This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-665

 

Winthrop Resources Corporation,

Appellant,

 

vs.

 

Kirk A. MacKenzie,

Respondent.

 

 

Filed January 20, 2004

Reversed and remanded

Poritsky, Judge*

 

 

Hennepin County District Court

File No. CT 01-014201

 

 

Timothy D. Kelly, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)

 

 

Kent B. Hanson, Lezlie Ott Marek, Hanson, Marek, Bolkcom, & Greene, 527 Marquette Avenue, Suite 2200, Minneapolis, MN  55402 (for respondent)

 

 

            Considered and decided by, Schumacher; Presiding Judge; Shumaker, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant Winthrop Resources Corporation (Winthrop) sued respondent Kirk A. MacKenzie for damages and an injunction, alleging that MacKenzie breached certain provisions in his employment agreement that required him to cooperate in litigation and not to disparage Winthrop.  The district court granted MacKenzie’s motion for summary judgment.  On appeal, Winthrop contends (a) there are genuine factual issues as to whether MacKenzie violated the employment agreement; (b) the litigation cooperation clause is ambiguous as a matter of law; (c) the court should have denied a third party’s motion for a protective order; and (d) the court improperly awarded attorney fees.  We reverse and remand. 

FACTS

            In 1982, MacKenzie, John Morgan, and Jack Norqual founded Winthrop.  Winthrop’s business is the leasing of computers, telecommunications equipment, point-of-sale systems, and other essential business equipment to various companies throughout the country.  The salespersons working for Winthrop are compensated by commissions from the income generated by the leases between Winthrop and its customers. But Winthrop’s compensation policy and practice is that the salesperson must be employed at the time a commission-generating event occurs in order to be paid for the corresponding commission.  Morgan described this compensation system as the “golden handcuff” because if the salesperson left the company before the revenues were generated, the salesperson would not enjoy a commission on those revenues.   

            Since its inception, MacKenzie served as Winthrop’s Chief Financial Officer.  In May 1997, TCF Financial Corporation (TCF) purchased Winthrop, but because the officers at TCF were concerned about the continuity of management at Winthrop, MacKenzie and other key management personnel at Winthrop were asked to stay and provide their expertise in running the business.  MacKenzie, among others, agreed to stay on at Winthrop.  MacKenzie and Winthrop executed a document entitled “Amendment to Employment and Noncompetition Agreement” which amended the parties’ original employment agreement. 

            In November 1998, the parties executed another amendment to their contract titled, “Amendment to Employment Agreement” (hereinafter the “1998 Amendment”).  Paragraph 4 of the 1998 Amendment (“ the cooperation clause”) provides that

[MacKenzie] agrees to assist [Winthrop] and to reasonably cooperate with [Winthrop] in connection with any pending or future litigation involving [Winthrop] in which [Winthrop] reasonably determines that [MacKenzie’s] assistance or cooperation would be beneficial to [Winthrop] or would aid in resolving the litigation.  Any expenses incurred by [MacKenzie] in such assistance shall be promptly reimbursed by [Winthrop].

 

Paragraph 6 of the 1998 Amendment sets out a “non-disparagement clause,” which states “[Winthrop] and [MacKenzie] agree not to disparage or take any action which would damage the business or reputation of [MacKenzie] or [Winthrop] or any of its affiliates.” 
Under the terms of the 1998 Amendment, MacKenzie’s employment with Winthrop terminated in March 1999. 

            In July 2000, Lauren McBroom, a former Winthrop salesman, sued Winthrop in Washington state court claiming (1) that Winthrop owed him unpaid commissions, (2) that Winthrop violated two Washington wage statutes, and (3) that he had been wrongfully discharged in retaliation for asserting his right to commissions.  The case was subsequently removed to the United States District Court for the District of Washington.  Winthrop then moved for judgment on the pleadings,[1] denying that McBroom was discharged and denying that he was owed any further commissions.

