No. 93-180
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
RICHARD A. WALCH,
Plaintiff and Appellant,
UNIVERSITY OF MONTANA and
STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alan F. Blakley, Attorney at Law, Missoula,
Montana; Douglas Donald Harris, Harris,
Callaghan & Velk, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
James M. Scheier, Asst. Attorney General,
Agency Legal Services Bureau, Helena, Montana
Submitted on Briefs: September 2, 1993
.. .
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Richard A. Walch filed this complaint in the
District Court for the Fourth Judicial District, Missoula County,
to recover damages from defendants, University of Montana and State
of Montana, for what he alleged was his wrongful termination from
employment at the University of Montana. The District Court
granted defendants1 motion for summary judgment and entered
judgment for defendants, dismissing plaintiff's complaint with
prejudice. From that judgment, plaintiff appeals. We affirm the
order and judgment of the District Court.
Plaintiff's appeal raises a number of issues. However, we
find the following issues dispositive of plaintiff's appeal:
1. Did retired District Judge Jack L. Green have legal
authority to grant defendants' motion for sumary judgment on
January 26, 1993, after his retirement as a District Judge on
January 1, 1993?
2. Was plaintiff's claim barred as a matter of law based on
the applicable statute of limitations?
FACTUAL BACKGROUND
On September 5, 1989, plaintiff filed a complaint in the
District Court for the Fourth Judicial District of Montana in
Missoula County. He alleged that he had been employed at the
University of Montana from May 1978 until September 9, 1986, in the
University's physical plant. He alleged that he had performed his
duties satisfactorily, and based on the covenant of good faith and
fair dealing, he had a reasonable expectation of continued
employment. He complained that he was notified during 1986 that
his position at the University was being terminated because of
budgetary requirements, but contended that that statement was
untrue and that others were hired to replace him at greater
expense. He alleged that his termination from employment at the
University constituted a wrongful discharge and violated his
employer's covenant of good faith and fair dealing.
For their answer, defendants denied the material allegations
of plaintiff's complaint and raised several affirmative defenses,
including the bar of the statute of limitations.
After answering plaintiff's complaint, defendants moved the
District Court for summary judgment dismissing plaintiff's
complaint. In support of their motion, defendants submitted a copy
of plaintiff's response to defendants' request for admissions. In
his response, plaintiff admitted that Exhibit A, which had been
attached to defendants' request, was a true and correct copy of a
letter sent to him by F. S. Shandorf, the manager of maintenance
services at the University. Plaintiff admitted that he received
the letter on August 6 or 7, 1986. In that letter, plaintiff was
notified that his employment with the University would be
permanently discontinued effective September 10, 1986, and that his
last day of employment with the University would be September 9,
1986. Based on that admission, and our decision in Martirt v. Special
Resource Management, Inc. (1990), 246 Mont. 181, 803 P.2d 1086,
defendants contended that plaintiff's claim was barred by the
statute of limitations as a matter of law. Plaintiff conceded that
the Martin case was applicable, but claimed that this case should be
distinguished, based on his allegation that after receiving the
notice of termination he filed a grievance contesting his
discharge. His position was that the grievance extended the time
of termination until the grievance procedure was concluded and that
the procedure was not concluded until he was terminated on
September 9 without any further response from the University.
What plaintiff referred to as a grievance was a letter from
his attorney to J. A. Parker, plaintiff's supervisor, which was
dated September 2, 1986, and stated in relevant part as follows:
Dear Mr. Parker:
In regard the above captioned, I wish to advise that
I represent Richard A. Walch and now advise that on his
behalf, I will be filinq a srievance under policy
number 55, Discrimination Grievance Procedure, and/or a
Complaint in District Court -vs- you and the University
for damages incurred by Richard Walch because of your
obvious discrimination against him. This action will be
filed after September 9th, 1986, which is the day that
your Memo of August llth, 1986, indicates will be Dick
Walch's last day at work. If in fact Dick Walch is cut
from the payroll at that time, his damages will start to
accrue as of that date. [Emphasis added.]
