No. 05-066 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

 2006 MT 8 

HOLLY WURL, 

Plaintiff and Appellant, 

v. 

POLSON SCHOOL DISTRICT NO. 23, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and For the County of Lake, Cause No. DV 03-87 

Honorable C. B. McNeil, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

J. Tiffin Hall, Attorney at Law, Missoula, Montana 

For Respondent: 

Debra A. Silk, Tony Koening, Montana School Boards Association, 

Helena, Montana 

Submitted on Briefs: August 23, 2005 

 Decided: January 10, 2006 

 

Filed: 

__________________________________________ 

Clerk 
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Chief Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 Holly Wurl (Wurl) appeals from the judgment entered by the Twentieth Judicial 

District Court, Lake County, on its order granting summary judgment to Polson School 

District No. 23 (School District). We affirm. 

¶2 The sole issue on appeal is whether the District Court erred in granting summary 

judgment to the School District. 

BACKGROUND 

¶3 The School District employed Wurl as a speech-language pathologist from August of 

1993 through June of 2002. Wurl’s employment with the School District was governed by 

nine separate written employment contracts, with each contract encompassing a term of one 

year. The final contract between the parties was signed by Wurl on June 4, 2001, and 

provided that the School District would employ Wurl for the 2001-2002 school year. The 

contract was entitled “Teacher Contract,” stated that Wurl was “a legally qualified and 

certified teacher under the School Laws and Regulations of Montana” and referred to Wurl 

throughout as a “Teacher.” It is undisputed that Wurl is not a legally qualified and certified 

teacher under Montana law. The contract also referred to a Master Agreement (MA), which 

is a separate collective bargaining agreement between the School District and the Polson unit 

of the Montana Education Association (PMEA). Among other things, the MA contains 

provisions governing the termination of teachers and grievance procedures culminating, at 

the sole option of the PMEA, in submission of grievances to binding arbitration. 
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¶4 On May 13, 2002, at a meeting of the School District’s Board of Trustees (Board), the 

Board voted unanimously to not renew Wurl’s contract for the 2002-2003 school year. It is 

undisputed that the Board did not follow the procedures outlined in the MA for termination 

of a teacher. Nor did Wurl initiate a grievance under the MA to challenge the Board’s 

decision. Rather, in May of 2003, Wurl brought this action against the School District 

alleging that the Board’s act of terminating her employment with the School District without 

following the MA termination procedures constituted a breach of contract and breach of the 

implied covenant of good faith and fair dealing. She also brought claims for wrongful 

discharge and violation of her right to due process as guaranteed by the Montana and United 

States Constitutions. 

¶5 The School District subsequently moved the District Court for summary judgment as 

to the entirety of Wurl’s complaint. The School District first asserted that Wurl could not 

bring an action under the Wrongful Discharge from Employment Act (WDEA), §§ 39-2-901 

through -915, MCA, because her complaint clearly alleged that her employment was covered 

by either a written contract for a specific term or a collective bargaining agreement, thus 

making the WDEA inapplicable pursuant to § 39-2-912(2), MCA. 

¶6 The School District further asserted that Wurl’s remaining claims failed because they 

were based on her allegation that the Board failed to follow the termination procedures set 

forth in the MA. The School District contended that the MA did not directly apply to Wurl’s 

employment because she was not a “teacher” as contemplated in the MA, and that the 

provisions of the MA were not incorporated into her employment contract. Thus, the School 
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District asserted Wurl was not entitled to the rights afforded teachers under the MA 

termination procedures. As a result, according to the School District, Wurl’s employment 

was governed by a written contract for a specified term which expired by its own terms and 

did not require the School District to renew the contract or otherwise extend Wurl’s 

employment. On this basis, the School District argued there was no breach of contract, no 

breach of the implied covenant of good fair and fair dealing, and no violation of due process 

rights, and it was entitled to summary judgment as a matter of law. The School District also 

argued, in the alternative, that, if the MA applied to Wurl’s employment, it still was entitled 

to summary judgment on her claims because she failed to follow the grievance procedures set 

forth in the MA. 

¶7 In response to the School District’s motion for summary judgment, Wurl argued that 

her employment was subject to the provisions of the MA because her employment contract, 

by its terms, specifically incorporated the MA. She further argued that the School District 

should be equitably estopped from arguing that she could not bring her claims because she 

failed to follow the MA’s grievance procedures. Finally, Wurl conceded that her 

employment was excluded from coverage under the WDEA. 

¶8 The District Court subsequently entered its order granting summary judgment to the 

School District as to the entirety of Wurl’s complaint. The District Court concluded that § 

39-2-912(2), MCA, precluded Wurl from bringing a claim under the WDEA. The court also 

concluded that nothing in the employment contract indicated an intent by the parties that 

Wurl’s employment be covered by the MA; that, other than the MA’s salary schedule, the 
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provisions of the MA were not incorporated by reference into the employment contract; and 

that Wurl’s employment was not otherwise subject to the MA because Wurl was not a 

“teacher” as defined in the MA. 

