___________ No. 95-1951

___________ Anderson Marketing, Inc., * * Plaintiff-Appellant, * * v. * * Appeal from the United States Design House, Inc.; Benson * District Court for the Manufacturing Corporation; * District of Minnesota. The Butter Hardware Co.; * Roy Butter; Bruce A. Littman; * [TO BE PUBLISHED] Terry L. Mather; James A. * Felber; Ed Harlin, * * Defendants-Appellees. *

___________ Submitted: November 17, 1995 Filed: December 5, 1995

___________ Before HANSEN, LAY, and MURPHY, Circuit Judges.

___________ PER CURIAM.

This is a diversity case involving an alleged breach of contract
. We affirm the judgment of the district court.
In 1986, Anderson Marketing, Inc. ("Anderson") entered into a sales representation agreement ("the 1986 Agreement") with Design House, Inc
. ("Design House"). By its terms, Anderson was to serve as the exclusiv e marketing agent for D esign House's plastic exterior shutters, bathtub and showe r wall kits, and rain diffusion products. The 1986 Agreement wa s terminable at will by either party upon thirty days written notice.

In May 1991, Anderson secured an account with Menards for th e purchase and sale of a new product, "tub-surrounds." On October 1,

### Minn. Stat. § 325E.37(2) provides in relevant part: 1


### Ter mination of agreement . (a) A manufacturer . . . ma y not terminate a sales representative agreement unless th e person has good cause and: (1) that person has given written notice settin g forth the reason(s) for the te rmination at least 90 days in advance of termination; and (2) the recipient of the notice fails to correct th e reason s stated for termination in the notice within 6 0 days of receipt of the notice. The statute applies to all sal es representation agreements entered into or renewed on or after August 1, 1990, the effective date of th e statute. 1990 Minn. Laws, ch. 539, § 5. In 1991, th e Minnesota legislature clarifie d that an agreement is "renewed" if: (1) the period as specified inthe agreement has expired or ex pires, but the relationship has continued o r con tinues, either for a new specified period or for a n indefinite period; or (2) the agreement is for an in definite period, and "with the principal's consent or acquiescence, the sale s repr esentative solicits orders on or after" August 1 , 1990. 1991 Minn. Laws, ch. 190, § 2(a). The Minnesota Court of Appeals has interpreted this provision as a clarification of Minn. Stat. § 325E.37 which is applicabl e retroactively to the effective date of the statute. New Creative Enters., Inc. v. Dick Hume & Assoc. , 494 N.W.2d 508, 511 (Mi nn. Ct. -2- 1991, Design House advised Anderson that, effective November 1, 1991, it was terminating the 1986 Agreement.
Anderson then brought this litigatio n against Design House, alleging promis soryestoppel, quantum meruit, fraud, and, most important to thi s appe al, breach of contract under Minn. Stat. § 325E.37 (1994), whic h prohibits the termination of sales repre-sentati on agreements without good cause, ninety days wr itten notice, and sixty days to cure deficiencies in performance. 1

### App. 1993). Anderson challenges the lower court's rulings with on e 2 

### notabl e exception: he does not contest its ruling that, applie d retr oactively, Minn. Stat. § 325E.37 is unconstitutional. Whe n asked at oral argument whether he conceded that the statute , applied retroactively, is unconstitutional, counsel for Anderso n Marketing replied that a chall enge to that holding was implicit in his other arguments. We disag ree. One searches Anderson's briefs in vain for even hints of such an argument. The district court observed: 3 

### The object of any sales representation agreement , including the one at issue herein, is to solicit an d obtain orders for the manufacturer. Therefore, merely requ iring a sales representative to solicit orders with th e principal's consent or acquiescence to trigger application of the -3- The district court granted summary judgment in favor of Design House. The co urt reasoned that, although Minn. Stat. § 325E.37 applie s retroactively to the parties' 1986 Agreement, the act thus applied violate s the Contract Clauses of the Minnesota and United States Constitutions. Th e district court also dismissed Anderson's various other state law claims on the grounds that they do not allege a proper claim upon which relief can be granted.
On appeal, although Anderson challenges virtually all of the di strict court' s rulings, the company primarily contends the court erred i n dismissi ng its breach of contract claim under Minn. Stat. § 325E.37. 2 Anderson argues that the parties entered into a new and separate agreement governing the tub-surrounds account in 1990, sub sequent to the adoption of Minn. Stat. § 325E.37. If we were to accept thi s argument, there would be
no need to apply the statute retroactively. However, we find no support for Anderson's claim that the parties entered into a new agreement in 1990
. Ther e is no dispute that the 1986 Agreement expressly precluded ora l modifi cations. Yet Anderson offers no evidence of any writte n modification. Moreov er, the district court expressly rejected Anderson's claim in holding that the parties did not substantially or materially alte r the 1986 Agreement; if the parties did not substantially alter the 198 6 Agreement, they certainly did not create a new agreement. 3

### statut e is nothing more than a continuing of the contractua l

relationship. This results in [a] retroactive application of the statute. Dist. Ct. Op. at 4. See Note 3, supra . 4 

### -4- Contrary to Anderson's contention, had the lower court accepted the argument that there was a new agreement, it would not even have reached th e question of retroactivity and the constitutional issue. Thus, we think it is clear that, unless the statute is applied retroactively, Design House did not breach the 1986 Agreement when it exerci sed its right to terminate on thirty days notice . As indicated, however, the trial court found that the 1986 Agreement was renewed, but held that applying the statut e retroactively would violate the Contract Clause.

We affi rm the judgment of the district court without review of it s consti tutional reasoning for two reasons: first, the record ampl y demonstrat es that the parties did not enter into a new contract afte r passag e of the statute; and second, although, contrary to Anderson' s assertions, the district court did find that the 1986 Agreement wa s renewed, the company raises no argument, either in its briefs or at oral

4 argument, that the district court's constitutional reasoning was incorrect
.

It is a f undamental rule of federal appellate procedure that we may onlypass on a district court's ruling if a party challenges that ruling
on appeal by raising the issue in its opening brief. Fed. R. App. P
. 28(a)(2), (4); see , e.g. , Nolte v. Peterson , 994 F.2d 1311, 1315 (8th Cir. 1993); Borough v. Duluth, Missabe & Iron Range Ry. , 762 F.2d 66, 68 n. 1 (8th Cir. 1985); Mississippi River Corp. v. F.T. C. , 454 F.2d 1083, 1085-86 (8th Cir. 1972); Pet Milk Co. v. Boland , 185 F.2d 298, 302 (8th Cir. 1950)
. This rule

### -5-

appl ies with even greater force in a case involving a constitutiona l que stion, as federal courts should be hesitant to render an unnecessar y decision that a statute, as applied, is or is not constitutional. Here, Anderson raises no argument concerning the constitutional issue. We are thus precluded from addressing the constitutional reasoning of the court below.

In su mmary, we find that the evidence does not support Anderson' s claim that the parties entered into a second agreement after passage of th e Minnesota statute. We agree with the district c ourt's conclusion that, at best, the evidence supports only the finding that the 1986 Agreement was
ren ewed to include Menards' sales, which requires the retroactiv e application of the st atute. Since the constitutional issue is not before us, this finding alone requires that we affirm. We also affirm th e dismissal of Anderson's alternative claims of pr omissory estoppel, quantum meruit, and fraud, for the reasons set out by the district court. AFFIRMED.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.