Heritage Bank, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0560

Heritage Bank, petitioner,
Respondent,

vs.

Gary D. Stortenbecker,
Appellant.

Filed September 24, 2018
Affirmed
Hooten, Judge

Morrison County District Court
File No. 49-CV-18-228

Christopher W. Harmoning, Gray, Plant, Mooty, Mooty & Bennett, P.A. St. Cloud,
Minnesota (for respondent)

Sarah R. Jewell, Franz Hultgren Evenson, P.A., St. Cloud, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant borrowe r challenges the district court’s grant of respondent bank’ s
petition under Minn. Stat. § 583.27, subd. 7 (2016), to proceed with remedies as a secured-
party notwithstanding the requirements of the Farmer -Lender Mediation Act (FLMA),
Minn. Stat. §§ 583.20 –.32 (2016 & Supp. 2017) . Appellant argues that the district

2
court improperly applied the Dahlberg factors in granting a temporary restraining or der,
erred in determining t hat he was ineligible for mediation under the FLMA, and erred in
failing to recuse based on bias against appellant. We affirm.
FACTS
Appellant Gary Stortenbecker and respondent Heritage Bank executed two
promissory notes i n November of 2017. To secure repayment, Stortenbecker granted
Heritage Bank a security interest in his farm and all of his tangible and intangible property.
This collateral property included 320 heifer cows, 66 heifer calves, 19 bulls, and 6 bull
calves, as well as farm equipment. The security agreement provided that Stortenbecker
would not remove, change the location, sell, transfer, or dispose of any collateral without
Heritage Bank’s consent.
In late 2017, Stortenbecker sold his house, barns, and a portion of the farmland t o
L.R. and his wife , who took possession on or about February 9, 2018 . During this same
time period, he also sold some additional farmland to T.G. The proceeds from the sale of
the farm were distributed to Heritage Bank in par tial sati sfaction of Stortenbecker’s
promissory notes. After the sale, Stortenbecker’s farm equipment and cattle remained on
the farm in the care of L.R. and T.G. Stortenbecker reached an agreement with L.R. that
he would supply the hay and L.R. would feed his cattle. L.R. reported that in January, a
cattle man in a black Ford Escalade visited the farm, indicating that he wanted to buy cattle.
Shortly after this visit, L.R. reported that 20 out of approximately 50 of Stortenbecker’s
heifer calves were missing.

3
Upon learning Stortenbecker had fewer cows on the farm, an employee of Heritage
Bank went to the farm on January 26, 2018, and counted approximately 250 heifer cows,
31 heifer calves, and three bulls . Heritage Bank contacted Stortenbecker to di scuss the
mysteriously missing cows , and he agreed to be present for a recount of his cattle on
February 6, 2018 . However, claiming that he was ill, Stortenbecker did not come to the
farm for the recount. The Heritage Bank employee conducted the recount with almost the
same results, with t he exception of an additional 13 calves that had just been placed in
Stortenbecker’s pen at the farm. These calves had their identification tags removed .
Heritage Bank learned from L.R. that these calves actually belonged to him and T.G. L.R.
did not know who took the identification tags off of their calves or who put the calves in
Stortenbecker’s pen. L.R. reported that one of his hired hands had seen Stortenbecker at
the farm at approximately 6:30 a.m. that morning.
On February 9, 2018, Heritage Bank, claiming that Stortenbecker had defaulted on
his loan and security agreement , filed a motion for a temporary restraining order (TRO)
under Minn. R. Civ. P. 65.01 , preventing Stortenbecker from entering the farm and
removing the remaining cattle. Heritage Bank also brought a petition to proceed with its
remedies under its security agreement, including the sale of Stortenbecker’s remaining
cattle. The district court granted the ex parte TRO, and issued a summons for Stortenbecker
to attend a hearing on February 16, 2018 regarding the petition and extension of the TRO.
Although Stortenbecker attempted to retain a lawyer within the s even days before
the hearing, he was unsuccessful and appeared pro se at the hearing. The district court
heard testimony from Stortenbecker, a bank employee, and L.R. Based on the testimony

