Filed February 4, 2003

Affirmed

Gordon W. Shumaker, Judge

Hennepin County District Court

File No. 0012896

Thomas E. Glennon, Thomas E. Glennon & Associates, P.A., 4700 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; and

Edward M. Glennon, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Thomas E. Marshall, Natalie Wyatt-Brown, Jackson Lewis LLP, 150 South Fifth Street Towers, Suite 2800, Minneapolis, MN 55402 (for respondents)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.

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

GORDON W. SHUMAKER, Judge

Appellant Thomas Ryan contends that the district court erred by failing to grant his motion for summary judgment, failing to grant a directed verdict in his favor, giving erroneous jury instructions, and submitting an improper verdict form to the jury. Appellant also argues that the trial judge engaged in judicial misconduct. Because we find no reversible error, we affirm.

FACTS

Appellant Thomas Ryan sued respondents ColorSpan Corporation and VirtualFund.com, Inc., for damages for breach of an employment contract. A jury found in respondents’ favor.

The case involves the respondent corporations and related subsidiaries. VirtualFund, the parent corporation of ColorSpan, a digital-graphics subsidiary, had a digital-graphics unit and an internet-services unit.

Melvin Masters was the chief executive officer of both VirtualFund and ColorSpan. Robert Wenzel was the chief operating officer of VirtualFund and the president of ColorSpan.

In 1995, Wenzel hired Ryan to be the managing director of LaserMaster Corporation, a ColorSpan subsidiary. Ryan’s employment responsibilities involved VirtualFund, ColorSpan, and various subsidiaries.

In April 1996, Masters promoted Ryan to executive vice-president of ColorSpan and raised his annual salary to $175,000. Several months later, Ryan also became executive vice-president of VirtualFund. Ryan participated in business decisions affecting both VirtualFund and ColorSpan, co‑signed checks for VirtualFund and subsidiaries, received stock options as a VirtualFund executive, and was listed as a VirtualFund executive with the Securities and Exchange Commission.

On October 17, 1997, Ryan sent an e-mail to Masters requesting an employment contract comparable to that which Wenzel had received in 1995. Masters responded by summarizing employment terms that included a “one-year ‘no-cut’ employment contract based on the form we used for Bob Wenzel.” Masters indicated that he wanted to create incentives for Ryan to stay with the companies, not to leave in the event of a merger or acquisition, and “to give you some significant benefits if a third party business transaction * * * eliminates your position in any new restructured organization.” After Masters sent this e-mail, Wenzel gave Ryan a copy of Wenzel’s contract. Wenzel’s contract provided that the employer could terminate the agreement without cause and could terminate it upon the sale of substantially all of the company’s assets. Ryan never received his own formal employment contract.

In 2000, VirtualFund sold its digital-graphics business unit. Ryan told Masters and Wenzel that he wanted to stay with the unit and work for the purchaser. Masters and Wenzel encouraged him to remain with the VirtualFund companies. On April 5, 2000, Ryan submitted a resignation letter indicating that he desired “to go along with the divestiture.” On May 16, 2000, Ryan learned that the purchaser of the digital-graphics unit did not want to hire him.

Following this news, Masters, Wenzel, and Ryan met to discuss Ryan’s role with the internet-services unit. Ryan stated that he did not want to work in that unit because he felt he lacked sufficient technical skills. Wenzel told him that he did not need such skills and that the company wanted him for his business skills.

On May 29, 2000, Ryan delivered a letter to Wenzel stating that the purchase of the digital-graphics unit had terminated Ryan’s employment. Despite that letter, Ryan continued to receive a salary and to perform various internet-service-unit duties. Masters sent a letter to Ryan on June 13, 2000, indicating that Ryan’s job had not been eliminated and that his fundamental duties had not changed. He continued to receive his $175,000 annual salary.

Ryan later inquired about his duties. Wenzel and Masters provided work for him to do, and he twice wrote notes stating that he was ready to work on his “new responsibilities.” When Ryan did not appear to be performing his duties, Masters indicated that they should meet to discuss Ryan’s “continuing participation on [VirtualFund’s] payroll.”

On July 11, 2000, Ryan met with Masters and Wenzel. Before discussing job duties, Ryan gave Masters and Wenzel a letter in which he reiterated his belief that the sale of the digital-graphics unit had eliminated his job with respondent companies. When asked whether he was resigning or refusing to work, Ryan said that the letter spoke for itself. Later that day, Masters sent an e-mail to Ryan for clarification as to whether Ryan’s letter was a resignation or a refusal to work. Respondents’ attorney sent a letter to Ryan’s attorney indicating that if Ryan did not return to work by July 31, 2000, respondents would terminate him for cause. In the interim, VirtualFund treated Ryan’s absence as vacation. Ryan did not return to work, and respondents terminated him.

Ryan sued respondents, claiming that his contract entitled him to 12-months’ separation notice or 12-months’ pay if he lost his job. Respondents contended that Ryan was terminated because he refused to work for them. The district court denied the parties’ cross‑motions for summary judgment and Ryan’s motion for a directed verdict. Those rulings are two of several errors Ryan alleges on appeal. The jury returned a verdict finding that ColorSpan had not terminated Ryan and that the duties he was assigned to perform after a particular date were not an unjustified material change in his job responsibilities. Ryan alleges errors in the verdict form and the jury instructions. Ryan also complains of judicial misconduct.

D E C I S I O N

Summary Judgment

Despite its general nonappealability, the denial of summary judgment may be reviewed under Minn. R. Civ. App. P. 103.04 in concert with an appealable judgment. See Peterson v. Brown, 457 N.W.2d 745, 748 (Minn. App. 1990), review denied (Minn. Aug. 23, 1990). Ryan’s appeal of the district court’s summary-judgment order accompanies an appealable judgment and, thus, is properly before us.

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).

Contending that the terms of his employment contract were unambiguous, Ryan moved for summary judgment. The court denied the motion, noting that there were genuine issues of fact with respect to whether Ryan was employed by ColorSpan and VirtualFund, or just ColorSpan, and whether Ryan was terminated for cause or constructively discharged.

A review of the record readily reveals the existence of material-fact issues. Because there was no formal written employment contract naming ColorSpan as employer and Ryan as employee, the identity of the employer necessarily had to be left to inference from all surrounding circumstances of the employment. Furthermore, the nature of Ryan’s termination required factual determinations and interpretations.

Summary judgment is not appropriate if legitimate factual disputes for trial exist:

Summary judgment is a “blunt instrument” and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon. It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.

Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966) (citation omitted).

Because of the lack of a definitive written contract and the ambiguity of the nature of Ryan’s termination, summary judgment was not appropriate. The district court did not err in denying Ryan’s motion.

Directed Verdict

Ryan argues that he was entitled to a directed verdict on his claim. Unlike summary judgment, which does not permit the court to evaluate evidence, a directed verdict will require just such an evaluation.

Accordingly, the district court should only grant a directed verdict when the court would be obligated to set aside a contrary verdict by the jury as being manifestly against the entire evidence because reasonable persons could draw only one conclusion from the evidence presented.

DLH, Inc., 566 N.W.2d at 70.

At the conclusion of Ryan’s case‑in‑chief and at the end of the trial, the jury had before it evidence from which it could reasonably infer that Ryan worked for ColorSpan and that he was terminated from his employment by one or more acts of his employer. The jury also had evidence supporting the conclusions that Ryan worked for both respondents, that he was not terminated upon the sale of the digital-graphics unit, that his position and salary continued, and that he ultimately was terminated for cause when he did not return to work by the deadline his employer gave.

The competent evidence could have reasonably supported varying conclusions. Thus, Ryan was not entitled to a directed verdict.

Special Verdict

The district court submitted a special verdict that required the jury to determine (1) whether ColorSpan terminated Ryan on the date of the sale of the digital-graphics unit and (2) whether Ryan’s duties after that sale were an unjustified material change in the duties he performed before the sale.

Ryan contends that the special verdict “failed to address the disputed issues and * * * failed to express the jurors’ will concerning such issues.”

The district court has wide latitude in framing special-verdict questions. Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). The special verdict form must fairly address all questions of material fact raised by the pleadings and proof. Hill v. Okay Constr. Co., Inc., 312 Minn. 324, 340, 252 N.W.2d 107, 118 (1977).

By the end of the trial, respondents stipulated to what the damages would be if Ryan prevailed and did not dispute the existence of a valid employment contract. The issues in dispute, consistent with the evidence adduced at trial, were precisely the questions framed in the special verdict.

Ryan argues that the questions deprived the jury of the opportunity to determine the identity of the party by whom Ryan was employed and precluded the jury from attributing changes in Ryan’s employment to VirtualFund. Ryan consistently contended that he was employed only by ColorSpan, so the first question inured to his benefit. Hence, the only employer who would be entitled to terminate him would be ColorSpan. Under Ryan’s theory, the sale-of-assets means of termination could not apply to VirtualFund because VirtualFund was not the employer “company” under the contract.

The second question is not specific as to who might have changed Ryan’s employment duties. Thus, the jury could have found that his duties unjustifiably changed, no matter who changed them. Such a determination would have been consistent with Ryan’s claim that an unjustified, material change in his job duties effected a discharge.

The court did not err in framing the special-verdict questions.

