*1 “DOC” MARTIN BASTA, Appellant, Plaintiff vs.
CRAGO,
d/b/a
INC.,
PRINTING
corporation,
CENTER, Montana
Respondent.
Defendant
No. 96-030.
July 18,
Submitted on Briefs
1996.
Decided December
1996.
St.Rep.
See C.J.S. Master *2 Appellant: Lynch, Lynch Chisholm, For John F. & Great Falls. Holden, Jardine, For Lon T. Respondent: Stephenson, Blewett & Weaver, Great Falls. Opinion
JUSTICE NELSON delivered the of the Court. appeal Eighth Court, This is an from the Judicial District Cascade County. Following hearing, granted the District Court Defendant Crago’s summary judgment. motion for From judgment, this Plaintiff appeals. Basta We affirm.
The sole issue raised on appeal is whether the District Court erred Crago when it concluded that Basta and did not enter into a written contract of term for purposes of 39-2- (1991). 912(2), MCA
FACTUAL AND PROCEDURAL BACKGROUND Crago, locally-owned Defendant Inc. (Crago) operates general printing business known as the Printing Center located in Great (Barber) Falls, Craig president, Montana. Barber is the chief execu- only tive officer and the shareholder of the business. Barber (Basta) Plaintiff Crago’s agent. Martin ‘Doc” Basta worked at a printing shop different local in Great Falls from 1971 until Barber hired shop him to work as foreman at the Center Printing in March 1992. 1991, hiring In December Barber contacted Basta about him to months, next Printing work for Center. Over the two Barber sent concerning Basta two letters and a memorandum their memorandum, January 23,1992, The dated referred to negotiations. The employment” signed by “Terms of and was Barber. memorandum including set forth several items medical insurance coverage, vaca- time, salary figure tion and bonus year for the first of employment, salary system and undetermined bonus for the second employment, description and a of the position and re- Barber sponsibilities. sent the memorandum to Basta with a letter explaining memorandum was a “written copy of what we had previously” talked about and requesting that Basta contact Barber so they could discuss Basta’s starting date. On March began working Printing Basta at the Center. perform
Barber had hired Basta to the shop foreman duties that had performed previously. Barber planned Barber Basta to take over Barber’s old duties so that Barber could attend to matters concerning expansion However, of the business. Barber’s plans were not realized and the economic conditions business declined. In decline, response to this economic payroll determined that the Consequently, discharged must be reduced. he on February 26, 1993, and one other employee. February 23, 1994, complaint,
On Basta filed his alleging that he wrongfully had been discharged pursuant without cause 39-2-904(2), MCA Crago answered and denied the allega- complaint. tions of Basta’s summary then moved for judgment, alleging discharge that Basta’s was for good support cause. To *3 motion, Crago submitted an affidavit indicating Basta was employment terminated from due to financial stresses within the a corporation, legitimate business reason. The District initially Court Crago’s summary judgment However, denied motion. Crago filed a Initially, motion for reconsideration. Basta opposed Crago’s motion However, ultimately for reconsideration. Basta Crago’s conceded that granted requested motion should be and leave to file an amended 6, 1995, complaint. September granted On the District Court both Crago’s motion for reconsideration and Basta’s motion for leave to file an complaint. amended 1) amended complaint
Basta’s set forth two claims: breach of 2) contract and breach of the implied covenant of faith and fair dealing. Crago answered and denied the allegations. Thereafter, Summary Judgment filed a Motion for Crago Concerning the Complaint. Crago alleged parties Amended never entered term, and, therefore, into a written contract for a Wrongful Discharge Employ- claims were barred Montana’s From Act, 39-2-901, seq., et After reviewing ment the briefs § the of Basta and the of considering arguments and counsel
411 motion, hearing granted Crago’s on the the District Court at the 12,1995. for on summary judgment motion December It is from this that Basta judgment appeals.
STANDARD OF REVIEW
Our standard of review for an
from an
appeal
granting
order
summary judgment
is de novo. Motarte v. Northern Montana Joint
Disposal
Dist.
Mont.
P.2d
Refuse
summary judgment
the order granting
using
We review
the same
court,
as did
evaluation
the district
based
Rule
M.R.Civ.P.
