Joel S. Rabbe, et al., Appellants,

This opinion will be unpublished and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
A19-1353

Joel S. Rabbe, et al.,
Appellants,

vs.

Farmers State Bank of Trimont, et al.,
Respondents,

First Financial Bank in Winnebago, et al.,
Respondents.

Filed May 11, 2020
Affirmed
Rodenberg, Judge

Martin County District Court
File No. 46-CV-18-424

Richard E. Bosse, Law Offices of Richard E. Bosse, Chartered, Henning, Minnesota (for
appellants)

Dustan J. Cross, Dean M. Zimmerli, Gislas on & Hunter LLP, Ne w Ulm, Minnesota (for
respondents Farmers State Bank of Trimont, Michael Mulder, and Robert Connors)

Philip J. Kaplan, Anthony Os tlund Baer & Louwagie P.A., Minneapolis, Minnesota (for
respondents First Financial Bank in Winnebago and William Erickson)

Considered and decided by Reilly, Presid ing Judge; Rodenberg, Judge; and Hooten,
Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants, several members of the Rabbe family, appeal from the district court’s
summary judgment dismissing appellants’ compla int. Appellants argue that the district
court erred in (1) determining that Minn. Stat. § 513.33 (2018) and equitable estoppel
require dismissal of their fraudulent-inducement claim, (2) failing to reconsider or reopen
the dismissal of appellants’ amended complaint after appellants produced an affidavit that
contradicts one on which the district court relied in its original order, and (3) denying
appellants leave to further amend their complaint. We affirm.
FACTS
This ongoing litigation arises from a farmer-lender relationship. See Farmers State
Bank of Trimont v. Rabbe, No. A19-0707, 2019 WL 7287075, at *1 (Minn. App. Dec. 30,
2019) (affirming in part and reversing in part the distri ct court’s grant of summary
judgment, and remanding); Rabbe v. Farmers State Bank of Trimont, No. A18-1845, 2019
WL 2416036, at *1 (Minn. App. June 10, 2019) (affirming the district court’s dismissal of
appellants’ claims that respondents failed to comply with the farmer-lender mediation act’s
good-faith-affidavit requirement), review denied (Minn. Aug. 20, 2019). In addition to
these two unpublished opinions of this court, appellants also a ppealed the district court’s
summary judgment entered in a related lawsuit (the foreclosure litigation, discussed below)
on May 25, 2016, but that appeal was dismissed pursuant to a stipulation by the parties.
There are a number of respondents in this appeal: Farmers State Bank of Trimont
(FSB), Michael Mulder (president of FSB), Robert Connors (vice president of FSB), First

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Financial Bank in Winnebago (FFB), and William Erickson (president of FFB). We refer
to FSB, Mulder, and Connors as the FSB respondents. We refer to FFB and Erickson as
the FFB respondents.
Loan History
In the early 2000s, appellants, owners of Rabbe Farms, LLP (Rabbe Farms) and
Rabbe Ag Enterprises (Rabbe Ag) expanded their businesses with financing from FSB.
Appellants’ financing needs eventually exceed ed FSB’s lending limits. Therefore, from
2008 to 2013, FSB solicited third-party banks to buy participation interests in FSB’s loans
to Rabbe Farms.1 FFB bought a participation interest in FSB’s loans to Rabbe Farms and
became a participant bank.
On June 17, 2013, FSB loaned $14,950,000 to Rabbe Farms. On March 24, 2014,
FSB loaned an additional $2, 500,000 to Rabbe Farms, bringing the total outstanding
principal indebtedness owed by Rabbe Farms to $17,450,000. The individual appellants
personally guaranteed these loans. These loans were secured in part by mortgages on 503
acres of Rabbe Farms’ land and in part by security interests in farm equipment and personal
property owned by Rabbe Ag.
Shortly after FSB made these loans to Rabbe Farms, Erickson noticed discrepancies
in appellants’ 2013 year-end financial stat ements. Erickson and Mulder met with
appellants and their accountant to discuss the issue. A third-party accounting firm engaged

1 “A loan participation is a common banking practice in which a bank participant provides
funds to a lender, which then le nds the funds to a borrower.” Cmty. First Bank v. First
United Funding, LLC, 822 N.W.2d 306, 308 (Minn. App. 2012).

