Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA599846
`ESTTA Tracking number:
`04/22/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`94002596
`Registrant
`D'Amico Holding Company
`BRADLEY J WALZ
`WINTHROP WEINSTINE PA
`225 S SIXTH ST, STE 3500 CAPELLA TWR
`MINNEAPOLIS, MN 55402-4629
`UNITED STATES
`bwalz@winthrop.com, jrezac@winthrop.com, trademark@winthrop.com
`Opposition/Response to Motion
`Bradley J. Walz
`trade-
`mark@winthrop.com,bwalz@winthrop.com,tsitzmann@winthrop.com,jbriley@wi
`nthrop.com
`/Bradley J. Walz/
`04/22/2014
`9006115_1.pdf(5090221 bytes )
`9006185_1.pdf(2000949 bytes )
`9006199_1.pdf(35564 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARDzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`In the matter of Application Serial No.:zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`76/685,731
`Filed: January 14, 2008
`For the mark: MAS A
`Published in the Trademark Official Gazette on August 23,2011
`
`Masayoshi Takayama,
`
`Plaintiff,
`
`v.
`
`D' Amico Holding Company,
`
`Defendant.
`
`Concurrent Use No. 94002596
`
`DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
`
`INTRODUCTION
`
`Applicant failed to carry his burden with respect
`
`to his Motion for Summary Judgment.
`
`Applicant offers only conclusory statements about his erroneous
`
`interpretation of
`
`the parties'
`
`Confidential Settlement Agreement to support his argument that he is entitled to the geographic area
`
`identified in his Concurrent Use Application; namely, the entire United States except for Minnesota, 50
`
`miles around Minneapolis, and Florida. There are genuine disputes of material fact with respect to the
`
`territory not specifically identified in the parties' Confidential Settlement Agreement. Therefore,
`
`D' Amico Holding Company ("D' Amico") respectfully requests that the Board deny Applicant's Motion
`
`for Summary Judgment.
`
`STATEMENT OF DISPUTED FACTS
`
`•
`
`Paragraph 1 of the Confidential Settlement Agreement esta blished the geographic territory for
`Applicant's use of his alleged MASA mark as New York and 50 miles around New York City.
`[Decl. Plumley, Ex. A.]
`
`

`
`• Paragraph 2 of the Confidential Settlement Agreement esta blished the geographic territory for
`& Design marks as Minnesota, 50 miles around
`D'Amico's use of its MASA and MASAzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`Minneapolis, and Florida.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`[Id.]
`
`• Other than the territories expressly identified in Paragraphs 1 and 2, the Confidential Settlement
`Agreement does not designate a geographic territory for Applicant and D' Amico. [Id.]zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`ARGUMENT
`
`1.
`
`PLAINTIFF HAS NOT DEMONSTRATED THE ABSENCE OF ANY GENUINE DISPUTES OF MATERIAL
`FACT
`
`StandardofReview
`A.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`A party moving for summary judgment has the burden of demonstrating the absence of
`
`any genuine dispute of material
`
`fact, and that
`
`it
`
`is entitled to judgment
`
`as a matter of law.
`
`Copelands' Enterprises Inc. v. CNV Inc., 20 U.S.P.Q.2d 1295, 1298-99 (Fed. Cir. 1991) (moving
`
`party's conclusory statement as to intent insufficient). This burden is greater than the evidentiary
`
`burden at trial. Gasser Chair Co. Inc. v. Infanti Chair Manufacturing Corp., 34 U.S.P.Q.2d
`
`1822, 1824 (Fed. Cir. 1995). When considering a summary judgment motion,
`
`the Board must
`
`construe the facts and all inferences reasonably drawn therein in a light most favorable to the
`
`non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
`
`A factual dispute is genuine if sufficient evidence is presented such that a reasonable fact finder
`
`could decide the question in favor of the non-moving party. Opryland USA Inc. v. The Great
`
`American Music Show Inc., 23 U.S.P.Q.2d 1471, 1472 (Fed. Cir. 1992).