            Several months after McBroom commenced his lawsuit against Winthrop, McBroom’s lawyer, Judith Lonnquist, contacted MacKenzie requesting that he authenticate some documents in conjunction with McBroom’s opposition to Winthrop’s pending motion for summary judgment.  Lonnquist then faxed some documents and a proposed declaration to MacKenzie for him to review.  MacKenzie reviewed the documents, made some changes to the declaration, signed it, and sent it back to Lonnquist.  However, MacKenzie stated in his deposition that he later discovered that rather than incorporating his changes to the declaration, Lonnquist attached his signature page to the version created by her office and submitted this declaration to the court in opposition to Winthrop’s motion for summary judgment.  The version submitted to court will be referred to as the “MacKenzie Declaration” or “the declaration.” 

            On December 22, 2000, the federal court granted Winthrop’s motion for summary judgment, ruling that McBroom was an “at will” employee who was entitled to commissions only on gross margins generated while he was actually employed by the company.  The case was subsequently appealed to the Ninth Circuit Court of Appeals, and the Ninth Circuit affirmed.  McBroom v. Winthrop Res. Corp., 41 Fed. Appx. 118, 2002 WL 1478554 (9th Cir. (Wash.) July 10, 2002).     

            In January 2001, Winthrop brought the present action, alleging that MacKenzie breached the 1998 Amendment by providing the MacKenzie Declaration to McBroom’s attorney.  Specifically, Winthrop alleged that (1) MacKenzie failed to inform Winthrop of his contacts with McBroom’s attorney before providing the declaration, in violation of the cooperation clause, and (2) the declaration is misleading and has caused damage to the company, in violation of the non-disparagement clause.  Winthrop sought damages for the purported breach, and requested an injunction requiring MacKenzie to comply with the terms of the 1998 Amendment.  MacKenzie answered and asserted a counterclaim for abuse of process and malicious prosecution, and sought reimbursement for his attorneys’ fees, pursuant to the 1998 Amendment. 

            Shortly thereafter, two former Winthrop employees, Peter Friedenfeld and Wesley Olsen, sued Winthrop alleging violation of Minn. Stat. § 181.14 (prompt payment of earnings), breach of contract, quantum meruit, and promissory estoppel.  Attorney Diane Odeen filed an affidavit stating that her firm agreed to represent both Olsen and Friedenfeld before she had read the declaration.  Although she acknowledged that some of the language contained in the MacKenzie Declaration was used in the complaint, Odeen asserted that the

declaration had nothing to do with the lawsuits filed by her clients, and that Odeen and her clients had already decided to proceed with the lawsuit.  

            In July 2002, Winthrop’s motions for summary judgment against Friedenfeld and Olsen were granted.  The cases were consolidated for appeal, and the district court’s summary judgments for both the Olsen and Friedenfeld cases were affirmed by this court.  Friedenfeld vs. Winthrop Res. Corp., Nos. C5-02-1606, 2003 WL 1908112 (Minn. Apr. 22, 2003), review denied (Minn. June 25, 2003).

            Prior to the district court’s order granting Winthrop’s motions for summary judgment against Friedenfeld and Olsen, MacKenzie moved for summary judgment in the present case on the grounds that the 1998 Amendment is clear and unambiguous, and that he did not breach the contract as a matter of law.  Among the documents filed by MacKenzie was the affidavit executed by Odeen.  In response to MacKenzie’s motion, Winthrop served two deposition subpoenas duces tecum, one on the “Custodian of Records of Nichols, Kaster & Anderson, PLLP,” Odeen’s law firm, and the other on Odeen herself.  The subpoenas were served in an effort to explore the basis of Odeen’s contentions that the MacKenzie Declaration had very little effect on the decision to sue Winthrop. 

            Odeen and her firm moved for a protective order and to quash the subpoenas, arguing that Winthrop sought “essentially all information relevant to counsel and client’s decision-making process regarding the initiation of two separate lawsuits.”  Winthrop responded contending that it was entitled to all the documents sought from the Odeen
parties because “Winthrop is entitled to discover whether MacKenzie and his agents were assisting others in litigation against Winthrop.” 

