IN THE SUPREME COURT OF THE STATE OF MONTANA
JOHN M. McCRACKEN and JAMES WAGGONER,
Plaintiffs, Appellants and
Cross-Appellants,
-vs-
CITY OF CHINOOK, MONTANA,
Defendant, Respondent and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty; Flaherty & Winner, Great Falls,
Montana
Robert Emmons, Great Falls, Montana
For Respondent:
Darcy Crum; James Gray & McCafferty, Great Falls,
Submitted on Briefs: Dec. 21, 1 9 8 9
Decided: March 8, 1990
Justice R.C. McDonough delivered the Opinion of the Court.
John McCracken and James Waggoner appeal from an order of the
Seventeenth Judicial District, Blaine County, granting summary
judgment to respondent, the City of Chinook, and assessing
sanctions against the appellants. The lower court found that the
appellants voluntarily terminated their employment, and therefore
dismissed their cause of action alleging wrongful discharge. We
affirm.
The issues in this case are:
1. Whether the District Court erred in concluding that no
genuine issue of material fact existed that appellants were not
terminated by the City but instead quit.
2. Whether the District Court erred by assessing Rule 11
sanctions against the appellants.
Because this is an appeal from an order granting summary
judgment, we review the facts in a light most favorable to the
appellants.
John McCracken and James Waggoner were both police officers
in Chinook, Montana. McCracken was hired on October 14, 1983 and
Waggoner was hired on January 1, 1982. Both left the police
department shortly past midnight on July 31, 1984.
During their careers, McCracken and Waggoner were the subject
of much controversy concerning their performance while on duty.
McCracken, for his part, was involved in an arrest of Pete Doney
on December 5, 1983. Following this arrest, Doney alleged that he
had been assaulted by McCracken and another police officer, Jerry
2
Liese. An investigation of the incident ensued and charges were
brought against McCracken before the Police Commission. Felony
charges were also filed in state district court relative to this
incident. The judge found probable cause to exist and allowed an
information to be filed. As a result of these charges, McCracken
was suspended by the Mayor of Chinook pending a full investigation
by the Police Commission.
The Police Commission hearing was held on March 7, 1984. This
hearing resulted in all charges against McCracken being dismissed.
Eventually, the felony charges pending in district court were also
dismissed. McCracken was reinstated as a police officer and
awarded back pay.
Waggoner was also subject to allegations of misconduct. In
May of 1984, he was a participant in a fight with Ray Nez Perce at
the Elk's Bar in Chinook. As a result of this incident, he was
charged and eventually convicted of disorderly conduct.
McCracken and Waggoner were also accused of an incident
involving joint misconduct. There are completely different
accounts of this event, however both admit that the incident was
part of the reason they are no longer members of the police force.
According to the appellantst brief, McCracken and Waggoner
were caught swimming in an irrigation ditch with a young woman.
Their story is unclear, however it appears as though the
participants were in various stages of undress while they were
swimming. It is conceded that this incident was a result of poor
judgment by the police officers.
The City presents a totally different version of the event.
According to their brief, McCracken and Waggoner went to a house
occupied by Pete Doney, Ray and Frank Nez Perce and the woman.
When they arrived at the house, McCracken pushed open the door, and
entered and invited the woman to go skinny dipping. The woman
refused this request and the following day charges were filed
against McCracken for trespass. Eventually these charges were
dropped.
As a result of these events, the police officerst relationship
with their employer, the City of Chinook, became very strained.
According to McCracken and Waggoner, the Mayor began earnestly
seeking their resignation. He also threatened to fire them on
occasion. Finally, at midnight on July 31, 1984, at 12:43 a.m.,
the police officers called into the dispatcher and checked out
ttpermanently10-10, 10-42. In police terminology, 10-10 is the
code for off-shift and 10-42 is the code for notifying the
dispatcher that the officer is now home. According to the
dispatcher's testimony, Waggoner's statement meant to her, that he
was quitting. The appellants never returned to work.
According to the City, the police officerst actions were a
voluntary termination of employment. Waggonerts and McCrackents
resignations took them by complete surprise and as a result, the
City was left without police protection during the early morning
hours of July 31.
The police officers, however, steadfastly maintain that they
were either forced to resign or were fired and that the City knew
they would be permanently off shift as of 12:00 a.m. According to
McCrackenls summary of the events, he and Waggoner were summoned
to the Mayor's office in the afternoon of July 30. The Mayor then
informed McCracken that due to a reorganization of the police
force, he would be laid off. Apparently the police chief was
stepping down to patrolman and a new chief was going to be hired.
Since McCracken had the least amount of seniority, he would be the
one to be discharged.
Waggoner on the other hand maintains that he had been subject
to repeated demands to resign. Finally the Mayor told him that if
he did not quit he would be fired. However, if he quietly resigned
the City would give him a good recommendation which could be used
to get a job elsewhere. According to Waggoner he complied with the
Mayor's request and tendered a "forced" resignation. He maintains
that the Mayor accepted the resignation and that he was under the
impression that he too, would be relieved of all duties as of 12: 00
a.m., July 31.
Apparently Waggoner's written resignation was never accepted
by the City. He states that the Mayor told him he would sign the
acceptance of the resignation the following day. The resignation
was never signed by the Mayor, however, and the City maintains it
was never accepted due to conditions contained therein.
On February 19, 1986, Waggoner and McCracken filed a complaint
alleging wrongful discharge, constructive discharge, breach of
contract and breach of the covenant of good faith and fair dealing.
Following four amended complaints, the District Court granted
summary judgment in favor of the defendants. The court also
assessed Rule 11 sanctions in the amount of $1200.00 against the
plaintiffs for what was termed Itlousy pleading.I1 This appeal
followed.
I
The standard that an appellate court applies in reviewing a
grant of summary judgment is the same as that initially utilized
by the trial court under Rule 56, M.R.Civ.P. Summary judgment is
proper when it appears Itthat there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Kelly v. Widner (1989), 46 St.Rep. 591, 771 P.2d
142. We must review the evidence submitted by the appellants, in
this light, in order to determine whether the lower court properly
granted summary judgment.
The trial court ruled that in order to have a cause of action
for wrongful discharge, a plaintiff must first establish that he
was legally discharged. In order for a police officer to be
legally discharged, he must first be given a hearing before the
police commission. Section 7-32-4162, MCA. Neither McCracken nor
Waggoner were taken before the police commission. Therefore, they
were not legally discharged and accordingly they cannot now bring
a cause of action alleging wrongful discharge.
The trial court also found that both officers were concerned
over the probable filing of charges against them. It was this
concern which led Waggoner to call in and tell the dispatcher that
he was permanently 10-10, 10-42, which in police terminology means
he is quitting. Montana has not yet recognized that an action for
wrongful discharge can be successfully asserted when an employee
voluntarily terminates the employment relationship. Gates v. Life
of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063;
Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 305, 668
P.2d 213 ; Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont.
274, 687 P.2d 1015; Crenshaw v. Bozeman Deaconess Hospital (1984),
213 Mont. 488, 693 P.2d 487. Under this set of facts, we decline
to expand the cause of action to include such circumstances.
Therefore, because the record indicates the appellants voluntarily
quit the police force, their cause of action is barred.
McCracken and Waggoner submitted several affidavits and
articles from the local newspaper which tend to support their
contentions that they were forced to resign. However, even
assuming that this evidence is admissible it does not overcome the
facts that these police officers were never lawfully or unlawfully
discharged and that they themselves called into the dispatcher and
told her that they were permanently off duty. Regardless of any
actions taken by the Mayor prior to this act, it is clear that as
a matter of law they were not discharged and that they voluntarily
terminated their employment. We agree with the District Court that
under the facts here, neither McCracken nor Waggoner were
wrongfully discharged, nor did the City commit breach of contract
or breach of the covenant of good faith and fair dealing. The
judgment of the District Court granting summary judgment to the
defendants is affirmed.
I1
The District Court imposed a $1200.00 sanction upon the
appellants and their attorney as a punishment for their
incomprehensible pleadings. Apparently the original complaint was
in such a state of disarray that the plaintiffs were forced to file
four amended complaints and a More Definite Statement before the
allegations became comprehensible. As a result of the confused
nature of these pleadings, the City was forced to file at least
three separate Motions to Dismiss and a Motion for Summary
Judgment. The District Court found that this inept legal work cost
the City of Chinook thousands of dollars in unnecessary legal
costs. It decided, however, to make only a small assessment in
order to impress upon the appellants their duty to present
professional work to the courts.
The amount of a sanctions award is discretionary with the
district court. Such a ruling will not be disturbed unless the
court acted arbitrarily or committed a clear abuse of discretion.
Smith v. Colonial Terrace Associates (1986), 223 Mont. 8, 7 2 3 P.2d
954. The lower court's determination in this matter was not an
abuse of discretion and accordingly we uphold the $1200.00 sanction
award. Affirmed.