Motarte,
out
inquiry
The movant must demonstrate that no issues mate- of fact accomplished, rial exist. Once this has been the then burden non-moving party prove, by shifts to the more than mere denial speculation, genuine a issue does exist. Having deter- genuine exist, mined that of fact issues do not court then must moving party determine whether the is entitled to as a judgment the legal matter law. We review determinations made district court as to whether court erred. County (1995),
Bruner v. Yellowstone 261,264-65,900 P.2d (citations omitted). 901, 903 us,
In case before Basta has not an issue concerning raised Instead, issues of material fact. genuine only raises legal issue whether Basta and entered into a written contract of Accordingly, we review the District Court’s conclusion Wrongful Discharge that Montana’s From Employ- (the Act) Act ment bars Basta’s breach contract and breach of claims covenant under because the parties enter did not into a written contract of specific term required by as to determine if the court legally correct.
DISCUSSION Did the District Court err when it concluded that Basta Crago did not enter into written contract of (1991)? purposes for the
Basta contends that he and entered into a written *4 term, and, Act specific therefore, contract of does not bar his claims for breach of contract and breach of implied good dealing. Crago responds covenant of faith and fair that Barber and Basta did not enter into a written contract of employment for 412 term, and, therefore, the Act does bar Basta’s claims. We correctly
conclude that the District Court determined that the parties term, not enter into a written contract of did properly granted Crago’s summary and that the court motion for judgment. provides discharge may
The Act that “no claim for arise from (1991). 39-2-913, express implied tort or or contract.” Section plain meaning discharge” We have determined “claim for by “those for an simply damages wrongful is claims caused asserted Semitool, Beasley v. Inc. 258 discharge.” by not all tort or contract claims are barred P.2d 39-2-913, merely they employment. arise from because Beasley, Rather, only P.2d at 86. tort or contract those claims 39-2-913, discharge” which are “for will be barred P.2d at 86. Beasley, 853 case, present
In the
Basta bases both his breach of contract and
First,
discharge.
alleges
of covenant claims on his
Basta
that
breach
“by
Crago
terminating
violated the contract with Basta
virtue of
February
Second,
alleges
on
1993. ...”
[Basta]
to act in
faith with Basta “in that
termi-
obligation
violated its
By
language
nation
false and dishonest
in fact.”
virtue of this
complaint,
in Basta’s amended
we conclude that both
contained
claims
“completely
inextricably
and
intertwined with and based
Beasley,
upon”
discharge.
Consequently,
See
The to the Act are set forth as follows: exemptions apply 39-2-912. This does not to a Exemptions. part discharge: (1) subject other state or federal statute that procedure remedy contesting dispute. or for Such prohibit discharge filing complaints, include those that statutes claims that prohibit or with administrative bodies or charges, sex, race, origin, age, national unlawful discrimination based belief, color, status, marital creed, religion, political handicap, grounds. other similar
(2) bargaining collective employee an covered written or a written contract agreement added.]
[Emphasis *5 appeal parties The issue raised on is whether the entered into a of employment they did, written contract term. If Basta’s exempted pursuant claims are from the Act to § 39-2-913, not, and will not be barred under If discharge” preempted by Basta’s “claims for the Act pursuant to and will be barred. exemption In order for the under at (a) (b) here, apply, issue to there must written contract and this contract must be for a specified plain term. Under the language the statute, if either the contract in writing is not or it is not for a specified term, exemption then the does not apply, and Basta’s claims will be deciding, barred. Without so we simply purposes will assume for this appeal Crago’s memorandum to Basta awas written con- tract and that Basta’s was governed by therefore written contract. We make this assumption because our determina- that, regardless, tion the term, contract was not for a specified dispositive. best, memorandum
At simply proposed salary states Basta’s years fact, for the first two of his employment. nothing In term, memorandum sets out a specific years whether for two or more. only The memorandum not specify date; fails to a termination it does designate hiring Indeed, not even date. at the time Basta received memorandum, parties negotiating were still starting Basta’s date. This is evidenced the letter Barber sent with the memoran- dum wherein Barber asked Basta to call him to discuss Basta’s starting date.
