No. 92-570
IN THE SUPREME COURT OF THE STATE OF MONTANA
AUGUSTA GEIGER,
Plaintiff and Appellant,
v.
THE DEPARTMENT OF REVENUE
OF THE STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventh Judicial ~istxict,
In and for the County of Dawson,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Houtz; Attorney at Law, Forsyth, Montana
For Respondent:
W. Anderson Forsythe and Martha Sheehy;
Moulton, Bellingham, Longo, & Mather,
Billings, Montana
Submitted on Briefs: April 15, 1993
Decided: September 3 , 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Augusta Geiger appeals from an order of the Montana
Seventh Judicial District Court, Dawson County, granting the
Department of Revenue's motion for directed verdict following
Geiger's presentation of her case in chief to the jury. In its
order, the Court ruled that the DOR could not be found liable for
negligent business decisions.
We affirm the District Court's conclusion, but do so on
different grounds.
We determine tne dispositive issue to be as follows:
What duty did the DOR owe plaintiff in operating the
Assessor's Office in Dawson County, Montana?
Augusta Geiger began working in the Dawson County Assessor's
Office in 1955, and was elected Dawson County Assessor in 1978.
She was reelected to the position in 1982 after running against
Terry Cantwell, an employee in the Assessor's Office. On
February 24, 1984, Geiger resigned from her elected position.
This case arises out of three incidents which occurred during
Geiger's second term as Dawson County Assessor and which she
alleges caused her to resign. The first incident occurred after
the second election. Geiger's and Cantwell's working relationship
deteriorated to such a degree that Geiger only communicated to
Cantwell by written correspondence, although they worked in the
same office. Geiger believed that Cantwell's work performance was
poor and requested Jesse Munro (Bureau Chief and Geiger's immediate
supervisor at DOR) to speak with Cantwell. Munro responded by
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letter stating that given Geiger's failure to follow the proper
methods for disciplining and dismissal, it would not be appropriate
to discipline or fire Cantwell. Cantwell quit her job in January
1983.
The second incident occurred when the Dawson County Assessor's
Office became computerized in the early part of 1983. Because of
problems stemming from computerization and a cutback in employees,
the office began to fall behind in its work. Geiger requested
additional help from Munro in order for the office to meet its
iieadiines. Hunro denied the request. Geiger then caiieii the
Director of the DOR. As a result of that telephone call for more
help, the DOR temporarily assigned the Cascade County Assessor to
the Dawson County office. During the two-month period the Cascade
County Assessor worked in the Dawson County office, the DOR
suspended Geiger's authority to hire and fire state employees and
transferred it to the Cascade County Assessor. After the Cascade
County Assessor completed the required work, he left and the DOR
restored Geiger's authority, with the exception that she could not
hire and fire state employees. Geiger testified that the Cascade
County Assessor's presence in the office was part of the problem
resulting in her resignation.
The third incident was the DOR1s audit of the Dawson County
office. The audit occurred in September 1983. The report
identified several problems with the Dawson County office,
including violations of state law, administrative rules, and DOR
policy. The audit report consisted of 118 pages which pointed to
3
problems in the office and suggested various solutions to correct
personnel problems and meet assessment deadlines as required by
law. Because of these incidents, Geiger resigned her elected
office.
On September 4, 1984, Geiger filed a complaint in Dawson
County District Court against the DOR. The District Court
dismissed the Dawson County Commissioners from this action on
July 7, 1988. The dismissal occurred because ofthe Dawson County
Commissioners' successful appeal in Cantwell v. Geiger (1987), 228
Xont. 330, 742 P.2d 468. On September 27, 1990, the District Court
granted the DOR's motion to dismiss, based upon the pleadings. On
August 27, 1991, in an unpublished opinion, this Court reversed and
remanded the District Court's order.
On April 27, 1992, the District Court granted the DOR partial
summary judgment by dismissing Geiger's claim for constructive
discharge. The District Court allowed Geiger's claim to proceed
because she alleged the W R was negligent in its management of the
Dawson County Assessor's Office.
Jury trial was held on June 24 and 25, 1992. The court
granted the DOR's motion for a directed verdict following the
presentation of Geiger's case-in-chief. Geiger appeals.
What duty did the DOR owe plaintiff in operating the
Assessor's Office in Dawson County, Montana?
Generally, the State is subject to suit and is liable for its
torts. Mont. Const. art. 11, § 18 (1972); 5 2-9-102, MCA. A
fundamental tenet in the law of torts is that "'there can be no
negligence if no duty exits. "' Quirin v. Weinberg (1992), 252
Mont. 386, 391, 830 P.2d 537, 539 (quoting Ambrogini v. Todd
(1981), 197 Mont. 111, 118, 642 P.2d 1013, 1017). The tort of
negligence arises when a person has a legally recognized duty, tne
person breaches that duty, the breach of the duty acts as a legal
cause of another's injury, and the injury results in actual loss or
damage. Thornock v. State (1987), 229 Mont. 67, 72, 745 P.2d 324,
327. We have stated that "[wlhether or not a duty exists is a
question of law. When reviewing questions of law, we will
determine if tne trial court's determination as to the law is
correct. Our review will be plenary." Quirin, 830 P.2d at 540.
