This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Amber Express Co., Ltd.,

an Illinois corporation,



Todd Heruth, et al.,


Michelle Rouillard,

Defendant and third-party plaintiff,



Vidmantas Rapsys,

Third-Party Defendant.

Filed December 2, 1997


Klaphake, Judge

Hennepin County District Court

File No. 9418340

John L. Tambornino, Kunert, Tambornino & Kuhar, 2505 Centre Village, 431 South 7th Street, Minneapolis, MN 55415 (for Appellant)

Terrance J. Wagener, Dunkley, Bennett & Christensen, P.A., 701 Fourth Avenue South, Suite 700, Minneapolis, MN 55415 (for Respondent)



Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.




Appellant Amber Express Co. Ltd. (Amber Express) brought this action against respondent Michelle Rouillard and others after Rouillard terminated her agency relationship with Amber Express. Rouillard counterclaimed and filed a third-party complaint against Amber Express's owner and president, Vidmantas Rapsys.

The jury found as follows: (1) Rouillard did not misappropriate trade secrets; (2) Rouillard breached her fiduciary duty to Amber Express, but Amber Express was not damaged by that breach; (3) no enforceable contract existed between the parties between July 7, 1993 and November 1, 1994; (4) Rouillard relied on Amber Express's clear and definite promise and was damaged in the amount of $86,700; and (5) Amber Express did not commit fraudulent misrepresentation. The trial court found for Amber Express on Rouillard's sexual discrimination and harassment claims.

Amber Express appeals from the trial court's denial of its motion for judgment notwithstanding the verdict (JNOV), contending that the trial court erred in submitting the issue of promissory estoppel to the jury and in awarding Rouillard preverdict interest.

Rouillard has filed a notice of review, challenging the jury's finding that no contract existed and the court's determination that Amber Express did not sexually discriminate against Rouillard.

Because the evidence reasonably supports the trial court's decisions and the jury's findings, we affirm on the promissory estoppel, contract, and discrimination issues. Because neither party served a written offer of settlement with clear and definite terms that disposed completely of the various claims and cross-claims between the multiple parties, we affirm the trial court's award of preverdict interest to Rouillard under Minn. Stat. § 549.09 (1996).


I. Promissory Estoppel

In reviewing the trial court's denial of a motion for JNOV, this court views the evidence in the light most favorable to the verdict. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979). If the evidence, taken as a whole, provides a reasonable basis for the verdict, then the trial court properly denied the motion. See Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).

The equitable doctrine of promissory estoppel implies a contract in law to avoid injustice. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995). Three elements support application of promissory estoppel: (1) the promise must be clear and definite; (2) the promisor must have intended to induce reliance and such reliance must have occurred to the promisee's detriment; and (3) the promise must be enforced to prevent an injustice. Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992). The evidence reasonably supports the existence of these three elements in this case.

The jury could reasonably find that Amber Express, through Rapsys, made a clear and definite promise of compensation to Rouillard.

First, the jury heard extensive testimony from Rouillard, Rapsys, and two Amber Express employees present at a July 7, 1993 meeting, regarding the existence of a promise to compensate Rouillard. While the testimony was conflicting, the trial court properly submitted the issue regarding existence of a definite promise to the jury. See Zobel & Dahl Constr. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984) ("When there is evidence reasonably tending to prove the existence of a factual issue, the court may submit the issue to the jury.").

Second, evidence was presented from which the jury could reasonably find that Rouillard detrimentally relied on that promise. Specifically, Rouillard testified that she had been contacted by other air freight forwarders before opening Amber Express's Minneapolis office and that she expended great effort in setting up that office. She also testified about the potential loss of business if customers from her previous business were not placed with Amber Express quickly.

Finally, the jury could reasonably find that Rouillard would suffer an injustice if Amber Express's promise were not enforced. Although Rouillard received approximately $30,000 in salary from Amber Express, under the promise she would have received 50 percent of the Minneapolis office profits, or $194,176, for the period in question.

II. Preverdict Interest

A prevailing party is entitled to preverdict interest from the date of commencement of its action if a pecuniary damage award is made. This general rule governs unless the following offer-counteroffer exception applies:

If either party serves a written offer of settlement, the other party may serve a written acceptance or a written counteroffer within 30 days. * * * The prevailing party shall receive interest on any judgment * * * from the time of commencement of the action * * * until the time of verdict * * * only if the amount of its offer is closer to the judgment or award than the amount of the opposing party's offer.

