In re the Estate of: Alex Batinich, Deceased.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1226

In re the Estate of: Alex Batinich, Deceased.

Filed March 25, 2019
Affirmed
Hooten, Judge

St. Louis County District Court
File No. 69VI-PR-16-165

Karl J. Yeager, Julia J. Nierengarten, Joseph P. Bottrell, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for appellants Arthur and Jacqueline Renander)

Robert D. Butterbrodt, St. Paul, Minnesota (for respondent representative of estate)

Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this probate proceeding, a ppellants challenge the district court’s grant of
summary judgment. They argue that they are entitled to an accounting of a limited liability
corporation of which the decedent was a member, that they were deprived of a meaningful
opportunity to oppose summary judgment, and that there are genuine issues of material
fact. We affirm.

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FACTS
Appellants Arthur W. Renander and Jacqueline Zara Renander organized RAI,
LLC—an Iowa limited liability company —in 2001. Alex Batinich, whose estate is the
respondent in this case, purchased what would eventually become a 34% share in RAI.
The sole asset of RAI was a 100-acre parcel of land in Iowa, which became the subject of
much litigation between appellants, Batinich, and RAI. See Batinich v. Renander, No. 15-
2053, 2017 WL 1086220 (Iowa Ct. App. 2017); Northern Investments, L.C. v . Renander,
No. 14-1454, 2015 WL 6509540 (Iowa Ct. App. 2015); Batinich v. Renander , No. A09-
1137, 2010 WL 2035725 (Minn. App. May 25, 2010), review denied (Minn. Aug. 10,
2010).
RAI owned a 50% interest in the land, and the other 50% was owned by Norther n
Investments. In May 2013, RAI, appellants, and Northern Investments entered into an
agreement with a development company to list the property for sale in order to avoid
foreclosure on the land. In May 2014, Northern Investments exercised its option to
purchase the land pursuant to the agreement. Appellants attempted to block the purchase,
but an Iowa district court ruled that Northern Investments had properly exercised its option
to purchase. The Iowa Court of Appeals affirmed in October 2015. Northern Investments,
2015 WL 6509540, at *1. The purchase was completed in February 2016.
Batinich sued appellants and RAI, both individually and derivatively on behalf of
RAI, for breach of their fiduciary duties, amongst other things. One of the main thrusts of
Batinich’s lawsuit was that the Renanders, who exercised complete control of RAI at the
time, cost him a significant amount of money by refusing to sell the land at an earlier date.

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The land apparently could have been sold in 2010 for at least $4. 7 million instead of the
$4.5 million for which it was to be sold. Moreover, the debt against the property had
increased significantly after 2010. The district court found that Batinich’s share of the
profit from the sale would have been $499,342 in 2010 , but was decreased to $125,462
because of the lower sale price and increased debts. The district court concluded that
Batinich sustained $373,880 in damages. The Iowa Court of Appeals affirmed this part of
the district court’s award for damages. Batinich, 2017 WL 1086220 , at *9. The district
court also dissociated the Renanders from RAI for their repeated misconduct. The Iowa
Court of Appeals affirmed the dissociation. Id. at *7. After the dissociation, appellants
became transferees who no longer had a role as members or managers in RAI but who were
entitled to a distribution for their percentage share of any proceeds. The district court also
ordered appellants to pay Batinich $79,956.01 in attorney fees. The Iowa Court of Appeals
affirmed the sum but remanded to the district court to order RAI to pay the attorney fees
instead of appellants. Id. at *11. The Iowa Supreme Court denied the subsequent petition
for further review in June 2017.
Alex Batinich died on June 15, 2016. He resided in St. Louis County, Minnesota at
the time of his death. A probate proceeding regarding his estate was commenced , and his
wife Mary Batinich was appointed personal representative of the estate in October 2016 .
In February 2017, appellants filed a claim against Batinich’s estate for $10.6 million. Mary
Batinich disallowed the claim in May 2017. Appellants then filed a petition for allowance
of a claim previously disallowed in July 2017. In the petition, appellants alleged that they
believed, “[b]ased upon information obtained from public records,” that Batinich caused

