In re the Estate of: Harold E. Farnes, a/k/a Harold Farnes and Harold Ellwood Farnes

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0673

In re the Estate of: Harold E. Farnes, a/k/a
Harold Farnes and Harold Ellwood Farnes, Deceased.

Filed February 8, 2016
Affirmed
Halbrooks, Judge

Carver County District Court
File No. 10-PR-13-84

Thomas H. Boyd, Thomas A. Walker, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota; and

Eric C. Dammeyer, Dammeyer Law Firm, P.A., Eden Prairie, Minnesota (for appellant
Dr. Stephen Farnes)

James H. Gilbert, Beverly J. Aho, Jody E. Nahlovsky, Adam L. Sienkowski, James H.
Gilbert Law Group, PLLC, Eden Prairie, Minnesota (for respondent Nancy Farnes)

Racheal M. Holland, Melchert Hubert Sjodin, PLLP, Waconia, Minnesota (for
respondent Patty Farnes)

Hon. Bruce Kruger (ret.), c/o Lindquist & Vennum LLP, Minneapolis, Minnesota
(personal representative)

Peggy Marrin, Duluth, Minnesota (pro se respondent)

Annabelle McCullough, Bismarck, North Dakota (pro se respondent)

Katherine M. Condon, Litchfield, Minnesota (pro se respondent)

Hannah Rose Marrin, Duluth, Minnesota (pro se respondent)

Abbigail Warnke, St. Cloud, Minnesota (pro se respondent)
Brent Carr, Excelsior, Minnesota (pro se respondent)

Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and

Reyes, Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant challenges the district court’s denial of his motion for an order

determining the stipulation to dismiss his objection to the probate of his father’s will to

be non-binding and to permit him to re-assert his objection with supplemental pleadings.

We affirm.

FACTS

Harold Farnes was born on January 16, 1926, in Blue Earth and died on May 15,

2013. He is survived by his wife, respondent Patty Farnes. During Harold’s life, he had

four children from a previous marriage: respondents Peggy Marrin and Nancy Farnes;

appellant Stephen Farnes; and Molly Lundquist, who preceded Harold in death.

Lundquist is survived by her four children: respondents Katherine Condon, Abbigail

Warnke, Brent Carr, and Annabelle McCullough.

Patty petitioned for formal probate of Harold’s will that was executed on July 23,

2004. In that will, Harold devised his farm, valued at $885,000, to his wife for life and

then to his three daughters but specifically omitted his son, Stephen, from receiving this

property. Harold’s 2004 will, after providing a life estate for Patty, divided the remainder

2
of his assets in equal amounts to all four children, per stirpes.1 Stephen objected to the

probate of the 2004 will on the ground that it was obtained by undue influence when

Harold was a vulnerable adult who was mentally incapacitated. Nancy also objected to

the probate of the will based on her belief that there were defects in the 2004 will and that

the personal representative requested by Patty had a conflict of interest.

Stephen was scheduled to be deposed on October 30, 2014—approximately three

weeks before the November 24, 2014 trial. Before proceeding with the deposition,

Stephen, Nancy, and Patty reached a stipulated agreement that was recorded

stenographically on October 30. As part of the stipulation, Stephen and Nancy consented

to withdraw their objections to probating Harold’s 2004 will. All three agreed not to

object to the payment of each other’s attorney fees by the estate. Patty agreed to clarify

that she did not have any power of appointment over the property devised to her or power

to dispose of the principal of that property “now or upon her death.” Further, all three

agreed that an institutional trustee would be selected to administer the estate according to

the terms of the 2004 will. Prior to any major actions, the trustee was to poll Stephen,

Nancy, Peggy, and Patty to obtain unanimous consent. If they did not unanimously

consent, the trustee was to seek relief in district court. Nancy was given a 30-day right of

first refusal for the sale of anything devised to Patty from the marital trust. The three

agreed to make a good-faith effort to ensure that the farm was titled to the estate, and

Stephen agreed to acknowledge that he had no claim of ownership in it. Finally, they

1
The total value of Harold’s estate exceeded $4,700,000.

3
agreed to participate in a mediation session scheduled in November to settle the

remaining unresolved aspects of the estate with the other parties.

The mediation session failed to produce a global agreement between all of the

parties. Stephen subsequently moved the district court for an order determining that the

stipulated dismissal was non-binding, to permit him to reassert his objection to probate

and to file supplemental pleadings, and for a trial date. Stephen characterized his motion

as one brought under Minn. R. Civ. P. 60.02 based on newly discovered evidence that

allegedly came to light only after he agreed to the stipulation. Stephen described the

newly discovered evidence as (1) a document dated March 1999 purportedly written by

Harold, (2) a deed to Patty described in the March 1999 document, (3) a deed from Patty

to all four children described in the March 1999 document, and (4) a 2003 deed

transferring the farm to Peggy. Stephen asserted that the documents supported his

argument that Harold lacked testamentary capacity when he signed the 2004 will.

Nancy and Patty opposed Stephen’s rule 60.02 motion, arguing that the March

1999 document, by its terms, was not meant to be anything other than a guide, was

unsigned, and predated Harold’s 2004 will by five years. Therefore, they contended that

the document was irrelevant, inadmissible, and collateral, making the granting of a Minn.

R. Civ. P. 60.02 motion for relief from a judgment unwarranted. Nancy and Patty further

noted that none of the three deeds had been produced and that even if the documents

existed and were relevant, admissible, and not collateral, Stephen had failed to act with

due diligence to obtain them.

4
 The district court denied Stephen’s motion. Analyzing the motion under Minn. R.

Civ. P. 60.02(b), the district court noted that Stephen had to demonstrate that (1) he

exercised reasonable diligence; (2) the newly discovered evidence was relevant and

admissible; and (3) it was not merely collateral, impeaching, or cumulative, such that it

would have a probable effect upon the result of a trial.

The district court found that Stephen did not provide credible evidence to establish

the existence of the two deeds referenced in the March 1999 document or the 2003 deed

and that Stephen did not exercise reasonable diligence in discovering the alleged

documents because, although Stephen knew that his father kept files in his personal

office, he did not request access to them. The district court further found that Stephen

failed to establish an adequate foundation for the admissibility of the March 1999

document because the document concludes with the unwitnessed typewritten word

“Dad,” and Stephen failed to provide an affidavit detailing where and when he discovered

it. Finally, the district court found that, even if admissible, the March 1999 document, by

its terms, would have no probable effect on the outcome of a trial as it was meant as

Harold’s guide and predates the 2004 will that explicitly revokes all prior wills and

codicils. This appeal follows.

DECISION

I.

Stephen argues that the district court abused its discretion when it denied his rule

60.02 motion. “The decision to vacate judgment under rule 60.02 rests within the district

court’s discretion and will not be reversed absent an abuse of that discretion.” Meyer v.

5
Best W. Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn. App. 1997), review denied

(Minn. June 26, 1997). “[W]e review the district court’s factual findings for clear error.

That is, we examine the record to see if there is reasonable evidence in the record to

support the court’s findings.” Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790,

797 (Minn. 2013) (quotations and citations omitted). The district court may relieve a

party from a final judgment based on newly discovered evidence. Minn. R. Civ.

P. 60.02(b). To warrant a new trial under rule 60.02, “the moving party must show that

the new evidence was not discovered until after trial, and could not have been discovered

before trial by the exercise of reasonable diligence.” Frazier v. Burlington N. Santa Fe

Corp., 811 N.W.2d 618, 631 (Minn. 2012) (quotation omitted). The evidence “must not

be merely collateral, impeaching, or cumulative, but rather, must be such as to have a

probable effect upon the result of a new trial.” Id. (quotation omitted). Finally, the

newly discovered evidence must be relevant and admissible. Id. If a party fails to prove

any of the required factors for newly discovered evidence, then rule 60.02 relief is

inappropriate. Id.