            On May 15, 2002, the district court granted MacKenzie’s motion for summary judgment, determining that the statements made by MacKenzie in the declaration were true and could not reasonably be seen as disparaging to Winthrop.  The court also held that the language of the 1998 Amendment was plain and unambiguous, and there were no issues of material fact concerning MacKenzie’s compliance with the agreement.  Based upon its decision to grant MacKenzie’s motion for summary judgment, the district court granted the Odeen parties’ motion to quash subpoenas on the grounds that “Winthrop no longer has a legitimate basis for obtaining the documents sought by subpoena.”  The district court subsequently entered an order awarding MacKenzie attorney fees.  This appeal followed.             

D E C I S I O N

I.

            Winthrop argues that the district court erred by granting summary judgment in favor of MacKenzie.  Specifically, Winthrop argues (1) because there are genuine issues of material fact concerning the veracity of the MacKenzie Declaration, it was error to grant summary judgment on Winthrop’s claim under the non-disparagement clause; and (2) because the cooperation clause is ambiguous, genuine issues of material fact exist on the issue of whether MacKenzie violated that clause when he issued the declaration. 

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact, and whether the lower court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is appropriate when the matter before the district court has no genuine issues of material fact and one party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But “[o]n appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Id.  All inferences from circumstantial evidence are to be drawn against the party seeking summary judgment.  Forsblad v. Jepson, 292 Minn. 458, 459-60, 195 N.W.2d 429, 430 (1972).  

            To prevail on its claim under the non-disparagement clause, Winthrop must show that Mackenzie either disparaged Winthrop or that he took an action that damaged Winthrop’s business or reputation.  Winthrop concedes, in effect, that true statements would not violate the clause; its claim in this respect is based on a contention that the declaration contains false and misleading statements.  See Imperial Developers v. Seaboard Sur., 518 N.W.2d 623, 627 (Minn. App. 1994) (citing Minn. Stat § 325D.44, subd. 1(8) (1992), for the proposition “Unfair trade practices include disparagement of ‘the goods, services, or business of another by false or misleading representation of fact.’”)               

            In support of its contention that summary judgment is inappropriate, Winthrop cites various paragraphs in the declaration and argues that genuine issues of material fact exist as to whether they are false and misleading.  With respect to paragraphs 3, 4, and 7, we conclude that Winthrop has made a sufficient showing.

            Paragraph 3 of the MacKenzie Declaration concerns Winthrop’s Minimum Performance Objective Plan (MPOP).  It reads:

Prior to Mr. McBroom’s start date, Winthrop had adopted a Minimum Performance Objective Commission Plan [a copy of which was attached to the declaration].  This document is the basis for the compensation paid to our sales force after March 10, 1997.

 

            Winthrop argues that if the District Court or the Ninth Circuit Court of Appeals in McBroom had considered and accepted MacKenzie’s statement about the MPOP at face value, Winthrop’s justifiable reliance on its longstanding policy and practice of not paying commissions for post-departure events would have been defeated, because the MPOP does not refer to that practice.

            Both parties admit that the MPOP sets Winthrop’s rates of commission as well as performance expectations.  But, Winthrop asserts, and MacKenzie concedes, that the MPOP says nothing about other terms of employment such as when sales commissions are earned and payable, sales territories, or treatment of employee expenses. 

            MacKenzie admits that paragraph 3 could have been more artfully worded, but argues that the declaration does not say the MPOP is the only document containing the terms of the Winthrop employment.  But by use of the definite article the in the phrase  “the basis for the compensation” the language allows the reasonable inference that the MPOP was the only basis, or at least the most outstanding or prominent basis, for paying compensation.  The dictionary definition of the word the supports this implication.[2]  The concern expressed in the deposition testimonyof Ronald Palmer, Winthrop’s president, is reasonable:  Someone reading the declaration would infer that MPOP was the company’s entire compensation plan and not merely a component of it. 