`
`As the concurrent use applicant, Plaintiff has the burden to show that: (1) he made lawful
`
`concurrent use of the MASA mark in commerce prior to the filing dates of D' Amico's MAS A
`
`and MAS A & Design applications; and (2) that confusion, mistake, or deception is not likely to
`
`result from his continued use of the MASA mark in the areas in which he is currently using his
`
`mark. Turdin, Jr. v. Trilobite, Ltd., 109 U.S.P.Q.2d 1473 (T.T.A.B. 2014).
`
`2
`
`

`
`There is no dispute that the first condition to the issuance of a concurrent use registration
`
`See id. The parties acknowledged in the Confidential Settlement Agreement
`has been satisfied.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`that Plaintiff used the MASA mark in connection with Japanese sushi restaurant and bar services
`
`in New York City, NY since at least 2004.
`
`It is also undisputed that
`[Decl. Plumley, Ex. A.]zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`D' Amico filed its application to register
`
`its MASA mark for "restaurant
`
`and bar services" on
`
`June 20, 2005 and filed its application to register
`
`its MASA & Design mark for "restaurant
`
`and
`
`bar services" on November 30,2006.
`
`[Decl, Walz, Exs. 1,2.]
`
`There is also no dispute that
`
`the second condition to the issuance of a concurrent use
`
`registration has been satisfied. See Trilobite, Ltd., 109 U.S.P.Q.2d at 1473. Pursuant
`
`to Paragraph
`
`1 of the Confidential Settlement Agreement, D' Amico will not provide restaurant or bar services
`
`under the MASA mark in New York or within 50 miles of New York City, NY. [Decl. Plumley,
`
`Ex. A.] Likewise, pursuant
`
`to Paragraph 2 of the Confidential Settlement Agreement, Plaintiff
`
`will not provide restaurant or bar services under
`
`the MASA mark in Minnesota, 50 miles of
`
`Minneapolis, MN, or Florida. [Decl. Plumley, Ex. A.] What remains in dispute are the registrable
`
`rights to the remainder of the United States possessed by each party.
`
`B. The Confidential Settlement Agreement is ambiguous and cannot be construed as a
`matter of law
`
`Plaintiffs
`
`sole basis for concluding that he is entitled to the entire United States except
`
`for Minnesota,
`
`50 miles around Minneapolis, MN, and Florida is the parties' Confidential
`
`Settlement Agreement.
`
`[PI.' s Br., at 1.] The parties did not
`
`include a governing law clause
`
`directing that the laws of any particular state apply. [Decl. Plumley, Ex. A.] Nevertheless,
`
`there
`
`is no conflict between Minnesota and New York law.
`
`Under Minnesota law, "where [contract]
`
`language is ambiguous,
`
`resort may be had to
`
`extrinsic evidence, and construction then becomes a question of fact for the jury ....
`
`" Bari v.
`
`3
`
`

`
`439 N.W.2d 44, 47 (Minn. App. 1989), review denied (Minn. July 12,
`Control Data Corp.,zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`1989). "The language of a contract is ambiguous if it is susceptible to two or more reasonable
`
`interpretations." Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582 (Minn. 2010) (citations
`
`omitted). A contract is ambiguous if it is silent on a particular issue. See Badger Equipment Co.
`
`v. Brennan, 431 N.W.2d 900, 904 (Minn. App. 1988) (finding the Badger plan ambiguous
`
`because it was silent as to the priority of payment).
`
`Under New York law, in determining the obligations of parties to a contract,
`
`the
`
`threshold determination as to whether an ambiguity exists is a question of law to be resolved by
`
`the court. Agor v. Board of Educ., 981 N.Y.S.2d 485, 487 (N.Y.A.D. 3 Dept. 2014) (citations
`
`omitted). "A contract is ambiguous if the language used lacks a definite and precise meaning,
`
`and there is a reasonable basis for a difference of opinion" Id. A contract is ambiguous if it is
`
`silent on a particular issue. See Spano v. Kings Park Cent. School Dist., 61 A.D.3d 666, 669
`
`(N.Y.A.D. 2 Dept. 2009) (finding CBA ambiguous because it was silent on the issue of whether
`
`"continuous service" included only service as a permanent employee); Village Sav. Bank v.