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RAI to sell all of its assets in November 2015 and had unlawfully converted and distributed
all of the proc eeds to himself and not providing an accounting of the transaction.
Appellants presented no evidence that any of RAI’s assets had been distributed while
Batinich or his estate controlled RAI, either to Batinich and his estate or to anyone else.
The estate’s attorney represented at oral arg uments on appeal that nothing has been
distributed. RAI is not and has never been a party to this probate proceeding.
The district court granted summary judgment for Batinich’s estate in May 2018. It
concluded that there were no issues of material fac t as to whether any of RAI’s remaining
assets belong to appellants. The district court also concluded that there is no factual dispute
regarding the net proceeds from the sale of the land and therefore RAI’s only remaining
asset is $497,986.20 in cash. I t based this conclusion on information contained in an
affidavit from attorney Paul D. Burns explaining that, after closing costs, RAI received a
net of $441,043.21 as well as $56,924.99 which was released from an escrow to RAI. This
totaled $497,968.20 t o RAI. From this, the district court subtracted the $79,956.01 that
RAI owed Batinich in attorney fees, leaving a total of $418,012.19. The district court then
construed the evidence in the light most favorable to appellants and assumed that nothing
more was owed to Batinich from RAI for money Batinich had expended keeping RAI afloat
and concluded that appellants would at most be entitled to $275,888.04 (66% of
$418,012.19) from the sale. Since the sum is less than the $373,880 that appellants owe
Batinich’s estate for the lost profits from the sale of the property, the district court granted
summary judgment in favor of Batinich’s estate. This appeal follows.

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D E C I S I O N
Appellants challenge the district court’s grant of summary judgment. “Whether
summary judgment was properly granted is a question of law, which we review de novo.”
In re Estate of Kotowski, 704 N.W.2d 522, 526 (Minn. App. 2005), review denied (Minn.
Dec. 21, 2005). This requires considering whether there are any genuine issues of material
fact and whether the district court erred in applying the law. Id. The evidence must be
viewed in the light most favorable to the party against whom summary judgment was
granted. Id. And there is a genuine issue of material fact “if a rational trier of fact,
considering the record as a whole, could find for the party against whom summary
judgment was granted.” Molde v. CitiMortgage, Inc. , 781 N.W.2d 36, 39 (Minn. Ap p.
2010).
Appellants raise th ree principal issues on appeal: (1) that they are entitled to an
accounting of RAI’s assets both by virtue of their former status as members of RAI and
later by their status as transferees; (2) that they were deprived of a meaningful opportunity
to respond to summary judgment because the district court relied on an affidavit submitted
after they could respond and did not allow further discovery before making i ts summary
judgment decision; and (3) that there are outstanding issues of material fact.
I. Accounting
Appellants argue that under Iowa law they are entitled to an accounting of RAI.
Appellants provide two bases for their request for an accounting. First, they argue that they
are entitled to an accounting for the time during which they were members of RAI. Indeed,
under Iowa Code § 489.410(3) (2018):

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[A] dissociated member may have access to information to
which the person was entitled while a member if the
information pertains to the period during which the person was
a member, the person seeks the information in good faith, and
the person satisfies the requirements imposed on a member by
subsection 2, paragraph “b”.
And second, they maintain that they are entitled to an accounting, as transferees, upon the
dissolution of RAI. Under Iowa Code § 489.502(3) (2018), “In a dissolution and winding
up of a limited liability company, a transferee is entitled to an account of the company’s
transactions only from the date of dissolution.” This second basis is premised on the idea
that RAI automatically dissolved on September 14, 2016, 90 days after Alex Batinich’s
death because he was the last remaining member of the LLC. See Iowa Code
§ 489.701(1)(c) (2018) (“A limited liability company is dissolved, and its activities must
be wound up, upon . . . the passage of ninety consecutive days during which the company
has no members.”).1
Even if appellants are correct that they have a right to an accounting of RAI under
Iowa law, the district court did not have the authority to order an accounting. A “district
court may not exercise jurisdiction over a nonparty.” In re Marriage of Sammons , 642
N.W.2d 450, 457 (Minn. App. 2002). RAI was not made a party to this action.
Accordingly, the district court did not have personal jurisdict ion over RAI and could not
order an accounting. Summary judgment was appropriate on the request for an accounting.

