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STATE OF MINNESOTA IN COURT OF APPEALS A09-1893 Metro Building Companies, Inc., Respondent, vs. RAM Buildings, Inc., defendant and third party plaintiff, Appellant, vs. Raymond Manahan and Krishna Brutoco d/b/a Manahan Stables, Manahan Stables, LLC, Third Party Defendant. Filed June 1, 2010 Affirmed Larkin, Judge Isanti County District Court File No. 30-CV-08-1345

Karl E. Robinson, J. Matthew Berner, Hellmuth & Johnson, PLLC, Eden Prairie, Minnesota (for respondent) Patrick S. Collins, Oskie, Hamilton & Sofio, P.A., St. Paul, Minnesota (for appellant)

Considered and decided by Shumaker, Presiding Judge; Larkin, Judge; and Bjorkman, Judge. SYLLABUS A complaint that misstates a corporate plaintiff's registered name may be amended to correct the misstatement, so long as the defendant is not prejudiced by the error.

OPINION LARKIN, Judge Appellant claims that the district court erred by denying its motion for summary judgment, arguing that the district court erroneously concluded that a complaint may be amended to correct a corporate plaintiff's misstatement of its registered name. Appellant also claims that the district court abused its discretion by allowing such an amendment in this case and erred by relating the amendment back to the original pleading. Because we conclude that the misstatement of a corporate plaintiff's name in its pleading is a curable defect and that the amendment and relation back in this case were proper, we affirm. FACTS Manahan Stables contracted with respondent Metro Building Companies, Inc. (Metro) to build a horse barn. Metro subcontracted with appellant RAM Buildings, Inc. (RAM), to design and build the ventilation system. After Manahan Stables complained that the ventilation system was faulty, Manahan Stables and Metro entered into a settlement agreement providing that another company would repair the ventilation system and that Manahan Stables would release Metro from all liability. Metro subsequently sued RAM claiming breach of contract and negligence in the design and installation of the ventilation system. Metro's corporate name, as registered with the Minnesota Secretary of State, is "Metro Building & Painting Companies." But the caption and first paragraph of Metro's complaint against RAM identified Metro as "Metro Building Companies, Inc." Metro

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used the name "Metro Building Companies, Inc." in communications with RAM prior to filing this lawsuit. In its answer to Metro's complaint, RAM admitted "that it designed a building pursuant to Plaintiff's specifications" and "that it entered into a contractual relationship with Plaintiff." But RAM also raised the affirmative defense of standing. After the statute of limitations had run, RAM moved to dismiss the complaint, arguing that Metro lacked standing and capacity to sue.1 Thereafter, Metro moved to amend its complaint seeking to substitute "Metro Building & Painting Companies" for "Metro Building Companies, Inc." in the caption and first paragraph.2 The district court denied RAM's motion for summary judgment, granted Metro's motion to amend, and related the amendment back to the original complaint. This appeal follows.3 ISSUES I. Did the district court err by concluding that a complaint that misstates a corporate plaintiff's registered name may be amended to correct the misstatement?

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Because Metro had filed an answer, its motion to dismiss is properly construed as a motion for judgment on the pleadings. See Minn. R. Civ. P. 12.03 ("After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.") The parties agree that the motion was converted to one for summary judgment because the district court considered matters outside of the pleadings. See id. ("If, on such motion, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in [Minn. R. Civ. P.] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). 2 Metro also sought leave to add claims for contribution and indemnity. RAM does not contest this portion of the amendment on appeal. 3 Generally, an order denying a motion for summary judgment cannot be appealed. McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995). However, a special term order of this court deemed this action appealable. 3

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Did the district court abuse its discretion by allowing Metro to amend its complaint to correctly state its registered corporate name or err by relating the amendment back to the original complaint? ANALYSIS I. "On an appeal from summary judgment, we ask two questions: (1) whether there

are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Where, as in this case, there are no genuine issues as to any material facts, the application of a statute to the undisputed facts is a legal question reviewed de novo. City of Morris v. Sax Invs., Inc., 749 N.W.2d 1, 5 (Minn. 2008). In Minnesota, a lawsuit may be brought by a natural or an artificial person. St. Paul Typothetae v. St. Paul Book Binders' Union No. 37, 94 Minn. 351, 357, 102 N.W. 725, 726 (1905). A corporation is considered an artificial person. Di Re v. Cent. Livestock Order Buying Co., 246 Minn. 279, 283, 74 N.W.2d 518, 523 (1956). RAM argues that because the named corporate plaintiff, "Metro Building Companies, Inc.," does not exist, it is not an artificial person and it lacks standing and capacity to sue. See Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn. App. 1995) ("[C]apacity to sue concerns a party's right to maintain any action."), review denied (Minn. May 31, 1995). RAM further argues that the district court therefore lacked jurisdiction over Metro's case and that the lawsuit was a nullity. See Annandale

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Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn. 1989) ("The question of standing . . . is essential to [a court's] exercise of jurisdiction."). RAM's claim that Metro lacks standing and capacity to sue is based on RAM's contention that Metro's lawsuit was commenced by a "nonexistent corporate entity." This argument lacks merit. Metro is a real corporation, with a registered corporate name of "Metro Building & Painting Companies." This is the entity that filed suit. And while Metro erroneously identified itself in its pleading and discovery responses as "Me tro Building Companies, Inc.," we are not willing to equate this error with a conclusion that the lawsuit is a nullity because it was filed by a "nonexistent entity." Such a conclusion puts form over substance in the absence of supporting legal authority and in contravention of the policy favoring resolution of cases on their merits. See Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 426 (Minn. 1987) ("The law favors cases being decided on their true merits."). And we are not persuaded by RAM's citation to cases involving failure to appoint a trustee in wrongful death actions. See Ortiz v. Gavenda, 590 N.W.2d 119, 122-23 (Minn. 1999) (holding that the filing of a wrongful-death action was a nullity because a trustee had not been appointed as required by statute and appointment of a trustee was a statutory prerequisite to filing the action); Regie de l'assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 91-92 (Minn. 1987) (concluding that failure to have a valid trustee appointed in a wrongful-death action rendered the suit a nullity). As we explained in Save Our Creeks v. City of Brooklyn Park:

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The fundamental difference between the wrongfuldeath cases and this case is that in wrongful-death cases, it is the appointment of the trustee that forms the legal capacity for a successor of the deceased to bring or to continue the action for wrongful death. Minn. Stat.

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