This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Jerome Wieneke, et al.,


United Prairie Bank,


Filed July 24, 2007


Stoneburner, Judge


Nobles County District Court

File No. 53C203000394


Richard E. Bosse, Law Offices of Richard E. Bosse, Chtd., 303 Douglas Avenue, Box 315, Henning, MN 56551 (for appellants)


Thomas W. Van Hon, Attorney at Law, 19Southeast Second Avenue, Box N, Fairfax, MN, 55332 (for respondent)


            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellants challenge summary judgment granted to respondent dismissing their claims for promissory estoppel, breach of contract, fraud, conversion, trespass, concealment of evidence, and punitive damages.  Appellants assert that the district court erred by holding that they had not tendered payment, based summary judgment on an inadmissible document, and erred in not granting appellants’ request for attorney fees for respondent’s discovery violations.  We affirm.



            Appellants Jerome and Carol Wieneke (Wienekes) were farmers who financed their farming operation, in part, through an ongoing relationship with respondent United Prairie Bank (bank), formerly known as the State Bank of Mountain Lake.  Wienekes began their relationship with bank in 1990, and it ended in 2001 when bank threatened to foreclose on Wienekes’ farm property, prompting Wienekes to sell out.

            As of May 9, 1995, Wienekes had six outstanding loans from bank.  On May 10, 1995, three of those loans were consolidated into one loan for $278,000 (consolidated loan), secured by a mortgage on Wienekes’ farm, with a loan-balance goal of $175,000 by February 11, 1996.

            The three outstanding unconsolidated loans totaled $32,893 on May 10, 1995.[1]  The consolidated loan is the only loan at issue in this litigation, and the only significance of the unconsolidated loans is that Wienekes’ expert accountant was unaware of their existence for some time, which affected his analysis of bank’s transactions with Wienekes.[2]

            Jerome Wieneke (Wieneke) testified in his deposition that in the fall of 1995, Wienekes notified bank that they would not be able to meet the loan balance goal on the consolidated loan.  According to Wieneke, he and bank vice president Dick Schlichte then entered into an oral agreement that bank would forgo collection on the consolidated loan if Wienekes paid $10,000 per year towards principal plus interest on the loan.  Wieneke testified that the annual payment was due in the spring around the time he usually sold cattle.  Wieneke testified that under the oral agreement, there was no maturity date on the debt.  Bank denies the existence of any such oral agreement.

            At the end of 1995, Wienekes owed bank approximately $304,850 on the consolidated and unconsolidated loans.  In March 1996, bank served notice of a farmer-lender mediation.  In August 1996, a mediation agreement was allegedly signed by Wienekes acknowledging a total debt to bank of $314,212 and agreeing to a payment plan for the loans.  The agreement states that “[a]ll prior oral or written communications, comments, loan agreements, [and] promises . . . are hereby merged into this Agreement.”  Wieneke acknowledged his signature on the last page of an eight-page document that bank asserts is the mediated agreement, but testified that the agreement he signed consisted of only one and a half pages.  He has no recollection of the terms of the document that he signed.

            Between February 1995 and December 1997, Wienekes received 17 payments from Producers Livestock Credit Corporation (PLCC) for livestock sold by Wieneke.  The majority of PLCC’s checks were made payable to bank for “credit” to Wienekes.  The checks totaled about $340,802.

            Between August 1996 and May 1999, Wienekes and Schlichte signed a number of loan-modification agreements purporting to extend the due date on the consolidated loan.  Wieneke testified that he did not pay much attention to these documents because the 1995 oral agreement governed and did not contain any maturity date on the note.  The last modification was signed in May 1999, requiring the balance of the loan, then $246,759, to be paid by December 25, 1999.  Sometime after signing this modification, Wienekes informed bank that they could make interest payments but no principal payments.

            On December 30, 1999, bank sent another mediation notice to Wienekes indicating an intent to foreclose on the property.  Mediation failed, and bank initiated foreclosure.  Wienekes and bank stipulated that Wienekes owed bank a total of $273,632 ($246,749 principal plus $26,883 interest) and were in default.  Wieneke testified in his deposition that despite the statement in the stipulation, they were never in default and that he “probably didn’t catch” that statement when he signed the stipulation.  In May 2001, Wienekes sold the farm, machinery, and livestock, and paid bank and all other creditors in full. 

            Wienekes sued bank in March 2003 claiming promissory estoppel and breach of contract for bank’s breach of the alleged 1995 oral promise to accept $10,000 a year principal reduction and interest.  Bank moved for summary judgment based on the 1996 mediation agreement.  The district court granted summary judgment to bank on February 12, 2004, but, on reconsideration, the district court rescinded the judgment on June 3, 2004, because bank had failed to specifically plead the defenses of release and waiver, such that Wienekes were “ambushed” by these defenses at the summary-judgment hearing.