Jury Instructions

The district court has considerable discretion in determining appropriate jury instructions, and we will not reverse absent an abuse of that discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Where jury instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

Although Ryan proposed his own set of jury instructions, he did not object to the court’s instructions before the jury began deliberating. His failure to object limits this court’s review to a consideration of whether the instructions contain an error of fundamental law. See Kallevig v. Holmgren, 293 Minn. 193, 198, 197 N.W.2d 714, 718 n.6; (1972); Minn. R. Civ. P. 51.

Ryan argues that the court failed to give his proposed “employment contract‑related jury instructions.” The court gave the standard Civil Jury Instruction Guide instructions on contract formation and related contract issues. The instructions arguably were more comprehensive than the issues finally in dispute, but we find nothing in the instructions that misstated the law or misled the jury. Ryan fails to articulate how the instructions prejudiced him; rather, he preferred that the court would have given the instructions he requested.

Ryan cites the instruction on “material change” as being erroneous. He contends that an unjustifiable material change in employment duties automatically breaches the employment contract. The court instructed that such a change “may be” a breach of contract. The court’s instruction was consistent with Minnesota law that a material change in employment duties could be, but was not necessarily, a breach of contract. Mair v. S. Minn. Broad. Co., 226 Minn. 137, 140, 32 N.W.2d 177, 179 (1948). The court also instructed that a material change does not occur unless “a reasonable person would find the working conditions intolerable.” That instruction also comports with Minnesota law, which provides that whether the working conditions are in fact intolerable for employees is judged under a reasonable‑person standard. Pribil v. Archdiocese of St. Paul & Minneapolis, 533 N.W.2d 410, 412 (Minn. App. 1995). Furthermore, in Minnesota, a constructive discharge occurs only when the employer creates intolerable working conditions “with the intention of forcing the employee to quit.” Diez v. Minn. Mining & Mfg., 564 N.W.2d 575, 579 (Minn. App. 1997) (quotation omitted), review denied (Minn. Aug. 21, 1997).

We have reviewed Ryan’s other objections to the jury instructions and find that the court did not commit a fundamental error of law in any of them. We also note that the issue of material change of duties is arguably spurious. Ryan contends that the terms of his employment contract are the same terms as in Wenzel’s contract except as modified by Masters’s e-mail. The Wenzel contract provides that the employee is to “serve in the position set forth above” and “shall perform to the best of the Employee’s ability such services and duties as may be assigned or delegated to Employee from time to time.” Nothing in the contract entitles Ryan to continue to perform only those duties that he performed prior to the sale of the digital graphics unit. On the contrary, the contract requires him to perform the duties his employer assigned.

Judicial Misconduct

Ryan complains that the trial judge’s conduct was “egregious, undignified and unprofessional” and warranted a new trial. More particularly, Ryan argues that the judge was “verbally and visibly antagonistic” towards Ryan’s claims; that he used profanity; that he demeaned another judicial officer; that he ruled unfavorably on evidentiary issues; and that he was impatient, unfair, and irritable throughout pretrial and trial proceedings.

On review, this court determines whether judicial misconduct is so serious that it denied litigants the right to a fair trial. Wild v. Rarig, 302 Minn. 419, 434, 234 N.W.2d 775, 786 (1975).

We have reviewed the judge’s procedural and evidentiary rulings and are unable to find an abuse of discretion in any of them. As to Ryan’s demeanor and conduct complaints, the record does not permit us to assess tone of voice, gesture, and mannerisms. Ryan did not object or preserve for the record the specifics of the demeanor of which he complains. Ryan did quote various statements in which the judge used vulgar language in the presence of the attorneys. Although a judge should engage in the same degree of civility expected of lawyers, Ryan fails to demonstrate how the judge’s language denied Ryan a fair trial.

Finally, Ryan took no action to disqualify the judge. Although he became concerned about the judge’s conduct “minutes after * * * Ryan’s attorney * * * and Mr. Ryan were introduced to” the judge, and although Ryan believed that the judge engaged in “inappropriate conduct at each stage” of the proceedings, he waited until the jury returned a verdict unfavorable to him to raise the issue of judicial bias or to make any effort to disqualify the judge. Unless a litigant takes timely and appropriate action to disqualify a judge for bias, he waives his right to assert such bias. Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996).

Other Errors

Ryan complains of a host of errors not specifically addressed above. They include the answer the judge gave to a question by the jury; miscellaneous evidentiary rulings; the court’s dismissal of Ryan’s statutory-wage claim; and the court’s failure to grant a mistrial and to grant Ryan’s motion for a new trial. As to several of the alleged errors, Ryan made no objection and thus waived the errors. This court will generally not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). As to the other issues, Ryan makes no analysis and provides no legal support for his contentions. We decline to reach issues in absence of adequate briefing. State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997). The remaining allegations of error are without merit.

Affirmed.