DA 08-0343

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 104N

THOMAS POWER,

Plaintiff and Appellee,

v.

PAR ELECTRICAL CONTRACTORS, INC.,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 04-0028

Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Leonard H. Smith and Christopher C. Stoneback, Crowley, Haughey,

Hanson, Toole & Dietrich, Billings, Montana

For Appellee:

Kenneth D. Peterson, Attorney at Law, Billings, Montana

Submitted on Briefs: March 18, 2009

Decided: March 31, 2009

Filed:

__________________________________________

Clerk

April 1 2009
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2003, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court cause number, and disposition shall be included in thisCourt’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 PAR Electrical Contractors, Inc. (PAR) appeals following a jury verdict in favor of

Thomas Power in the Thirteenth Judicial District Court, Yellowstone County. We affirm.

¶3 Power filed a wrongful discharge action against PAR on January 8, 2004. PAR

moved for summary judgment on March 14, 2008, on the grounds that the undisputed facts

showed that it had not discharged Power wrongfully. PAR argued instead that it had

discharged Power for a legitimate business reason in the form of reduction of work force

necessitated by deteriorating economic conditions and a decline in business. The District

Court denied PAR’s motion for summary judgment on the grounds that genuine issues of

material fact existed as to the reason for Power’s termination.

¶4 The District Court conducted a jury trial in May 2008. PAR filed a motion at the

close of Power’s case for a judgment as a matter of law on the grounds that eliminating a

position for economic reasons constitutes a legitimate business reason for an employee’s

termination. PAR contended that the law did not require PAR to find Power anotherposition

within its operation. The District Court denied PAR’s motion.
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¶5 The District Court resolved several disputes in the settling of jury instructions. The

District Court provided the following three instructions regarding a legitimate business

reason for an employee’s termination. Instruction No. 13 stated as follows: “A legitimate

business reason is a reason that is neither false, whimsical, arbitrary or capricious, and it

must have some logical relationship to the needs of the business.”

¶6 The District Court further provided Instruction No. 14. Thisinstruction declaredthat:

“Discharge includes any termination of employment, including resignation, elimination of

the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the

number of employeesfor a legitimate business reason.” Finally, Instruction No. 15 provided

that: “Absent express personnel policy provisions or any verbal or written promises of

management, an employer has no obligation to find a terminated employee another

employment position.”

¶7 The court specifically provided these instructions regarding a legitimate business

reason for an employee’s discharge in place oftwo instructions proffered by PAR. The court

refused to offer PAR’s Instruction No. 5, which provided that “economic conditions

constitute a legitimate business reason for a discharge.” The court also refused to include

PAR’s Instruction No. 6, which provided that “[a] legitimate business reason for discharge

exists where an employer makes legitimate reductions in the work force necessary to

maintain business viability.”

¶8 The jury returned a verdict in favor of Power. The jury determined that PAR

wrongfully had terminated Power and awarded him damages in the amount of $252,428.
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PAR responded by filing a motion for judgment as a matter of law, or, alternatively, a new

trial. PAR argued that the evidence introduced at trial established that Power had been

discharged because his job had been eliminated for legitimate business reasons and that the

District Court wrongfully had refused to provide PAR’s jury instructions central to the

theory of its case. The District Court denied PAR’s motion. PAR appeals.

¶9 PAR argues on appeal that it was entitled to judgment as a matter of law, or,

alternatively, a new trial because it had discharged Power for legitimate business reasons.

PAR contends that Power presented no evidence that showed that it had discharged him for

any reason other than declining economic conditions in its Billings office. PAR further

contends that the court’s refusal to provide to the jury its proposed Instruction No. 5 and

proposed Instruction No. 6 warrants a new trial. PAR contends that the court’s refusal to

give these proposed instructionsrendered the jury without any instruction demonstratingthat

legitimate business reasons for discharge include reacting to economic conditions. PAR

contends that this omission caused it material prejudice.

¶10 We review de novo the legal question of the district court’s denial of a motion for

judgment as a matter of law. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont.

105, 152 P.3d 727. We review a district court’s jury instructions for an abuse of discretion.

Olson v. Shumaker Truck. and Excav. Contr., 2008 MT 378, ¶ 22, 347 Mont. 1, 196 P.3d

1265. We must consider the jury instruction in its entirety, as well as in connection with the

other instructions given and with the evidence introduced at trial. Murphy Homes, Inc. v.

Muller, 2007 MT 140, ¶ 74, 337 Mont. 411, 162 P.3d 106.
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¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal OperatingRules, as amended in 2003, that provide for memorandumopinions.

It is manifest on the face of the briefs and record before us that the District Court applied

well settled Montana law to the facts ofthis case in denyingPAR’s motion for judgment asa

matter of law, or, alternatively, for a new trial. It is further evidenced on the face of the

briefs and record before us that the District Court did not abuse its discretion in instructing

the jury on legitimate business reasons for which an employer lawfully may discharge an

employee.

¶12 We affirm.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ JIM RICE