Slidell, Inc. (Slidell) appeals from the judgment entered by the district court 1 on the jury verdict in its breach of contract claim against Millennium Inorganic Chemicals, Inc. (Millennium). Additionally, Sli-dell appeals from the district court’s denial of its motion for judgment as a matter of law and for new trial and for an order to determine liability for wrongful injunction. We affirm.
I.
Slidell manufactures automated packaging equipment used in the titanium dioxide industry. Millennium, which produces titanium dioxide, decided to purchase from Slidell seven fully automated packaging machines to be installed in its facilities in Ohio, England, and France. Aftеr months *1051 of negotiation, Slidell and Millennium entered into a contract providing that Slidell would manufacture the seven machines for a total contract price of $10,350,465, 2 which included up to a twelve percent discount that Millennium would receive only if the fundamental aspects of all seven machines were identical. The contract further provided that:
Waivers shall not be binding unless set forth in writing and signed by the party allowing the waiver. No waiver of a breach of any provision of this Contract shall constitute a waiver of any other breach of the provision or any breаch of any other provisions of this Contract.
Appellant’s App. at 371. Additionally, the contract provided that any changes to the final scope of the project were to be made in accordance with a written order to Sli-dell and agreed to by the parties. The contract did not set a delivery date for the equipment but instead required Millennium to make milestone progress payments to Slidell throughout the course of performance. Testimony at trial indicated that the parties understood that the seven machines would be completed within aрproximately sixteen months. Additionally, the contract required that Slidell submit biweekly status reports and updated Gantt schedules to Millennium. The contract specified that the agreement should be interpreted in accordance with Minnesota law.
In October 2000, friction developed between Slidell and Millennium over the equipment’s computerized supervisory system. Millennium decided to upgrade the supervisory system specified in the contract and executed two change order development requests that authorized Slidell to start designing the system. In March 2001, Slidell informed Millennium that completing the supervisory system to Millennium’s new specifications would add another $1.6 million to the contract price. Millennium was dissatisfied with this price and requested that Slidell remove the supervisory system from the scope of its work.
In May 2001, Millennium confirmed that it was removing the supervisory system from the scope of the contract with Slidell. There is evidence that around May 11, sensitive information regarding Slidell’s design of the machines was provided to the RoviSys Company (RoviSys) without Sli-dell’s consent. Throughout the rest of May, Millennium had meetings with Rovi-Sys regarding its manufacture of the new supervisory system. Testimony at trial indicated that Slidell was never informed of these meetings. Around this same period of time, Slidell met with Millennium to discuss the removal of the supervisory system from their contract.
On June 21, 2001, Millennium asked Sli-dell for permission to share Slidell’s technical information with RoviSys for the purpose of providing RoviSys with background information on the packaging machines so that it could design the new supervisory system. Slidell replied that this would require a separate nondisclosure agreement with RoviSys. Slidell prepared the agreement, RoviSys signed it, and Millennium sent it to Slidell for its signature. Without so informing Millennium, Slidell did not sign the agrеement. Millennium then shared Slidell’s design documents with RoviSys.
In August 2001, Slidell prepared Change Order No. 5, which, in accordance with Millennium’s request, removed the supervisory system from the scope of Slidell’s work without any change in the contract price. Slidell sent the change order to *1052 Millennium for its signature, representing to Millennium that it would sign Change Order No. 5 once Millennium signed it. Notwithstanding this representation, Sli-dell never signed the order, nor did it inform Millennium that it had not done so. There is evidence that in August and September of 2001, Slidell threatened to sue Millennium if it failed to perform on the contract or failed to accept a change order to remove the 12 percent discount.
On January 17, 2002, Slidell sued Millennium for breach of contract, promissory estoppel, quantum meruit, equitable estop-pel, and violations of the Minnesota Uniform Trade Secrets Act, M.S.A. §§ 325C.01-.08. Millennium counterclaimed for breach of contract, specific performance, replevin, unjust enrichment, an equitable lien, and a constructive trust. At the time Slidell commenced this action, Millennium had paid Slidell $8.82 million in progress payments under the contract. This was $500,000 more than the amount to which Slidell was entitled under the milestone progress payment schedule set forth in the contract. Slidell’s damages expert testified that at the time Slidell stopped work on the machines, Slidell had realized a net profit on the job of nearly $1.5 million. Millennium’s damages expert determined this net profit to be about $4.6 million.