However, nothing further was filed on behalf of plaintiff
ti1 the complaint was filed on September 5, 1989
On January 26, 1993, several weeks after his retirement as a
District Judge, Jack L. Green issued his memorandum and order
granting defendants' motion for sumnary judgment. That order was
based on several conclusions of law. However, material to this
opinion was the District Court's conclusion that since plaintiff
was notified of his termination on August 6, 1986, and he did not
file his complaint until September 5, 1989, his cause of action was
barred pursuant to our decision in Martin.
Judgment for defendants was entered on February 4, 1993, and
a timely notice of appeal was filed by plaintiff following entry of
judgment .
On appeal, plaintiff raises two arguments which are relevant
to this opinion. He contends that since retired Judge Green was
not a District Court Judge or judicial officer, he did not have
authority to grant summary judgment on January 26, 1993.
Therefore, plaintiff reasons that that order is void.
Plaintiff also contends that our decision in Martin does not
control regarding the issue of the statute of limitations because
that case did not involve a statute of limitations. Instead,
plaintiff contends that our decision in Alikon v. Jumping Horse Ranch, Inc.
(1992), 255 Mont. 410, 843 P.2d 753, controls, and therefore, his
complaint was timely.
STANDARD OF REVIEW
This Court reviews an order of summary judgment by utilizing
the same criteria used by a district court initially under Rule 56,
M.R.Civ.P. Miizniev.CityofRoundup (Mont. 1993), 5 0 St. Rep. 342, 849
P.2d 212. Pursuant to Rule 56 (c), summary judgment is proper when
no genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.
Did retired District Judge Jack L. Green have legal authority
to grant defendants' motion for summary judgment on January 26,
1993, after his retirement as a District Judge on January 1, 1993?
Section 19-5-103, MCA (1991), provides in relevant part that:
(1) Every judge or justice who has voluntarily retired
after 8 years of service shall, if physically and
mentally able, be subject to call by the supreme court or
the chief justice thereof to aid and assist the supreme
oourt, any district court, or any water oourt under such
directions as the supreme court may give, including the
examination of the facts, cases, and authorities cited,
and the preparation of opinions for and on behalf of the
supreme court, district court, or water court, or to
serve as water judge. The opinions, when and if and to
the extent approved by the court, may by the court be
ordered to constitute the opinion of such court. Such
court and such retired judge or justice may, subject to
any rule which the supreme court may adopt, perform any
and all duties preliminary to the final disposition of
cases insofar as not inconsistent with the constitution
of the state.
We take judicial notice that prior to January 1, 1993, the date on
which he retired, Jack L. Green served as a District Judge for the
Fourth Judicial District of the State of Montana for over 29 years.
Pursuant to the authority of 5 19-5-103, MCA, Chief Justice of the
Montana Supreme Court, J. A. Turnage, issued the following order:
The Honorable Jack L. Green, former Judge of the
Fourth Judicial District of the State of Montana, having
retired under the provisions of the Montana Judges
Retirement System, and having advised that certain
proceedings that were heard by him were not completed on
the date of his retirement, and having requested to be
reactivated for the purposes of completing such matters,
NOW THEREFORE IT IS ORDERED:
1. The Honorable Jack L. Green is hereby called to
active service in the District Court of the Fourth
Judicial District of the State of Montana, in and for the
County of Missoula, to continue in jurisdiction in the
following matters in that court:
Cause No. 71548, Richard A. Walch v. The University
of Montana and the State of Montana.
Based on statutory authority and the above order, we conclude
that retired Judge Jack L. Green had authority to decide
defendants* motion for summary judgment when he issued his
memorandum and order on January 2 6 , 1993, and entered judgment for
defendants on February 4, 1993.
11.
Was plaintiff's claim barred as a matter of law based on the
applicable statute of limitations?
The District Court correctly granted summary judgment for
defendants pursuant to our decision in Martin v Special Resource
.
Management, Inc. (l99O), 246 Mont. 181, 803 P.2d 1086. In that case,
the plaintiff was informed on June 16, 1987, that her employment
with the defendant would be terminated as of July 17, 1987. On
June 28, 1988, she filed suit alleging wrongful discharge, breach
of the implied covenant of good faith and fair dealing, and
negligence. The District Court dismissed her common law claims for
breach of the implied covenant and negligence, on the basis that
they were barred by the Wrongful Discharge from Employment Act
( 5 39-2-901 through -914, MCA) which became effective on July 1,
1987. The District Court concluded that her claim for wrongful
termination had not fully accrued until her final termination on
July 17, 1987.