We affirm the decision of the District Court but on different
grounds--namely that Geiger failed to establish a prima facie case
for negligence because she failed to establish that the DOR owed
her a duty. Where the conclusion of the district court is correct,
it is immaterial, for the purpose of affirmance on appeal, what
reasons the district court gives for its conclusion. Bolz v. Myers
(1982), 200 Mont. 286, 295-96, 651 P.2d 606, 611.
Geiger alleges that the DOR was negligent in failing to
provide personnel when requested, that it improperly supervised its
employee Cantwell, that the DOR improperly investigated complaints
made by Cantwell, and that the DOR acted unlawfully by suspending
Geiger's authority to hire and fire State employees.
The role of the DOR in supervising county assessor offices in
Montana is unique. Although the relationship between the DOR and
the county assessors closely resembles an employment relationship
because of the supervisory nature of the DOR mandated by statute,
the relationship does not rise to the level of an employer and
employee.
Prior to 1973, county assessors assessed property according to
their local appraisal system. To equalize property assessments
statewide, the legislature amended 5 15-8-102, MCA, to make county
assessors agents of the M R . Cantwell, 742 P.2d at 470. The
county assessor is an agent of the DOR for the purpose of locating
and providing the DOR with a description of all taxable property
within the county. Section 15-8-102(i), MCA. Tne Legislature gave
the DOR full charge of assessing all property subject to taxation
in equalizing values. The DOR is required to secure the necessary
personnel to perform its duties. Section 15-8-101, MCA. Statutes
mandate that the DOR supervise the assessment function to insure
that it is properly carried out. Section 15-1-201(1) (a), MCA. The
DOR is required to provide education and certification of county
assessors. Sections 15-8-103, -105, and -106, MCA (1989).
The changes made in 1973 removed the county commissioners^
authority to supervise the internal operations of the assessorvs
office and placed it with the DOR. Cantwell, 742 P.2d at 470.
Even so, the county assessor remained an elected or appointed
position and served at the will of the electorate or appointing
power. Section 7-4-2203, MCA. County assessors and their deputies
are paid by the county. Sections 7-4-2503 and -2505, MCA. The
employees of the assessor's office are state employees who are
hired by the DOR. The DOR has the power and responsibility for the
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hiring, firing, and assignment of duties of employees in a county
assessor's office, except for the county assessors and their
deputies. Section 15-8-101, MCA. Therefore, Geiger was not an
employee of the DOR but was an elected official "employedss her
by
constituents. As an elected official, Geiger could only be removed
if the electorate chose to recall her or if she was convicted of
official misconduct. Sections 21-16-603 and 45-7-401, MCA.
All the testimony and evidence offered by Geiger related to
actions which the DOR had statutory authority to perform and did
not violate any duty owed to Geiger. For example, the DOR had
established a formula in allocating personnel to the various
counties. Geiger testified that other county assessor offices were
going through personnel reductions in 1981. Geiger admitted that
other counties situated similarly could work with three employees
and that the DORIS allocation was fair.
The DORfs refusal to fire Cantwell does not establish a
violation of the DOR1ssupervisory obligation. Munro sent a letter
to Geiger addressing Cantwell's situation which stated that Geiger
failed to take the proper measures required for discipline and
dismissal. During trial, Geiger admitted that she agreed with the
DOR1s handling of Cantwell's employment situation.
When Geiger's office failed to meet the deadlines for tax
assessments, the DOR acted within its authority to suspend Geiger's
authority to hire and fire employees. The DOR also acted within
its authority to audit Geiger's office when it appeared that the
office was having constant trouble meeting its statutory
obligations. The DOR's evaluation and criticism of the Dawson
County Assessor's office was not a breach of a statutory duty but
was the performance of a statutory obligation.
The DOR removed only that authority it had delegated to
Geiger, and not any statutory authority that was inherent in the
elected position. Geiger resigned from her position voluntarily
and was not removed by the DOR. The DOR did not violate any
statutory or general duty owed to Geiger. Therefore, we hold that
the District Court did not err in granting the directed verdict in
favor of the DOR.
We affirm the decision of the District Court based on Geiger's
failure to establish a prima facie case for negligence on the part
of the DOR.
We concur:
'-.- -.
!
September 8, 1993
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
John Houtz
Attorney at Law
P.O. Box 1230
Forsyth, MT 59327
W. Anderson Forsythe & Martha Sheehy
Moulton, Bellingham, Longo & Mather, P.C.
P.O. Box 2559
Billings, MT 59103
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA