NO. 90-611
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STEPHEN P. WEBER,
Plaintiff and Appellant,
-vs-
STATE OF MONTANA,
Defendant, Respondent and Cross-Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Erik B. Thueson; Thueson Law Office, Helena, Montana
For Respondent:
Maxon R. Davis; Cure, Borer & Davis, Great Falls,
Montana
Bill Gianoulias, Tort Claims Division, Helena,
Montana
Submitted on Briefs: February 13, 1992
MAY 5 - 1992 Decided: May 5, 1992
Filed: ,
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CLERA CIF L2t.r t ... :,3URT
STATE Ot hibruTA~JA
,
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Stephen P. Weber, brought a wrongful discharge
action against the State of Montana before the First Judicial
District Court, Lewis and Clark County, Montana. A jury found in
favor of Mr. Weber and awarded him $33,230 in damages. Mr. Weber
appeals. The State of Montana cross-appeals. We affirm.
The issues raised for review by the parties are restated as
follows:
1. Did the District Court abuse its discretion in admitting
certain evidence at trial?
2. Did the District Court incorrectly instruct the jury that
damages under 8 39-2-905(1), MCA, are discretionary?
3. Should the District Court award Mr. Weber costs and
attorney fees?
4. Was the jury's verdict in favor of Mr. Weber supported by
substantial evidence?
In September 1988, Mr. Weber resigned from his position as
assistant manager of the Tort Claims Division for the State of
Montana. At the time of his resignation, Mr. Weber had been
employed by the State for 16 years and was earning approximately
$30,000 per year. In September 1989, he brought this wrongful
discharge action contending he was constructively discharged by
intolerable working conditions created by his superiors. Mr. Weber
claims he was harassed, treated unfairly and finally demoted for
his actions involving a fraudulent claim submitted to his
department by the Department of Administration's Publications and
Graphics Division (P & G).
Evidence presented by Mr. Weber indicated that in August 1986,
he received a property damage claim for $111,000 from Gary Wolf,
administrator of P & G. Mr. Weber presented extensive testimony
that this claim submitted by P & G was inflated. In fact, Weber
assessed the property damage at under $6,000. Further, evidence
indicated that contrary to 12-17-105, MCA, P & G was using the
insurance proceeds to purchase office furniture and equipment
instead of replacing the property allegedly destroyed by the flood.
As a result, Mr. Weber testified that he refused to pay P & GIs
claims.
In November 1986, Mr. Wolf and P & G bureau chief, Don Brieby,
met with Mr. Weber s superior, John Maynard (Maynard), regarding
Mr. Weberls refusal to pay the claim. In response to this meeting,
Mr. Weber testified that his superiors ordered him to pay the
claims submitted by P & G.
Subsequently, Mr. Weber informed the legislative auditor of
the exorbitant claim. The auditor determined P & G improperly
purchased office equipment and furniture with the insurance
proceeds; however, the auditor did not investigate Mr. Weber's
complaint regarding the inflated claim until after this trial.
After the P & G claim controversy, Mr. Weber testified that
working conditions became "strained.I1 Mr. Weber testified his
superiors began accusing him of making mistakes on office matters
in which he had no involvement. Mr. Weber further testified they
treated him like he did not exist, would not speak to him and made
him feel unimportant. Finally, in June 1988, Mr. Maynard informed
Mr. Weber that as a result of reclassification, his position would
most likely be downgraded. In September 1988, after receiving the
news that he would be demoted immediately, Mr. Weber tendered his
resignation.
This case was submitted to a jury. Mr. Weber claimed the
State, through its supervising personnel, constructively discharged
him from employment by causing him to leave his job. The State
denied that Mr. Weber was forced to leave his job. In the
alternative, the State claimed that even if Mr. Weber was
wrongfully discharged, he did not take reasonable steps to minimize
his damages. The jury rendered a verdict in favor of Mr. Weber for
$33,230. As a result, Mr. Weber submitted post-trial motions
requesting a new trial on the issue of damages, and an award of
attorney fees and costs from the court. The District Court denied
both motions. From this order Mr. Weber appeals. The State cross-
appeals, claiming the jury verdict was not supported by substantial
evidence.
The appellant in this action is not related to the author of
this opinion.
Did the District Court abuse its discretion in admitting
certain evidence at trial?
Admitting or refusing evidence is within the discretion of the
trial court. Morning Star Enterprises, Inc. v. R.H. Grover, Inc.