¶9 Based on these conclusions, the District Court further concluded that Wurl’s 

employment with the School District was governed by a written contract for a specified term 

which did not provide Wurl with a reasonable expectation of continued employment beyond 

the term of the contract. Thus, the court determined that the School District did not breach 

the contract or the implied covenant of good faith and fair dealing, and did not violate Wurl’s 

right to due process. The District Court also concluded that, even if Wurl’s employment 

were governed by the MA, her failure to pursue the MA’s mandatory grievance procedures 

barred her from bringing her claims. The court did not address Wurl’s equitable estoppel 

argument. The District Court entered judgment on its order granting summary judgment to 

the School District and Wurl appeals. 

STANDARD OF REVIEW 

¶10 We review a district court’s grant of summary judgment de novo, using the same 

standards applied by the district court. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 

16, 327 Mont. 99, ¶ 16, 113 P.3d 275, ¶ 16. With regard to summary judgments, Rule 56(c), 

M.R.Civ.P., provides that 

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, 

if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law. 
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¶11 We observe in this case that the District Court’s order granting the School District 

summary judgment includes a section entitled “FINDINGS OF FACT,” in which the court 

set forth the facts relevant to the issues raised by the parties in their briefs. We recently 

clarified however, that in a summary judgment proceeding 

the parties are not arguing over what happened or presenting conflicting 

evidence; they merely need to know which of them, under the uncontested 

facts, is entitled to prevail under the applicable law. In such a case, the district 

court judge need not weigh evidence, choose one disputed fact over another, or 

assess credibility of the witnesses. 

Cole, ¶ 4. Thus, it is inappropriate for a district court to enter “findings of fact” when 

addressing a summary judgment motion. Rather, the court simply should set forth the 

undisputed facts relevant to the legal issues raised, as well as any disputed facts which may 

preclude entry of summary judgment. Here, however, our review of the record, the parties’ 

briefs and the District Court’s order reveals that the facts as “found” by the District Court are 

undisputed by the parties. Consequently, although the court erred in articulating the 

undisputed facts as “findings of fact,” the error is harmless here. 

DISCUSSION 

¶12 Did the District Court err in granting summary judgment to the School District? 

¶13 As noted above, the employment contract at issue in this case is entitled “Teacher 

Contract,” states that Wurl was “a legally qualified and certified teacher under the School 

Laws and Regulations of Montana” and refers to Wurl throughout as “Teacher.” The parties 

do not dispute that Wurl is not a legally qualified and certified teacher under Montana law. 

However, neither party contends that this inaccuracy or potential ambiguity in the 
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employment contract makes the contract void or unenforceable. Indeed, both parties’ 

arguments are premised on the belief that the employment contract is a valid, binding 

contract. Moreover, our resolution of the issue before us, as set forth below, does not require 

a determination of whether Wurl is a “teacher” as defined by the employment contract, the 

MA or Montana law. 

¶14 Wurl appears to argue alternative positions with regard to the relationship between her 

employment contract and the MA. She begins by arguing that whether the parties intended 

her employment to be covered by the MA is a question of fact which remains disputed and, 

therefore, should not have been decided by the District Court on summary judgment; in 

essence, this would constitute an argument that her contract is ambiguous. She also 

contends, however, that the language in her contract and the MA clearly provide that the 

entirety of the MA is incorporated by reference into her contract and, as a result, the District 

Court erred as a matter of law in concluding otherwise. 

¶15 The School District responds that the question of whether Wurl’s employment was 

governed by the MA involves interpretation of the contract, a question of law to be 

determined by the District Court on summary judgment. The School District further points 

out that factual issues relating to the intent of contracting parties arise only when a contract is 

ambiguous, and neither party here has asserted that the employment contract is ambiguous. 

Rather, according to the School District, each party has argued that the contract language is 

clear regarding whether the contract incorporated the MA by reference. Finally, the School 
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District contends the District Court correctly concluded that the MA did not apply to Wurl’s 

employment contract. 

¶16 The construction and interpretation of a written contract is a question of law. King 

Resources, Inc. v. Oliver, 2002 MT 301, ¶ 18, 313 Mont. 17, ¶ 18, 59 P.3d 1172, ¶ 18. 

Where a contract has been reduced to writing, the intention of the parties is to be ascertained, 

if possible, from the writing alone. Section 28-3-303, MCA; State ex rel. Montana DOT v. 

Asbeck, 2003 MT 337, ¶ 18, 318 Mont. 431, ¶ 18, 80 P.3d 1272, ¶ 18. Thus, where a 

contract’s terms are clear and unambiguous, a court must apply the language as written. 

Asbeck, ¶ 18; King Resources, ¶ 21. 

¶17 It is true that, when a contract term is ambiguous, interpretation of the term involves 

determining a question of fact regarding the intent of the parties to the contract. See In re 

Marriage of Mease, 2004 MT 59, ¶ 30, 320 Mont. 229, ¶ 30, 92 P.3d 1148, ¶ 30. The initial 

determination of whether an ambiguity exists in a contract, however, is a question of law for 

a court to determine. King Resources, ¶ 21. An ambiguity exists where the language of a 

contract, as a whole, reasonably is subject to two different interpretations. Asbeck, ¶ 18; 

King Resources, ¶ 21. However, the mere fact that the parties disagree as to the 

interpretation of a contract does not automatically create an ambiguity. See, e.g., Gilstrap v. 

