Service Employees International Union, AFL-CIO, CLC, et al., Appellants, vs. Rose Roach, et al., Respondents.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

  C9-97-2015

Service Employees International

Union, AFL-CIO, CLC, et al.,

Appellants,

vs.

Rose Roach, et al.,

Respondents.

 Filed May 19, 1998

 Reversed and remanded  Willis, Judge

Ramsey County District Court

File No. C5975263

Paul W. Iversen, Stephen D. Gordon, Sheila A. Scott, Hvass, Weisman & King, Chtd., 100 South Fifth Street, Suite 450, Minneapolis, MN 55402 and Craig Becker, SEIU, 14 West Erie Street, Chicago, IL 60610 (for appellants)

Frank Vogl, Sarah C. Madison, Best & Flanagan, PLLP, 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondents)

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally, Judge.*

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

 WILLIS, Judge

The Service Employees International Union appeals from the district court's determination that respondent Minnesota School Employees Association validly disaffiliated from SEIU under the terms of the applicable affiliation agreement. We reverse and remand.

FACTS

The Minnesota School Employees Association (MSEA)[1] is an unincorporated association representing approximately 3,000 non-educational, non-supervisory school employees, such as secretaries, custodians, and paraprofessionals, in scattered school districts across the state. Apparently from its inception, MSEA has been governed through a delegate assembly comprising elected representatives of local bargaining units. Through an agreement dated April 27, 1984, MSEA affiliated with the Service Employees International Union (SEIU) as Local 1980. The agreement provides:

This agreement shall become effective upon the approval by the MSEA Delegate Assembly and SEIU, AFL-CIO, CLC.

* * * *

At all times, whether during the period of affiliation or at any other time, MSEA shall retain its identity consistent with its own structure, principles and policies and have full autonomy as a Local Union in accordance with the provisions of the International Constitution and By-Laws with SEIU. MSEA's autonomy shall include, but is not limited to, the right to establish its own Constitution and By-Laws * * * .

* * * *

MSEA retains the right to disaffiliate from SEIU by the same method used in affiliating, during the first two (2) years of this Agreement by vote of the membership, provided, however, that SEIU shall be timely notified of such intent, and have the right to present its views to MSEA, prior to such action.

Terms of Agreement: Unless otherwise specifically stated herein, all provisions of this Agreement shall remain in effect until ___________, 1988, and unless modified and amended by mutual agreement of the parties or by operation of law.

During negotiations, MSEA informed SEIU of 11 "guidelines for affiliation" that it had adopted, including the freedom to disaffiliate at any time. Then-SEIU (and now AFL-CIO) President John Sweeney responded in a letter to MSEA accepting some of the guidelines and rejecting others. Sweeney's letter states that the "SEIU Constitution provides for the possibility of disaffiliation * * * . We would discuss this subject in the agreement." Article XXV of the SEIU Constitution states that "[n]o Local Union * * * can dissolve, secede or disaffiliate while there are seven (7) dissenting members * * * ." Article XV of the SEIU Constitution provides that the SEIU Constitution controls in the event of a conflict with the constitution or bylaws of a local regardless of whether the local's constitution has been approved by SEIU. Sometime after ratification of the affiliation agreement, MSEA members submitted an "Application for Certificate of Affiliation," which stated, "WE DO HEREBY pledge ourselves both individually and collectively to be governed by the Constitution and Bylaws of the Service Employees International Union * * * ."[2]

In 1991, SEIU's Secretary-Treasurer wrote to then-MSEA Executive Director Nancy Crippen that:

We have reviewed Local 1980's Constitution and Bylaws and have found that in many respects it does not comply with the International Constitution and Bylaws. We are aware of the fact that the affiliation agreement between Local 1980 and SEIU provides Local 1980 with the right to establish its own constitution. However, we are providing you with some changes that we strongly recommend you make in Local 1980's Constitution and Bylaws.

Among the suggested changes was that the local could not disaffiliate "while there are seven dissenting members." The letter concluded that the amended constitution "should" then be submitted for formal approval. MSEA never adopted the recommended amendments.

By letter dated March 6, 1995, Crippen informed SEIU that MSEA's delegate assembly would vote at its annual meeting on a resolution to disaffiliate. SEIU did not send a representative to the meeting. On April 22, 1995, the delegate assembly voted 54-0 (with one abstention) to disaffiliate, effective September 1, 1995.

In June 1996, SEIU sent a letter to MSEA members essentially soliciting dissent from disaffiliation. In July 1996, SEIU obtained 12 petition signatures and 8 signed declarations from members who claimed to oppose disaffiliation.

