IN THE SUPREME COURT OF THE STATE OF MONTANA

JOHN M. McCRACKEN and JAMES WAGGONER, Plaintiffs,Appellants and Cross-Appellants,-vsCITY 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, 1989 Decided: March 8, 1990Justice R.C. McDonough delivered the Opinion of the Court.

JohnMcCracken and JamesWaggoner 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 appellantsvoluntarily 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 shortlypast midnight on July 31, 1984. During their careers,McCracken and Waggonerwere 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 2Liese. An investigation of the incident ensued and charges were brought against McCracken before the Police Commission. Felony chargeswere 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 suspendedby theMayor of Chinook pending a full investigation by the Police Commission. The PoliceCommission hearingwasheld onMarch 7,1984. This hearing resulted in all chargesagainstMcCrackenbeing dismissed. Eventually, the felony chargespending indistrict courtwere 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,hewas 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 areno longermembers of thepolice force. According to the appellantstbrief, 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 incidentwas a result of poor judgmentby 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 thehouse,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,thepolice officerstrelationship 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 ttpermanently 10-10, 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 statementmeant toher, that he

was quitting. The appellantsnever returned to work. According to the City, the police officerst actions were a voluntary termination of employment. Waggonertsand 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 knewtheywould be permanently off shift as of 12:00 a.m. According to McCrackenlssummary of the events, he and Waggoner were summoned to theMayor'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. SinceMcCracken had the least amount of seniority,hewould be the

one to be discharged. Waggoner on the otherhand maintains thathe had been subject to repeated demands to resign. Finally theMayor told him that if he did not quithewould be fired. However, if he quietly resigned the City would give him a good recommendation which could be used toget a job elsewhere. According toWaggonerhe compliedwith the Mayor's request and tendered a "forced" resignation. Hemaintains that theMayor accepted the resignation and that he was under the impressionthat 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 andMcCracken fileda complaint alleging wrongful discharge, constructive discharge, breach of contractandbreach of the covenant of good faithand fair dealing. Following four amended complaints, the District Court grantedsummary 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 Itlousypleading.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 Itthatthere is no genuine issue as to any material fact and that themoving party is entitled to judgment as

amatter of law." Kellyv. 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 determinewhether the lower courtproperly granted summary judgment. The trial court ruled that in order tohave 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 thepolice 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 officerswere 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 inpolice terminologymeanshe is quitting. Montana has notyet recognized that an action for wrongful discharge can be successfully asserted when an employee voluntarily terminatesthe employment relationship. Gatesv. 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;Darev. Montana Petroleum Marketing Co. (1984)

### , 212Mont. 274, 687 P.2d 1015; Crenshawv. 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 theappellantsvoluntarily 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 officerswerenever lawfully orunlawfully discharged and that they themselvescalled into thedispatcher and told her that they were permanently off duty. Regardless of any actions taken by theMayor prior to this act, it is clear that as

amatter of lawthey were not discharged and that they voluntarily terminated their employment. We agreewith theDistrictCourt 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 incomprehensiblepleadings. Apparently the original complaintwas in sucha stateof disarraythattheplaintiffs 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. TheDistrict 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. Smithv. Colonial TerraceAssociates (1986), 223 Mont. 8, 723 P.2d 954. The lower court's determination in this matter was not an abuse of discretionand accordinglyweuphold the $1200.00 sanction award. Affirmed.