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to review appellants’ 2013 year-end financia l statements confirmed that the statements
contained a significant accounting error. That accounting error caused appellants’ assets,
which secured FSB’s loans to Rabbe Farms and on which FSB relied in making the loans
to Rabbe Farms, to be overstated. The corre cted value of Rabbe Fa rms’ collateral made
the loans riskier than FSB previously thought. Because of the additional risk, and as it was
entitled to do pursuant to the loan documents, FSB declared a default on its loans to Rabbe
Farms. Instead of calling the notes due a nd immediately foreclosing on the existing
mortgages, appellants and FSB negotiated a workout of the lo an default. The parties
entered into a written and signed Forbearance Agreement on August 15, 2014.
Forbearance Agreements
The 2014 Forbearance Agreement included a stipula tion that appellants were in
default on the subject loans. FSB agreed to “forbear from exercising its rights and
remedies” under the terms of the loans to Rabbe Farms in exchan ge for appellants’
agreement “[t]o secure the repayment of [the ir] [i]ndebtdness” in the principal amount of
$15,000,000. Appellants also agreed to waive “all legal or equitable defenses to (including
any right of setoff, recoupment, or counterclaim) and any defects in the Loan Documents,
this Agreement and/or any documents refere nced herein.” The Forbearance Agreement
also included a release of all claims by appellants, providing:
[Appellants] do hereby release and forever discharge [FSB]
and all participants of this lo an as identified on the attached
Exhibit D (the “Participants”) , and their officers, agents,
attorneys and employees, successors and assigns from all
causes of action, suits, claims, and demands of every kind and
character, known or unknown, without limit, including any
action in law or equity which [appellants] may now have or

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may ever have had against [FSB] and/or the Participants, if the
circumstances, or any of the circumstances, giving rise to such
cause of action, suit, claim, or demand occurred prior to the
date of this Agreement.

Exhibit D lists 13 participants, including FFB.
The Forbearance Agreemen t also included an entir e-agreement provision and
prominently provided above the signature bl ocks that “only thos e terms in writing are
enforceable.” It also contained a fair-dealing provision in which appellants acknowledged
that they had the opportunity to be represented by counsel and relied on their own judgment
in executing the Fo rbearance Agreement. The agreement contained no promises
concerning good-faith negotiations. Appellants all signed the Forbearance Agreement.
The parties agree that appellants defaulted under the terms of the 2014 Forbearance
Agreement. On June 19, 2015, FSB and a ppellants executed an Amended Forbearance
Agreement. The Amended Forbearance Agr eement included waiver, fair-dealing, and
entire-agreement clauses that were nearly identical to those c ontained in the 2014
Forbearance Agreement. The Amended Forbearance Agreemen t also included a release
clause that was nearly identical to the release clause in the 2014 Forbearance Agreement.
FFB was again listed as a participant under the release clause. Unlike the 2014 version of
the agreement, the Amended Fo rbearance Agreement containe d a provision stating that
appellants and FSB would “negotiate in good faith towards a global resolution relative to
the Rabbe Farms Indebtedness.” Appellants signed the Amended Forbearance Agreement.

