County District Court File No. 82-CV-13-5851
A. Markert, Larson King, LLP, St. Paul, Minnesota (for
L. M. Kennedy, Kennedy Law Group, PLLC, Minneapolis,
Minnesota (for appellants).
Considered and decided by Hooten, Presiding Judge; Peterson,
Judge; and Larkin, Judge.
Minnesota Rule of Civil Procedure 15.02 does not authorize
the amendment of a pleading to add a party over the proposed
a pleading is amended to add an adverse party after judgment
has been entered on the claims asserted in the pleading, the
new party must have an opportunity to contest its liability
on the claims before the party may be added as a judgment
challenge judgments entered against them after a bench trial
following removal from conciliation court. We affirm in part,
reverse in part, and remand.
River Fun LLC (River Fun), a Minnesota limited liability
company, was owned by appellant Tim Kennedy and nonparty
Jhalpaul Narpaul. River Fun owned Vinny's on the River
LLC (Vinny's), a Minnesota limited liability company that
operated a restaurant in a building owned by River Fun; the
restaurant also was called Vinny's on the River.
April 2010, River Fun entered into a credit agreement with
respondent Kelbro Company (Kelbro), a Minnesota corporation.
The credit agreement listed Vinny's as River Fun's
"Assumed Name or Business Name" and obligated River
Fun to "pay for any and all products, equipment,
services or other merchandise purchased on credit" by
Vinny's. Soon after, Vinny's and Kelbro entered into
a products-requirement agreement and two equipment leases
(beverage contracts). Under the beverage contracts, Kelbro
supplied Vinny's with beverage products and related
equipment and provided maintenance for the equipment.
April 2013, Kelbro commenced an action in conciliation court,
alleging that Vinny's and Tim Kennedy breached the
beverage contracts and seeking $3, 565.68 in damages.
Vinny's and Tim Kennedy asserted a counterclaim, alleging
that Kelbro breached the beverage contracts and seeking $1,
050 in damages. On October 3, 2013, the conciliation court
conducted a trial and issued an order for judgment against
Kelbro on its claims and for Vinny's and Tim Kennedy on
their counterclaims and awarded Vinny's and Tim Kennedy
October 21, 2013, Kelbro filed a demand for removal of the
conciliation court action to the district court. The demand
for removal was signed only by Jarrod Condon, Kelbro's
nonattorney representative in the conciliation court
action. The next day, the district court issued an
order that vacated the conciliation court judgment.
and Tim Kennedy filed a motion to dismiss Kelbro's
district court action on the ground that Kelbro's demand
for removal was not signed by an attorney. Vinny's and
Tim Kennedy refused Kelbro's request to stipulate to its
amendment of the demand for removal. Kelbro then filed a
motion for leave to amend the demand for removal and a
memorandum opposing the motion by Vinny's and Tim Kennedy
to dismiss. Vinny's and Tim Kennedy filed a memorandum
opposing Kelbro's motion for leave to amend. On April 4,
2014, the district court issued an order granting the motion
for leave to amend and denying the motion to dismiss. One
week later, Kelbro filed an amended demand for removal, which
was signed by its attorney, John Markert.
November 2014, Vinny's and Tim Kennedy urged Kelbro to
dismiss Tim Kennedy from the district court action with
prejudice and refused Kelbro's request to stipulate to
the dismissal of Tim Kennedy without prejudice. Kelbro then
filed a motion for an order dismissing Tim Kennedy without
prejudice, and the district court granted the motion just
before trial began on December 17.
first day of the bench trial in district court, attorney
Daniel Kennedy, who represented Vinny's, alleged that
Markert had a conflict of interest and orally moved for
Markert's disqualification; the district court granted a
continuance while it considered the conflict-of-interest
issue. Markert filed an informal memorandum that
described his conflicts investigation, and he refused to
withdraw from his representation of Kelbro. Daniel Kennedy
filed an informal memorandum and withdrew the motion to
disqualify but noted a continuing objection to Markert's
refusal to withdraw from the representation.
trial resumed on May 6, 2015, and concluded the next day. On
August 25, the district court issued findings of fact,
conclusions of law, and order for judgment for Kelbro on its
claims and against Vinny's on its counterclaim and
awarded Kelbro $5, 437.23 plus reasonable attorney fees and
costs. The same day, partial judgment was entered against
entry of partial judgment against Vinny's, Kelbro moved
to amend its pleadings to add River Fun as a defendant and
for an award of attorney fees and costs against Vinny's
and River Fun. Kelbro later filed memoranda in support of the
motion, requesting $28, 242.23 in attorney fees and costs.
Vinny's opposed Kelbro's motion to amend its
pleadings and for attorney fees and costs.
a hearing, the district court, on February 5, 2016, granted
Kelbro's motion to amend its pleadings, awarded $22,
088.73 in attorney fees and costs against Vinny's and
River Fun (fees-and-costs award), directed entry of judgment
on the fees-and-costs award, and amended its August 25, 2015
judgment to add River Fun as a judgment debtor. On February
8, Kelbro filed an amended statement of claim and summons and
a second amended demand for removal of the conciliation court
action to district court, both of which listed Vinny's
and River Fun as defendants.
Fun, Vinny's, and Tim Kennedy (collectively, appellants)
now appeal the August 25, 2015 and February 5, 2016
the district court err by allowing Kelbro to amend its demand
for removal to add an attorney's signature?
the district court err by dismissing Tim Kennedy from the
action without prejudice?
Did the district court err in awarding Kelbro attorney fees
the district court err by allowing Kelbro to amend its
pleadings after trial to add River Fun as a defendant and
make River Fun a judgment debtor?
acknowledges that its initial demand for removal of the
conciliation court action to the district court was defective
because it was not signed by an attorney. Citing World
Championship Fighting, Inc. v. Janos, 609 N.W.2d 263,
264-65 (Minn.App. 2000), review denied (Minn. July
25, 2000), appellants argue that, because the demand for
removal was not signed by an attorney, the district court
lacked subject-matter jurisdiction and should have dismissed
the action instead of deciding its merits. Whether
subject-matter jurisdiction exists "is a question of law
that we review de novo." Nelson v. Schlener,
859 N.W.2d 288, 291 (Minn. 2015).
opinion in World Championship Fighting supports
appellants' argument. See 609 N.W.2d at 265
(affirming district court's dismissal of case removed
from conciliation court by unrepresented corporation,
reasoning that "[t]he district court was correct to
conclude that it lacked jurisdiction over [the] case"
because notice of removal was signed only by nonattorney).
But the relevant portion of that opinion was implicitly