            Paragraph 4 of the declaration concerns McBroom’s performance at Winthrop.  It reads:

When Mr. McBroom began to work for Winthrop, he was provided with no pre-existing customers; he was expected to develop his book of business from scratch.  Over the ensuing years, he was exceptionally successful in building Winthrop’s business in the Northwest, and became one of our top ranked salesmen.

 

            McBroom’s employment at Winthrop started on July 1, 1997.  At first he was apparently a very good salesman.  But according to Palmer’s deposition testimony,after the first year, that is sometime in 1998, McBroom’s performance “deteriorated drastically.”  WhenMackenzie stated in the declaration that over the ensuing years McBroom was exceptionally successful, that statement would most likely be taken to mean a period of at least two years and perhaps longer; i.e., which would mean at least until some time in 1999.  Between Palmer’s deposition testimony and the declaration there is a genuine issue.  And because McBroom alleged that he had been wrongfully discharged in retaliation for asserting his right to commissions, the quality of McBroom’s performance with Winthrop was a material issue.  As a result, Winthrop has made a showing that there is a genuine issue of a material fact concerning the veracity of paragraph 4.  Moreover, because MacKenzie remained with Winthrop until March 1999 as chief financial officer, he would have been in position to know that McBroom was no longer exceptionally successful.  Finally, we note that although McBroom’s attorney submitted to the court a draft of the declaration that did not reflect MacKenzie’s changes, Mackenzie did not change paragraph 4 from the draft submitted to him.

            Paragraph 7 of the declaration concerns payments to two other employees.  It states:

As CFO, I was involved in determining that Jim Farrell and Coleman Griffin should be paid commissions on their book of business after their termination.  Given the relatively small size of our sales force, I understand that many of our employees knew about the payments to Mr. Farrell and Mr. Griffin.

 

Winthrop argues that this paragraph states that Farrell and Griffin were paid “commissions on their book of business” after they left Winthrop, when in reality, the payments to them were not commissions.  Gregory Pulles, TCF’s general counsel, testified in his deposition that although payments were made to the two individuals, the payments were not commissions.  Pulles said that Farrell and Griffin had made a number of claims—not merely for commissions¾against Winthrop.  He testified, “[t]hey had all kinds of claims.”  Pulles testified that the payments were in settlement of these claims and that the “transactions were structured very carefully so that [Winthrop] could take the position . . . that we did not pay commissions to people after they left.”  Winthrop contends that because paragraph 7 falsely says two employees were paid commissions after they left Winthrop, McBroom had a legitimate, or at least non-frivolous, claim to commissions after he left, based on an argument that there were exceptions to Winthrop’s policy of not paying commissions to people after they left the company.  We agree that Winthrop has made such a showing and that a genuine issue as to a material fact therefore exists concerning the veracity of paragraph 7.  

             Finally, Winthrop asserts that paragraph 5 downplays the evaluative significance that Winthrop places on a sales representative’s failure to bring in new accounts.  Paragraph 5 provides:

During my tenure, employees’ success at Winthrop was measured by four things:  new accounts brought in, equipment placed in service, and the value of monthly billings, and gross profit.  In rating success, the number of new accounts brought in was not considered through any of the other measures.[3]

 

Winthrop argues that this paragraph purports to downplay the evaluative importance of the acquisition of new accounts, which was the reason McBroom failed to achieve his goals at Winthrop and the reason Winthrop was unsatisfied with his performance.  This language allowed McBroom to argue that his termination was wrongful because although he failed to meet Winthrop’s goals for the acquisition of new accounts, he satisfied other evaluative criteria that were allegedly just as important. 

            The key language in this paragraph is “[d]uring my tenure.”  Winthrop’s argument with respect to this paragraph is based on polices announced in 2000, after MacKenzie left Winthrop.  MacKenzie asserts, and Winthrop apparently does not dispute, that these four elements were used to measure employees’ success while MacKenzie worked at Winthrop, or that all four elements were considered equally important during that period.  Winthrop argues that this paragraph of the declaration was meant “to draw the reader’s attention away from the reality that at the time of McBroom’s departure from Winthrop, the acquisition of new accounts was a very important criterion for a salesman’s evaluation and a criterion that McBroom admittedly did not satisfy.”  Because MacKenzie left Winthrop in 1999 and the declaration speaks only to the time during MacKenzie’s tenure, the declaration cannot possibly be read to refer to what happened in 2000, that is, to the time of McBroom’s departure.  We conclude, therefore, that Winthrop failed to make a showing that paragraph 7 is either false or misleading.

            MacKenzie responds to all of Winthrop’s claims that the declaration is false by arguing that the statements in the declaration are substantially true.  He cites Jadwin v. Minneapolis Star & Tribune Co., wherewe said, “[a] statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”  390 N.W.2d 437, 441 (Minn. App. 1986) (quotation marks and citation omitted).  For two reasons, we do not find this argument to be persuasive.

            First, viewing the evidence in the light most favorable to Winthrop, we have concluded that Winthrop has made a showing that certain statements in the declaration are actually false; specifically statements that McBroom was exceptionally successful for two or more years, and that Farrell and Griffin were paid commissions after they left Winthrop.  Viewing the evidence in the same light, we have concluded that the declaration implies that the MPOP was the only basis for determining commissions.  Second, even if the statements are true, as far as they go, Winthrop has made a showing that the certain statements in the declaration, while true, are misleading because the declaration omits other, critical facts.  Thus, in referring to the payments to Farrell and Griffin, Mackenzie does not contest Winthrop’s claim that the declaration omits the fact that the reason the payments were made was to settle a number of claims; MacKenzie merely says the reason “why Winthrop decided to make the payments, [is] immaterial.”  In connection with paragraph 7, which concerned McBroom’s performance, Winthrop asserts that the declaration is misleading because it omits the fact that after McBroom’s good start, his performance fell off.   MacKenzie does not claim that the declaration notes McBroom’s subsequent poor performance; he says merely that McBroom had a very successful beginning and admits that the declaration does not purport to speak to the time when McBroom was terminated.          

            The Minnesota Supreme Court has made clear that half truths may amount to fraudulent misrepresentations.  “To tell half a truth only is to conceal the other half.”  Rochester Methodist Hosp. v. Travelers Ins. Co., 728 F.2d 1006, 1017 (8th Cir. 1984) (quoting Newell v. Randall, 32 Minn. 171, 173, 19 N.W. 972, 973 (1884)).

Though one may be under no duty to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells, but also not to suppress or conceal any facts within his knowledge which materially qualify those stated.  If he speaks at all, he must make a full and fair disclosure.

 

Swedeen v. Swedeen, 270 Minn. 491, 500, 134 N.W.2d 871, 877-78 (1965) (emphasis omitted).

            Thus, even if the gist of the statements contained in the MacKenzie Declaration is true, because of the omission of other facts, portions of the declaration are misleading, especially when considered in light of McBroom’s claims.  

            MacKenzie argues that even if the declaration had contained material misstatements of fact, he is immune from suit because Minnesota law recognizes an absolute immunity for statements that are made in the course of a judicial proceeding and are relevant to the matter being tried.

            There is nothing in the record suggesting that respondent raised this argument at the district court.  This court must consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotations and citations omitted).  It would be inappropriate for this court to consider whether a judicial-proceedings privilege applies to the facts of this case and, if so, whether or not it was waived. We therefore decline to consider this argument. 

            We conclude that Winthrop has made a showing that certain critical, material facts in the MacKenzie Declaration are actually false and that, in any event, the declaration is misleading because of the omission of other facts.  Because of that showing, we further conclude that there are genuine issues of material fact concerning the declaration’s veracity, and that it was error to grant summary judgment on the ground that the statements in the declaration were substantially true.  We express no opinion, however, on the ultimate merits of either party’s position.