In order to establish the exercise of reasonable diligence, a party must show that

he employed “reasonable investigation efforts to find and produce the evidence.” Turner

v. Suggs, 653 N.W.2d 458, 467 (Minn. App. 2002) (quotation omitted). Reasonable

diligence “requires the use of available discovery tools.” Regents of Univ. of Minn. v.

Med. Inc., 405 N.W.2d 474, 479 (Minn. App. 1987). Stephen argues that he exercised

reasonable diligence with respect to the March 1999 document by serving written

6
discovery requests that required Patty to produce it. The discovery request that Stephen

relies on states:

All documents which are records of any kind, whether
written or printed or electronically stored, including but not
limited to documents, correspondence, journal or diary entries
regarding the will of Harold E. Farnes, dated July 23, 2004;
the will of Harold E. Farnes, dated August 14, 1997; as well
as any other will or codicil, trust or trust amendment, of
Harold E. Farnes.

The district court disagreed, finding that the scope of the discovery request did not

encompass the document. The first statement in the typed document entitled

FINANCIAL March 1999 provides: “As a sort of summary of what and where, I am

setting out the following. It may be somewhat disjointed, repetitious etc., but it is not

meant to be anything other than a guide, that I add to from time to time.” The document

is not signed or witnessed, nor does it state any intention to replace Harold’s 1997 will. It

is not a will, codicil, trust, or trust amendment. We conclude that the district court

properly exercised its discretion when it decided that Stephen failed to exercise

reasonable diligence in obtaining the alleged newly discovered evidence. Stephen’s

failure to exercise reasonable diligence, one of the required factors for newly discovered

evidence, is sufficient to affirm the district court’s denial of rule 60.02 relief. See

Frazier, 811 N.W.2d at 631.

Even if Stephen had shown that he exercised reasonable diligence to obtain the

documents, he also has to demonstrate that the documents would have a probable effect

on the result at trial. See id. Stephen’s objection to the probate of the 2004 will is that it

is invalid because of undue influence. He argued in his reply memorandum to the district

7
court that the three deeds and March 1999 document are relevant for two reasons:

(1) they contradicted Patty’s testimony given during her deposition and (2) they

demonstrate that the 2004 will was a sudden or unexplained change in a “fixed and

determined purpose.”

At the outset, we note that newly discovered evidence offered for impeachment

purposes does not meet the probable-effect factor. Frazier, 811 N.W.2d at 631. In

addition, Stephen never produced the three deeds that he alleges exist. It was therefore

proper for the district court to refuse to speculate as to the contents of those deeds or the

effect they would have on the result at trial.

The only document Stephen produced was the one dated March 1999. The

language in that document states that all four of Harold’s children were to receive the

farm. But the document was drafted years before Harold’s 2004 will was executed.

Even if the March 1999 document was a reliable source of Harold’s intent in March

1999, it would not negate the argument that Harold’s intent changed at some point

between 1999 and 2004 when he executed his second will. And the record addresses

Harold’s changed intent. On December 9, 2002, Harold wrote a letter to his attorney,

stating in part, “The value of the farm is way up. I was to receive half the proceeds of the

Island sale – about $440,000, but instead Steve keeps it and I eliminate his share of the

farm and give it to the girls.”

On January 11, 2003, Harold wrote a letter to his lawyer to clarify how he wished

his property to be distributed in his 2004 will, stating:

8
 Subject to the personal lifetime easement to Patty, the
Farm will go to Nancy, Molly, and Peggy . . . . Steve is not
included as he received all of the Deering Island proceeds,
half of which were to be mine.

