This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Ericka Kathleen Richardson, as Trustee for the Next of Kin of
Eric Matthew Richardson,


Biff's Billiards Sports Bar & Grill, et al.,


Filed November 18, 2003

Affirmed in part, reversed in part, and remanded

Minge, Judge


Ramsey County District Court

File No. C1-01-1894


Stewart R. Perry, Shawn M. Perry, Perry, Perry & Perry, Suite 270, Parkdale 1, 5401 Gamble Drive, Minneapolis, MN 55416; and


James H. Peterson, 812 Meander Road, Medina, MN 55340 (for appellant)


Joan M. Quade, Karin E. Simonson, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433-5894 (for respondents)


            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant trustee seeks review of a judgment dismissing a dram shop action.  Because an error in captioning a dram shop action can be corrected by an amendment that would substitute appellant widow, individually, and her minor children as plaintiffs, the district court erred in dismissing the action. 



            On August 24, 2000, Eric Richardson allegedly was served alcoholic beverages at Biff’s Billiards Sports Bar & Grill.  On his way home from the bar, he crashed his motorcycle and died.  On June 14, 2001, his wife, appellant, Ericka Richardson as trustee, commenced an action pursuant to Minn. Stat. § 340.801 (2000) (the “Dram Shop Act,” also known as the “Civil Damages Act”) against respondents Biff’s Billiards Sports Bar & Grill (Biff’s) and its owner Thomas Obert, personally.

            Appellant brought the action as “Ericka Kathleen Richardson, as Trustee For the next of kin of Eric Matthew Richardson, Decedent.”  Biff’s defended on several grounds, including failure to properly caption the case.  Appellant acknowledged the caption was improper.  Although the parties discussed potential stipulations, including an amendment of the caption of the case, no agreement was reached. 

            On March 28, 2002, the Commonwealth Court of Pennsylvania issued an order placing Biff’s insurer in rehabilitation and enjoining all persons from instituting or further prosecuting any action against the insurer for ninety days.  As a result, the district court suspended all proceedings in this case until the order expired.

            On September 30, 2002, appellant moved to amend the complaint to correct the caption.  On October 26, 2002, before the motion to amend was heard and without leave of court or consent from respondents, appellant served an amended and supplemental complaint on Obert’s wife, Mary Obert, adding her as a defendant and containing a corrected caption, listing, as plaintiffs, appellant individually and as mother of the three children.  Respondents then filed a motion to dismiss the complaints, asserting that the complaint failed to state a claim because it was brought in a representative capacity and that the two-year statute of limitations had expired on August 24, 2002.  Although appellant asserted that the original counsel for respondent had orally agreed to waive the statute of limitations, counsel had changed with the insolvency of the insurance company, and the claimed waiver was denied. 

The district court granted respondents’ motion to dismiss, denied appellant’s motion to amend, found that the Pennsylvania order did not toll the statute of limitations, no enforceable waiver of the statute of limitations had been made, and the two-year limitation period ended on August 24, 2002, and ruled that all other motions filed were moot. 


In reviewing cases involving dismissal for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e), the question before the appellate court is whether the complaint sets forth a legally sufficient claim for relief.  The standard of review is de novo.   Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).  Statutory construction is a question of law, which this court also reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

            Appellant’s cause of action is premised on the Dram Shop Act, which states:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages.


Minn. Stat. § 340A.801, subd. 1 (2002) (emphasis added).  The language of this statute is at issue in this appeal.  Appellant captioned the title in her name as trustee for her late husband’s next of kin.  The complaint detailed that she, as the widow, and her children were such kin, but the caption of the complaint did not contain any reference to a cause of action in her name or those of her children.  Respondents argued, and the district court agreed, that the action must be brought by the injured party in the injured party’s own name, and thus, even though appellant may personally have had a Dram Shop Act claim, she did not properly assert it, causing her claim to be a legal nullity.