(1991), 247 Mont. 105, 110, 805 P.2d 553, 556. Thus, in order to
overturn an evidentiary ruling Mr. Weber must show an abuse of
discretion.
Mr. Weber claims the District Court abused its discretion by
admitting four specific segments of testimony and one exhibit.
These include: Mr. Maynard's job performance appraisal and certain
testimony regarding Mr. Weber's job performance; prejudicial
testimony raising the inference that Mr. Weberts claim was
frivolous; and testimony appealing to the self-interest of the
jurors as taxpayers.
Mr. Weber objects to derogatory statements and exhibits
involving his job performance. First he claims that this evidence
was irrelevant where the State never placed his job performance at
issue in their answer or the pretrial brief. We disagree. Mr.
Weber introduced evidence of his diligent work habits during the
trial. Thus, we conclude the District Court did not abuse its
discretion in allowing the State to submit evidence for the purpose
of rebutting that testimony.
Next, Mr. Weber claims the derogatory testimony regarding his
job performance is improper character evidence under Rule 4 0 4 ,
M.R.Evid. We disagree. The evidence regarding Mr. Weberts job
performance is not character evidence excluded by Rule 4 0 4 ,
M.R.Evid. We conclude it is admissible evidence of the plaintiff's
conduct.
Further, Mr. Weber claims the testimony and evidence regarding
his job performance was self serving, remote, opinion testimony of
a lay witness, and a prior consistent statement disallowed under
Rule 801 (d)(1), M.R. Evid. Again, Mr. Weber has failed persuade
this Court that the District Court abused its discretion by
admitting this evidence. We conclude the District Court did not
abuse its discretion in allowing testimony and a job performance
appraisal which criticized Mr. Weber's job performance.
Next, Mr. Weber contends the court abused its discretion in
admitting testimony from the director of the Department of
Administration, and Mr. Maynard, administrator of the Tort Claims
Division. Mr. Weber contends this testimony led to the inference
that his claim was frivolous and incorrectly appealed to the self-
interest of the jurors as taxpayers. After reviewing the record,
we conclude Mr. Weber has incorrectly described the testimony, and
has failed to demonstrate the lower court abused its discretion in
admitting the testimony.
We hold the District Court did not abuse its discretion in
admitting certain evidence and properly denied plaintiff's motion
for a new trial on this issue.
Did the District Court incorrectly instruct the jury that
damages under 5 39-2-905(1), MCA, are discretionary?
Mr. Weber objects to the District Court's Jury Instruction No.
17 which reiterated the language in 5 39-2-905(1), MCA, instructing
that:
If an employer has committed a wrongful discharge,
the employee mav be awarded lost wages and fringe
benefits for a period not to exceed 4 years from the date
of discharge, together with interest thereon. Interim
earnings, including amounts the employee could have
earned with reasonable diligence, must be deducted from
the amount awarded for lost wages. (Emphasis added.)
Mr. Weber contends that damages under 5 39-2-905 (1), MCA, are
mandatory and that he is entitled to four years compensation
including benefits and interest. He argues that under Bascom v.
Carpenter (1952), 126 Mont. 129, 136, 246 P.2d 223, 226, and Lambe
v. Missoula Imports (1988), 230 Mont. 183, 187-188, 748 P.2d 965,
968, the damages of 5 39-2-905(1), MCA, are mandatory. We
disagree. Both Bascom and Lambe are inapposite this decision. In
Bascom this Court required the lower court to provide notice to a
natural parent prior to the termination of their parental rights,
despite discretionary language in the statute. We conclude there
is no merit to Mr. Webertscontention that he is similarly situated
to the father in Bascom who lost his parental rights without
notice. Next, Lambe interpreted a workerst compensation statute
which provided that the court ttmaytt
award attorney fees to
successful claimants in workerst compensation actions. In view of
the statutory differences between the Workerst Compensation Act and
the Wrongful Discharge From Employment Act; Lambe is not
controlling authority for a claim under the Wrongful Discharge Act.
We conclude 5 39-2-905 (I), MCA, places the discretion in the trier
of fact to determine the amount of lost wages and benefits not to
exceed four years from date of discharge.
Mr. Weber next argues that the jury's award of damages is not
supported by the evidence. We will not reweigh the evidence
presented by the parties, or disturb a jury verdict which is
supported by substantial evidence. Sizemore v. Montana Power Co.
