This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-917

Richard Heller,

Appellant,

vs.

Northwest Aerospace Training Corporation,

Respondent,

and

Aviation Crew Training, Inc.,

Respondent.

Filed November 26, 1996

Affirmed

Peterson, Judge

Dakota County District Court

File No. 73956470

Thomas L. Steffens, R. Travis Brunson, Thomas L. Steffens & Associates, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for Appellant)

Donald Chance Mark, Jr., Richard L. Pemberton, Jr., Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent Northwest Aerospace Training Corporation)

Daniel J. Young, Law Offices of Daniel J. Young, 2100 Norwest Financial Center, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for Respondent Aviation Crew Training, Inc.)

Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this employment termination case, Richard Heller argues that because he did not have sufficient time to complete discovery and material facts were in dispute, the district court erred in granting summary judgment for respondents. We affirm.

FACTS

Respondent Northwest Aerospace Training Corporation (NATCO) rents time on its flight simulators to airlines. Appellant Richard Heller signed an agreement with NATCO to provide his services as a flight simulator instructor for one year beginning December 1, 1992. The agreement provided that Heller was an independent contractor. Heller did not provide services to NATCO until August 1993, and he continued providing services after the agreement expired.

Sometime in the late summer or early fall of 1993, NATCO signed an agreement with respondent Aviation Crew Training, Inc. (ACT). This agreement provided that ACT would supply all the independent consultant personnel necessary to conduct flight simulator training at NATCO but that NATCO had the right to refuse the services of any individual consultant provided by ACT. Heller received paychecks from ACT for all services he provided to NATCO. His 1993 W-2 tax form named ACT as his employer.

On December 17, 1993, a NATCO employee filed a sexual harassment complaint against Heller. On December 21, 1993, Heller met with representatives of NATCO and ACT about the complaint. Although Heller denied that he had sexually harassed the complainant, he agreed to apologize to her for any misunderstanding caused by his remarks. The parties agreed that Heller could make his apology in front of witnesses at a time convenient for him. But when Heller had not apologized by the end of January, 1994, NATCO told him and ACT that it no longer wished to use Heller's services.

Heller sued NATCO and ACT for breach of contract, promissory estoppel, defamation, gender discrimination, negligent infliction of emotional distress, and tortious interference with contract. Heller claimed he was an employee of NATCO and ACT. His claims arose out of the termination of that employment. NATCO moved to dismiss Heller's complaint for failure to state a claim upon which relief could be granted. Both parties attached affidavits and other documents to their memoranda. The district court accepted the parties' submissions, treated the motion as one for summary judgment, and granted summary judgment for NATCO. Heller's motion for reconsideration was denied. The district court later granted ACT's motion for summary judgment on all of Heller's claims.

D E C I S I O N

On appeal from a summary judgment, a reviewing court must examine the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the facts in the light most favorable to the non-moving party. Id. But we are not bound by a district court's decision on a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Also, a summary judgment will be affirmed if it can be sustained on any grounds. Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990), review denied (Minn. Feb. 4, 1991).

1. Heller first argues the district court erred in treating NATCO's motion to dismiss as one for summary judgment.

When matters outside the pleadings are presented to a court considering a motion to dismiss, and those external matters are not excluded by the court when it makes its determination, the motion to dismiss shall be treated as one for summary judgment.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (emphasis added). Here, both parties presented matters outside the pleadings to the district court. The district court did not exclude those matters when making its decision. Thus, the district court properly treated NATCO's motion as one for summary judgment.

Heller also argues the district court prematurely granted summary judgment for NATCO before he had the opportunity to conduct discovery. Minn. R. Civ. P. 56.06 provides:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

A formal motion for a Rule 56.06 continuance is not necessary. Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216 (Minn. 1985). But when a party fails to indicate that additional time is needed to conduct discovery and fails to show that additional time will produce relevant evidence, consideration of the summary judgment motion is proper. Menard, Inc. v. King De Son, Co., 467 N.W.2d 34, 38 (Minn. App. 1991). Heller did not indicate to the district court in any way that he needed more time to conduct discovery. Thus, the district court did not prematurely grant NATCO's summary judgment motion. Also, by failing to present the issue to the district court, Heller waived his right to raise it on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will consider only those issues that were presented to and decided by the district court).

2. Heller next argues the district court erred in granting summary judgment for NATCO on his breach of contract claim. Heller argues that he was an employee of NATCO, that the NATCO employee manual he was given and was expected to follow was part of his employment contract with NATCO, and that NATCO's failure to follow the disciplinary procedures to which the manual referred constituted a breach of that employment contract.