Moreover, summary Basta’s judgment hearing at held on November shows that he was unclear as to what the actually parties agreed “specific had would be the term” of Basta’s employment:
Q: Lynch, Now, attorney] agreement [Mr. [refer- does that to the ring agree- memorandum] are the terms of that —it—what it, mean, know, your I reading you long ment? Without how was employment with him to be? this, we first about this and came out [Basta]
A: When talked with years. I he told he said would be with him for at least five ... And hell, years. my wife, it in front of me and I would be there for five plans going anywhere, going keep He had no of me that he was to this, at employed. So, up you me then he came with this “I’ll start year and after a you I’ll start figure, at this my and if business you’ll progresses, progress.”
Q: And let me you ask That agreement this. say doesn’t anything— many years how does that agreement cover? years.
A: Two Q: Okay. you got Was there —when agreement, there discussion about the years? five Yes, say,
A: there was. Like I he said it’s years. for five Or longer. just said, He “I’m not going you go.” just to let took the man for his word. I didn’t think I’d get have to a written contract anything says, or else. He going “I’m do this for the first year. you’re second And going to be with me.” I trusted him.. *6 thought, you know, And I good this is a way for me to go. It’s what I like do to get shops to I going. say, ‘Well, So didn’t okay, you’ve got up five-year to write agreement or a two-year agreement” or anything. What he wrote down here I took to a good agreement, that he would face it up to as a man.
Q: you But did what understand that agreement be, to as far as long? agreement? how That written years. A: Two
Q: why And is that? A: Because that’s all he did. He told me if—because it has down year get first I’ll so much get and the second I’ll so much. And he I signed it. didn’t know I’d have to have it notarized or anything else. Or that I’d have sign to it.
Q: say Did he in the cover letter or that agreement that if there any disagreement with it your on part, you would work it out? says.
A: Yes. That’s what it
Q: you And did disagree with it? No, I did I accepted A: not. what he had written down here and gave to me.
Q: your And did feel that that was agreement, what was written down? Yes,
A: did. reviewing testimony, After Basta’s it is apparent that while Basta regarded covering years the memorandum as the first two of his employment, anticipated he employment his with would years.” However, last “at least five nothing sup- evidence ports parties agreed two-year the conclusion that to either a or a Rather, five-year employment term. the evidence supports the con- failed parties agree any specific clusion to to term of employ- all; ment simply meeting at there was no minds the term of employment years, Basta’s it years was two five or longer. —whether Therefore, based on the uncertain nature of both Basta’s memorandum, parties and the we conclude that the did not enter into a contract of “for term.” alleges also that Crago implied violated the good covenant of dealing faith and fair damages Basta seeks for emotional dis- above, tress. As we stated are exempted claims not from the 39-2-912(2), Act under parties because the § did not enter into written contract of
Therefore, 39-2-913, MCA(1991), controls and Basta’s tort claim for breach of implied good covenant of faith is Furthermore, barred. Act, under Basta cannot seek damages for emotional distress. (1991). Section See Dagel City also v. Great Falls 819 P.2d sum, In we conclude that Basta and Crago did not enter into a written contract of “for a term.” Basta’s contract and covenant claims are not exempted from the Act (1991). pursuant to Accordingly, we affirm the District Court’s conclusion that Basta’s breach of contract and breach implied covenant of dealing faith and fair barred Act pursuant
Affirmed.
CHIEF TURNAGE, JUSTICE JUSTICES GRAY and ERDMANN concur.
JUSTICE dissenting. TRIEWEILER I conclude that the parties did enter into a written contract of a within employment the meaning of § therefore, and dissent from the majority opinion. Martin “Doc” Basta worked for Printing Shop Advanced Litho in twenty-one years Great Falls for until he was induced to leave that employment promise Craig Barber, with a written from owner and operator Printing Center, that he be more employed would years. However, at favorable terms that business for at least two less than began Barber, one after he work for he was told that the Printing employment Center could not afford him and his was terminated. Section provides Wrongful Dis- from Act charge Employment -915, MCA, found at 39-2-901 to does §§ person not preclude a covered a written contract enforcing term from terms of the contract. 28-2-102, MCA,
Section sets forth the necessary elements of a contract. It as follows:
It is essential to the existence of a contract there be:
(1) identifiable parties capable contracting; (2) consent; their
(3) object; a lawful and
(4) a sufficient cause or consideration. The document which being prepared was submitted to Basta after signed by Barber, and Craig which is relied on Basta as a “written contract of provided term” as follows:
January Doc Basta
TO:
FROM: Craig Barber
RE: of employment Terms
INSURANCE, Printing The Center will medical insurance pay your wife. paid plus days VACATION & DAYS OFF 3 weeks vacation off as needed. $35,000 year salary $1,000
1ST YEAR not plus bonus to exceed predetermined goals if are met. (to $36,000 year salary system,
2ND YEAR with bonus determined) Working
POSITION & RESPONSIBILITIES Position: Foreman Camera
Shooting
Stripping
Training jobs.