Further, the record contains a letter that Harold wrote to Molly in 2005 to inform

her that

the distribution to my children is as equal as I can figure,
whether anyone feels it is or not, as it takes into consideration
assets distributed during my lifetime, as well as some benefits
being withheld. It is mine to determine, and I have done so.
If anyone feels differently, I am sorry, but that is the way I
see it, and it is final.

Harold’s 2004 will explicitly revoked all former wills and codicils. As the district

court stated, “It is a truism that a decedent has the right to, and often does, change the

terms of his/her estate plan/will.” The fact that Harold changed his mind about the farm

is well-explained by this record. The district court properly determined that Stephen

failed to show that the March 1999 document would have a probable effect on the

outcome of a trial.

Finally, even if Stephen could show he exercised reasonable diligence and that the

documents would have a probable effect on the outcome of a trial, he has to demonstrate

that the documents are admissible. In order for a document to be admissible, it must be

authenticated. See Minn. R. Evid. 901(a). “The evidentiary requirement for

authentication as a condition precedent to admissibility is met only if the evidence is

‘sufficient to support a finding that the matter in question is what its proponent claims.’”

In re Welfare of S.A.M., 570 N.W.2d 162, 164 (Minn. App. 1997) (quoting Minn. R.

Evid. 901(a)). The district court found that the March 1999 document lacked the

9
requisite foundation because it has the typewritten word “Dad” at the end of it with no

other indication that Harold drafted it. The district court also found that Stephen failed to

establish, by means of an affidavit or otherwise, how he obtained the March 1999

document. Further, as the district court noted, Stephen failed to present credible evidence

to establish the existence of any of the three deeds.

Because Stephen failed to prove to the district court that he had obtained newly

discovered evidence that satisfied the rule 60.02 requirements, the district court properly

denied his motion.

II.

Stephen argues that the stipulation was made without prejudice under Minn. R.

Civ. P. 41.01(a) because it did not expressly state that it was with prejudice. A plaintiff

may dismiss a case without order of the court “by filing a notice of dismissal” or “by

filing a stipulation of dismissal signed by all parties who have appeared in the action.”

Minn. R. Civ. P. 41.01(a). Stephen, however, is not the plaintiff in this action, and he did

not file either a notice of dismissal or a stipulation of dismissal signed by all parties.

Thus, the language Stephen relies on from rule 41.01(a)—which states, “Unless

otherwise stated in the notice of dismissal or stipulation the dismissal is without

prejudice”—is inapplicable, and the district court properly refused to rely on it.

III.

As an alternative argument, Stephen contends that the stipulation should not be

binding on him because the parties’ agreement does not satisfy Minn. Stat. § 524.3-1102

(2014). Nancy and Patty assert that this argument is waived on appeal because Stephen

10
failed to present it to the district court. Addressing the merits of the argument, Nancy and

Patty assert that the statute is inapplicable to this matter.

“A reviewing court must generally consider only those issues that the record

shows were presented and considered by the [district] court in deciding the matter before

it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). Further,

appellate courts “will not consider the applicability of [a legal theory] on appeal, even

though the question was raised below, if it was not passed on by the [district] court.” Id.

(quotation omitted). We do not generally consider arguments that are only mentioned in

passing and are not developed for the district court. Schmidt v. City of Columbia Heights,

696 N.W.2d 413, 416 (Minn. App. 2005).

Stephen characterized his motion to the district court as one based on Minn. R.

Civ. P. 60.02 and focused his argument on the purported newly discovered evidence. In

his memorandum in support of the motion, Stephen referred once to Minn. Stat.

§ 524.3-1102 in the factual recitation:

Furthermore, on November 10, 2014, the undersigned
pointed out [that the stipulation was non-binding] in an email
to opposing counsel. . . . In that email, the undersigned
highlighted that the Stipulation could not be binding until the
Court made it official and that no global agreement could be
made without unanimous consent by all interested parties to
the estate under Minn. Stat. § 524.3-1102 . . . .