In April 1997, new SEIU President Andrew Stern served notice that he had appointed an SEIU executive board member to conduct a hearing to determine whether to place MSEA into trusteeship. MSEA did not send a representative to the hearing because its position was that it had disaffiliated. The hearing officer determined that MSEA should be placed into trusteeship. MSEA refused to cooperate with the trustee when SEIU served notice of the trusteeship on May 28, 1997.

Also on May 28, 1997, SEIU filed its complaint in the instant action seeking declaratory and injunctive relief. MSEA counterclaimed for a declaratory judgment that it had disaffiliated and for damages for tortious interference with the contractual relationship between MSEA and its members. Both SEIU and MSEA submitted affidavits from individuals who were involved in negotiating the affiliation agreement. SEIU's affidavits state that it had intended to provide a four-year trial period during which MSEA would be relatively free to disaffiliate, pursuant to an AFL-CIO policy formally adopted two weeks after MSEA's affiliation. MSEA's affidavits state that paragraph 26 of the affiliation agreement was intended to provide for disaffiliation by vote of the delegate assembly at any time after the first two years.

The parties orally agreed to consolidate consideration of SEIU's motion for a preliminary injunction with MSEA's motion for summary judgment on its declaratory judgment claim.[3] The parties also agreed that the decision would be severed from MSEA's counterclaim for damages and would be a final judgment on the merits allowing immediate appeal. On July 21, 1997, the court granted summary judgment for MSEA, reasoning:

The competing claims for injunctive and declaratory relief revolve around interpretation of paragraph 26 of the Affiliation Agreement. That interpretation was noted by the undersigned to be more a task for an English grammar teacher than for an attorney or judge. Although Paragraph 27 of the Affiliation Agreement would seem to have it expire at some unspecified date in 1988, neither party contends that the Affiliation Agreement was modified or amended by mutual agreement of the parties or by operation of law subsequent to April 27, 1984. It remained in full force and effect as of April 22, 1995.

* * * *

Paragraph 26 of the Affiliation Agreement is a one sentence paragraph which is incapable of being parsed as punctuated. Most former teachers of English, the undersigned included among them, would argue that it is not a sentence at all. Rather, Paragraph 26 is a collection of clauses, and in the view of the undersigned, one parenthetical. The term "same method used in affiliating" requires one to refer to Paragraph 1 of the Affiliation Agreement. The use of commas following the words "affiliating" and "membership" [is] nonsensical. From experience, comma usage is the most difficult punctuation lesson to comprehend. To the extent that Paragraph 26 is a "paragraph" meant to convey a thought(s), it seems to grant to MSEA the right to disaffiliate from SEIU; the methods by which that might be accomplished; and[] the rights of SEIU to notice and an opportunity to be heard on such disaffiliation. The words "during the first two (2) years of this Agreement by vote of the membership" [are] clearly a parenthetical phrase, and inappropriately separated from the sentence by use of commas.

In summary, it is found that * * * [d]uring the two year period following April 27, 1984, [a] disaffiliation must be by vote of the membership of MSEA. Thereafter, disaffiliation must be by vote of the MSEA Delegate Assembly. Hence, as a consequence of the April 22, 1995, vote of the MSEA Delegate Assembly to disaffiliate with SEIU[,] * * * disaffiliation was effectively accomplished on that date.

SEIU moved for reconsideration on the ground that the court had issued its decision before receiving the supplemental brief it had granted SEIU permission to submit. The court granted the motion but affirmed its prior decision. SEIU appeals. We reverse and remand.

D E C I S I O N

"Except where the language of a contract is ambiguous or its construction depends on extrinsic evidence, the construction and effect of a contract are questions of law for the court." Affiliated Banc Group, Ltd. v. Zehringer, 527 N.W.2d 585, 587-88 (Minn. App. 1995). But if a contract is ambiguous, its interpretation is a question of fact that will be reversed only if clearly erroneous, even in the absence of parol evidence. Trondson v. Janikula, 458 N.W.2d 679, 681-82 (Minn. 1990).

"A writing is ambiguous if, judged by its language alone and without resort to parol evidence, it is reasonably susceptible of more than one meaning." Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985). Whether a writing is ambiguous is a question of law, which this court decides without deference to the district court's determinations. Untiedt v. Grand Lab., Inc., 552 N.W.2d 571, 574 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).

 Expiration of the Affiliation Agreement

  A. Interpretation of agreement language

The district court based its decision on its interpretation of two paragraphs of the affiliation agreement. Paragraph 27 provides:

Unless otherwise explicitly stated herein, all provisions of this Agreement shall remain in effect until _________, 1988, and unless modified and amended by mutual agreement of the parties or by operation of law.