            Wienekes subsequently retained a handwriting expert who opined that the mediation agreement was “suspect: and perhaps not ‘genuine.’”  The district court denied bank’s second motion for summary judgment in an order dated September 19, 2005, concluding that genuine issues of material fact existed regarding the authenticity of the agreement.  The district court also found that Wienekes’ assertion that bank failed to properly apply PLCC payments to the loan precluded summary judgment to bank on its theory that, even if there was a 1995 oral agreement, Wienekes had breached that agreement by failing to make the payments allegedly required by that agreement.

            The same order granted Wienekes’ motion to amend their complaint but noted that “the claims asserted other than fraud and conversion seem legally and factually redundant.”  The district court also permitted a claim for punitive damages based on Wienekes’ evidence of unusual bank practices and sloppy bookkeeping that Wienekes asserted were done in deliberate disregard of their rights.

            In October 2005, bank, for the first time, provided a detailed accounting of all of the PLCC checks that were sent to bank for credit to Wienekes and hired a forensic accountant to trace funds from these checks.  Bank’s accountant determined that all PLCC funds were accounted for, either having been applied to Wienekes’ loans or deposited into Wienekes’ bank account.  In a supplemental affidavit dated February 2, 2006, Wienekes’ expert accountant expressed frustration at the delay in production of these documents, which had been requested more than two years earlier.  He also expressed concern that “this particular document can easily have been changed or edited before delivery.”

            In February 2006, Wienekes moved for partial summary judgment, asserting that the PLCC checks in an amount that exceeded their debt were tendered to bank to pay Wienekes’ debt, that bank had refused tender, and, therefore, Wienekes were never in default, making bank’s threatened foreclosure unlawful.  The district court denied this motion by order dated March 7, 2006, holding that the PLCC checks were neither tendered by Wienekes as full payment of their debt nor refused by bank.

            The district court granted Wienekes’ request for an order requiring bank to make the computer on which the records were stored available for examination by “experts” to determine if, as Wienekes suspected, bank’s records had been altered before they were produced in this litigation.  Bank, which had said the computer was located in Worthington, attempted several times to arrange for the examination of the computer.  Wienekes did not respond to these attempts.  Bank later revealed that the computer was not, in fact, located in Worthington.  At the summary-judgment hearing, Wienekes asserted that bank was attempting to mislead them about the location of the computer, but told the district court that they did not conduct the examination of the computer because they were not able to afford the $20,000 that it would cost for such an examination.

            In April 2006, in response to bank’s requests for admissions, Wienekes admitted that, subject to an inspection by a computer expert to determine if bank’s records concerning the PLCC checks were accurate, bank had traced all of the PLCC funds and did not convert any of those funds.  Based on this admission and Wienekes’ failure to produce any evidence that bank’s documentation was inaccurate or altered, bank again moved for summary judgment.  The district court granted the motion, dismissed Wienekes’ action, and denied their motion for attorney fees.  This appeal followed.



            On appeal from summary judgment, appellate courts “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).  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue for trial exists “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  To defeat a summary-judgment motion, a party “must do more than rest on mere averments” and must establish a genuine issue for trial with substantial evidence.  Id. at 69-71.

I.          Tender

            Wienekes argue that, by May 1, 1998, they had tendered payment, in the form of checks from PLCC, for the total amount due on their obligation to bank and that bank’s refusal of tender made bank’s declaration of default illegal.  Wienekes assert that the district court relied on an incorrect statement of facts to conclude that there was no tender or refusal of tender.

            Tender is “the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due in satisfaction of such claim or demand without any stipulation or condition.”  Balder v. Haley, 441 N.W.2d 539, 542 (Minn. App. 1989) (quotation omitted), review denied (Minn. July 27, 1989).  “An essential characteristic of tender is the unconditional nature of the offer to pay.”  Id.  “To be an effective tender, a payment of money must include all amounts owed to the creditor, including debt, interest and costs.”  Id.  “In order to be valid, a tender must be made by the debtor or someone representing [the debtor].”  86 C.J.S. Tender § 28 (2006).  “The tender may save the tendering party from a penalty for nonpayment or nonperformance . . . .”  Black’s Law Dictionary 1480 (7th ed. 1999).  “The rule is . . . in view of the serious consequences of the refusal of the tender, the proof should be very clear that it was fairly made, and deliberately refused by the mortgagee, and that sufficient opportunity was afforded to ascertain the amount due.”  Davies v. Dow, 80 Minn. 223, 231, 83 N.W. 50, 53 (1900).

            Wienekes did not specifically plead tender and came up with the theory that they had tendered payment of the loan when their expert accountant concluded that if all of the PLCC checks had been credited to the consolidated loan, the consolidated loan would have been paid off on May 1, 1998.  Wienekes then claimed that unconditional tender of amounts sufficient to meet the 1995 oral agreement to pay $10,000 principal plus interest each year was made through the PLCC checks.  The claim is based on Jerome Wieneke’s deposition testimony.  In response to the question, “How did you pay the bank?,” Wieneke responded: “[PLCC] would mail [bank] a check and I would endorse it and [bank] would put the funds to where [it] needed to put them to get back in where—standing the way it was supposed to be.”