Route & schedule
Quality control.
Employee supervision and
training.
Involvement in customer relations as needed.
Assisting with the transition from conventional camera work to computer.
Other duties as need arises hope agreeable I this .find as we had discussed.
Sincerely, Craig
/s/ Barber Barber
Craig obviously The document included parties, identification of the Barber, consent Craig object, a lawful and sufficient consideration. question presented There is no regarding capacity of either party contract; simply contends, Barber and the District agreed, Court that because Basta had signed agreement, not his consent had not been provided, therefore, the agreement was incomplete. The gave District Court the following rationale for its decision: The Court quite found credible testimony, the Plaintiff’s that he left a goodjob in reliance upon the Defendant’s offer for a term of years, at least two but that offer had to be finalized into a “written contract of specific term,” if it is to take the Plaintiff’s case outside the parameters of the Wrongful Act. Discharge Testimony presented by the Plaintiff established accepted the Plaintiff the Defendant’s offer leaving his prior employment and beginning with the Defendant, but work his acceptance was not in writing as presented Court, to the but an acceptance performance. based on Unless both the offer and accep- tance is finalized in the form contract, of written it appear does not to be exempted requirements from the Wrongful Discharge Act. Section
I disagree. actually When Basta went to work for fully Barber and performed, according to the contract, terms of the from March February until he was terminated 26,1993, accepted he proposed by terms performing his responsibilities set forth 28-2-503, MCA, in the contract. Section acceptance manner: following
(1) Performance of the proposal conditions of a or the acceptance of the consideration offered proposal with a is an acceptance of the proposal.
(2) voluntary A acceptance of the benefit of a transaction is equivalent to a consent to all the obligations it, from arising so far as the ought facts known or to be known to the person accepting. acceptance by performance
Based on Basta’s of the contract terms by Barber, I proposed conclude that there completed was a contract and that all essential terms of the that, in writing. contract were would conclude when the employer of employment has set forth the conditions in a written document *9 includes the term of signed by which and is the employer, (1991), the requirements have been satisfied. The all, after ofthat section’s purpose, requirement that there be a written protect employer by limiting contract is to the his employee’s reme- provisions Wrongful Discharge dies to the From Employment Act, unless it can be documented that the employer offered him or something greater protections. Here, her than the Act’s there is no question the terms of about which were offered employer. requirements (1991), have been satisfied.
However, based on Basta’s to the effect that he felt greater years had committed to a term than during Barber two their conversations, majority concludes that the in question contract provide disagree again. does not contract, opinion, provides The written which is set forth in this year. and a salary for a first second It for the to be paid dining year, each and a bonus to be determined at a later date. Based minimum contract, provided on the in the it plain language years employment. of two most, proposed
At the term of in defendant’s written unartfully question contract is drawn and leaves some about whether beyond years. However, the term was to extend two as we have held, repeatedly agreement the author of a written should not be able liability performance of that agreement to avoid based on ambi his or her own guities ambiguities which are creation. Those are to party agreement. be construed in favor of the who did not draft the See, 805, v. e.g., Topco,Inc. State P.2d 810; Jaffray Hopwood, Mueske v. & Inc. 260 Mont. Piper, 216,859 444,449-50; Cumiskey P.2d St. Paul Fire & Marine Ins. Co. v. 350, 363, 665 P.2d 204 Mont. reasons, these I would reverse order the District Court
For regarding that court for further evidence defenses and remand to to Basta’s contract claim. might have join foregoing LEAPHART HUNT and JUSTICES dissenting opinion.