4
and affidavits submitted by Heritage Bank, the district court extended the TRO and granted
Heritage Bank the right to proceed with its remedies under its security agreement with
Stortenbecker.
Stortenbecker later obtained counsel and filed a motion to modify the TRO and to
stay the sale of the cattle. In a March order, the district court denied this motion, explaining
that no additional evidence had been provided to warrant a different conclusion.
Stortenbecker now appeals both the February and March orders.
D E C I S I O N
I. Although the District Court Failed to Provide Findings Indicating that It
Sufficiently Considered the Dahlberg Factors in Granting a TRO, the Issue
is Moot on Appeal.

Stortenbecker argues that the district court failed to sufficiently consider the
Dahlberg factors when it granted Heritage B ank’s motion for a TRO, preventing
Stortenbecker from entering the farm and removing his cattle. Those factors are: the nature
of the parties; the balance of relative harm suffered by each party; the likelihood of success
on the merits; considerations of public policy; and “[t]he administrative burdens involved
in judicial supervision and enforcement of the temporary decree.” Dahlberg Bros. Inc. v.
Ford Motor Co. , 137 N.W.2d 314, 321 –22 ( Minn. 1965). “[T]he trial court has broad
discretion in deciding whether to grant a temporary injunction, and the Dahlberg factors
are to be applied in determining whether the court has abused its discretion.” Crowley Co.
v. Metro. Airports Comm’n, 394 N.W.2d 542, 545 (Minn. App. 1986). Further, the district
court must make sufficient findings to allow for meaningful review. Id. If the district court
“fails to analyze the Dahlberg factors in granting a temporary injunction, the court commits

5
error.” State b y Ulland v. Int’l Ass ’n. of Entrepreneurs of Am. , 527 N.W.2d 133, 135
(Minn. App. 1995), review denied (Minn. Apr. 18, 1995).
Stortenbecker is correct that the district court made no findings regarding the
Dahlberg factors. The district court addresse d the initial petitio n for a TRO
administratively. Although the memorandum in support of Heritage Bank’s motion for the
TRO listed the Dahlberg factors and argued how the factors were satisfied , the district
court did not explicitly state that it considered these factors in its February 9 order. Instead,
the district court issued a one-page order, stating that “based on the file, proceedings, and
being fully advised in the matter,” the TRO was granted. The district court extended the
TRO in its February 16 order, again not explicitly mentioning its consideration of the
Dahlberg factors. Because there are no findings that indicate that the district court
considered the Dahlberg factors in granting Heritage Bank’s mot ion for a TRO, we are
unable to determ ine whether the district court abused its discretion in granting the TRO .
See Crowley, 394 N.W.2d at 545 (holding that absent findings, appellate court is unable to
determine whether grant of TRO by district court was an abuse of discretion) ; see also
Minn. R. Civ. P. 52.01.
However, on appeal, any challenge to the TRO is moot. Appellate courts “will hear
only live controversies . . . . If, pending an appeal, an event occurs which makes a decision
on the merits unnecessary or an award of effective re lief impossible, the appeal will be
dismissed as moot.” In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658
(Minn. 1984). T he TRO prevented S tortenbecker from accessing the farm that had been
sold to L.R. and disposing of any col lateral located on that land. After the TRO was

6
renewed and the district court granted Heritage Bank’s petition to proceed with its
remedies, Stortenbecker’s cattle were sold to L.R. and the proceeds were applied to
Stortenbecker’s debt to Heritage Bank. Because the TRO prevented Stortenbecker from
going to the farm and accessing collateral that has since been sold, any objection to its
issuance is moot.
II. Stortenbecker Does Not Qualify for Mediation Under the Farmer-Lender
Mediation Act.