(1990), 246 Mont. 37, 48, 803 P.2d 629, 636. Mr. Weber has failed
to demonstrate that the award of $33,230 is not supported by the
evidence. We conclude there is substantial evidence to support the
verdict.
We hold that the amount of damages recoverable under § 39-2-
905(1), MCA, is discretionary; and that the ~istrict Court
correctly instructed the jury on the measure of such damages. The
District Court properly denied plaintiff's motion for a new trial
on this issue.
I11
Should the District Court award Mr. Weber costs and attorney
fees?
First, Mr. Weber claims he is entitled to attorney fees and
costs under State v. Frank (1987), 226 Mont. 283, 735 P.2d 290.
This Court held that in extreme cases, if justice and equity
required, the District Court had the discretion to award costs and
attorney fees. Frank, 226 Mont. at 293, 735 P.2d at 297. In
Frank, the District Court order the Department of Revenue to pay
costs and attorney fees when the Department executed upon Mr.
Frank's wages in violation of a prior agreement. Mr. Frank was
forced to file an action in district court to set aside the
Department's improper levy of execution.
In this case, Mr. Weber failed to convince the trial court
that the State's conduct was so extreme as to entitle him to costs
and attorney fees. Further, he has failed to provide evidence that
the District Court abused its discretion in reaching that
determination. Thus, we conclude the District Court did not abuse
its discretion in determining that equity and justice did not
require the award of costs and attorney fees in this action.
Next, Mr. Weber points to the private attorney general
exception which allows the prevailing party to receive an award of
costs and attorney fees when the government fails to enforce
interests significant to its citizens. Matter of Dearborn Drainage
Area (1989), 240 Mont. 39, 43, 782 P.2d 898, 900.
Here, Mr. Weber focuses upon the egregious conduct surrounding
the inflated P & G claim, rather than focusing upon the conduct
which led to his wrongful termination. While we do not wish to
indicate any approval of conduct on the part of P & G, which may be
classed as fraudulent, the present action was brought to recover
losses for Mr. Weber's wrongful discharge, and not as a vehicle to
reimburse the State for fraudulent claims. We conclude the private
attorney general theory is not applicable to this action.
Finally, Mr. Weber contends he should receive attorney fees
and costs under 5 25-10-711, MCA, which provides in part:
(1) In any civil action brought . . . against the state
. . . the opposing party . . . is entitled to the costs
. . . and reasonable attorney's fees as determined by the
court if:
(a) he prevails against the state . . . ; and
(b) the court finds that the . . . defense of the
state . . . was frivolous or pursued in bad faith.
It is clear Mr. Weber did prevail against the State. Next, we must
determine if the District Court was clearly erroneous when it
concluded that the defense of the State was neither frivolous nor
pursued in bad faith. Rule 52(a) I4.R.Civ.P.
Mr. Weber contends the State's defense was frivolous and
pursued in bad faith where the State maintained the legitimacy of
P & GIs insurance claim during the trial; represented that
government's improprieties were harmless; and attacked Mr. Weber's
job performance.
The plaintiff again misses the mark by emphasizing the
propriety of the P & G claim, instead of analyzing the State's
defense. Although, Gary Wolf's testimony rebutted the plaintiff's
evidence that P & G submitted an inflated claim, the State
steadfastly denied that the inflated claim was connected to the
interaction between Mr. Weber and his superiors or his position
downgrade which ultimately led to Mr. Weber's constructive
discharge. In addressing Mr. Weber's concerns regarding the
legitimacy of the P & G claim, the District Court found:
.. . there was absolutely no evidence that any of
Plaintiff's supervisors knew of the fraud aspects of the
flood claim until after Plaintiff had quit his job and
after he had filed his lawsuit. Initially, Plaintiff's
reluctance to pay the flood claim came on his
interpretation of a statute. He felt that the statute
would not authorize purchase of equipment not like that
destroyed by the flood. It was only during discovery in
1990 that it came to light that perhaps someone over at
publications and graphics had inflated the claim .. .
there is absolutely no evidence that the people who were
responsible for Plaintiff's termination had any inkling
of these apparently unethical activities."
Next, the plaintiff contends the State defended in bad faith by
representing that the inflated claim was harmless. Mr. Weber
mischaracterizes the State's defense. The District Court found:
... the State did not want to talk about the flood case
at all and presented a motion in limine to exclude any
evidence in that regard. It was the Plaintiff that
brought up the flood time and time and time again, making
it the central issue in their case."