`
`Caplan, 87 A.D.2d 145, 147 (N.Y.A.D. 1982) (finding the mortgage and accompanying
`
`document ambiguous because they were silent as to the maintenance and separate reserve
`
`accounts). "If the court concludes that a contract is ambiguous, it cannot be construed as a matter
`
`oflaw .... " Agor, 981 N.Y.S.2d at 487.
`
`Applying either Minnesota or New York law, the Confidential Settlement Agreement is
`
`ambiguous with respect to the registrable rights to the remainder of the United States possessed
`
`by each party.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`It specifically identifies only each party's right to use its respective MASA mark
`
`outside of New York, 50 miles around New York City, NY, Minnesota, 50 miles around
`
`Minneapolis, MN, and Florida and is silent with respect to the rest of the United States. [Decl.
`
`4
`
`

`
`Plumley, Ex. A.] Additionally,
`
`the Confidential Settlement Agreement
`
`states that "[Plaintiff]
`
`shall not object
`
`to [D'Amico's
`
`applications
`
`and] shall withdraw its Notice of Opposition
`
`to
`
`[application Serial No. 78654116] with prejudice."
`
`[Decl. Plumley, Ex. A.] D'Amico's MASA
`
`
`
`
`
`and MASAzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA& Design applications were geographically unrestricted. [Decl. Walz, Exs. 1, 2.]
`
`Considering the agreement as a whole,
`
`the silence in the Confidential Settlement Agreement
`
`could reasonably
`
`be interpreted
`
`to mean the parties
`
`intended that D'Amico's
`
`remaining
`
`See Dykes, 781 N.W.2d at 582;
`registrable rights would include the rest of the United States.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`Agor, 981 N.Y.S.2d at 487. The silence in the Confidential Settlement Agreement with respect
`
`to
`
`the parties registrable rights to the remainder of the United States creates an ambiguity. See
`
`Badger Equipment Co., 431 N.W.2d
`
`at 904; Spano, 61 A.D.3d
`
`at 669. Therefore,
`
`the
`
`Confidential Settlement Agreement cannot be construed as a matter of law and its interpretation
`
`creates a genuine dispute of material
`
`fact for trial. See Bari, 439 N.W.2d at 47; Agor, 981
`
`N.Y.S.2d at 487.
`
`C. Plaintiff's use of the MASA mark has been static
`
`In general, a prior user of a mark is entitled to a registration covering the entire United
`
`States, limited only to the extent that the junior user can establish that no likelihood of confusion
`
`exists and that it has concurrent
`
`rights in its actual area of use plus its area of natural expansion.
`
`Boi Na Braza, LLC v. Terra SuI Corporation a/k/a Churrascaria Boi Na Brasa, Concurrent Use
`
`No. 94002525, at 16 (March 26, 2014). However,
`
`this general rule may be overcome if a senior
`
`!d. In other words,
`user "remains static" and the junior user is the first to file for registration.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`there is a policy of encouraging prompt registration of marks, and the concurrent use provision of
`
`Section 2(d) exhibits no bias in favor of the prior user. Id., at 17.
`
`5
`
`

`
`"[A] senior party may abandon its right as a prior user to expand into a particular area or
`
`America's
`its right to enjoy nationwide protection of its mark" where it does not actively expand.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`Best Franchising, Inc. v. Abbott, 106 U.S.P.Q.2d 1540 (T.T.A.B. 2013) (quoting Noah's Inc. v.
`
`Nark, Inc., 222 U.S.P.Q. 697, 701 (E.D. Mo. 1983), aff'd, 728 F.2d 410 (8th Cir. 1984)}. The
`
`determination of whether a senior user "remains static" considers: (1) the party's previous
`
`business activity; (2) previous expansion or lack thereof; (3) dominance of contiguous areas; (4)
`
`presently planned expansion; and, where applicable (5) possible market penetration by means of
`
`products brought in from other areas (collectively the "Static Factors"}.Id., at 16.
`
`Plaintiff claims to have used the MASA mark since 2004 in New York City, NY. [Decl.