Stortenbecker argues that the district court erred by failing to refer this case to
mediation under the Farmer-Lender Mediation Act prior to issuing the TRO and granting
Heritage Bank’s petition. The purpose of the FLMA is to “halt the process [of foreclosure]
before agricultural property changes hands and to maintain the parties in their present
respective positions until they have had an opportunity to adjust the indebtedness by
mediation.” Prod. Credit Ass’n of Worth ington v. Spring Water Dairy Farm, Inc. , 407
N.W.2d 88, 91 (Minn. 1987). However, “a debtor who fraudulently conceals, removes, or
transfers agricultural property in which the debtor knows there is a security interest is
ineligible for mediation . . . if the concealing, removing, or transferring was in violation of
a security agreement without remitting the proceeds to the secured party.” Minn. Stat.
§ 583.27, subd. 7. If the secured party petitions to proceed under this exception, the district
court must issue findings regarding the application of this exception. Id.
In its o rder following the February 16 hearing, the district court found that
Stortenbecker was ineligible for farmer-lender mediation because the testimony offered at
the hearing showed that he had not remitted to Heritage Bank any of the proceeds from the

7
sale of the missing cattle, which was a violation of his security agreement. These findings
of fact, “whether based on oral or documentary evidence, shall not be set aside unless
clearly erroneous.” Minn. R. Civ. P. 52.01. “Findings of fact are clearly erroneous if [this]
court is left with the definite and firm conviction that a mistake has been made.” Fletcher
v. St. Paul Pioneer Press , 589 N.W.2d 96, 101 (Minn. 1999) (quotation o mitted). In
applying Minn. R. Civ. P. 52.01, this court views “the record in the light most favorable to
the judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).
The security agreement between Stortenbecker and Heritage Bank provides that
Stortenbecker shall not remove, change the location, sell, transfer, or dispose of any
collateral without the Heritage Bank’s consent. Stortenbecker would be considered in
default if he violated that provision. The collateral pledged u nder the security agreement
included 320 heifer cows, 66 heifer calves, 6 bull calves, and 19 bulls. In January 2018,
an employee of He ritage Bank visited the farm to count Stortenbecker’s cattle . She
testified that there were roughly 250 head of beef co ws, 31 heifers, and 3 bulls, reflecting
that over 100 cattle were missing. She further testified that removal of any collateral
violated the security agreement and that the bank had not received any proceeds from any
sale of cattle. Heritage Bank agreed to do a recount in February 2018. Stortenbecker was
originally going to be at the recount but was too sick to attend. L.R. testified that d uring
the recount, there were 13 extra calves in Stortenbecker’s pen. It was discovered that those
13 calves belonged to L.R., who testified that he had not put his calves in that pen and the
tags indicating that the cows belonged to him had been removed. Stortenbecker testified
that his cows were comingled with L.R.’s cows, which could have caused the discrepancy

8
in numbers. However, L.R. testified that he ran all of Stortenbecker’s cattle through a
chute and the count was still off by over 100 cattle. Stortenbecker also admits the original
security agreement was an accurate count of his initial number of livestoc k. Based upon
this record, we cannot conclude that the district court’s determination that Stortenbecker
fraudulently removed cattle from the land was clearly erroneous. Because there is support
in the record for the district court’s finding that Stortenbecker fraudulently removed cattle
from the farm, the district court did not err by concluding that Stortenbeck er was
disqualified from participating in mediation under the FLMA.
Stortenbecker further argues that he was entitled to notice of farmer -lender
mediation before the February 16 hearing took place and that this proceeding occurred too
quickly. However, Heritage Bank petitioned the district court to proceed under Minn. Stat.
§ 583.27, subd. 7, which provides that after the complaining party files a petition to proceed
with its remedies against a debtor without mediation under the FLMA, “[t]he district court
shall issue a summons within seven days” and the debtor’s “appearance must be no less
than seven and no more than 14 days from the issuance of the summons.” Consistent with
the timeline of the statute, the district court issued the summons on February 9, 2018. The
hearing took place seven days later, falling within the timeline required by statute.
Additionally, a petition for the relief H eritage Bank sought “cannot be brought after the
secured party has served a mediation notice on the debtor.” Minn. Stat. § 583.27, subd. 7.
Thus, Stortenbecker was not entitled to notice of farmer -lender mediation before this
proceeding took place.