The parties' dispute centers on the word "and" after "1988." MSEA, and the district court, construe the passage to mean:

Unless otherwise explicitly stated herein, all provisions of this Agreement shall remain in effect until _________, 1988, and thereafter unless modified and amended by mutual agreement of the parties or by operation of law.

But SEIU argues that this interpretation essentially writes a provision out of the paragraph,[4] because the same effect would be achieved by this reading:

Unless otherwise explicitly stated herein, all provisions of this Agreement shall remain in effect until _________, 1988, and unless modified and amended by mutual agreement of the parties or by operation of law.

SEIU contends that the "and" is meant to join the two clauses beginning with "unless." SEIU's argument leads to the following reading:

Unless otherwise explicitly stated herein, all provisions of this Agreement shall remain in effect until _________, 1988, and unless modified and amended by mutual agreement of the parties or by operation of law.

Courts generally avoid interpretations that would render a contract provision meaningless on the assumption that the parties intended their chosen language to have effect. Independent Sch. Dist. No. 877 v. Loberg Plumbing & Heating Co., 266 Minn. 426, 436, 123 N.W.2d 793, 799-800 (1963). Courts also do not normally "rewrite, modify, or set aside contract provisions." Telex Corp. v. Data Prods. Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965). But we have found no case law stating that every word of a contract must be given effect, as opposed to every provision. The affiliation agreement is riddled with obvious typographical errors. While we cannot say with certainty that the "and" in paragraph 27 was a mistake, MSEA's counsel admitted at oral argument that if "and" was intended to mean "and thereafter," he could provide no reason for also including the reference to 1988.

Although paragraph 27 might be best characterized as having no reasonable interpretation, we cannot imagine how the paragraph as written could be construed to allow the agreement to extend to 1995 without divesting the reference to 1988 of all meaning. SEIU's construction that the word "and" is meant to join the two "unless" clauses, while strained, at least gives effect to all the paragraph's provisions, assuming that the "and" was not in fact a typographical error. We conclude that paragraph 27 as written has only one reasonable interpretation and is thus not ambiguous, and the district court therefore erred as a matter of law in determining that the affiliation agreement did not expire in 1988.

  B. Implied continuation

Although the original affiliation agreement expired by its terms in 1988, MSEA is correct that the court must consider whether the parties by their conduct impliedly continued the agreement. See House v. Baxter, 371 N.W.2d 26, 28-29 (Minn. App. 1985) (reversing and remanding where court failed to consider possibility of implied continuation of contract with explicit expiration date where neither party had waived any other contract term); see also Fischer v. Pinske, 309 Minn. 202, 205, 243 N.W.2d 733, 735 (1976) (affirming finding that expiration clause had been waived where both parties continued to behave as if bound by original agreement).

SEIU attempts to distinguish House and Fischer[5] by noting that in those cases there was only one contract between the parties, whereas here the SEIU constitution also created a contractual relationship between the parties. SEIU is correct that a union constitution has been described as a contract. See Lipka v. Minnesota Sch. Employees Ass'n, Local 1980, 550 N.W.2d 618, 621 n.8 (Minn. 1996) (discussing effect of constitution on relationship between local and members). MSEA argues that it never agreed to be bound by the SEIU constitution, but paragraph 4 of the affiliation agreement states that "MSEA shall * * * have full autonomy as a Local Union in accordance with the provisions of the International Constitution and By-Laws with [sic] SEIU." This statement must have some meaning, and we find it susceptible of only one reasonable interpretation. We conclude that, under the language of the affiliation agreement, MSEA became bound by the SEIU constitution except where its terms were superseded by the affiliation agreement.

But even if the SEIU constitution is a contract, we are not persuaded by SEIU's argument that where parties enter into two contracts, one of which waives some provisions of the other for a defined period, the parties may not extend the time-limited contract by implication. For example, a buyer might contract with a seller to comply with the seller's standard terms but also enter into a contract that for four years sets a lower price than provided by the standard contract. If, after four years, the buyer continues to pay the lower price and the seller continues to deliver its product to the buyer for that price, the parties would be held to have continued the time-limited contract by implication despite the existence of the second contract.

An implied contract requires an objective manifestation of mutual assent, inferred from the totality of the circumstances. Gryc v. Lewis, 410 N.W.2d 888, 891 (Minn. App. 1987). The proponent of the contract has the burden of proof.[6] Id. The existence of an implied contract is a question of fact. Eide v. State Farm Mut. Auto. Ins. Co., 492 N.W.2d 549, 555 (Minn. App. 1992). House and Fischer indicate that whether a contract is continued by implication is also a fact determination. See House, 371 N.W.2d at 29 (providing that determination of implied continuation requires examination of parties' conduct and intent); Fischer, 309 Minn. at 205, 243 N.W.2d at 735 (noting that under circumstances parties "could be found" to have impliedly continued contract).