In the conclusion of his memorandum, Stephen stated that “[t]he solution to this

morass is found in MRCP Rules 41.01 and 60.02.” In his reply memorandum, Stephen

reiterated that his motion was based on Minn. R. Civ. P. 60.02 and Minn. R. Civ.

P. 41.01. There was no reference to Minn. Stat. § 524.3-1102. At the motion hearing,

11
Stephen referred to the statute in his argument that the “written [global settlement]

agreement has not happened.” Stephen’s theory based on Minn. Stat. § 524.3-1102 was

never asserted or developed in the district court. Based on this record, we conclude that

Stephen failed to properly preserve this argument for appeal.

But even if the argument is not waived, we agree with Nancy and Patty that Minn.

Stat. § 524.3-1102 is inapplicable to the stipulation. We review questions of law

de novo. See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (“No

deference is given to a lower court on questions of law.”).

Minn. Stat. § 524.3-1101 (2012) provides:

A compromise of any controversy as to admission to
probate of any instrument offered for formal probate as the
will of a decedent, the construction, validity, or effect of any
probated will, . . . if approved in a formal proceeding in the
court for that purpose, is binding on all the parties thereto
including those unborn, unascertained or who could not be
located. An approved compromise is binding even though it
may affect a trust or an inalienable interest.

Minn. Stat. § 524.3-1102 states:

The procedure for securing court approval of a
compromise is as follows:
(1) The terms of the compromise shall be set forth in
an agreement in writing which shall be executed by all
competent persons . . . having beneficial interests or having
claims which will or may be affected by the compromise. . . .
(2) Any interested person . . . then may submit the
agreement to the court for its approval and for execution by
the personal representative . . . .
(3) After notice to all interested persons or their
representatives, . . . the court, if it finds that the contest or
controversy is in good faith and that the effect of the
agreement upon the interests of persons represented by
fiduciaries or other representatives is just and reasonable,

12
 shall make an order approving the agreement and directing all
fiduciaries under its supervision to execute the agreement. . . .
Upon the making of the order and the execution of the
agreement, all further disposition of the estate is in
accordance with the terms of the agreement.

Stephen relies on In re Estate of Sullivan, 724 N.W.2d 532, 535 (Minn. App.

2006), to argue that the requirements of Minn. Stat. § 524.3-1102 must be strictly

construed and that any agreement that does not satisfy the statutory requirements is null

and void. But Sullivan is distinguishable from this case. In Sullivan, the district court

accepted an agreement for all of the beneficiaries despite the fact that one of them did not

sign or agree to it. 724 N.W.2d at 534. The accepted agreement then governed the

distribution of the decedent’s assets. Id. This court concluded that the district court erred

by accepting an agreement between all of the beneficiaries in contradiction of the

requirements in Minn. Stat. § 524.3-1102. Id. at 536.

Here, the district court did not accept an agreement between all of the beneficiaries

that was intended to govern the distribution of all of the assets. The stipulation between

Stephen, Nancy, and Patty addressed some, but not all, potential issues related to the

probate of Harold’s estate. It did not govern the distribution of the entire estate.

Subsequently, all of the interested parties unsuccessfully attempted to reach a global

agreement that would have potentially triggered application of Minn. Stat. § 524.3-1102.

But that failure of all of the interested parties to reach a global agreement does not nullify

the stipulation made in resolution of some of the issues between Stephen, Nancy, and

Patty. Therefore, the stipulation is not governed by Minn. Stat. § 524.3-1102.

13
 IV.

Stephen argues that he should not be bound by the stipulation because there were

conditions precedent to it that did not occur. But a party may not “obtain review by

raising the same general issue litigated [to the district court] but under a different theory.”

Thiele, 425 N.W.2d at 582. Because Stephen did not base his argument to the district

court on a contract theory and the district court did not have an opportunity to address it,

we do not consider this theory on appeal.

Affirmed.

14