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Farmer-Lender Mediation
On July 25, 2015, appellants and FSB entered into farmer-lender mediation. During
mediation, appellants offered to settle their de bt with a $7,500,000 cash payment to FSB.
FSB rejected appellants’ offer and requested that appellants’ offer be submitted in writing
for consideration by the partic ipant banks. Appellants’ lawy er (not appellants’ current
counsel) complied. No agreement was reached.
Rabbe Farms and Rabbe Ag filed for Chapter 11 bankruptcy protection on
September 29, 2015—the expiration date of the Amended Forbearance Agreement.
Foreclosure Litigation
On October 20, 2015, the FSB respondents sued appellants seeking foreclosure of
several mortgages and a money judgment ag ainst the individual appellants for any
deficiency. FSB alleged that appellants were in default under the terms of both the 2014
Forbearance Agreement and the Amended Forbearance Agreement. Appellants answered
the complaint on November 5, 2015. Appellants did not raise fraud, lack of consideration,
or invalidity of the loan ag reements, Forbearance Agreemen t, or Amended Forbearance
Agreement as defenses in their answer. Appellants did assert a breach-of-contract defense.
On December 24, 2015, the FSB respondents moved for summary judgment on all
claims in this foreclosure litigation. The FSB respondents argued that the reaffirmation,
waivers, and releases in the 2014 Forbearanc e Agreement and Am ended Forbearance
Agreement eliminated all genuin e issues of material fact and that they were entitled to
judgment as a matter of law. In a suppl emental response to the motion for summary

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judgment, appellants argued that the FSB respo ndents failed to negotiate in good faith as
required by the Amended Forbearance Agreement.
On March 31, 2016, the district court en tered summary judgment in favor of the
FSB respondents on all claims in the foreclosure litigation. In its summary judgment order,
the district court determined that there wa s no genuine factual di spute concerning the
enforceability of the fo rbearance agreements. The distri ct court determined that FSB
“negotiated in good faith, and nothing that occurred during the negotiation or mediation
precludes the Court from granting summary judgm ent.” On May 25, 2016, the district
court issued an amended summary judgment order. Appellants appealed the summary
judgment in the foreclosure litigation, but later voluntarily dismissed their appeal by
stipulation.
Bankruptcy Proceedings
On July 8, 2016, the parties entered into mediation in appellants’ bankruptcy case.
A settlement was reached. As a result, appe llants cancelled confirmation dates and trial
dates and put all state court pr oceedings on hold. An order containing the terms of the
settlement was entered on October 31, 2016.
Current Litigation
In November 2017, appellants served their complaint in this case. On December 1,
2017, appellants served an amended complaint. Appellants’ amended complaint asserted
ten claims. Six of the claims were asse rted only against the FSB respondents. The
remaining four claims identified all respondents as defendants.

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In December 2017, the FSB respondents and the FFB respondents moved to dismiss
appellants’ amended complaint. On June 13 , 2018, shortly before the hearing date for
respondents’ motion to dismiss the amended complaint, appellants moved to file a second
amended complaint that added a new claim for declaratory judgment and a claim of a UCC
violation. Erickson was not identified as a defendant in this proposed second amended
complaint.
On September 28, 2018, the district court dismissed appellants’ amended complaint.
The district court also denied appellants’ motion for leave to fi le the second amended
complaint, except for one claim—an antitrust claim against FSB and Mulder that appellants
later abandoned. The district court determined that the release language in the forbearance
agreements was valid and precluded appellant s’ claims against the FFB respondents and
all but one claim against the FSB respondents. The district court held that appellants were
statutorily barred by Minn. Stat. § 513.33 from alleging that they were fraudulently induced
to enter into the Forbearance Agreement based on an oral promise to negotiate a settlement.
The district court’s order effectively rem oved the FFB respondents from the lawsuit and
left only the antitrust claim against FSB and Mulder—the claim that appellants have now
abandoned.
In February 2019, appellants requested leave to move the district court for
reconsideration of the September 28, 2018 order. On April 2, 2019, appellants filed a rule
52.02 motion to amend, claiming to have new evidence. Appellants also proposed a third
amended complaint that was identical to th e second amended complaint except for three
new claims: (1) a breach-of-contract claim rela ted to a failure to ne gotiate in good faith