In February 2002, Slidell informed Millennium that it intended to disassemble the partially completed machines and sell and return the parts and components for value. On March 7, 2002, Millennium moved for a preliminary injunction prohibiting Slidell from selling, returning, or transferring any of the equipment or components to third pеrsons for value pending the outcome of the trial on the merits. The district court granted the motion, entered the injunction, and required Millennium to post a $2 million injunction bond to pay any costs or damages incurred by Slidell in the event that it was found that Slidell had been wrongfully enjoined.
In October and November of 2003, Sli-dell and Millennium filed cross-motions for summary judgment. On June 28, 2004, the district court granted Slidell’s motion to dismiss Millennium’s equitable claims for a constructive trust, an equitable lien, and unjust enrichment. The district court also granted Millennium’s motion to dismiss Slidell’s claim for equitable estoppel but denied summary judgment as to all rеmaining claims.
On October 4, 2004, both parties filed their own statements of the case. Millennium’s statement related that Slidell’s work under the contract proceeded slowly and that there were disputes about wire colors for the machines. Among other things, Millennium also asserted that Sli-dell was deficient in providing the appropriate level of management for the project. Slidell’s statement focused on Millennium’s alleged misappropriation of trade secrets, breach of contract, quantum meruit, and promissory estoppel regarding long-term European field suрport.
Prior to trial, both parties submitted proposed jury instructions. Slidell’s proposed instruction on waiver stated that to establish waiver, “Millennium must prove the heightened standard that (a) Slidell’s actions were so clear and unequivocal that no other reasonable explanation of the conduct is possible, and (b) Millennium must relied [sic] upon the conduct to its detriment.” Appellant’s App. at 287. It also required the jury to find that Slidell intentionally relinquished the contract provision providing that all waivers be in writing before it could find waiver. Finally, the proposed instruction stated that if Slidell hаd clearly communicated to Millennium that it reserved its rights under the contract, it did not waive these rights. Sli-dell’s proposed instruction on equitable es- *1053 toppel provided that the jury must find that Slidell’s representations must be enforced to avoid injustice before it could find equitable estoppel and that the jury could not find equitable estoppel if Millennium had engaged “in any misleading tactics, concealments, misrepresentations and/or defaults that exacerbated the situation.” Appellant’s App. at 288. Slidell’s proposed instruction on prior breach provided that if the jury found “that Slidell’s decision to stop performance of the contract and initiate this lawsuit occurred before Millennium’s breach, then Millennium’s breach is excused.” Appellant’s App. at 287.
The trial occupied some twenty-three days during January and February 2005. Both Millennium and Slidell offered testimony relating the events that had occurred between the parties and testimony that the project had been delayed for numerous reasons. Millennium also offered testimony that Slidell’s initial project manager lacked experience and that she had failed to provide the biweekly status reports and updated Gantt schedules to Millennium as required by the contract. At the close of the evidence, Slidell moved for judgment as a matter of law on Millennium’s remaining equitable claims for specific performance and replevin, as well as its affirmative defense of equitable estoppel. Millennium responded by voluntarily dismissing its specific performance and re-plevin claims. The district court denied Slidell’s motion to dismiss Millennium’s equitable estoppel defense and submitted the remaining claims to the jury.
At the charge conference, Slidell reiterаted its view that to find a waiver of a specific contract provision, a jury must first find a separate waiver of the provision that requires all waivers to be in writing. It also argued that an implied waiver requires a heightened standard of proof. Further, Slidell contended that if Millennium breached, Slidell had the right to proceed in a commercially reasonable manner and that if it continued performing under a reservation of rights, its performance could not have constituted a waiver. Finally, Slidell argued that if an equitable estoppel instruction were given to the jury, the court should include an instruction on the unclean hands doctrine as a defense to equitable estoppel.
In its Instruction 13, the district court instructed the jury that:
First, Millennium alleges that Slidell waived Millennium’s breach. In order for Slidell to have waived Millennium’s breach, you must find that Slidell knew of its legal rights, intended to relinquish its rights, and unequivocally did so. If you find that Millennium breached particular provisions of the contract, in some way, but that Slidell knew of Millennium’s breach and continued to exercise its rights under the contract and continued to demand performance after Millennium’s breach, then Millennium’s breach may be excusеd. Any waiver by Slidell is limited to the specific breach that was waived.
Second, Millennium argues that Sli-dell committed a material breach of the contract prior to Millennium’s material breach. If you find that Slidell materially breached the cont[r]act before Millennium materially breached the contract, then Millennium’s breach is excused. A breach is material if it defeats one of the primary purposes of the contract.