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III. The District Court Did Not Exhibit Prejudice or Bias.
Stortenbecker argues that the district cour t was biased against him and erred by
failing to recuse. However, he did not raise this issue in the district court. “[A] party who
fails to remove a judge bef ore the start of trial has lost i ts opportunity to do so unless it
demonstrates prejudice or implied or actual bias.” Uselman v. Uselman, 464 N.W.2d 130,
139 (Minn. 1990).
To establish prejudice, Stortenbecker argues that the district court made its
intentions known prio r to hearing all the evidence. At the hearing on February 16, the
district court stated,
[Counsel], regarding the part iculars, I was comfortable in —
after I reviewed the affidavits and following and reading the
Findings of Fact, Conclu sions of Law, and Order Permitting
Petition to Proceed with Remedies, I was comfortable in
signing that. If you would call your witnesses to get to the
particulars that you’re referencing in that particular proposed
order, you can call your witnesses.

Counsel then clarified, asking the district court if it was prepared to sign the order. The
district court replied that it “was comfortable in going as long as there’s the — the
information that you’re talking about, the particulars, that are in this propos ed order are
different than the affidavits, so if you want to fill in the gaps, you can certainly call your
witnesses.”
Stortenbecker claims that these remarks by the district court indicated that it had
prejudged the case prior to the taking of testim ony at the hearing. But, “opinions formed
by the judge on the basis of facts introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or partiality motion unless they display

10
a deep-seated favoritism or antagonism that would make fair judgment impossible.” Byers
v. Comm’r of Revenue, 735 N.W.2d 671, 673 (Minn. 2007) (quoting Liteky v. United States, 510 U.S. 540, 555 , 114 S. Ct. 1147, 1157 (1994)). Judicial remarks that are “critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” Liteky, 510 U.S. at 555, 114 S. Ct. at 1157. Here,
the district court’s statements do not rise to the level of deep -seated favorit ism or
antagonism. The district court stated that it was comfortable with signing the order after
reviewing the affidavits and proposed order. However, when questioned if it would
immediately sign the order, the district court replied that counsel could instead call
witnesses to fill in the gaps between the affidavits and the proposed order. The burden is
on Stortenbecker to provide evidence of favoritism or antagonism and these statements do
not rise to the level of necessary proof. See State v. Burrell, 743 N.W.2d 596, 603 (Minn.
2008) (noting that it is presumed that judges will neutrally and objectively approach cases
and the burden is on the party alleging bias to defeat this presumption).
Stortenbecker further argues that the district court’s out right denial of his request
for a continuance constituted bias warranting recusal. However, he offers no evidence to
show that the denial exhibited any form of favoritism or antagonism against him. A denial
of a motion does not raise questions of impartiality on its own. See Braith v. Fischer, 632
N.W.2d 716, 724–25 (Minn. App. 2001) (noting that appellant offered no evidence of bias
and was simply dissatisfied with the outcome), review denied (Minn. Oct. 24, 2001).
In his reply brief, Stortenbecker argued for the first time that we should reverse the
district court on the basis that it abused its discretion by denying his request for a

11
continuance. It is well settled that “[a] reply brief should be limited to a concise answer to
new points made by a respondent; it should not include a repetition of arguments previously
made or new matter not in response to points made by the respondent.” Goeman v. Allstate
Ins. Co. , 725 N.W.2d 375, 378 (Minn. App. 2006) (quotation omitted) . Although
Stortenbecker raised the issue of the district court’s bias in his brief — and included the
district court’s failure to grant a continuance as evidence of bias — Stortenbecker did not
raise the issue of reversal based solely upon this discretionary ruling until his reply brief.
Therefore, we will not address it. See Thiele v. Stich , 425 N.W.2d 580, 582 –83 (Minn.
1988).
Affirmed.