This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


Management Recruiters Int'l, a Delaware
corporation, d/b/a Sales Consultants of Minneapolis,


Summit Packaging, Inc., a/k/a Bi-Helper Packaging, Inc.,
a/k/a Helper Packaging, Inc., d/b/a Display Pak,

Filed July 9, 1996
Holtan, Judge*

Hennepin County District Court
File No. 9415790

George E. Antrim, III, Krause & Rollins, Chartered, 310 Groveland Avenue, Minneapolis, MN 55403 (for Respondent)

Kay Nord Hunt, Terrance W. Moore, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Holtan, Judge.



Summit Packaging, Inc., d/b/a Display Pak, appeals the trial court's denial of its motions for directed verdict, judgment notwithstanding the verdict, and a new trial, arguing that it did not have a contract with respondent Management Recruiters Int'l, d/b/a Sales Consultants of Minneapolis. We affirm.


Management Recruiters is a personnel search firm. Robert Malooly, an account executive for Management Recruiters, was attempting to place James Fortney in a sales position in the Twin Cities.

Malooly referred Fortney to Len Johnson of Summit Packaging for a sales position. Because Fortney's background involved design more than sales, Johnson told Malooly that Fortney might be better suited for a position at Display Pak. [1] On April 5, 1993, Malooly contacted Donald Thaemert, general manager of Display Pak, to set up an interview with Fortney. During their telephone conversation (which was recorded), the following exchange took place:

Malooly: " * * * You know, we do charge a fee for our services--if you hire."

Thaemert: "Uh-huh."

Malooly: "And I'll send you a schedule on that, Don."

Thaemert: "Would you, please?"

Malooly: "You bet."

Malooly testified that pursuant to this conversation and according to its standard practice, Management Recruiters sent a fee agreement to Display Pak. The fee agreement provides that it


The agreement further provides:

A fee is due only if a Candidate enters into any type of a business relationship with you * * * within two years after our last communication with you about the Candidate.

The agreement listed the fee as 25% of the candidate's first-year compensation.

Thaemert interviewed Fortney for a full-time sales position on April 8, 1993. Thaemert decided that Fortney did not meet Display Pak's needs because he did not have sales experience. Display Pak did, however, need someone with a design background to work on a specific temporary job.

On April 12, 1993, Thaemert told Malooly that Display Pak was not going to hire Fortney. Thaemert proposed that Display Pak be allowed to hire Fortney for the temporary design position without paying the recruiting fee, claiming it would benefit all parties. Malooly testified that although he initially did not know how to respond to Thaemert's proposal, either he or one of his associates told Thaemert that if Display Pak hired Fortney on a temporary basis, Management Recruiters would charge its normal fee.

Fortney worked for Display Pak on a temporary basis in April 1993 and again in the fall of 1993. Malooly learned of Fortney's work with Display Pak and sent Display Pak an invoice seeking the fee. Display Pak refused to pay.

Management Recruiters filed a complaint. Display Pak responded that the parties never entered into a contract. A jury trial was held. During the trial, the court denied Display Pak's motion for a directed verdict. By special verdict, the jury decided that the parties had a contract, that Display Pak breached the contract, that damages were $4,939.31, and that Display Pak agreed to pay costs and attorney fees if it breached the agreement. The trial court entered judgment for Management Recruiters in the amount of $13,786.19, which included damages, attorney fees, and interest.

Display Pak moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court entered an amended judgment of $12,724.31 to adjust the postverdict interest rate. The trial court did not address either of Display Pak's posttrial motions, and Display Pak construes the amended judgment as a denial of its motions.


1. A motion for directed verdict should be granted only where (1) given the evidence as a whole, it would be the clear duty of the trial court to set aside a contrary verdict as manifestly against the evidence, or (2) the verdict would be contrary to the applicable law. Walton v. Jones, 286 N.W.2d 710, 714 (Minn. 1979). The evidence is to be viewed in the light most favorable to the nonmoving party. Id. A trial court's denial of a motion for judgment notwithstanding the verdict should stand unless "the evidence is practically conclusive against the verdict" or "reasonable minds could reach but one conclusion against the verdict." Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). Again, a reviewing court views the evidence favorably to the verdict. B.F. Goodrich Co. v. Mesabi Tire Co., 430 N.W.2d 180, 182 (Minn. 1988).

A contract requires a meeting of the minds regarding its essential terms. Minneapolis Cablesystems v. City of Minneapolis, 299 N.W.2d 121, 122 (Minn. 1980). To establish a contract, a manifestation of assent must be shown. Benedict v. Pfunder, 183 Minn. 396, 400, 237 N.W. 2, 4 (1931). A promise has the same effect whether it is expressed orally, in writing, by act of the parties, or a combination of means. Bergstedt, Wahlberg, Berquist Assocs., Inc. v. Rothchild, 302 Minn. 476, 479, 225 N.W.2d 261, 263 (1975). If disputed, the existence and terms of a contract are questions of fact. Morrisette v. Harrison Int'l Corp., 486 N.W.2d 424, 427 (Minn. 1992).

We conclude that there was enough evidence presented to the jury for it to believe that the parties entered into a unilateral contract. The jury could conclude that Thaemert and Malooly formed the contract offer during their telephone conversation, the precise details of which would be filled in later by the fee agreement. The jury could have believed that Display Pak received the fee agreement, did not object to its terms, and in fact accepted its terms when it interviewed and hired Fortney. The jury could have further concluded that Management Recruiters did not accept Thaemert's proposal to hire Fortney without paying a recruiting fee and was thus bound by the terms of the fee agreement. The jury may also have been influenced by the fact that Display Pak never revealed that it hired Fortney on two separate occasions.

In sum, the verdict was not manifestly against the evidence, was not contrary to applicable law, and it cannot be said that reasonable minds could reach only a conclusion contrary to the verdict.

2. Display Pak argues in the alternative that a new trial should be ordered. On appeal from a trial court's denial of a motion for a new trial, the verdict may not be disturbed "unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn App. 1992), review denied (Minn. Apr. 29, 1992). As discussed above, the verdict was not manifestly contrary to the evidence. The trial court did not abuse its discretion in denying the new trial motion. See Hassler v. Simon, 466 N.W.2d 434, 436 (Minn. App. 1991) (appellate court reviews denial of new trial motion under abuse of discretion standard).

3. We agree with Management Recruiters that it is entitled to the reasonable expenses of this appeal. The jury found by special verdict that Display Pak agreed to pay Management Recruiters for its costs and attorney fees in the event of a breach of contract. The fee agreement provides that Management Recruiters is entitled to

reimbursement of all of its costs and disbursements spent in connection with collecting any Agency fees, including, but not limited to, reasonable attorneys' fees.

In his affidavit, Management Recruiters' counsel stated that the actual billings for attorney fees and costs associated with this appeal total $5,896.50. He further stated that he believed he would spend an additional $500 to prepare for and conduct an oral argument. We therefore award attorney fees of $6,396.50.



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

[1] Malooly described Summit Packaging and Display Pak as "similar organization[s] under the same ownership."