Third, Millennium alleges the defense of “equitable estoppel.” To establish equitable estoppel, Millennium must show that:
1) Slidell misrepresented a matеrial fact or was silent when it had a duty to speak;
*1054 2) Slidell knew or should have known the representation was false;
3) Slidell intended Millennium to act on the representation;
4) Millennium lacked knowledge of the true facts; and
5) Millennium reasonably relied upon the misrepresentation to breach the eont[r]act.
Appellant’s App. at 308-09.
The jury returned a verdict on February 24, 2005, finding that Millennium had breached the contract; that Millennium’s breach was legally justified; that Slidell had breached the contract; that Slidell’s breach was not legally justified; that Sli-dell was liable to Millennium for damages of $4,822,850.64; that Slidell’s confidential information was not a trade secret; that Slidell proved each element of promissory estoppel regarding European field support services; and that Millennium was liable to Slidell for damages of $650,000.
On March 14, 2005, the district court dissolved the preliminary injunction against Slidell. On April 14, 2005, Slidell moved to determine Millennium’s liability for the wrongful issuance of the injunction. The district court denied the motion and dismissed Millennium’s injunction bond.
II.
We generally review for abuse of discretion the district court’s jury instructions.
Eden Elec., Ltd. v. Amana Co.,
We review the jury instructions for plain error, however, if the party challenging them has failed to preserve the issue for review by failing to statе distinctly the matter objected to and the grounds for the objection on the record.
See
Fed. R.Civ.P. 51;
Dupre v. Fru-Con Eng’g Inc.,
A.
Slidell first argues that the district court’s jury instruction on waiver was deficient in numerous respects аnd that we should thus grant it a new trial. We disagree.
1.
Slidell argues that the district court erred in failing to instruct the jury that the contract’s written waiver requirement must have been waived before the jury could find that Slidell waived any
*1055
specific contract provision by any means other than in writing. Minnesota courts have held that despite a contract’s requirement that a waiver be in writing, certain provisions of the contract may be waived even if they are not in writing.
See Pollard v. Southdale Gardens of Edina Condo. Ass’n, Inc.,
2.
Slidell also argues that the jury instruction erroneously indicated that the jury could find a waiver by Slidell based solely on Slidell’s continued performance under the contract. We disagreе.
Under this argument, Slidell first contends that the district court should have included language that an implied waiver is a narrow defense requiring that “[t]he conduct must be so consistent with and indicative of an intention to relinquish the particular right and so clear and unequivocal that no other reasonable explanation of the conduct is possible.” Appellant’s Br. at 36 (quoting
Medicare Glaser Corp. v. Guardian Photo, Inc.,
Slidell next contends that a course-of-conduct waiver requires detrimental reliance, which the instruction failed to reflect. In support of its argument, Slidell cites
Hedged Investment Partners, L.P. v. Norwest Bank Minnesota, N.A.,
in which the Minnesota Court of Appeals stated that a “course-of-conduct waiver is based on the theory of estoppel and requires detrimental reliance.”
Slidell also contends that the jury should have been instructed that Slidell did not waive its claim for breach of contract if it continued performance on the contract but proceeded in a commercially reasonable manner in accordance with Minnesota Statute Annotated §§ 336.2-703 and 704 or reserved its right to sue. Minnesota Statute Annotated § 336.1-308 provides that a party can reserve its rights under a contract if it does so explicitly. Because we agree with the district court that “there is insufficient evidence to support a finding that Slidell ‘explicitly’ reserved its rights despite continuing to рerform under the contract,” D. Ct. Memorandum Opinion and Order of July 26, 2005, at 11, we conclude that the district court did not abuse its discretion in failing to include within the instruction Slidell’s suggested language on reservation of rights.
Additionally, Slidell failed to provide a proposed instruction on the issue of proceeding in a commercially reasonable manner after a breach. Accordingly, we review for plain error.
See Melford Olsen Honey, Inc. v. Adee,
3.
Next, Slidell argues that the district court erred in failing to instruct the jury that Slidell’s claim for a breach of the implied covenant of good faith and fair dealing and its claim that Millennium anticipatorily repudiated the contract could not be waived. Because Slidell failed to propose a jury instruction to this effect, we review for plain error.
*1057 Slidell has failed to cite any Minnesota law that supports its argument that a party cannot waive a breach of good faith and fair dealing. The law that it does cite instead stands for the proposition that a party that acts in bad faith cannot raise equitable remedies. It does not, however, support Slidell’s argument that a party cannot waive a breach of good faith and fair dealing. Without deciding whether a party can waive the implied covenant of good faith and fair dealing, we conclude that the district court did not plainly err in failing to include any such instruction.