The record supports the conclusion of the District Court.
We have previously upheld the relevance of Mr. Weber's job
performance where he had placed his performance at issue in this
action.
The District Court pointed out that Mr. Weber originally
valued his case at $500,000 in June 1989, and later offered to
settle for $170,000 in January 1990. Following trial in this case,
the jury evaluated Mr. Weber's claim at $33,230. As pointed out by
the District Court, these figures demonstrate that the State's
defense was not frivolous.
The District Court properly considered the issues raised by
Mr. Weber. We conclude that the District Court was not clearly
erroneous in determining that the State defended in good faith.
We conclude the District Court properly addressed the issues
raised by the plaintiff, and did not err in denying Mr. Weber an
award of costs and attorney fees.
IV
Was the jury's verdict in favor of Mr. Weber supported by
substantial evidence?
This Court takes a very limited role in reviewing jury
verdicts. As previously stated, we do not retry the issues on
appeal, but review the evidence in the light most favorable to the
prevailing party and then determine whether substantial evidence
supports the jury verdict. Sizemore, 246 Mont. at 48, 803 P.2d at
636. The State contends the evidence presented does not support
the jury's finding of wrongful discharge. We disagree. In
reviewing the evidence in the light most favorable to Mr. Weber, we
hold substantial evidence supports the jury verdict.
Affirm.
Justices
Justice William E. Hunt, Sr., dissenting.
I dissent. I would reverse and remand this case for a new
trial on the question of damages, based on the jury instruction
given by the District Court regarding damages. The instruction was
based on 5 39-2-905, MCA, which provides in part that:
(1) If an employer has committed a wrongful
discharge, the employee may be awarded lost wages and
fringe benefits for a period not to exceed 4 years from
the date of discharge, together with interest thereon.
Interim earnings, including amounts the employee could
have earned with reasonable diligence, must be deducted
from the amount awarded for lost wages.
This Court has developed a rule for construing statutes such
as the one in question here. We have repeatedly stated that:
It is a general principle in statutory
construction that, where the word Itmay" is
used in conferring power upon an officer,
court, or tribunal, and the public or a third
person has an interest in the exercise of
power, then the exercise of the power becomes
imperative. (Citations omitted.)
Lamb v. Missoula Imports (1988), 230 Mont. 183, 188, 748 P.2d 965,
968 (quoting Adoption of Bascon (1952), 126 Mont. 129, 136, 246
The instruction directing the jury that the "employee may be
awarded" the specified damages was misleading and incorrect. The
jury, in its discretion, must determine whether there has been a
wrongful discharge. If the jury determines there has been a
wrongful discharge, the jury must then determine the damages
according to 5 39-2-905, MCA. In determining the amount of damages
in these cases, the jury has some discretion, especially concerning
the question of amounts the employee could have earned with
reasonable diligence after the wrongful discharge from employment.
However, once the jury is satisfied that damages in a certain
amount have been proven, an award in that amount is mandatory. In
the present case, the instruction given the jury concerning damages
may be fairly interpreted as an instruction to the jury that they
had the discretion to award or withhold damages, even if they were
proven.
The jury found that appellant had been wrongfully discharged
from his employment. There is no way of determining how the
damages in this case were calculated, but judging from the award of
damages, it is entirely possible the jury believed that it was
within their discretion to award or withhold damages even if they
were proven.
Additionally, appellant is entitled to attorney fees at the
District Court level and on appeal under the private attorney
general doctrine. The private attorney general doctrine is
''utilized when the government, for some reason, fails to properly
enforce interests which are significant to its citizenslf and a
private citizen is forced to bring suit to enforce these interests
and prevails. Matter of Dearborn Drainage Area (1989), 240 Mont.
39, 43, 782 P.2d 898, 900. The fact that the appellant stood to
gain personally from the litigation does not diminish the benefits
received by the public. In this case, the appellant alleged that
he was wrongfully discharged from his employment because he
13
attempted to expose fraud and waste in state government. A jury
determined that he had in fact been wrongfully terminated. Fraud
and waste in government are clearly matters of eminent importance
and interest to the citizens of this State and the private attorney
general doctrine should be applied in this case.
/
Justice Terry N. Trieweiler concurs in the foregoing dissent of
Justice Hunt.