9
under the Amended Forbearance Agreement, (2) a claim for negligent performance of loan
administration, and (3) for cancellation of instruments (recession of the Forbearance
Agreement and Amended Forbearance Agreement).
The district court denied appellants’ motion to further amend the complaint. It also
declined to reconsider its September 28, 2018 partial-summary-j udgment order. On
June 24, 2019, the district court granted summary judgment dismissing appellants’ antitrust
claim and dismissed appellants’ complaint in its entirety. As noted, appellants do not
challenge the district court’s dismissal of the antitrust claim.
This appeal followed.
D E C I S I O N
I. Erickson was voluntarily dismissed as a defendant.
Appellants initially included Erickson as a defendant in this action. Appellants later
agreed on the record to voluntarily dismiss the claims against Erickson with prejudice. But
no separate judgment dismissing Erickson was ever entered. When filing this appeal,
appellants again identified Erickson as a re spondent. At oral argument, counsel for
appellants stated that appellants do not dis pute Erickson’s dismissal. Although no
judgment dismissing Erickson appears in the record, appellants agreed to dismiss him and
now agree that all claims ag ainst him have been effectiv ely dismissed. Therefore,
appellants’ voluntary dismissal on the record of all claims against Erickson is affirmed.

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II. The district court did not err in granti ng respondents’ motions to dismiss in its
order dated September 28, 2018.

Appellants argue that the district court erred in its September 28, 2018 dismissal of
all but one claim in appellants’ amended complaint. Appellants contend that the district
court improperly applied colla teral estoppel to preclude their claim for fraudulent
inducement.
When a case is “dismissed pursuant to Minn. R. Civ. P. 12.02(e) for failure to state
a claim on which relief can be granted, the question before this court is whether the
complaint sets forth a legally sufficient claim for relief,” which we review de novo. Hebert
v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008). “In doing so, we consider only
the facts alleged in the complaint, accepting those facts as true.” Sipe v. STS Mfg, Inc., 834
N.W.2d 683, 686 (Minn. 2013) (quotation and citation omitted).
In the context of a rule 12 motion, “a c ourt may consider documents referenced in
a complaint without converting the motion to dism iss to one for summary judgment.” N.
States Power Co. v. Minn. Metro. Council , 684 N.W.2d 485, 490 (Minn. 2004). The
forbearance agreements were referenced in and made part of the complaint, so they were
properly considered by the district court on the motion to dismiss.
Parties are required to mediate in good faith during farmer-lender mediation. Minn.
Stat. § 583.27, subd. 1 (2018). “If the medi ator determines that either party is not
participating in good faith . . . the mediator shall file an affidavit indicating the reasons for
the finding . . . .” Minn. Stat. § 583.27, subd. 2 (2018). A creditor or debtor may petition
the district court for review of “a mediator’s affidavit of lack of good faith or a mediator’s

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failure to file an affidavit of lack of good faith of a cr editor.” Minn. Stat. § 583.27,
subd. 6(a) (2018). The district court woul d review such a petition for an abuse of
discretion. Id. The Farmer-Lender Mediation Act, Minn. Stat. §§ 583.20-.32 (2018),
“requires that a finding of bad faith be made by the mediator, not by the district court.”
Prod. Credit Ass’n of Worthington v. Spring Water Dairy Farm, Inc. , 407 N.W.2d 88. 91
(Minn. 1987).
The mediator in the farmer-lender media tion in this case made no finding of bad
faith. There was no petition for district-court review of the absence of a bad-faith finding.
Accordingly, in the summary judgment or der in the foreclosure litigation, Judge
Trushenski concluded that FS B had as a matter of law nego tiated in good faith. He
elaborated in his memorandum attached to the summary judgment order that “[t]he
mediator did not make [a finding of a lack of good faith] and nothing in the record shows
otherwise.” Judge Trus henski also noted that appellant s “admitted in the Forbearance
Agreement and First amendment that they had no defense to the enforceability of the loan
documents. [Appellants] also acknowledged the documents were valid and binding.”
Appellants appealed the summary judgment in the foreclosure litigation, but later
dismissed the appeal pursuant to a stipulation of the parties. Judge Trushenski’s
conclusions in the foreclosure litigation that FSB negotiated in good faith are therefore part
of a final judgment.2

2 The parties contend that they are currently involved in other litigation, including an action
by appellants attempting to set aside Judge Trus henski’s earlier judgment. The record in
this appeal contains nothing concerning any such litigation.