On appeal, we reversed the District Court. We stated that the
issue was: "At what point did an actionable cause for termination
arise in this case--upon notice of termination or when the
termination became effective?"
While acknowledging the general rule that tort actions accrue
when all elements, including damages, have occurred, we pointed out
that historically tort actions arising from contractual obligations
have been treated differently. We subscribed to the rule that
"[i]n torts arising from contract[,] the statute of limitations has
been held to begin to run at the time of the breach of duty
constituting the tort and not when damages ensue. 'I Martin, 803 P.2d
at 1088 (citing Aetna L f and Casualty Co. v. Sat E. Lobianco & Son Co., Inc.
ie
(1?76), 4 3 Ill. App. 3d 7 6 5 , 2 Ill. Dec. 4 5 4 , 456, 357 N.E.2d 621,
On that basis we held that:
We concur with Martin that her cause of action
accrued upon notice of her termination. All the elements
needed for a claim of breach of the implied covenant of
good faith and fair dealing, if present at all, were
present then. It is from the decirion to terminate itself
which Martin seeks redress. Her cause is analogous to
being pushed from the precipice--the assailant cannot
contend he is not culpable until the victim impacts with
the ground. It was the decision and the act thereupon
which caused the end result, and it is at that point
where legal redress may first be sought.
While policy arguments can be presented to the contrary, our
holding in Martin is clear and controls the outcome in this case.
It would be inconsistent to hold that a cause of action accrues at
the time notice of termination is received when accrual is critical
to extending common law protections to a discharged employee, but
that accrual occurs at some later date when deciding whether an
employee has timely commenced a common law cause of action for
wrongful termination of employment.
Plaintiff contends that Martin does not control because it was
not a statute of limitations case. However, the Manin case was
unequivocal in its conclusion that a cause of action for wrongful
termination from employment, whether it is based on breach of the
covenant of good faith and fair dealing, or a common law wrongful
discharge claim, "accrued upon notice of her termination." In
Montana, " [u]nless otherwise provided by statute, the period of
limitation begins when the claim or cause of action accrues."
Section 27-2-102 (2) , MCA. Since the plaintiff's claims in this
case are based on defendants' alleged torts, the period prescribed
for commencement of his cause of action is three years from the
date of accrual. Section 27-2-204, MCA.
Plaintiff submits that our decision should be controlled by
our prior decision in Alliron v. Jumping Horse Ranch, Inc. (1992), 255 Mont .
410, 843 P.2d 753. However, that case is not on point.
In Allison, we were asked to decide "[alt what point, under
5 39-2-911(1), MCA, of the Wrongful Discharge From Employment Act,
does the statute of limitations begin to run?" As mentioned
previously, the Act preempted common law remedies and altered the
statute of limitations in wrongful termination from employment
actions effective July 1, 1 9 8 7 . Section 39-2-911(1), MCA, provided
that "[aln action under this part must be filed within 1 year after
the date of discharge." Section 39-2-903 ( 2 ) , MCA, defines
"discharge" as including "constructive discharge as defined in
subsection (1) and any other termination of employment . . . ." We
held that for purposes of construing the Act's statute of
limitations, "termination of employment" occurred at such time as
there was a complete severance of the employer/employee
relationship. Allison, 843 P.2d at 755. We distinguished Martin on
the basis that, in that case, we were not construing the Wrongful
Discharge From Employment Act, nor its specific provision for
limitation of actions.
In this case, plaintiff's termination occurred in 1986, prior
to the enactment of the Wrongful Discharge From Employment Act. It
is based on the common law claim of wrongful discharge and breach
of the covenant of good faith and fair dealing. We conclude, based
on our decision in Martin, that plaintiff's cause of action, which
was filed on September 5, 1989, accrued on August 6, 1986, and was
barred by the statute of limitations found at § 27-2-204, MCA,
which allows three years to file from the date on which the cause
of action accrued.
Therefore, we affirm the judgment of the District Court.
We concur: