This opinion will be unpublished and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

C5-96-512

Karen Rybus,

Respondent,

vs.

ADC Telecommunications, Inc.,

Appellant.

Filed December 3, 1996

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

Le Sueur County District Court

File No. C593277

Michael K. Riley, Mackenzie & Gustafson, Ltd., 424 South Minnesota Street, P.O. Box 360, St. Peter, MN 56082 (for Respondent)

Steven J. Franta, Somsen & Schade, P.O. Box 38, New Ulm, MN 56073-0038 (for Respondent)

William M. Hart, Katherine A. McBride, Shirley O. Lerner, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

In this breach of employment contract action, ADC Telecommunications, Inc. (ADC) appeals from entry of judgment in favor of respondent Karen Rybus. ADC argues the trial court erred in denying its motion for judgment notwithstanding the verdict, contending: (1) Rybus's allegedly changed testimony is not competent to sustain the verdict; (2) as a matter of law, ADC's termination policy is too indefinite to form the basis of an enforceable employment contract; and (3) there was no breach of employment contract, as a matter of law. ADC also argues it is entitled to a new trial because the trial court improperly determined the issue of contract formation, rather than submitting it to the jury. We affirm the trial court's denial of JNOV, but reverse and remand for a new trial.

D E C I S I O N

I.

ADC claims Rybus has special knowledge of material facts and her deposition testimony contradicts her trial testimony with respect to those facts. Relying on Peterson v. American Family Mut. Ins. Co., 280 Minn. 482, 160 N.W.2d 541 (1968), ADC asserts that a party testifying to facts in regard to which she has special knowledge may not obtain a judgment by contradicting her own testimony. Therefore, ADC contends the trial court erred by allowing Rybus to obtain a verdict based on the allegedly changed testimony. We disagree. In Peterson, the testimony given by the insured in a prior bankruptcy proceeding was held to be binding on the insured and his assignee in a subsequent action. Id. at 488, 160 N.W.2d at 545. The assignee could not survive summary judgment by claiming his witness perjured himself in the prior proceeding. Id. The same rule does not apply when deposition testimony contradicts trial testimony. Where witnesses testifying at trial contradict their deposition testimony, the prior inconsistent deposition statement is not hearsay and may be admissible for substantive purposes. Minn. R. Evid. 801(d)(1). Likewise, prior deposition statements are not hearsay if they are admissions by a party-opponent. Minn. R. Evid. 801(d)(2). Reconciling inconsistent testimony is for the jury. We cannot say as a matter of law that Rybus's testimony was not competent to support the verdict.

II.

ADC raises an issue that was addressed in a prior appeal of this matter: whether language in ADC's personnel policy manual is too indefinite, as a matter of law, to form the basis of an enforceable employment contract. See Rybus v. ADC Telecommunications, No. C4-94-996 (Minn. App. Nov. 15, 1994) (affirming denial of ADC's motion for summary judgment holding as a matter of law language contained in ADC's personnel policy manual is definite enough to raise fact questions for jury). "Issues determined in a first appeal will not be relitigated in the trial court nor re-examined in a second appeal." Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn. 1987). Because this issue was determined in the prior appeal, we will not address it here.

III.

ADC contends that as a matter of law it did not breach the alleged employment contract because: (1) the personnel manual's termination procedures are inapplicable because Rybus was demoted, not discharged; and (2) Rybus's alleged dishonesty constituted insubordination, as a matter of law, and therefore subjected her to immediate discharge without recourse under the terms of the personnel manual. We disagree. Where the precise nature of contractual rights is unclear, it is for the jury to determine the intent of the parties. Lewis v. Equitable Life Assur. Soc'y, 389 N.W.2d 876, 883 (Minn. 1986).

Rybus's claim is not founded on tort, but rather is a breach of employment contract claim arising from an alleged wrongful discharge. It is undisputed that respondent was demoted, not terminated. Under the alleged employment contract, disciplinary steps were only required prior to termination. This creates a material fact question as to whether Rybus's demotion was constructively equivalent to termination under the alleged employment contract. See Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 709 (Minn. 1992) (finding the evidence sufficient to support a breach of employment claim where disciplinary steps were required before terminating employees and the employer had offered the plaintiff nonequivalent positions). Likewise, the issue of whether Rybus's alleged dishonesty constituted insubordination under the terms of the employment contract is properly a question of fact for the jury.

IV.

Finally, ADC contends it was entitled to a new trial because the trial court improperly took disputed factual issues away from the jury by determining the issue of contract formation as a matter of law. We agree.

Personnel handbook provisions promising employment on particular terms and presented in the form of an offer may become enforceable as part of an employment contract. Pine River State Bank of Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983). The offer must be definite in form and must be communicated to the employee. Id. Moreover, "[w]hether the proposal is meant to be an offer for a unilateral contract with a particular person is determined by the outward manifestations of the parties and not their subjective intentions." Feges, 483 N.W.2d at 707 (quoting Herron v. Green Tree Acceptance, Inc., 411 N.W.2d 192, 195 (Minn. App. 1987)). The decisive question of whether handbook or manual provisions were communicated to the employee in a way that objectively manifests an offer to contract for employment is a question of fact for the jury. Id. Here, the jury must determine all factual questions related to contract formation including: (1) whether the employee handbook incorporates the disciplinary provisions outlined in the personnel policy manual; (2) whether respondent saw the employee handbook provisions on which she bases her claim; and (3) whether the personnel policy manual was communicated to respondent in a way that objectively manifested an offer to contract for employment.

Because the trial court erred by not submitting the contract formation issues to the jury, we reverse and remand for a new trial on Rybus's breach of contract claim.

Affirmed in part, reversed in part, and remanded.