No. 92-570 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

AUGUSTA GEIGER, 

Plaintiff and Appellant, 

v. 

THE DEPARTMENT OF REVENUE 

OF THE STATE OF MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial ~istxict, 

In and for the County of Dawson, 

The Honorable Richard G. Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Houtz; Attorney at Law, Forsyth, Montana 

For Respondent: 

W. Anderson Forsythe and Martha Sheehy; 

Moulton, Bellingham, Longo, & Mather, 

Billings, Montana 

Filed: 

Submitted on Briefs: April 15, 1993 

Decided: September 3, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Augusta Geiger appeals from an order of the Montana 

Seventh Judicial District Court, Dawson County, granting the 

Department of Revenue's motion for directed verdict following 

Geiger's presentation of her case in chief to the jury. In its 

order, the Court ruled that the DOR could not be found liable for 

negligent business decisions. 

We affirm the District Court's conclusion, but do so on 

different grounds. 

We determine tne dispositive issue to be as follows: 

What duty did the DOR owe plaintiff in operating the 

Assessor's Office in Dawson County, Montana? 

Augusta Geiger began working in the Dawson County Assessor's 

Office in 1955, and was elected Dawson County Assessor in 1978. 

She was reelected to the position in 1982 after running against 

Terry Cantwell, an employee in the Assessor's Office. On 

February 24, 1984, Geiger resigned from her elected position. 

This case arises out of three incidents which occurred during 

Geiger's second term as Dawson County Assessor and which she 

alleges caused her to resign. The first incident occurred after 

the second election. Geiger's and Cantwell's working relationship 

deteriorated to such a degree that Geiger only communicated to 

Cantwell by written correspondence, although they worked in the 

same office. Geiger believed that Cantwell's work performance was 

poor and requested Jesse Munro (Bureau Chief and Geiger's immediate 

supervisor at DOR) to speak with Cantwell. Munro responded by 

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letter stating that given Geiger's failure to follow the proper 

methods for disciplining and dismissal, it would not be appropriate 

to discipline or fire Cantwell. Cantwell quit her job in January 

1983. 

The second incident occurred when the Dawson County Assessor's 

Office became computerized in the early part of 1983. Because of 

problems stemming from computerization and a cutback in employees, 

the office began to fall behind in its work. Geiger requested 

additional help from Munro in order for the office to meet its 

iieadiines. Hunro denied the request. Geiger then caiieii the 

Director of the DOR. As a result of that telephone call for more 

help, the DOR temporarily assigned the Cascade County Assessor to 

the Dawson County office. During the two-month period the Cascade 

County Assessor worked in the Dawson County office, the DOR 

suspended Geiger's authority to hire and fire state employees and 

transferred it to the Cascade County Assessor. After the Cascade 

County Assessor completed the required work, he left and the DOR 

restored Geiger's authority, with the exception that she could not 

hire and fire state employees. Geiger testified that the Cascade 

County Assessor's presence in the office was part of the problem 

resulting in her resignation. 

The third incident was the DOR1s audit of the Dawson County 

office. The audit occurred in September 1983. The report 

identified several problems with the Dawson County office, 

including violations of state law, administrative rules, and DOR 

policy. The audit report consisted of 118 pages which pointed to 

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problems in the office and suggested various solutions to correct 

personnel problems and meet assessment deadlines as required by 

law. Because of these incidents, Geiger resigned her elected 

off ice. 

On September 4, 1984, Geiger filed a complaint in Dawson 

County District Court against the DOR. The District Court 

dismissed the Dawson County Commissioners from this action on 

July 7, 1988. The dismissal occurred because ofthe Dawson County 

Commissioners' successful appeal in Cantwell v. Geiger (1987), 228 

Xont. 330, 742 P.2d 468. On September 27, 1990, the District Court 

granted the DOR's motion to dismiss, based upon the pleadings. On 

August 27, 1991, in an unpublished opinion, this Court reversed and 

remanded the District Court's order. 

On April 27, 1992, the District Court granted the DOR partial 

summary judgment by dismissing Geiger's claim for constructive 

discharge. The District Court allowed Geiger's claim to proceed 

because she alleged the WR was negligent in its management of the 

Dawson County Assessor's Office. 

Jury trial was held on June 24 and 25, 1992. The court 

granted the DOR's motion for a directed verdict following the 

presentation of Geiger's case-in-chief. Geiger appeals. 

What duty did the DOR owe plaintiff in operating the 

Assessor's Office in Dawson County, Montana? 

Generally, the State is subject to suit and is liable for its 

torts. Mont. Const. art. 11, § 18 (1972); 5 2-9-102, MCA. A 

fundamental tenet in the law of torts is that "'there can be no 
negligence if no duty exits. "' Quirin v. Weinberg (1992) , 252 

Mont. 386, 391, 830 P.2d 537, 539 (quoting Ambrogini v. Todd 

(1981), 197 Mont. 111, 118, 642 P.2d 1013, 1017). The tort of 

negligence arises when a person has a legally recognized duty, tne 

person breaches that duty, the breach of the duty acts as a legal 

cause of another's injury, and the injury results in actual loss or 

damage. Thornock v. State (1987), 229 Mont. 67, 72, 745 P.2d 324, 

327. We have stated that "[wlhether or not a duty exists is a 

question of law. When reviewing questions of law, we will 

determine if tne trial court's determination as to the law is 

correct. Our review will be plenary." Quirin, 830 P.2d at 540. 