The district court made no express finding that MSEA and SEIU impliedly continued the affiliation agreement after 1988. Moreover, because the parties offer differing interpretations of SEIU's 1991 letter to Crippen, the court could not have decided this question on summary judgment because it requires resolution of a disputed issue of material fact. See Minn. R. Civ. P. 56.03 (providing that judgment shall be entered if no genuine issue of material fact and either party is entitled to judgment as matter of law). We therefore reverse the district court's grant of summary judgment and remand for a finding of fact on the issue of whether the parties impliedly continued the affiliation agreement after its 1988 expiration, so that the disaffiliation procedure described in the affiliation agreement continued to supersede the "rule of seven" provision in the SEIU constitution, and for whatever further proceedings are dictated by the court's finding.

 Disaffiliation Procedure Under the Agreement

Because the affiliation agreement may not have remained in effect in 1995, we are not required to discuss the interpretation of paragraph 26. But because both parties briefed the issue, the district court decided it, and it will be dispositive on remand if the parties are found to have continued the agreement, we elect to address it. See Minn. R. Civ. App. P. 103.04 (stating that appellate court may address any issue as justice requires).

Paragraph 26 provides:

MSEA retains the right to disaffiliate from SEIU by the same method used in affiliating, during the first two (2) years of this Agreement by vote of the membership, provided, however, that SEIU shall be timely notified of such intent, and have the right to present its views to MSEA, prior to such action.

SEIU concedes that the district court correctly concluded that "the same method used in affiliating" means a vote of the delegate assembly. The district court decided that the phrase "by vote of the membership" modifies "during the first two (2) years of this Agreement"; SEIU argues that it should be read to modify "the right to disaffiliate from SEIU." But SEIU's reading fails to give effect to all provisions of the paragraph; nothing would then remain for "by the same method used in affiliating" to modify, rendering that provision surplusage. See Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995) (providing that a "contract must be interpreted in a way that gives all its provisions meaning.").

Although, as SEIU argues, a provision making it easier for MSEA to disaffiliate after two years may seem peculiar, that is the only reasonable interpretation of paragraph 26 as written. As noted, language with only one reasonable interpretation is not ambiguous, and we therefore apply its plain meaning without need to resort to extrinsic evidence. See Resolution Trust Corp. v. Kahn, 501 N.W.2d 703, 705 (Minn. App. 1993) (examining unambiguous deed without looking at evidence of parties' intent), review denied (Minn. Aug. 16, 1993). The district court did not err in concluding that if the affiliation agreement remained in force in 1995, MSEA could and did validly disaffiliate from SEIU by vote of its delegate assembly.

SEIU raises numerous additional issues regarding actions taken by both parties after the delegate assembly vote. Because of its disposition of the case, the district court did not reach these issues. As an error-correcting court, we generally do not address issues not decided by the district court, and we see no compelling need to depart from that principle here. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (holding that appellate court will not address issues not decided by district court).

  Reversed and remanded.

[ 1] The affiliation agreement between MSEA and SEIU provides that MSEA retained the right to its name. We therefore refer to respondent as MSEA rather than as Local 1980 because the "local" designation implies a continued affiliation, while the MSEA designation does not involve a comment on the merits.

[ 2] Only nine MSEA members signed the application. SEIU's constitution states that a minimum of 25 members is required to charter a local but also allows the president of SEIU to waive this requirement.

[ 3] On appeal, MSEA's counsel states that he does not necessarily agree that the record is sufficient to allow summary judgment for SEIU but only for MSEA. But at the hearing on SEIU's motion for a preliminary injunction, MSEA's counsel said to the court, "Your Honor, I think you've been very clear, but I want to make sure, in my words, I understand what you're saying. You'd make a final decision, in effect, a summary judgment decision." The court responded, "Exactly."

[ 4] SEIU argues, incorrectly, that this interpretation also necessarily writes out the clause "[u]nless otherwise specifically stated herein * * * ." SEIU interprets this language to mean that all provisions of the agreement expire in 1988 except those that by their terms are perpetual, and argues that the language therefore has no meaning if all provisions are perpetual. But the language could also mean that all provisions are perpetual except those that by their terms expire after a certain date, such as those detailing subsidies that SEIU agrees to pay MSEA during the first four years of affiliation.

[ 5] MSEA also relies on Tynan v. KSTP, Inc., 247 Minn. 168, 77 N.W.2d 200 (1956). But the employment contract in Tynan explicitly provided that it renewed annually unless modified. Id. at 171, 77 N.W.2d at 203.

[ 6] Gryc and similar cases involve the question of whether a contract ever existed, rather than whether an existing contract was continued by implication, but we see no reason why the same rules should not apply.