            All but one of PLCC’s checks were made payable to bank for the credit of Wienekes and were endorsed by Wienekes.  Schlichte testified that the checks were sometimes applied to a loan and sometimes went into Wienekes’ account, depending on what was due: “if he had feed bills or something like that, then we would leave some money in his account.”  Wienekes argue that Schlichte’s testimony shows that he and bank determined “whether they were accepting payment or tender from Wieneke,” but, to the contrary, Schlichte’s testimony shows that bank distributed the funds according to Wienekes’ needs at the time as communicated to Schlichte by Wienekes.

            On appeal, Wienekes assert that the district court relied on an erroneous understanding that the checks were made out to both Wienekes and bank, and therefore were “conditional” because they required Wienekes’ signatures, to conclude that the checks did not constitute a valid tender.  Wieneke is correct that he is not a payee on the checks.  But there is no evidence in the record that bank had any direction or authority from Wienekes to apply all of the proceeds of the checks only to the consolidated loan.  And there is no evidence in the record that PLCC was acting as Wienekes’ representative with authority to make a tender of loan repayment on Weinekes’ behalf.  Jerome Wieneke testified that he endorsed the checks, and there is undisputed evidence that the majority of the funds were deposited into Wienekes’ bank account.  On this record, the district court did not err in concluding that Wienekes did not tender the PLCC checks to pay their debt and that bank never rejected a tender of payment.

II.        Bank Documents

            In response to bank’s requests for admissions, Wienekes admitted that if bank’s computer-generated transactional-analysis documents were not altered or tampered with, bank had not converted any of the PLCC funds.  The district court correctly concluded that Wienekes have failed to raise a genuine issue of material fact regarding the authenticity of bank’s computer-generated documents, thereby entitling bank to summary judgment.  Wienekes were given the opportunity to examine the computer to verify the authenticity of bank’s documents, but did not pursue this opportunity for financial reasons.[3]  They rely only on Stiegel’s supplemental affidavit dated February 2, 2006, in which he states that he is “very suspect of the documents” provided by bank, and the July 27, 2005 supplemental affidavit of banking expert Filmore G. Enger, Jr., which is highly critical of bank’s record-keeping practices, to continue to argue that summary judgment was inappropriate.  But the party opposing summary judgment must do more than rest on mere averments.  DLH, Inc.,566 N.W.2d at 71.  Wienekes have not produced any evidence that the records were altered.

            Wienekes made a motion in limine to exclude the bank’s records due to bank’s failure to produce a custodian of the record who could provide a foundation for their admission.  The district court denied the motion without discussion in the same order that granted summary judgment to bank.  On appeal, Wienekes argue that the documents are not admissible and that the district court erroneously relied on this inadmissible evidence to grant summary judgment to bank.  We disagree.  The district court did not rely on the documents, but rather on Wienekes’ admission that there was no conversion absent evidence of record-tampering and failure to raise any other material issues of fact.  Because the district court properly granted summary judgment to bank, denial of Wienekes’ motion in limine was not an abuse of discretion.

III.       Attorney Fees

            Wienekes also moved for sanctions under Minn. R. Civ. P. 11.03 and Minn. Stat. § 549.211 (2004), in the form of attorney fees, expert-witness fees, and additional expenses.  The district court dismissed this motion without discussion in the order for summary judgment.  On appeal, Wienekes assert that the district court abused its discretion when it declined to award them attorney fees due to what they term bank’s “continual pattern of non-production of documents.”  Wienekes also assert that they are entitled to sanctions because the district court found bank’s conduct to be “deceitful,” referring to footnote 9 of the district court’s June 22, 2006 order.  But Wienekes misunderstand the footnote.  The footnote is related to Wienekes’ claim that bank was attempting to deceive them and cause them additional expense by stating that the computer that Wienekes wanted to examine was located in Worthington and only later revealing that the computer was not located in Worthington.  The footnote points out that Wienekes “well knew” that the “[district] court would not have hesitated for a minute to impose sanctions for such deceitful conduct” if bank had caused Wienekes to incur such expenses.  It was this hypothetical conduct of causing unnecessary expense that the district court labeled “deceitful.”

            Both parties allege that the other delayed in producing requested discovery.  But over the more than three years of litigation, the district court issued only one discovery order, in August 2004, ordering bank to produce documents.  Bank complied with the order and was not sanctioned.  “On review, [appellate courts] will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  Because the district court was intimately familiar with this litigation and chose not to impose the sanctions requested by Wienekes, we defer to the district court’s exercise of discretion, which, on this record, was not abused.


[1] Bank’s attorney referred to the three unconsolidated loans as “the tractor note,” “the real estate payment and corn note,” and the “nursery note.”  The “nursery note” was paid off on September 20, 1995.

[2] Wienekes’ expert accountant, Mark Stiegel, stated in his affidavit dated May 11, 2005, that he had “only seen records of a bank in such disarray once before” in a matter involving the same bank.

[3] Wienekes argued to the district court that bank deliberately misled them about the location of the computer to be examined, but it is undisputed that the reason Wienekes did not pursue examination of the computer was financial and had nothing to do with the ultimate location of the computer involved.