We affirm the decision of the District Court but on different 

grounds--namely that Geiger failed to establish a prima facie case 

for negligence because she failed to establish that the DOR owed 

her a duty. Where the conclusion of the district court is correct, 

it is immaterial, for the purpose of affirmance on appeal, what 

reasons the district court gives for its conclusion. Bolz v. Myers 

(1982), 200 Mont. 286, 295-96, 651 P.2d 606, 611. 

Geiger alleges that the DOR was negligent in failing to 

provide personnel when requested, that it improperly supervised its 

employee Cantwell, that the DOR improperly investigated complaints 

made by Cantwell, and that the DOR acted unlawfully by suspending 

Geiger's authority to hire and fire State employees. 

The role of the DOR in supervising county assessor offices in 

Montana is unique. Although the relationship between the DOR and 

the county assessors closely resembles an employment relationship 
because of the supervisory nature of the DOR mandated by statute, 

the relationship does not rise to the level of an employer and 

employee. 

Prior to 1973, county assessors assessed property according to 

their local appraisal system. To equalize property assessments 

statewide, the legislature amended 5 15-8-102, MCA, to make county 

assessors agents of the MR. Cantwell, 742 P.2d at 470. The 

county assessor is an agent of the DOR for the purpose of locating 

and providing the DOR with a description of all taxable property 

within the county. Section 15-8-102(i), MCA. Tne Legislature gave 

the DOR full charge of assessing all property subject to taxation 

in equalizing values. The DOR is required to secure the necessary 

personnel to perform its duties. Section 15-8-101, MCA. Statutes 

mandate that the DOR supervise the assessment function to insure 

that it is properly carried out. Section 15-1-201(1) (a), MCA. The 

DOR is required to provide education and certification of county 

assessors. Sections 15-8-103, -105, and -106, MCA (1989). 

The changes made in 1973 removed the county commissioners^ 

authority to supervise the internal operations of the assessorvs 

office and placed it with the DOR. Cantwell, 742 P.2d at 470. 

Even so, the county assessor remained an elected or appointed 

position and served at the will of the electorate or appointing 

power. Section 7-4-2203, MCA. County assessors and their deputies 

are paid by the county. Sections 7-4-2503 and -2505, MCA. The 

employees of the assessor's office are state employees who are 

hired by the DOR. The DOR has the power and responsibility for the 

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hiring, firing, and assignment of duties of employees in a county 

assessor's office, except for the county assessors and their 

deputies. Section 15-8-101, MCA. Therefore, Geiger was not an 

employee of the DOR but was an elected official "employedss by her 

constituents. As an elected official, Geiger could only be removed 

if the electorate chose to recall her or if she was convicted of 

official misconduct. Sections 21-16-603 and 45-7-401, MCA. 

All the testimony and evidence offered by Geiger related to 

actions which the DOR had statutory authority to perform and did 

not violate any duty owed to Geiger. For example, the DOR had 

established a formula in allocating personnel to the various 

counties. Geiger testified that other county assessor offices were 

going through personnel reductions in 1981. Geiger admitted that 

other counties situated similarly could work with three employees 

and that the DORIS allocation was fair. 

The DORfs refusal to fire Cantwell does not establish a 

violation of the DOR1s supervisory obligation. Munro sent a letter 

to Geiger addressing Cantwell's situation which stated that Geiger 

failed to take the proper measures required for discipline and 

dismissal. During trial, Geiger admitted that she agreed with the 

DOR1s handling of Cantwell's employment situation. 

When Geiger's office failed to meet the deadlines for tax 

assessments, the DOR acted within its authority to suspend Geiger's 

authority to hire and fire employees. The DOR also acted within 

its authority to audit Geiger's office when it appeared that the 

office was having constant trouble meeting its statutory 
obligations. The DOR's evaluation and criticism of the Dawson 

County Assessor's office was not a breach of a statutory duty but 

was the performance of a statutory obligation. 

The DOR removed only that authority it had delegated to 

Geiger, and not any statutory authority that was inherent in the 

elected position. Geiger resigned from her position voluntarily 

and was not removed by the DOR. The DOR did not violate any 

statutory or general duty owed to Geiger. Therefore, we hold that 

the District Court did not err in granting the directed verdict in 

favor of the DOR. 

We affirm the decision of the District Court based on Geiger's 

failure to establish a prima facie case for negligence on the part 

of the DOR. 

We concur: 

'-.- -. 

! 
September 8, 1993 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

John Houtz 

Attorney at Law 

P.O. Box 1230 

Forsyth, MT 59327 

W. Anderson Forsythe & Martha Sheehy 

Moulton, Bellingham, Longo & Mather, P.C. 

P.O. Box 2559 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA