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Abuzeni v. Mutschler

Court of Appeals of Minnesota

April 1, 2019

Nizar Abuzeni, et al., Appellants,
v.
John Jay Mutschler, et al., Respondents, Cheryl Mutschler, Appellant, Kurt Bragg, et al., Respondents, Colleen Entrikin, Respondent, Larry Henrichs, Respondent, Robert Kramer, Respondent, Jason Mutschler, Respondent, Brian Seemann, et al., Respondents.

          Hennepin County District Court File No. 27-CV-18-1233

          Shawn M. Perry, Shane C. Perry, Perry & Perry, PLLP, Minneapolis, Minnesota (for appellants Nizar Abuzeni, et al.)

          Mark V. Steffenson, Kristin Kingsbury, Henningson & Snoxell, Ltd., Maple Grove, Minnesota (for appellant Cheryl Mutschler)

          Bradley J. Lindeman, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for respondents John Jay Mutschler, et al.)

          Matthew R. Doherty, Brutlag, Hartmann & Trucke, P.A., Minneapolis, Minnesota (for respondents Kurt Bragg, et al.)

          Colleen Entrikin, Fort Myers, Florida (pro se respondent) Larry Henrichs, Deerwood, Minnesota (pro se respondent) Stephen M. Harris, Meyer Njus Tanick, PA, Minneapolis, Minnesota (for respondent Robert Kramer) Jason Mutschler, Minneapolis, Minnesota (pro se respondent)

          Gregory A. Bromen, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for respondents Brian Seemann, et al.)

          Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Bratvold, Judge.

         SYLLABUS

         When plaintiffs dismiss the sole remaining claim against the same defendant without prejudice for the purpose of creating appellate jurisdiction over a partial judgment, the court of appeals will deem the dismissal to be with prejudice.

          SPECIAL TERM OPINION

          CLEARY, CHIEF JUDGE

         In this appeal from the judgment entered on October 22, 2018, appellants seek review of a May 30, 2018 order that dismissed all of appellants' claims except the claim for an accounting. Subsequently, the parties filed a stipulation to dismiss the remaining claim for an accounting without prejudice to "facilitate entry of a final judgment and Plaintiffs' prompt appeal of the Court's May 30, 2018 Order." In an October 19, 2018 order, the district court dismissed the accounting claim without prejudice pursuant to the stipulation and directed entry of judgment. In the order, the district court noted the apparent inconsistency between caselaw disfavoring appeals of partial judgments and the parties' ability to obtain appellate review of what was previously a nonfinal judgment by stipulating to dismiss any remaining claims without prejudice.

         We questioned whether the stipulation to dismiss the remaining accounting claim without prejudice constituted an improper attempt to create appellate jurisdiction over the May 30, 2018 nonfinal dismissal order. The parties filed informal memoranda. In their memorandum, appellants clarified ...


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