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, 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 

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 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, 723 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.