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In issuing the September 28, 2018 order c oncerning the motions to dismiss in this
case, Judge Timmerman properly considered th at Judge Trushenski’s conclusions in the
foreclosure litigation concerning good-faith negotiations and the validity of the
forbearance-agreement releases was final as between these parties. See Reil v. Benjamin,
584 N.W.2d 442, 444 (Minn. App. 1998) (expl aining “that a legal que stion or fact issue
that has been determined by a court of competent jurisdicti on cannot be relitigated in a
subsequent action between the same parties or their privies”). Judge Timmerman also
concluded that “the release contained within both Forbearance Agreements is unambiguous
in its scope and intent” and that the FS B and FFB respondents were “released and
discharged” pursuant to the release provisions. To the extent that appellants asserted that
the parties made agreements not included in their two forbearance agreements, the district
court held that Minn. Stat. § 513.33 bars such claims. As such, Judge Timmerman
concluded that appellants failed to state a claim on which relief can be granted.3
As discussed, we review a district court’s rule 12 dismissal de novo. Hebert, 744
N.W.2d at 229. Doing so, the record clearly re flects that the terms of the releases in the
forbearance agreements are unambiguous and unquestionably valid. Appellants
unambiguously agreed that they were in de fault in 2014 and unambiguously released
respondents from all liability in each forbearance agreement. And appellants have not

3 The appealed-from order underlying the judgment of dismissal in this case is captioned
as “Findings of Fact, Conclusions of Law, and Order.” As a reminder to the district court,
a motion to dismiss does not require any findings of fact because the facts alleged in the
complaint are to be accepted as true. See Sipe, 834 N.W.2d at 686. On careful examination
of the record, and despite th e caption, the district court made no findings concerning
disputed facts.

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effectively pleaded any failure of respondents to abide by the terms of the valid releases,
in light of the earlier and final judgment as between these same parties in the foreclosure
litigation that there was no lack of good faith on the part of any of respondents in farmer-
lender mediation. Accordingly, the distri ct court properly granted the FSB and FFB
respondents’ motions to dismiss.
III. The district court did not abuse its di scretion in denying appellants’ July 30,
2018 motion to amend the complaint.

Appellants argue that the district court sh ould have granted their motion to amend
the complaint because the only basis that the district court cited in support of denying the
motion was “the collateral estoppel of Judge Trushenski’s Findings of Fact, Conclusions
of Law and Order” which appellants assert was error.
“Under Minn. R. Civ. P. 15.01, the deci sion by a trial court to deny a motion to
amend a pleading may be reversed only if the trial court abused its discretion.” Copeland
v. Hubbard Broad., Inc., 526 N.W.2d 402, 405 (Minn. App. 1995). “It is . . . not an abuse
of discretion to deny a motion to amend when the movant fails to establish evidence to
support its claims.” Id.
On September 28, 2018, the district cour t determined that “the only legally
cognizable claims in the complaint are those pertaining to the alleged antitrust violation.”
The district court allowed the proposed ame ndments to the complain t pertaining to the
alleged antitrust violation and “[t]he deletion of material from the amended complaint.”
Except as to the now-aban doned antitrust claim, the proposed second amended
complaint restated the same causes of acti on as the amended complaint. Even had the

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amendment been allowed, the very same rele ases determined in th e earlier foreclosure
litigation by Judge Trushenski to be valid would have had the same dispositive legal effect
under appellants’ proposed additional amendments.
The district court acted well within its discretion when it denied appellants’ motion
to amend the complaint because the second amended complaint was substantially the same
as appellants’ amended complaint in all releva nt respects and asserted no cause of action
that was viable after the earlier summary adjudication.
Further, the district court did not abuse its discretion in denying appellants leave to
move for reconsideration. We review a dist rict court’s decision to deny reconsideration
for an abuse of discretion. In re Welfare of S.M.E. , 725 N.W.2d 740, 743 (Minn. 2007).
“A district court abuses its discretion when it bases its conclusions on an erroneous
interpretation of the applicable law.” Fannie Mae v. Heather Apartments Ltd. P’ship, 811
N.W.2d 596, 599 (Minn. 2012). A motion that reargues a prior motion, without making
any new factual or legal arguments, is not a proper motion for reconsideration. Lewis v.
Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998); see
also State by Fort Snelling Park Ass’n v Minneapolis Park & Recreation Bd., 673 N.W.2d
169, 178 n.1 (Minn. App. 2003) (stating that Lewis has been overruled in part, but remains
good law as far as establishing the n ecessary components for a motion for amended
findings), review denied (Minn. Mar. 16, 2004). Appellant s’ motion for reconsideration
was plainly an attempt to reargue the earlier summary judgment motion. The district court
acted within its discretion in denying appellants’ motion to reconsider.