II.

            Winthrop also contends that summary judgment was inappropriate because the “Cooperation Clause” in the 1998 Amendment is ambiguous as a matter of law and that there is a genuine issue of material fact as to MacKenzie’s compliance with that clause.  The construction and effect of a contract present questions of law, unless an ambiguity exists.  Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 916-17 (Minn. 1990)The determination of whether a contract is ambiguous is a question of law for this court to decide.  Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979).  An ambiguity exists in a contract when the language of a written document, by itself, is reasonably susceptible to more than one meaning.  Metro Office Parks Co. v. Control Data Corp., 295 Minn. 348, 351, 205 N.W.2d 121, 123 (1973).  Summary judgment is not appropriate if a contract is ambiguous.  Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).

            The section of the 1998 Amendment at issue provides:

[MacKenzie] agrees to assist [Winthrop] and to reasonably cooperate with [Winthrop] in connection with any pending or future litigation involving [Winthrop] in which [Winthrop] reasonably determines that [MacKenzie’s] assistance or cooperation would be beneficial to [Winthrop] or would aid in resolving the litigation.  Any expenses incurred by [MacKenzie] in such assistance shall be promptly reimbursed by [Winthrop].

 

            The issue hinges on the meaning of cooperate.  The district court ruled, “[t]he word ‘cooperate’ bears the connotation of acquiescence to a request from someone else.  It does not connote an affirmative duty to act in a particular way in the absence of such a request.” 

            Winthrop contends that cooperate carries with it a duty to act affirmatively.  The dictionary definition supports this view:  “To work or act together toward a common end or purpose.” The American Heritage Collegiate Dictionary 307 (3d ed. 1997).  Specifically, Winthrop contends that in this case MacKenzie was under an obligation at least to consult with Winthrop before becoming involved with the McBroom litigation.  But MacKenzie argues that his duty to cooperate arises if “[Winthrop] reasonably determines that [MacKenzie’s] assistance or cooperation would be beneficial to [Winthrop].” 

            We conclude that Winthrop’s reading of the Cooperation Clause is equally plausible to the reading adopted by the district court and urged by MacKenzie.  That is, to give the clause any meaning, it would have to impose a duty on MacKenzie to contact Winthrop upon being approached by someone contemplating litigation against the company.  To accept MacKenzie’s position would mean that any time a third party contacted MacKenzie without Winthrop’s knowledge (thus putting a premium on surreptitious conduct), MacKenzie would be free to make any statements, or commit any acts, detrimental to Winthrop without violating the cooperation clause.  Thus, here, the first time Winthrop’s management knew about MacKenzie’s contact with McBroom’s attorney was when the declaration was served upon them.  Until that point, they would not have had any reason to suspect that MacKenzie would be supplying any information to McBroom and thus did not have any reason to contact MacKenzie and inform him whether or not Winthrop had made a “reasonable determination” requiring his cooperation.

            Winthrop’s argument is also supported by Morgan’s deposition testimony.  Morgan testified that if he were contacted informally by someone suing Winthrop, and he had had a question as to whether he should respond, when viewed in light of his cooperation clause,[4] he would first contact Winthrop’s attorneys for direction.  Although Morgan’s testimony is not conclusive on this court, it supports Winthrop’s argument that the language in cooperation clause is not unambiguous. 

            Thus, we conclude that the language of the Cooperation Clause is ambiguous. It is therefore a question of fact as to whether that clause imposed an affirmative duty upon MacKenzie to inform Winthrop that he had been contacted by McBroom’s attorney.  As a
result, summary judgment was improperly granted on that ground.
[5]  Here, too, we express no opinion on the ultimate merits of either position.

              MacKenzie argues that Winthrop’s interpretation of the 1998 Amendment is void as a matter of public policy because Winthrop’s view of the Amendment presumes that once a witness has supplied information to a party to a dispute, he or she is “disqualified” as a witness for anyone else.  But MacKenzie distorts Winthrop’s position.  Winthrop does not contend that MacKenzie cannot assist other litigants, or that it can control MacKenzie’s communication with other litigants, or that MacKenzie cannot submit truthful evidence in judicial proceedings.  In response to MacKenzie’s public-policy argument, Winthrop’s position is that MacKenzie should have simply been completely honest when he submitted the declaration.  Winthrop argues that by offering a false and misleading document, MacKenzie thereafter disqualified himself as a witness because he would be unable to testify truthfully on the issues in the case.  Thus, Winthrop’s interpretation of the 1998 Amendment is not void as a matter of public policy.

III.

            MacKenzie argues that Winthrop has failed to show that it has suffered any damages pertaining to this lawsuit, and thus it has failed to establish a genuine issue of material fact on the question of damages.  Damages that are remote and speculative cannot be recovered.  Hornblower & Weeks-Hemphill Noyes v. Lazere, 301 Minn. 462, 467, 222 N.W.2d 799, 803 (1974).

            Here, although Winthrop admits that “the long-term harm of MacKenzie’s actions in the McBroom case are not known,” Winthrop has offered well-documented time sheets supporting its assertion that it incurred damages by way of attorney fees that were spent responding to the declaration.  The timesheets submitted by Winthrop document the time spent on the various parts of the litigation and could provide a basis for recovery.

IV.

            In its May 15, 2002, order, the district court granted Odeen’s motion to quash subpoena and for a protective order, ruling that Winthrop no longer has a legitimate basis for obtaining the documents sought because summary judgment was entered in favor of MacKenzie.  Because we conclude that summary judgment was not appropriate, Odeen’s motion for a protective order is no longer moot.  We therefore vacate the district court’s decision regarding the protective order, and remand for further consideration.

V.

            Finally, Winthrop argues that in light of the plain language of the parties’ agreement, the district court improperly granted MacKenzie’s motion for attorney fees.  “On review, this court 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).

            The district court determined that MacKenzie, as the prevailing party, was entitled to an award of costs and attorney fees under the express language of the 1996 Employment and Non-competition Agreement (“the 1996 Employment Agreement”) between the parties.  Because we reverse the district court’s ruling, MacKenzie is no longer the prevailing party, and we vacate the award of attorney fees.  However, because the issue was fully argued to this court, and because we assume that on remand the issue will be present, we address it. 

            In 1996, while MacKenzie was employed by Winthrop, the parties entered into the 1996 Employment Agreement.  This agreement had an attorney fees clause, set forth in Article VIII, which applied to any litigation between the parties arising out of the agreement:

In the event there is litigation between the parties hereto with respect to their rights and obligations under this Agreement, the prevailing party in any such litigation shall be entitled to recover from the opposing party all reasonable attorneys’ fees and expenses (including fees of accountants) incurred by the prevailing party in connection with such proceeding.

 

            In 1997, after TCF purchased Winthrop, the parties amended the 1996 Employment Agreement, but the attorney fees provision remained unchanged.  A year later, when MacKenzie decided to leave Winthrop, the parties executed the 1998 Amendment to 1996 Employment Agreement.  The 1998 Amendment, which made some specific changes to MacKenzie’s obligations as an employee, states:

Effectively immediately after [MacKenzie’s] Employment Termination Date, all compensation to [MacKenzie] shall cease and all obligations of [MacKenzie] under the Employment Agreement shall cease, except for the obligations identified in paragraphs 2-6 following, which shall survive termination of the Employment Agreement and [MacKenzie’s] employment.