Id. If no valid offers are made, this exception does not apply and the general rule governs. Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 840-41 (Minn. 1988), cert. denied 492 U.S. 926, 109 S. Ct. 3265 (1989). To constitute a valid offer under Minn. R. Civ. P. 68 and under Minn. Stat. § 549.09, the offer must be in writing and propose sufficiently clear and definite terms that dispose completely of the claims between the parties. See, e.g., id. at 840-41.

In this case, the trial court treated Rouillard's February 1995 answer, counterclaim, and third-party complaint as an offer to settle. However, the pleadings do not set forth a definite monetary offer, but instead request "damages in excess of $50,000.00," as required by Minn. R. Civ. P. 8.01. Further, the purpose of pleadings is to notify the opposing party about the nature of the claims and to inform the court of the requested relief. See Corporate Financiers, Inc. v. Voyageur Trading Co., 519 N.W.2d 238, 241 (Minn. App. 1994), review denied (Minn. Sept. 16, 1994). Accordingly, the trial court erred in treating Rouillard's answer and counterclaim as a settlement offer.

The trial court also treated Amber Express's June 1995 offer as valid under Minn. Stat. § 549.09. However, it is unclear whether that offer included all the parties' claims and counterclaims or whether it included the third-party claims against Rapsys. "The offer-counteroffer provision of section 549.09 cannot function with offers which are non-responsive to each other." Hodder, 426 N.W.2d at 841. Because no valid offer or counteroffer was made by either party, Amber Express must pay preverdict interest on the entire compensatory judgment, from the date Rouillard served her counterclaim on Amber Express.

III. Sexual Harassment

Minn. Stat. § 363.03, subd. 1(2)(c) (1994) provides that it is an unfair employment practice for an employer to discriminate against a person regarding "hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment" on the basis of sex. Discrimination based on sex includes sexual harassment, which is defined, in part, as "verbal or physical conduct or communication of a sexual nature." Minn. Stat. § 363.01, subds. 14, 41. However, every sexual comment in the workplace does not become actionable sexual discrimination or harassment. See Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997) (citing Minn. Stat. § 363.01, subd. 41 (defining "sexual harassment")).

Rouillard offered evidence that Rapsys called her "sweetheart" and "darling" and made a comment about her legs in front of company managers at a Christmas party. Rouillard also testified that Rapsys told her she was making as much as most men in the industry. An Amber Express officer testified that when speaking to him and his administrative assistant, Rapsys had used vulgar and sexual language when referring to Rouillard, but that Rouillard was not present. Rouillard argues that this evidence established a prima facie case of sex discrimination, that Amber Express failed to offer evidence in rebuttal, and that she is entitled to a determination of damages. See Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).

The trial court found, after considering lengthy testimony, that Amber Express's decision to break its promise to Rouillard was motivated by greed, rather than by discriminatory intent. Further, the court found that Rapsys's references to Rouillard making more money than men in the industry were made to company officers. The court also accepted Amber Express's evidence regarding Rouillard's pay as compared to her male counterparts. Finally, the court found that while Rapsys made inappropriate remarks about Rouillard, those remarks were not pervasive and did not create a hostile work environment. Cf. Cummings, 568 N.W.2d at 424 (citing Klink v. Ramsey County by Zacharias, 397 N.W.2d 894, 902 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987)).

The record contains voluminous testimony regarding the statements made and evidence of how others in the company were paid. The trial court was entitled to make credibility assessments as it considered the evidence, and its findings are not without support in the trial record. Accordingly, the trial court did not clearly err in finding that Amber Express did not discriminate against or harass Rouillard. See Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (trial court's decision will be reversed only when clearly erroneous); Anda Constr. Co. v. First Fed. Savings & Loan Ass'n, Duluth, 349 N.W.2d 275, 277 (Minn. App. 1984) (trial court's findings are clearly erroneous when without substantial evidentiary support or induced by erroneous view of law), review denied (Minn. Sept. 5, 1984).

IV. Contract Formation

Rouillard argues, alternatively, that the jury improperly found that no contract resulted from the July 7, 1993 meeting. Because we have concluded that the trial court properly applied the doctrine of promissory estoppel, we need not decide this issue.

We affirm the trial court's denial of Amber Express's motion for JNOV, its grant of prejudgment and preverdict interest to Rouillard, and the judgment it subsequently entered on all the parties' claims.