`
`Plumley, Ex. A.] Plaintiffs MASA restaurant is a single location located at 10 Columbus Circle,
`
`4/F, New York, NY 10019. [Decl. Walz, Exs. 3 - 5.] Therefore, the second
`Time Warner Center,zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`and third Static Factors weigh in favor ofD' Amico.
`
`In 10 years, Plaintiff has not opened another MASA restaurant, and has demonstrated his
`
`proclivity to keep his MASA restaurant a single location. Since 2004, Plaintiff has developed
`
`other restaurant concepts: BAR MASA, SHABOO, TETSU, KAPPO MASA, and BUTCHER'S
`
`PLACE, and chose to open restaurants under a few of these concepts rather than the MASA
`
`concept. [Decl. Walz, Exs. 6 - 11.] In December 2009, Plaintiff opened BAR MASA and
`
`SHABOO in the Aria Resort and Casino in Las Vegas, NV. [Decl. Walz, Ex. 12.] In August
`
`2012, Plaintiff opened TETSU also in the Aria Resort and Casino in Las Vegas, NV and planned
`
`to expand this restaurant concept in New York, NY. [Decl. Walz Exs. 13, 14.]
`
`On June 24, 2011, Plaintiff filed an intent-to-use application to register the mark
`
`BUTCHER'S PLACE, and on May 9,2013 filed an intent-to-use application to register the mark
`
`KAPPO MASA both in connection with restaurant services. [Decl. Walz Exs. 10, 11.] And aszyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`6
`
`

`
`recently as January 25, 2014, the United States Patent and Trademark Office granted Plaintiff's
`
`fourth extension of time to file the statement of use for the BUTCHER'S PLACE mark.
`
`[Decl.
`
`Walz, Ex. 15.] Plaintiff's
`
`stated reason for the extension of time was "product or service research
`
`and development."
`
`[Decl. Walz, Ex. 16.]
`
`Generally,
`
`reporters covering the restaurant
`
`industry will report on a restaurateur's
`
`plans
`
`to open a new restaurant
`
`like the story written about Plaintiff's
`
`plans to open his TETSU
`
`restaurant
`
`[See Decl. Walz Ex. 14.J There have been no stories written about
`in New York, NY.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`Plaintiff's plans to expand the MASA restaurant. Additionally, Plaintiff has not updated his
`
`website located at <masanyc.com> in over nine years. [Decl. Walz, at Ex. 5.J The copyright
`
`
`
`notice on Plaintiff's website identifies 2005.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA[Id.] If Plaintiff has not changed his website in over
`
`nine years, he certainly has no intention of expanding his use of the MASA mark beyond New
`
`York City, NY. Therefore, the first and fourth Static Factors weigh in favor of D'Amico, and the
`
`fifth factor is inapplicable.
`
`& Design marks and
`D' Amico was the first to file applications for its MASA and MASAzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`the consideration of the Static Factors demonstrate that Plaintiff's use of his MASA mark has
`
`been static. D'Amico has overcome the general rule that Plaintiff is entitled to a registration
`
`covering the entire United States, and Plaintiff has not and cannot produce any admissible
`
`evidence to create a genuine dispute of material fact regarding Plaintiff's static use of the MASA
`
`mark.
`
`Indeed, the facts of this case are very similar to the facts in the America's Best
`
`Franchising, Inc. case. Mr. Abbot was the first to use the 3 PALMS mark in 2004 in Scottsdale,
`
`AZ. America's Best Franchising, Inc. v. Abbott, 106 U.S.P.Q.2d at 1544. The Board found that
`
`Mr. Abbot had not offered hotel services under the 3 PALMS mark outside of Scottsdale, AZ,
`
`7
`
`

`
`Id. Mr. Abbot offered testimony of
`but had made fairly extensive use of the mark on the Internet.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`his attempts to establish a hotel in another location, but the Board found that oral testimony alone
`
`is insufficient to demonstrate expansion into other areas. See id., at 1553. Because Mr. Abbott
`
`had not expanded his use of the 3 PALMS mark since 2004, the Board held that "through [his]
`
`inaction over a considerable period of time, [he] abandoned [his] right to expand use of the mark
`
`... outside of [his] trading area; and that by virtue of such abandonment, [Mr. Abbott's] prior
`
`use of the mark cannot serve to preclude [America's Best Franchising, Inc.], a[n] innocent user,
`
`from filling the territorial void left by" Mr. Abbott. Id., at 1554. Therefore, the Board awarded
`
`America's Best Franchising, Inc. the entire United States with the exception of Arizona.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`CONCLUSION
`
`Plaintiff's only basis for claimingthe entireUnited Stateswith the exceptionof Minnesota,the
`
`area 50 miles around Minneapolis, and Florida is the parties' Confidential Settlement Agreement.
`
`Because the ConfidentialSettlementAgreement is ambiguous with respect to the parties remaining
`
`registrablerights,there are genuinedisputesof materialfact for trial. Therefore,D'Amico requests that
`
`the Boarddeny Plaintiff'sMotionfor SummaryJudgment.
`
`Date: April 22, 2014
`
`Respectfully Submitted,
`
`WINTHROPzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`& WEINSTINE, P.A.
`
`B?2t#19zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`tJ ~-
`
`Timothy D. Sitzmann
`3500 Capella Tower
`225 South Sixth Street
`Minneapolis, MN 55402-4629
`Telephone:
`(612) 604-6400
`Facsimile:
`(612) 604-6800
`
`ATTORNEYS FOR DEFENDANT
`D' AMICO HOLDING COMPANY
`
`8
`
`

`
`APPENDIXzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`the following authority is not reported in United States Patent
`to TBMP § 101.03,
`Pursuant
`Quarterly or the USPTO's public electronic databases:
`
`Bari v. Control Data Corp., 439 N.W.2d 44 (Minn. App. 1989);
`1.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`2. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578 (Minn. 2010);
`3. Badger Equipment Co. v. Brennan, 431 N.W.2d 900 (Minn. App. 1988);
`4. Agor v. Board ofEduc., 981 N.Y.S.2d 485 (N.Y.A.D. 3 Dept. 2014);
`5. Spano v. Kings Park Cent. School Dist., 61 A.D.3d 666 (N.Y.A.D. 2 Dept. 2009);
`6. Village Sav. Bank v. Caplan, 87 A.D.2d 145 (N.Y.A.D. 1982); and
`7. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
`
`Copies are attached to Defendant's Response to Plaintiff's Motion for Summary Judgment.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`8968473v3
`
`9
`
`

`
`Sari v. Control Data Corp., 439 N.W.2d 44 (1989)zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`439 N.W.2d 44
`Court of Appeals of Minnesota.
`
`*44 Syllabus by the Court
`Robert L. BARI, Appellant,zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`The trial court did not abuse its discretion in denying
`v.
`former employee's motion for new trial where testimony
`CONTROL DATA CORPORATION, Respondent.
`supported the jury's determination that former employee's
`I May 2,1989.
`I Review Denied
`contract of employment was not breached.
`July 12, 1989.
`
`No. C4-88-1783.
`
`Employee brought action against employer, alleging
`breach of employment contract. The District Court,
`Hennepin County, Steven Z. Lange, J., entered judgment
`in favor of employer. Employee appealed. The Court of
`Appeals, Foley, J., held that testimony supported jury
`determination that employer did not breach employee's
`employment contract.
`
`Attorneys and Law Firms
`
`William 1. Mavity, James G. Ryan, Mavity & Ryan,
`Minneapolis, for appellant.
`
`Barbara A. Leininger, Bloomington, for respondent.
`
`Heard, considered and decided by LANSING, P.J., and
`FOLEY and SCHUMACHER, JJ.
`
`Affirmed.
`
`Opinion
`
`West Headnotes (1)
`
`[1)
`
`Labor and Employment
`e=Weight and Sufficiency
`
`23 IHLabor and Employment
`23 I HVIIIAdverse Employment Action
`231HVIII(B)Actions
`231Hk859Evidencc
`23 IHk863Weight and Sufficiency
`23 IHk863( I)In General
`(Formerly 255k40(3.1), 255k40(3) Master and
`Servant)
`
`*45 OPINION
`
`FOLEY, Judge.
`
`Appellant Robert L. Bari brought suit against respondent
`Control Data Corporation for breach of employment
`contract and discrimination on the basis of age and
`disability and failure to make reasonable accommodation
`under Minn.Stat. § 363.03 (1986). The contract claim was
`tried to the jury and the discrimination claims were tried
`to the court. Judgment was entered for Control Data on all
`claims. Bari appeals from the order denying his motion
`for new trial. We affirm.
`
`FACTS
`
`Determination that exception in employer's
`disability policy for work force reduction
`occurring during disability applied to discharge
`of employee was supported by testimony of
`employer's personnel consultant that employee
`told her he did not want to consider a lesser
`position and to proceed with his termination.
`
`Bari, age 53 at the time of trial, was employed by Control
`Data from 1968 to 1985, when his employment was
`terminated. His last position with Control Data was that of
`District Manager for Engineering Services in the Eastern
`Region (New York). Bari was considered an exempt
`2 Cases that cite this headnotezyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`employee.
`
`Vv'e";tla,,vNexr © 2014 Thomson Reuters. No claim to original U.S. Government Works.
`
`Bari had his first heart attack in 1975 at age 40. This
`attack was followed by other attacks in 1976, 1979, and
`1982. After
`recovering from the 1982 attack, Bari
`
`

`
`Sari v. Control Data Corp., 439 N.W.2d 44 (1989)zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`requested and received a transfer to a less stressful
`position. In February 1983 he was transferred to his last
`position.
`
`Several months later Bari experienced a recurrence of his
`heart problems. He relocated to Minneapolis to be closer
`to his doctors and eventually took a disability leave of
`absence in November 1983.
`
`The parties stipulated that the "Control Data Corporation
`Approved Policy and Procedure on Sick Leave and
`Disability
`Programs"
`constituted
`part
`of Bari' s
`employment
`contract. This
`policy
`establishes
`the
`procedures the company is to follow once a disabled
`employee is released by his physician to return to work.
`The policy "guarantees every employee returning from a
`period of disability a job offer after an appropriate
`medical release to resume working." Employees released
`without any medical restrictions are to be placed on the
`payroll immediately. Those having restrictions "are to be
`returned to work as rapidly as practical, but definitely
`within 30 calendar days of the medical release date." It is
`the responsibility of management and personnel
`to
`"evaluate the employee's ability to perform the duties of a
`given occupation, with appropriate medical information."
`
`If medical restrictions exist, disability benefits continue
`until either the employee returns to work or until thirty
`days from notice of a release to return to work, unless a
`deviation to the policy is approved. If the personnel
`manager believes that it will be "impossible" to place the
`employee within the 30 day period, "a deviation from
`policy must be requested." If no job is found and no
`deviation has been approved,
`the employee "must be
`placed, by the 31st day, on the payroll of the department
`which the employee left when the disability began."
`
`The policy also contains an exception relevant
`case, which provides as follows:
`
`to this
`
`9. After being released to return to
`work,
`the employee
`should be
`terminated
`or
`laid
`off
`if
`a
`workforce
`reduction
`occurred
`during the disability that would
`have affected the employee had the
`employee remained at work (see
`policy 6:15:66, Temporary Work
`Force Adjustments Nonexempt
`Employees).
`
`That exception was later modified by Control Data to
`provide as follows:
`
`9. After being released to return to
`work
`full-time,
`the
`employee
`should be terminated or laid off if a
`work
`force
`reduction
`occurred
`during the disability that would
`have affected the employee had the
`employee remained at work (See
`6:15:66,
`Work
`Force
`Adjustments/Reductions) .
`
`The reference to nonexempt employees was removed in
`the amended version.
`
`Carolyn Floyd, a personnel consultant at Control Data,
`testified that the original version did not apply to exempt
`employees. She further testified that the amended version
`would appear to cover all employees, including exempt
`employees.
`
`*46 In June 1985, Bari was formally released by his
`treating physicians to return to work, and he was informed
`by Control Data that his disability benefits would be
`terminated. Bari contacted Merodie Kosta, a consultant in
`Control Data's Disability Management Department, who
`advised him to meet with Floyd. At that meeting, Floyd
`gave Bari a formal notification letter stating that
`the
`company would attempt
`to locate a position for him
`within Engineering Services and that, if after 30 days no
`position had been found, he would be terminated "due to
`workforce reduction."
`
`Floyd testified that it was her responsibility to identify an
`available position, evaluate whether or not Bari could
`perform that job given his medical restrictions, and place
`him in an acceptable position as guaranteed by the
`company. She testified that she spent a week and a half in
`June and some additional time in July 1985 attempting to
`find a position for Bari. Although an opportunity was
`discussed, she did not offer any positions to Bari; she did
`not tell him about any jobs she thought were suitable or
`look for a job outside of Engineering Services; she did not
`have a copy of his resume or medical report; and no
`deviation from policy was requested at the end of the 30
`day placement period. Both Floyd and Kosta testified that
`Bari's case was handled strictly as a workforce reduction
`case and not as a return to work matter under
`the
`disability policy.
`
`indicated to her he was not
`Floyd testified that Bari
`willing to look at a position two or three levels below his
`last job. He decided not to complete a three day job search
`seminar after attending the first day and a half.
`
`Floyd further testified that on July 23, 1985, Bari called
`
`\NesttavvNexr © 2014 Thomson Reuters. No claim to original U.S. Government Works.
`
`2
`
`

`
`Bari v. Control Data Corp., 439 N.W.2d 44 (1989)zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`her to tell her that he had decided not to pursue placement
`within Control Data and that she should go ahead and
`process his termination. Bari testified that he did not ask
`Floyd to stop the internal placement efforts and that he
`never told Floyd he wanted to take the termination.
`
`While Bari was on disability leave, a consolidation
`occurred in Engineering Services, in which the eastern
`and southeastern regions were combined. As a result, the
`number of district management positions was reduced.
`Floyd testified that Bari's position in the eastern region
`had changed and that he had been identified as an excess
`employee.
`
`At the close of the testimony, the trial court ruled on the
`applicability of the workforce reduction paragraph to
`Bari.
`
`The court will make a finding as a
`matter of law that the plaintiff is
`subject to paragraph 9 of Plaintiff's
`Exhibit 47 pursuant to the return to
`work procedure. That
`it
`is not
`intended by the caveat
`in that
`paragraph to exclude Mr. Bari from
`the return to work procedure by
`defining
`him as
`an
`exempt
`employee. That in fact the plaintiff
`is
`subject
`to the work force
`reduction that went
`into effect
`during the period of his disability.
`That
`in fact his New York City
`district under engineering services
`of Control Data was eliminated.
`And that as such, he was subject to
`the non-disability benefits of a
`work
`force
`reduced
`excess
`employee on the date of his formal
`return to work which the Court is
`concluding was July 2, 1987 when
`he received his notice.
`
`In its special verdict, the jury determined that Control
`Data had not breached its contract of employment with
`Bari. The jury was also asked to render advisory findings
`on the discrimination claims. The jury found that Bari's
`disability was a discernible, causative factor
`in the
`decision to discharge him, but that Control Data did not
`fail to make reasonable accommodation to his disability.
`The trial court rejected the advisory findings and ruled in
`favor of Control Data on each of Bari's discrimination
`claims.
`
`ISSUE
`
`Did the trial court err in determining as a matter of law
`that the workforce reduction exception in the disability
`policy applied to Bari?
`
`ANALYSIS
`
`The decision to grant a new trial is vested in the discretion
`of the trial court, and the trial court's decision will be
`reversed *47 only for a clear abuse of that discretion.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`City
`341 N.W.2d
`298,
`299
`of Ogema
`v. Bevins,
`(Minn.Ct.App.1983). As grounds in his motion for new
`trial, Bari asserts that the trial court erred as a matter of
`law when it ruled that the workforce reduction exception
`of paragraph 9 applied to him.
`
`The parties stipulated that the Policy and Procedure on
`Sick Leave and Disability Programs constituted part of
`Bari's
`employment
`contract. The general
`rule
`in
`construing contracts is that where the intention of the
`parties may be determined entirely from the writing, the
`construction of the contract is a question of law for the
`court. Empire State Bank v. Devereaux, 402 N.W.2d 584,
`587 (Minn.Ct.App.1987). However, where the language is
`ambiguous, resort may be had to extrinsic evidence, and
`construction then becomes a question of fact for the jury,
`unless such evidence is conclusive. Id. A contract
`is
`ambiguous if it is susceptible to more than one meaning.
`Clapp v. Haferman Water Conditioning, Inc., 380 N.W.2d
`838, 842 (Minn.Ct.App.1986).
`
`Bari contends that paragraph 9 was clearly ambiguous and
`susceptible to more than one interpretation and that
`extrinsic evidence was offered at trial to determine the
`meaning of that paragraph. Bari testified that during his
`tenure with the company, exempt employees had never
`been subject to workforce reductions. He also cites to the
`testimony of Floyd, who indicated that paragraph 9 did
`not apply to exempt employees. Bari argues that
`the
`construction of the contract therefore became a question
`for the fact finder, and that it was error to remove the
`issue from the jury.
`
`Even if there is ambiguity here and the question should
`have been considered a question of fact, the issue has
`been rendered moot by the finding of the jury and its
`obvious reliance on the testimony of Floyd. Floyd's
`testimony supports the jury's determination that Control
`Data did not breach Bari's employment contract. Floyd
`testified that Bari asked her
`to proceed with his
`termination prior
`to the expiration of
`the 30 day
`
`WestlavifNe>.i © 2014 Thomson Reuters. No claim to original U.S. Government Works.
`
`3
`
`

`
`Bari v. Control Data Corp., 439 N.W.2d 44 (1989)zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`employment search period. She also testified that Bari did
`not attend the entire job search seminar and did not want
`to consider a lesser position.
`
`352 N.W.2d 758, 762 (Minn.Ct.App.1984). Even if the
`question of the applicability of the workforce reduction
`exception should have been submitted to the jury, there is
`no reversible error here because the case could be decided
`on Floyd's testimony that Bari asked her to proceed with
`his termination. We find no prejudice to Bari and no
`abuse of discretion in the trial court's refusal to grant his
`motion for new trial. See Berry v. Goetz, 348 N.W.2d 376,
`379 (Milm.Ct.App.1984).
`
`As we find no abuse of discretion in the denial of the
`motion for new trial, we do not reach Bari's argument that
`the court's decision on the discrimination claims be
`vacated pending a new trial on the contract claim.
`
`Bari argues that the findings in the special jury verdict are
`inconsistent, and that the jury's answer to the finding on
`disability would disprove the fact that he asked Floyd to
`process his termination, In its first finding,
`the jury
`answered that Control Data had not breached its contract
`of employment with Bari. In the third finding, the jury
`answered that Bari's
`disability was a discernible,
`causative factor in the decision to discharge him. In our
`view, the finding on his disability is not inconsistent with
`the evidence in this case, and we cannot view this finding
`in isolation. The jury had the opportunity to assess the
`credibility of the witnesses, and we conclude that the jury
`relied on Floyd's testimony. It is the unique function of
`the factfinder to assess witness credibility.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`Tews v. Geo.
`DECISION
`A. Hormel & Co., 430 N.W.2d 178, 180 (Minn.1988). A
`single credible witness can be relied upon to prove or
`disprove a material fact.
`
`Affirmed.
`
`A new trial is required only where the alleged error of law
`!~~~l!~!~p!~i~~!~~_!~!h~_p!~i!!!!KLQ._(l~i.c:!~ql~y:
`_
`!f~!1[q!~!__________ _
`End of Document
`© 2014 Thomson Reuters. No claim to original U.S. Government Works.
`
`V\fest[ilv",Nexr © 2014 Thomson Reuters. No claim to original U.S. Government Works.
`
`4
`
`

`
`Dykes v. Sukup Mfg. Co., 781 N.W.2d 578 (2010)zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
`
`781N.W.2d S78
`Supreme Court of Mi