 

            Paragraphs 3 through 6 do not relate to attorney fees, butparagraph 2 provides:

[MacKenzie] hereby agrees to extend the term of Section 6.01 of the Agreement (NonCompetition and NonSolicitation) and the term of Section 5.01 of the Agreement (Confidentiality) to be in effect for a period of five years after March 31, 1999, expiring on March 31, 2004, and the provisions of Article VIII shall continue to apply with respect to these continuing obligations.  [MacKenzie] also agrees that the NonCompetition obligations under Section 6.01 will extend to all leasing activity of any nature within the United States, but this shall not include real estate investment or leasing. 

 

(Emphasis added.)

 

Winthrop argues that MacKenzie should not have been awarded attorney fees because the plain language of the 1998 Amendment restricts the attorney-fees clause of Article VIII to only the Non-Competition, Non-Solicitation, and Confidentiality obligations of the 1996 Employment Agreement.  MacKenzie responds that Winthrop’s argument is flawed because it re-writes the 1998 Amendment to add the words but only, so that the operative language would read, “the provisions of Article VIII shall continue to apply, but only with respect to these continuing obligations.”  MacKenzie asserts that the meaning of the contract as written is clear, and because Winthrop’s argument requires a re-writing, the district court properly granted him attorney fees pursuant to the agreement. 

We disagree.  The 1998 Amendment expressly continues the operation of Article VIII of the 1996 Employment Agreement, including the attorney fees provision, only for the terms of sections 6.01 (Non-Competition and Non-Solicitation) and 5.01 (Confidentiality).  It does not speak to either paragraphs 4 or 6 of the 1998 Amendment, which are the provisions under which Winthrop sued in this case.  Where a contract expresses certain things, but omits others, “The well-recognized rule of ‘expressio unius est exclusio alterius is’  . . . applicable.  Under this maxim, the expression of specific things in a contract implies the exclusion of all not expressed.”  Maher v. All Nation Ins. Co., 340 N.W.2d 675, 680 (Minn. App. 1983), review denied (Minn. Apr. 25, 1984). 

We conclude that under the plain language of the 1998 Amendment and the “well-recognized” rule cited above, the attorney fee provisions of Article VIII apply only to the sections 6.01 (Non-Competition and Non-Solicitation) and 5.01 (Confidentiality) of the 1996 Employment Agreement.

            Winthrop sued under paragraphs 4 and 6 of the 1998 Amendment; it did not sue under sections 6.01 or 5.01 of the 1996 Employment Agreement.  Thus, the district court erred by awarding MacKenzie attorney fees pursuant to Article VIII of the Employment Agreement.

            Reversed and remanded

 

 

           



* Retired judge of the district court, serving by appointment as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.

[1] The case was later converted to a summary judgment motion at the court’s request.

[2]The.  Used before singular . . . nouns that denote particular, specified persons or things.  Used before a noun, and generally stressed, to emphasize one of a group or type as the most outstanding or prominent.”  The American Heritage Collegiate Dictionary 1405 (3d ed. 1997).

[3] This paragraph was submitted to the court by McBroom’s attorney as it reads in this opinion.  When MacKenzie initially received the draft from McBroom’s attorney, he made the following changes:  “[D]uring my tenure, employees’ success at Winthrop was measured by three four things:  new accounts brought in, equipment placed in service, and the value of monthly billings, and gross profit.  In rating success, the number of new accounts brought in was never not considered as more important as the value of monthly billings and equipment placed in service. than any of the other measures.

[4] The language in Morgan’s Litigation Cooperation Clause is identical to the language in MacKenzie’s “1998 Amendment.”

[5] In the unpublished decision of Witzman v. Wolfson, No. C7-98-421, 1998 WL 713484 at *1, (Minn. App. Oct. 12, 1998), the parties initially settled a dispute by signing an agreement that contained a clause requiring them to “cooperate with each other to the extent that litigation is commenced against” a third party.  In subsequent litigation between the parties, the district court granted summary judgment for the defendant.  Id.  This court reversed, holding that because the cooperation clause was susceptible to more than one interpretation, it was ambiguous as a matter of law and therefore summary judgment was inappropriate.  Id. at *3.