To establish a breach of contract claim, a plaintiff first must show a contract was formed. See Mundinger v. Breeze, 188 Minn. 621, 624, 248 N.W. 47, 48 (1933) (in breach of contract action, complaint must be sufficiently definite to prove existence of contract). When an employer and an employee have an at-will employment relationship, the employer can discharge the employee for any reason or for no reason. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). The at-will employment relationship can be modified to include disciplinary provisions in an employee handbook if the handbook language constitutes a definite offer, the offer is communicated to the employee, the employee accepts the offer, and the employee provides consideration. Id. at 626-27. Whether a proposal is meant to be an offer is determined by the parties' outward manifestations, rather than by their subjective intentions. Id. at 626.

Even assuming Heller produced sufficient facts to show his status as a NATCO employee was in dispute, summary judgment on his breach of contract claim was proper because he submitted no evidence showing he had more than an at-will relationship with NATCO. In response to NATCO's claim that it never had formed an employment contract with Heller, Heller argued that he was a NATCO employee because he had been given the NATCO manual and was expected to follow its terms. But Heller never identified any language in the manual that constituted an offer from NATCO to modify the at-will relationship to include the manual's terms.[1] See Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 856 (Minn. 1986) (when employee's contractual claim is supported solely by existence of employee handbook, handbook's language must be examined to determine whether its terms became part of employment contract). Heller therefore failed to produce any evidence showing he and NATCO had formed an employment contract that included the disciplinary procedures in the manual. Accordingly, the district court properly granted summary judgment for NATCO on the breach of contract claim. See id. at 855 (summary judgment proper when nonmoving party fails to produce specific evidence showing existence of fact dispute).

Summary judgment also was properly granted on Heller's breach of contract claim against ACT. Heller argues that the NATCO manual became part of his at-will employment contract with ACT because he was given the manual and required to follow its procedures while working on NATCO's premises. The NATCO manual, however, only describes NATCO's policies towards its employees and independent contractors and does not mention ACT. Absent any language in the NATCO handbook suggesting that ACT had agreed to apply the NATCO policies to its own employees, the NATCO manual could not constitute an offer from ACT to modify its at-will employment relationship with Heller. See id. at 857 (indefinite language in employment handbook cannot form basis of enforceable employment contract).

3. Minn. R. Civ. App. P. 132.01, subd. 5, refers to a party's decision to forgo the filing of a formal appellate brief and to instead "rely upon memoranda submitted to the trial court supplemented by a short letter argument." See also Minn. R. Civ. App. P. 128.01 (informal briefs may be authorized by appellate court). Although a letter brief may refer this court to memoranda submitted to the district court for a detailed discussion of a party's legal argument, the letter brief must adequately identify the specific issues that are the subject of the appeal. See Minn. R. Civ. App. P. 128.01 (informal briefs shall contain concise statement of party's arguments on appeal); see also City of Cloquet v. Cloquet Sand & Gravel, Inc., 312 Minn. 277, 279 n.1, 251 N.W.2d 642, 644 n.1 (1977) (supreme court would not consider issue when party provided only minimal explanation of contention on appeal and cited no supporting authority); In re Irwin, 529 N.W.2d 366, 373 (Minn. App. 1995) (issue not adequately argued or briefed on appeal deemed waived), review denied (Minn. May 16, 1995).

In Heller's letter brief, he states that, in addition to the adequacy of the discovery period, two issues are raised on appeal:

As to [respondent] NATCO, do genuine issues of fact remain as to [Heller's] causes of actions against [respondent] NATCO?

As to [respondent] ACT, do genuine issues of fact remain as to [Heller's] causes of action against [respondent] ACT?

After discussing his inadequate opportunity for discovery and his breach of contract claims, Heller argues in his brief that summary judgment on his remaining six claims was premature because "genuine issues of fact still remain as to these causes of action." These broad, general statements claiming that fact disputes exist on Heller's remaining six claims do not adequately identify the specific issues related to those claims that are the subject of this appeal. Consequently, we deem the issues related to Heller's remaining causes of action to have been waived.

Affirmed.

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

[ ]1 The only handbook language cited by Heller in response to NATCO's motion was one sentence that he claimed stated explicitly that pilot instructors were employees of NATCO. The sentence in the manual, however, actually stated that "[a]s employees, or consultants, pilot instructors are an agent of NATCO."