1 Batinich’s estate asserts that RAI has not been dissolved because it is the subject of
ongoing litigation.

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II. Meaningful Opportunity to Respond
Appellants claim that the district court’s reliance on the Burns affidavit deprived
them of a meaningful opportunity to oppose summary judgment. The district court used
this affidavit to calculate how much money RAI received from the sale of the land.
Specifically, the affidavit authenticated a document titled “CLOSING FIGURES.” This
document was original ly included in an affidavit from Mary Ba tinich, acting as personal
representative of the estate. Appellants argued to the district court that the document
constituted inadmissible hearsay becau se it was drafted by Burns and not Mary Ba tinich.
After appellants made this argument, Batinich’s estate submitted the affidavit from Burns.
On appeal, appellants do not argue that the Burns affidavit is inadmissible hearsay.
Rather, they argue that they were deprived of an opportunity to meaningfully oppose the
summary judgment motion because the affidavit was submitted after their time to respond
to the estate’s opening brief. Appellants cite to two cases to support their position.
First, they cite to Superior Const. Servs., Inc. v. Belton , and mischaracterize it as
“holding that the district court acted correctly by not admitting the belatedly offered
testimony in support of a summary judgment motion.” See 749 N.W.2d 388, 393 (Minn.
App. 2008). But the Belton court actually stated that the district court had acted within its
discretion by not accepting the late testimony. Id. Belton did not say that a district court
is obligated to reject late testimony or affidavits, but merely reemphasized the discretionary
authority of the district court. See id.
Second, appellants cite to Hebrink v. Farm Bureau Life Ins. Co., for the proposition
that a district court must “afford the adverse party a m eaningful opportunity to oppose” a

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summary judgment motion. 664 N.W.2d 414, 419 (Minn. App. 2003) . But Hebrink is
inapposite to our current case. The Hebrink court was discussing a sua spo nte grant of
summary judgment, whereas here, both parties moved for summary judgment. Moreover,
appellants were put on notice of the estate’s intention to introduce the “CL OSING
FIGURES” document. And i t was foreseeable that the estate might authenticate th at
document by procuring an affidavit from Burns, whose signature appears at the bottom of
the closing figures document. Rather than introduce contradictory evidence tha t would
create a genuine issue of material fact, they relied on their conclusory allegations that they
were owed money by RAI—which was not even a party to this action . As required by
Hebrink, the district court gave appellants a meaningful opportunity to oppose summary
judgment.
Appellants also argue that the district court erred by ruling on the summary
judgment motions prior to the close of discovery. Under the rules in effect at the time, a
party can move for summary judgment at any time after the expiration of 20 days from the
service of the summons. Minn. R. Civ. P. 56.01 (2016) 2; Molde, 781 N.W.2d at 45. And
the opposing party “may request that the district court deny or continue the motion on the
ground that the non -moving party should be permitted to conduct additional discovery.”
Molde, 781 N.W.2d at 45; see also Minn. R. Civ. P. 56.06 (2016). A district court’s

2 Rule 56 of the Minnesota Rules of Civil Procedure was recently “revamped” to more
“closely follow” the federal rules. Minn. R. Civ. App. P. 56 2018 advisory comm. cmt.
The Minnesota Supreme Court specifically indicated that the language describing the
standard for granting summary judgment reflected recent caselaw. Order Promulgating
Amendments to Rules of Civil Procedure , No. ADM04-8001 (Minn. Mar. 13, 2018). We
cite to the former version of the rules because that was the version the district court applied.

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decision to rule on a summary judgment motion without allowing additional discovery is
reviewed for an abuse of discretion. Molde, 781 N.W.2d at 45.
The district court noted that the case had been going on for nearly a year and that
appellants had only specifically asked to depose Mary Batinich. It questioned why
appellants had not “expl ained why they waited to pursue discovery until after the Estate
filed its motion for summary judgment.” And it noted “that the same fact situation has
been litigated in multiple forums by [appellants] who have previously deposed Mary
Batinich.” We agree with the district court’s assessment and conclude that it did not abuse
its discretion in ruling on the summary judgment motion prior to the close of discovery.
III. Genuine Issues of Material Fact
Appellants argue that there remain genuine issues of material fact on the merits of
their claims. Appellants are essentially rehashing their prior arguments. Their primary
contention is that there is a genuine issue of material fact about RAI’s assets and whether
those assets remain with RAI or were converted by B atinich. But this line of argument
runs into three problems. First, even if the assets do remain with RAI, the district court
would not be able to provide appellants with any relief because it does not have personal
jurisdiction over RAI . Second, appell ants have not provided any evidence that Batinich
converted funds from RAI. And to the extent that appellants have argued that an
accounting would provide the necessary evidence on this point, the district court lacks the
personal jurisdiction over RAI to order an accounting because RAI is not a party to this
action. And third, even if there were evidence that Batinich had converted the funds from
RAI, the evidence in the record, viewed in the light most favorable to appellants, would

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still demonstrate th at they are not entitled to relief. Specifically, the estate submitted
affidavits from both Mary Batinich and Burns about the money RAI received from the sale
of its only asset—the Iowa land. Appellants have not provided any evidence to contradict
these affidavits. So we would be left to conclude that the district court was correct in its
calculations showing that appellants owe Batinich’s estate more than even the most
optimistic estimate would show they are owed from RAI. There are no genuine issues o f
material fact and the district court did not abuse its discretion.
Affirmed.