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IV. The district court did not err in de nying appellants’ motions to amend the
findings of fact and amend the complaint.

Appellants argue that the district court e rred in denying their motion to amend the
findings of fact of September 28, 2018, beca use the district court relied on a “perjurious
affidavit” in finding that FSB negotiated in good faith during the farmer-lender mediation.
The referenced affidavit was signed by atto rney M.D. (FSB’s a ttorney), related to
respondents’ contention that it acted in good faith during farmer-lender mediation, and was
referenced by the district cour t in its order dismissing all but one of appellants’ original
claims in this case. The M.D. affidavit stated that both parties made various offers during
the mediation sessions but could not reach an agreement.
Appellants now, and in their motion fo r amended findings—which was denied by
the district court as an impermissible second attempt at bringing a motion for
reconsideration—contend that the M.D. affidavit was false because there were not multiple
offers by the parties and there were not multiple mediation sessions.
The district court denied appellants’ motion for amended findings without regard to
the truth or falsity of the M. D. affidavit, explaining that it would not consider the “new
evidence” that appellants put forth “to challenge Judge Trushenski’s conclusion of law that
FSB negotiated in good faith during Farmer-Len der mediation.” The district court stated
that it was “precluded from going outside the re cord previously submitted” so “the new
evidence . . . as well as any arguments predicated on that evidence, must be disregarded.”
The district court concluded that appellant s’ arguments predicated on the claimed new
evidence are “an attempt to reargue the [earlier] motions.”

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On appeal, appellants assert the same argument concerning the same “new
evidence” but add one additional affidavit from Joseph Roach (a partner of one of
appellants’ former attorneys at the farmer-lender mediation), which purports to corroborate
the other affidavits in disputing the accuracy of the M.D. affidavit. Appellants argue that
they “requested the District Court to clarify, correct or expand its findings by considering
the new evidence from the bank’s record which totally contra dicts the Affidavit used by
Judge Trushenski and the District Court in granting the motion for summary judgment and
the motion to dismiss respectively.”
“Upon motion of a party . . . the court ma y amend its findings or make additional
findings, and may amend the judgment accordingly if judgment has been entered.” Minn.
R. Civ. P. 52.02. “We review the district court’s decision whether to grant a motion for
amended findings for an abuse of discretion.” Landmark Cmty. Bank, N.A. v. Klingelhutz,
927 N.W.2d 748, 754 (Minn. App. 2019). “The district court abuses its discretion if its
decision is based on an erroneous view of the law or is against logic and the facts in the
record.” Id. (quotation omitted).
The district court’s judgment of dismissal in this case did not depend on the accuracy
of the M.D. affidavit. As discussed, the question of whether FSB had mediated in good
faith was fully and finally resolved by J udge Trushenski’s summary judgment in the
foreclosure litigation. Appellants appealed from that summary judgm ent, but dismissed
the appeal. On our de novo review of the record, that earlier summary judgment rested on
the conclusion that, as a matter of law, FSB di d not act in bad faith. The district court in
this case relied on that final judgment and did not rely on the accuracy of the M.D. affidavit.

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The summary judgment in the foreclosure litigation binds both parties to this appeal. Judge
Timmerman properly declined to revisit the issue.
The district court therefore did not abuse its discretion in denying appellants’ motion
for amended findings.
Affirmed.