No. 90-552 IN THE SUPREME COURT OF THE STATE OF MONTANA

RUSSELL DEWEY ALLMARAS, Plaintiff and Appellant,

YELLOWSTONE BASIN PROPERTIES, a Montana corp., and PATTEN CORPORATION, a foreign corp., Defendants and Respondents,

RICHARD RIOS, Plaintiff and Appellant, 

### JUN

# -4 1991

-vsYELLOWSTONE BASIN PROPERTIES, a Montana CORPORATION, a foreign corp., Defendants and Respondents.

APPEAL FROM: DistrictCourt of theEighteenthJudicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judgepresiding.

COUNSEL OF RECORD: For Appellant: WalterH. Madden, Livingston, Montana;KarlKnuchel, Livingston,Montana. For Respondent: Todd

### R. Hillier; Josephson & Fredricks,Big Timber, Montana; John F. Sullivan; Hughes, Kellner, Sullivan & Alke, Helena, Montana; Gene I. Brown; Landoe, Brown Law Firm, Bozeman, Montana. Submitted on briefs :April 11, 1991 Decided: June 4, 1991 Filed:Justice Fred J. Weber delivered the opinion of the Court. Plaintiffs, RussellDeweyAllmarasandRichardRios, initiated this suit in the District Court for the Eighteenth Judicial District, Gallatin County, alleging statutory wrongful discharge

(Count I), common law discharge (Count 11), and violation of the implied covenant of good faith and fair dealing (Count 111). The District Court granted the defendantstmotion for partial summary judgment on Counts I1 and 111. The consolidated cases were then tried to a jury on Count 

### I only. The jury found that plaintiffs had not been wrongfullydischarged. Plaintiffs appeal,presenting five constitutional challengesto theWrongful DischargeAct found in Title 39, Chapter 2, Part 9,MCA. We find no merit in any of the constitutional claims, and affirm the District Court's grant of partial summary judgment on CounttsI1 and 111. The issues are: 1. Does theWrongful Discharge Actviolate therightof trial by jury under the Montana Constitution? 2. Does theWrongful DischargeAct violate theprivileges and immunities clause and the equal protection clause of the Montana Constitution? 3. Does the Wrongful DischargeAct impair the obligation of contracts in violation of the Montana Constitution? 4. Does the Wrongful Discharge Act violate substantive due process in violation of the Montana Constitution? Yellowston Basin Properties, Inc. (Yellowstone Basin) is a Montana corporation and wholly owned subsidiary of PattenCorporation. Yellowstone Basin hired plaintiffs as real estate sales representatives for the company. Yellow Basin terminated both plaintiffst employment with the company and this suit followed. I Does theWrongful DischargeAct violate the right of trial by jury under theMontana Constitution? Plaintiffs argue that because the Wrongful Discharge Act places a cap on the amount of damages recoverable for wrongful discharge, the right to have a jury determine damages has been infringed in violation of Article 11, 5 26, of the Declaration of Rights of the Montana Constitution. It is a well-established principle that a party does not have standing to challenge the constitutionality of a statute unless he has been adversely affected by the challenged statute. Jones & Herriott v. Judge

(1978), 176 Mont. 251, 253, 577 P.2d 846, 847-48; Chovanak 

### v. Matthews (1948),120Mont. 520, 526, 188 P.2d 582,585. ThisCourt declines consideration of constitutional issues which are rendered moot by jury verdicts or court judgments. See Stelling 

### v. Rivercrest Ranches, Inc. (1986), 224Mont. 313, 316, 730 P.2d 388, 390-91. The jurydetermined thatAllmaras andRioswere not wrongfully discharged. Based on this juryverdict,Allmaras and Rios are not entitled todamages under theWrongful Discharge Act, and therefore cannot claim to be injured by the cap on damages contained in the Act. Stellinq, 224 Mont. at 317, 730 P.2d at 391. We hold that Allmaras and Rios do not have standing to challenge the 3constitutionality of the cap on damages under the theory that the Wrongful Discharge Act violates the right of trial by jury under the Montana Constitution.

Does the Wrongful Discharge Act violate the privileges and immunities clause and the equal protection clause of the Montana Constitution? Allmaras and Rios argue that the Wrongful Discharge Act creates classifications that discriminate in violation of the privileges and immunities clause and the equal protection clause of the Montana Constitution. Article 11, 5 31, reads: No expost facto lawnor any law impairingtheobligation of contracts,ormaking any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature. Article 11, 5 4, reads in part:



# . .. No person shall be denied the equal protection of the laws 

# . . 

# . Allmaras and Rios contend that the Wrongful Discharge Act creates

a discriminatory classificationby excluding from the scope of the Act wrongful discharge claims brought by employees covered by collective bargaining agreements or other written employment contracts and claims covered by other specific statutory remedies such as the Montana Human Rights Act. In sum,Allmaras and Rios argue that because they are in the class that is covered by the Act, they aredenied theright to bring the common law tortactions found in Counts I1 and I11 of their complaint. Count I1 claimed

common lawwrongful discharge and Count I11 claimed breach of the implied covenant of good faith and fair dealing.The Wrongful Discharge Act does not change the common law in recognizing that a general statutoryremedy for wrongful discharge should not apply to those classes of cases inwhich the employees enjoy other specific contractual or statutory remedies. Under common law, tort claims for wrongful discharge and breach of the implied covenant of good faithand fair dealingwere availableonly to at-will employees. These tort remedies were developed specifically to provide redress for employees who had no legal protection against wrongful discharge. See Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301. Persons employed under term contracts or collective bargaining agreements

were not allowed to sue in tort,but rather were required to seek remediesunder theircontractsorcollective bargaining agreements. Brinkman, 224 Mont. 238, 729 P.2d 1301; Fellowsv. Sears, Roebuck and Co. (1990), 795 P.2d 484; Nordlund v. School Dist. No. 14

(1987), 227 Mont. 402, 738 P.2d 1299. Likewise, claims arising under discrimination statutes suchas the Human RightsAct and the Governmental Code of Fair Practices may not form the basis of a tort claim. 5 49-2-509(7) and 49-3-312(7), MCA; Harrison 

### v. Chance, (1990) 797 P.2d 200. Plaintiffs' argument that the codification of the common law tort of wrongful discharge denies them the right to claim the common law tort of wrongful discharge iswithout merit for the same reasons that plaintiffs did not have standing to challenge the constitutionality of the limitationsondamages. As already stated under Issue I, a party does not have standing to challenge theconstitutionality of a statute unless he has been adversely affected by the challenged statute. Jones & Herriott, 176 Mont. at 253, 577 P.2d at 847-48. Since the classificationsestablished in the Act are the same as those under common law, plaintiffs cannot claim that theyhave been adverselyaffected by the loss of the common law tort claim. We hold thatAllmaras and Rios have no standing to challenge the constitutionality of the Wrongful Discharge Act's elimination of the common law tort of wrongful discharge under the theory that the Act creates discriminatory classifications in violation of the privileges and immunities clauseand theequalprotection clause of theMontana Constitution. The Wrongful Discharge Act does however prevent plaintiffs1 claims of breach of the implied covenant of good faith and fair dealing. 

### 5 39-2-912, MCA. In 1982, this Court set forth the employer's duty of good faith and fair dealing. Gates v. Life of Montana Ins. Co. (1982), 196Mont. 178, 638 P.2d 1063. Plaintiffs apparently are asserting that it is a violation of their constitutional rights for the legislatureto eliminate this common law cause of action. "Noonehas a vested interest in any rule of

common lawt'and as a general rule, "the legislature, under its plenary power to act for the general welfare,may alter common law

causesof action.'I Meechv. HillhavenWest, Inc. (1989),238Mont. 21, 31, 776 P.2d 488,494. Forpolicy reasons, the Legislature has debated and passed statutes in a number of legal areas that take away causes of action or constrict liability. Meech, 238 Mont. at 33, 776 P.2d at 495. The general rule that no one has a vested interest in a rule of common law refutes the plaintiffs1argument 6that the Act unconstitutionally deprives them of the fundamental right to a claim of breach of the implied covenant of good faith and fair dealing. Meech, 238 Mont. at 34-35, 776 P.2d at 496. We hold that there is no merit inplaintiffs' claim that the Wrongful DischargeAct's elimination of breach of the common law tort claim of the implied covenant of good faith and fair dealing violates the privileges and immunities clause and the equal protection clause of the Montana Constitution I11 Does the Wrongful Discharge Act impair the obligation of contracts in violation of the Montana Constitution? The Wrongful Discharge Act became effective on July 1, 1987. Plaintiff, Allmaras, claims that he went to work on or about July 1, 1987, and that the parties of necessity would have had to come to an agreement on his contract prior to that date. Therefore imposing the limitations found in the Act impairs the obligation of his contract in violation of Article 11, 5 31, which reads: No expost facto law nor any law impairingtheobligation of contracts,ormaking any irrevocablegrant of special privileges, franchises, or immunities, shall be passed by the legislature. Allmaras presented no evidence that the parties entered into an agreement prior to July 1, 1987. The only evidence before the trial court on thispoint was theaffidavit of thepersonwho hired Allmaras as a sales representative for Yellowstone Basin. The company's records show that Allmaras began his employment on or about July 20, 1987. We hold that Allmaras failed to present any evidence to support his contention that theWrongful DischargeActimpaired the obligations under his contract in violation of the Montana Constitution. IV Does the Wrongful Discharge Act violate substantive due process in violation of the Montana Constitution? Plaintiffsciteno legal authority, nor doplaintiffs explain how the Wrongful Discharge Act violates substantive due process beyond a reiteration that it is discriminatory,which has already been addressed under Issue 11. Rule 23(a)(4)

## ,M.R.App.P. requires the appellant to file a brief containing "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities 

# . . . relied on." Plaintiffs1 due process argument fails to comply with this requirement and this Court will not address this issue. Affirmed.

// We Concur: 

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