___________

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 exclusive

marketing agent for Design House's plastic exterior shutters, bathtub and

shower wall kits, and rain diffusion products. The 1986 Agreement was

terminable at will by either party upon thirty days written notice. 

In May 1991, Anderson secured an account with Menards for the

purchase and sale of a new product, "tub-surrounds." On October 1,
 Minn. Stat. § 325E.37(2) provides in relevant part: 1

Termination of agreement. (a) A manufacturer . . . may

not terminate a sales representative agreement unless the

person has good cause and:

(1) that person has given written notice setting

forth the reason(s) for the termination at least 90 days

in advance of termination; and 

(2) the recipient of the notice fails to correct the

reasons stated for termination in the notice within 60

days of receipt of the notice. 

The statute applies to all sales representation agreements entered

into or renewed on or after August 1, 1990, the effective date of

the statute. 1990 Minn. Laws, ch. 539, § 5. In 1991, the

Minnesota legislature clarified that an agreement is "renewed" if:

(1) the period as specified in the agreement has expired

or expires, but the relationship has continued or

continues, either for a new specified period or for an

indefinite period; or

(2) the agreement is for an indefinite period, and "with

the principal's consent or acquiescence, the sales

representative 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 applicable

retroactively to the effective date of the statute. New Creative

Enters., Inc. v. Dick Hume & Assoc., 494 N.W.2d 508, 511 (Minn. Ct.

-2-

1991, Design House advised Anderson that, effective November 1, 1991, it

was terminating the 1986 Agreement. 

Anderson then brought this litigation against Design House, alleging

promissory estoppel, quantum meruit, fraud, and, most important to this

appeal, breach of contract under Minn. Stat. § 325E.37 (1994), which

prohibits the termination of sales repre-sentation agreements without good

cause, ninety days written notice, and sixty days to cure deficiencies in

performance.1
App. 1993).

 Anderson challenges the lower court's rulings with one

2

notable exception: he does not contest its ruling that, applied

retroactively, Minn. Stat. § 325E.37 is unconstitutional. When

asked at oral argument whether he conceded that the statute,

applied retroactively, is unconstitutional, counsel for Anderson

Marketing replied that a challenge to that holding was implicit in

his other arguments. We disagree. 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 and

obtain orders for the manufacturer. Therefore, merely

requiring a sales representative to solicit orders with the

principal's consent or acquiescence to trigger application of the

-3-

The district court granted summary judgment in favor of Design House.

The court reasoned that, although Minn. Stat. § 325E.37 applies

retroactively to the parties' 1986 Agreement, the act thus applied violates

the Contract Clauses of the Minnesota and United States Constitutions. The

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 district

court's rulings, the company primarily contends the court erred in

dismissing 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, subsequent to the adoption of

Minn. Stat. § 325E.37. If we were to accept this 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.

There is no dispute that the 1986 Agreement expressly precluded oral

modifications. Yet Anderson offers no evidence of any written

modification. Moreover, the district court expressly rejected Anderson's

claim in holding that the parties did not substantially or materially alter

the 1986 Agreement; if the parties did not substantially alter the 1986

Agreement, they certainly did not create a new agreement. 

3
statute is nothing more than a continuing of the contractual

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 the

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 exercised 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 statute

retroactively would violate the Contract Clause. 

We affirm the judgment of the district court without review of its

constitutional reasoning for two reasons: first, the record amply

demonstrates that the parties did not enter into a new contract after

passage of the statute; and second, although, contrary to Anderson's

assertions, the district court did find that the 1986 Agreement was

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 fundamental rule of federal appellate procedure that we may

only pass 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-

applies with even greater force in a case involving a constitutional

question, as federal courts should be hesitant to render an unnecessary

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 summary, we find that the evidence does not support Anderson's

claim that the parties entered into a second agreement after passage of the

Minnesota statute. We agree with the district court's conclusion that, at

best, the evidence supports only the finding that the 1986 Agreement was

renewed to include Menards' sales, which requires the retroactive

application of the statute. Since the constitutional issue is not before

us, this finding alone requires that we affirm. We also affirm the

dismissal of Anderson's alternative claims of promissory 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.