            The respondents and the district court base their interpretation of the statute’s language on case law in which the Minnesota Supreme Court has ruled that improperly captioned titles in wrongful death actions destroy a cause of action.  See Ortiz v. Gavenda, 590 N.W.2d 119, 122-24 (Minn. 1999); Regie de L’assurance Auto. Du Quebec v. Jensen, 399 N.W.2d 85, 92 (Minn. 1987) (Regie).  In these cases, plaintiffs commenced their suits within the statute of limitations period but failed to properly bring their claims as “trustees” as required by the wrongful death statute, Minn. Stat. § 573.02 (2002).  Ortiz, 590 N.W.2d at 121-22; Regie, 399 N.W.2d at 88-89.  The courts found that the original complaints were legal nullities and thus, any amended complaint brought after the statute of limitations expired could not relate back.  Ortiz, 590 N.W.2d at 123; Regie, 399 N.W.2d at 92.  Further, this court in Haugland v. Mapleview Lounge & Bottleshop, Inc. applied the reasoning of Ortiz and Regie to reach the same conclusion in Dram Shop Act claims.  643 N.W.2d 618, 622-23 (Minn. App. 2003), rev’d, 666 N.W.2d 689 (Minn. 2003). 

            The Minnesota Supreme Court, however, recently reversed HauglandHaugland v. Mapleview Lounge & Bottleshop, Inc., 666 N.W.2d 689, 696 (Minn. 2003).  This decision precludes further reliance on Ortiz and Regie in dram shop actions.  In its reversal, the supreme court first noted that the Dram Shop Act, which is to be strictly construed, requires the person bringing the cause of action to have personally suffered an injury.  Id. at 693.  A trustee without a personal injury suing on behalf of a minor therefore is not a proper party.  Id. at 693.  Noting that this mistake does not end the inquiry, the court ruled that if the original complaint set out a legally sufficient dram shop action on behalf of the proper party before the statute of limitations expired, dismissal was improper, and Haugland should have been allowed to amend the complaint.  Id.   The court noted that the primary function of Minnesota’s notice-pleading requirement is to give the adverse party notice of the theory on which the claim is based, and that when the claim or defense asserted in the amended pleading arose out of the conduct set forth in the original pleading, the amendment relates back to the date of the original pleading and should be allowed even after the statute of limitations has expired.  Id. at 694; see Minn. R. Civ. P. 15.03.

            Minn. R. Civ. P. 15.01 states that after a responsive pleading has been served, a party may amend a pleading only by leave of the court or by written consent of the adverse party.  Generally, the district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Whether the district court has abused its discretion in ruling on a motion to amend largely depends on whether it was correct in an underlying legal ruling.  Id. at 762.  

            Using this test, the district court erred in denying appellant’s September 30, 2002 motion to amend, under both the de novo and abuse of discretion standards.  Paragraphs III through XIII of appellant’s initial complaint allege the elements of a dram shop claim, and paragraphs XII and XIII make it clear that both appellant and her children suffered personally.  The amended complaint relies on the same allegations that were alleged in the original complaint, the only difference being the change in caption.  Respondents were put on notice that appellant and her children were suing personally because the allegations include reference to both her and her children’s personal injuries.  The amended complaint would not change the respondents’ defense, legal theory, or strategy, and all discovery already conducted would also apply to the amended complaint. 

            At oral arguments, respondents claimed they will suffer prejudice if appellant is allowed to amend and to change the caption of the case.  Respondents did not raise this issue to the district court, it was not addressed by the district court, and respondents did not claim this argument in their briefs.  Absent exigent circumstances, appellate courts only consider those issues that were presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We, therefore, do not address this issue on appeal. 

            The district court also dismissed appellant’s motion to file an amended and supplemental complaint against Mary Obert.  Because respondents had filed their answer to the initial complaint, appellant needed to receive either respondents’ consent or leave from the court to amend the caption to add an additional defendant.  Minn. R. Civ. P. 15.01.  Appellant did not do so.  We affirm the district court’s dismissal of appellant’s amended complaint as served on Mary Obert.  The Minnesota Rules of Civil Procedure state how to amend a complaint.  Allowing complaints after parties have expressly violated the rules would give parties little incentive to follow the court rules.  Therefore, the amended and supplemental complaint against Mary Obert was ineffective.  On remand, the district court should consider any proper motions to add Mary Obert under the test in Haugland.

            Because we reverse the district court’s dismissal of appellant’s motion to amend her complaint, we do not need to reach the issue of whether the statute of limitations was tolled by the Pennsylvania or the district court’s order.  We further do not need to address appellant’s argument that respondents waived or were estopped from claiming a statute of limitations defense.

            Affirmed in part, reversed in part, and remanded.