In support of its argument that a party cannot waive its claim for anticipatory rеpudiation, Slidell cites Minnesota Statute Annotated § 336.2-610 and
National Liberty Corp. v. Wal-Mart Stores, Inc.,
4.
Finally, Slidell argues that no evidence supports the jury’s finding that Slidell waived Millennium’s breach. We construe this argument as one based on Federal Rule of Civil Procedure 59. Under this rule, the district court’s denial of a nеw trial is virtually unassailable, and we will reverse only when there is an absolute absence of evidence to support the jury’s verdict.
Pulla v. Amoco Oil Co.,
B.
Next, Slidell argues that Millennium’s equitable estoрpel defense should not have been submitted to the jury because it constitutes a question of law, that the instruction misstated the law, and that no evidence supported a finding of estoppel. We disagree. First, equitable estoppel depends on the facts of a case and is ordinarily a fact question for the jury to decide.
N. Petrochemical Co. v. United States Fire Ins. Co.,
*1058 C.
Slidell next argues that the district court’s instruction that either party’s breach of contract could be excused by the other party’s prior breach improperly permitted Millennium to assert a new pri- or breach theory during its closing argument. Because Slidell failed to object to the instruction, we again review for plain error. The district court’s instruction, viewed in the light of the evidence and applicable law, fairly and accurately submitted the issue to the jury. Further, although it is true that surprise resulting from a major variance in the theory of a defense may be a ground for granting a new trial,
see Sanford v. Crittenden Mem’l Hosp.,
D.
Slidell also argues that the district court erred in failing to instruct the jury that if it found that Millennium had acted inequitably, Millennium would be barred from relying on its equitable defenses of waiver, estoppel, and prior breach. While it is true that the unclean hands doctrine bars a party that acted inequitably from obtaining equitable relief,
Heidbreder v. Carton,
Slidell points out that the jury found that Millennium acted unconscionably when it concluded that Slidell had proved each element of promissory estoppel regarding European field support services. This finding of uneonscionability, however, was unrelated to Millennium’s assertion of equitable estoppel, which was directed at Slidell’s claim that Millennium had breached the contract by deleting the supervisory system from the scope of Slidell’s work and by transferring Slidell’s technical drawings and data to RoviSys without Sli-dell’s сonsent. That the court’s instruction on estoppel was not so limited did not constitute an abuse of discretion because, taken as a whole, the estoppel instruction fairly and accurately submitted the issue to the jury.
Slidell also argues that Millennium was guilty of unclean hands for numerous other reasons. We conclude, however, that the district court did not abuse its discretion in determining that there was not “such strong evidence of oppressive or deceptive conduct here that it’s required that this be pointed out.” Tr. at 3987.
Slidell failed to preserve for review its argument that an instruction regarding Millennium’s unclean hands should have been included with respect to Millennium’s defenses of waiver and prior breach. We conclude that the district court’s refusal to include the instruction would not amount to a miscarriage of justice if left uncorrected.
III.
Finally, Slidell argues that the district court wrongfully enjoined it from selling and returning the parts and components of the partially completed machines for value because each of Millennium’s equitable claims was dismissed. Because this is a question of law, we review
de novo
whether Slidell was wrongfully enjoined.
*1059
See Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc.,
Federal Rule of Civil Procedure 65(c) provides that a party that has incurred or suffered costs and damages because it was wrongfully enjoined may recover on an injunction bond. We have not previously had the opportunity to define the term “wrongfully enjoined,” but both the Second and Ninth Circuits have determined that a party has been wrongfully enjoined if it is ultimately found that the enjoined party had at all times the right to do what it was enjoined from doing.
Nintendo of Am., Inc.,
Slidell contends that because Millennium’s claims for equitable relief were dismissed before the case was submitted to the jury, Millennium failed to establish that it was entitled to equitable relief, and thus Slidell was wrongfully enjoined. While the failure to carry the burden of proof on a permanent injunction may show that a preliminary injunction should not have been issued, this failure is only conclusive if there is an absence of a decision on the merits of the case.
See Middlewest Motor Freight Bureau v. United States,
Conclusion
The judgment is affirmed.
Notes
. The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.
. Including the price for change orders that are not in dispute, the total contract price for all seven machines and some additional equipment was about $11.2 million.