricably intertwined with immunity issue raised by

the direct collateral-order appeal); see also Meier v. City of Columbia Heights, 686

N.W.2d 858, 867 (Minn. App. 2004) (declining to review issues raised by a respondent in

a notice of review, where those issues were not immediately appealable or inextricably

intertwined with the immunity issue raised by the direct collateral-order appeal), review

denied (Minn. Dec. 14, 2004).

The requirements for an interlocutory appeal under the collateral-order doctrine

apply to a NORA as well as to a direct appeal. Vang’s NORA is unauthorized because it

raises issues that are unrelated to the direct collateral-order appeal and is not taken from

an order or judgment that is independently appealable under Minn. R. Civ. App. P.

103.03.

Notice of related appeal dismissed.

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