                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     SEP 26 2001
                            FOR THE TENTH CIRCUIT
                                                                PATRICK FISHER
                                                                          Clerk

    SCOTT D. ST. JEOR,

                Plaintiff-Counter-
                Defendant-Appellant,

    v.                                                    No. 01-4012
                                                    (D.C. No. 98-CV-822-C)
    PATTERSON DENTAL SUPPLY,                               (D. Utah)
    INC., a Minnesota corporation,

                Defendant-Counter-
                Claimant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Scott D. St. Jeor appeals the district court’s judgment in a breach

of employment contract claim against defendant Patterson Dental Supply, Inc.

(Patterson). After a two-day bench trial, the court concluded Patterson’s

termination of St. Jeor was proper, finding him to be an at-will employee under

applicable Utah law.   1
                           We affirm.

      Mr. St. Jeor, a dental supply sales representative, was recruited to work

for Patterson in 1996. In November of that year, Mr. St. Jeor and Mr. Dalley,

a branch manager of Patterson, signed a document titled “Sales Representative

Agreement.” Mr. St. Jeor claims that the agreement bound Patterson to

a five-year term of employment for Mr. St. Jeor, with a specified draw against

commissions on sales of dental supplies. Twice during the next year and a half,

Mr. St. Jeor received Patterson employee handbooks which included a page

titled “Acknowledgment of Receipt of Employee Handbook.” The

acknowledgment read as follows:




1
      The district court’s findings and conclusions were dated November 27,
2000. Procedurally, Mr. St. Jeor also appeals the denial of his timely filed motion
for new trial or amendment of judgment dated January 12, 2001, which preserved
his challenges here. Substantively, those challenges are directed at the November
27 findings and conclusions.

                                         -2-
            By my signature below I acknowledge that I have received
      a copy of Patterson’s Employee Handbook and that I will thoroughly
      familiarize myself with the Company’s policies, benefits, and
      operating rules and regulations.

             I understand that my employment with Patterson is not for any
      fixed term and may be terminated either by the employee or by the
      Company at any time and for any reason.

             I further understand that the contents of this handbook are not
      contractual, but rather they are written for informational purposes to
      anticipate employee’s questions about Patterson.

Aplt. App. at 15, 16. Mr. St. Jeor signed the acknowledgments, first in September

of 1997 and again in February of 1998.

      Patterson terminated Mr. St. Jeor’s employment on October 7, 1998.

Thereafter, Mr. St. Jeor filed suit in federal district court alleging a breach of

the Sales Representative Agreement and Patterson counterclaimed with

allegations of misappropriations of trade secrets, and fraudulent and negligent

misrepresentation. At trial, the district court concluded that, to the extent the

Sales Representation Agreement was even a valid contract specifying a term

of employment, that term was modified by Mr. St. Jeor’s proven knowledge

of the at-will provisions of the employment handbook. On appeal, Mr. St. Jeor

disputes the court’s conclusion and underlying factual findings.




                                          -3-
      We review a trial court’s finding of facts under the clearly erroneous

standard. See Fed. R. Civ. P. 52(a); Salve Regina Coll. v. Russell , 499 U.S. 225,

233 (1991). Whether the district court correctly interpreted the law of Utah,

however, is a matter that we review    de novo . Id. at 232-33; Horace Mann Ins.

Co. v. Johnson ex rel. Johnson , 953 F.2d 575, 576 (10th Cir. 1991).

      Under Utah law, absent an express or implied contractual term of duration,

the employment relationship is presumed to be at-will.      See Fox v. MCI

Communications Corp. , 931 P.2d 857, 859 (Utah 1997). An employee can

overcome that presumption by showing evidence of a contrary agreement. “An at-

will relationship . . . may be modified by a subsequent ‘implied or express

agreement that the employment may be terminated only for cause or upon

satisfaction of any other agreed-upon condition.’”       Wood v. Utah Farm Bureau

Ins. Co. , 19 P.3d 392, 396 (Utah Ct. App. 2001) (quoting     Fox, 931 P.2d at 859).

But just as the presumptive at-will relationship may be subsequently modified, an

express or implied condition of employment contrary to at-will status may be

affected by a subsequent modification. As explained by the Utah Supreme Court:

      In the case of unilateral contract for employment, where an at-will
      employee retains employment with knowledge of new or changed
      conditions, the new or changed conditions may become a contractual
      obligation. In this manner, an original employment contract may be
      modified or replaced by a subsequent unilateral contract. The
      employee’s retention of employment constitutes acceptance of the
      offer of a unilateral contract; by continuing to stay on the job,


                                           -4-
      although free to leave, the employment supplies the necessary
      consideration for the offer.

Johnson v. Morton Thiokol, Inc.   , 818 P.2d 997, 1002 (Utah 1991) (further citation

omitted).

      Specifically, the Utah Supreme Court has held that “[w]hen an employee

admittedly has knowledge of a distributed handbook’s provision that modifies the

employment contract and continues to work for the employer after gaining such

knowledge, the modified contract prevails, and previous, contradictory conditions

have no effect.”   Ryan v. Dan’s Food Stores, Inc.   , 972 P.2d 395, 401 (Utah 1998)

(citing Trembly v. Mrs. Fields Cookies   , 884 P.2d 1306, 1312 (Utah Ct. App.

1994)). It was based on this holding that the district court found Mr. St. Jeor to

be an at-will employee at the time of his termination. Having reviewed the

applicable Utah law ourselves, which, we note, includes protections against

unfairness in the bargaining process, we find the district court correctly applied

Utah law to the facts in this case.

      We also find Mr. St. Jeor’s attempts to distinguish the clear meaning of the

Ryan case unpersuasive. Like the plaintiff in    Ryan , Mr. St. Jeor signed the

handbook with full knowledge of the unambiguous at-will language and continued

to work for Patterson after gaining that knowledge. Thus, as accurately held by

the district court, even if the Sales Representative Agreement contained an



                                           -5-
enforceable five-year term of employment at the time it was signed, that provision

was effectively modified.

       The Utah Supreme Court has noted its awareness that proof of a party’s

intent to modify an employment contract will often turn on questions of fact.

See Ryan , 972 P.2d at 401. Along these lines, Mr. St. Jeor argued that Patterson

misrepresented the necessity and the importance of his signature on the handbook.

By implication, Mr. St. Jeor claimed to have signed it without fully understanding

its significance and thus had no real knowledge of the modification. However,

after weighing all of the oral and written evidence, much of it conflicting with

Mr. St. Jeor’s version of events, the district court rejected his arguments as

unconvincing. The district court’s findings are amply supported by the record

before us and are not clearly erroneous.   See Tosco Corp. v. Koch Indus., Inc.   ,

216 F.3d 886, 892 (10th Cir. 2000).

       Accordingly, the judgment of the United States District Court for the

District of Utah is AFFIRMED.


                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




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