June Eisele Warren Trust (Wyo. 2005), 106 P.3d 858, 863; Henderson v. State Farm Fire 

and Cas. Co. (Mich. 1999), 596 N.W.2d 190, 194; Pilling v. Nationwide Mut. Fire Ins. Co.

(W.Va. 1997), 500 S.E.2d 870, 872; Terranova v. State Farm Mut. Auto. Ins. Co. (Colo. 

1990), 800 P.2d 58, 60. 
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¶18 Here, the parties disagree on whether the employment contract incorporated the 

entirety of the MA by reference. For the reasons discussed below, we conclude that the 

employment contract’s language regarding the MA is clear and unambiguous and, therefore, 

involves a question of law rather than fact. 

¶19 The employment contract first identifies the parties to the contract, provides that the 

contract covers the 2001-2002 school year, states the salary which Wurl will be paid and sets 

forth the manner in which the salary will be paid. It then states, in relevant part, as follows: 

IT IS UNDERSTOOD, that the salary stated above, based on the Negotiated 

Teacher’s Salary Schedule currently adopted by the Board of Trustees, shall be 

considered as part of this Agreement, and the Teacher signing this Agreement 

assents to each provision of the said school salary schedule and other 

provisions as outlined in the Master Agreement. 

Thus, the employment contract provides that, by signing the contract, Wurl assented to the 

provisions of the salary schedule as set forth in the MA, as well as all “other provisions” of 

the MA. The School District contends that, because the employment contract refers to the 

MA in a paragraph governing salary, only the salary-related provisions of the MA are 

incorporated into the contract. In other words, the School District asserts that the 

employment contract incorporated by reference the MA’s salary schedule and “other 

provisions” of the MA directly related to an employee’s advancement along the salary 

schedule, but did not incorporate the remaining MA provisions, such as those providing 

termination procedures. 

¶20 “In the construction of an instrument, the office of the judge is simply to ascertain and 

declare what is in terms or in substance contained therein, not to insert what has been omitted 
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or to omit what has been inserted.” Section 1-4-101, MCA. The employment contract 

clearly states that Wurl assented to “other provisions” of the MA. The phrase “other 

provisions” is not modified by any language limiting which MA provisions are included. To 

adopt the School District’s interpretation of the employment contract would require us to 

ignore our proper role in interpreting contracts and insert language such as “salary-related” 

into the clear, unambiguous and inclusive phrase “other provisions” in the contract. 

¶21 Thus, we conclude that the employment contract clearly and unambiguously 

incorporated the entirety of the MA--including the MA provisions relating to termination 

procedures--by reference. As a result, we further conclude that the District Court erred in 

granting summary judgment to the School District based on its conclusion that Wurl’s 

employment with the School District was not governed by the MA. This conclusion, 

however, does not resolve the present case. The School District reiterates on appeal its 

alternative argument--raised in, and adopted by, the District Court--that, even if the 

employment contract incorporated the entirety of the MA by reference, the School District is 

still entitled to summary judgment because Wurl failed to initiate the MA grievance 

procedures, either timely or at all. 

¶22 The School District notes that, although the MA provides employees with certain 

rights relating to their employment, the MA also imposes corresponding obligations on the 

employees. One such mandatory obligation is the requirement that an employee claiming a 

violation, misapplication or misinterpretation of the terms of the MA must pursue such a 

claim by initiating the MA grievance procedures which may culminate in binding arbitration. 
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 The School District also correctly observes that an employee covered by a collective 

bargaining agreement--such as the MA--which contains grievance procedures, must exhaust 

the remedy afforded by the grievance procedures before bringing suit. See, e.g., MacKay v. 

State, 2003 MT 274, ¶ 25, 317 Mont. 467, ¶ 25, 79 P.3d 236, ¶ 25 (citations omitted). Failure 

to exhaust such grievance procedures bars an employee from bringing suit in district court. 

MacKay, ¶ 28. 

¶23 Wurl does not dispute that she did not initiate the MA grievance procedures regarding, 

or request arbitration of, the Board’s decision not to renew her contract. Nor does she 

dispute that her failure to do so generally would bar her from bringing her claims via a 

complaint in district court. She contends, however, that the School District should be 

equitably estopped from arguing that her claims are barred as a result of her failure to file a 

grievance. Wurl asserts that, at the meeting in which the Board voted not to renew her 

employment contract, School District Superintendent Dan Haugen informed both Wurl and 

the Board that Wurl could not avail herself of the MA grievance procedures because the MA 

did not apply to her employment. She argues that, the School District’s Superintendent 

having made the representation that Wurl could not utilize the grievance procedures, the 

School District should be estopped from now arguing that her claims are barred for failure to 

do so. 

¶24 A party asserting equitable estoppel must establish the following six elements by clear 

and convincing evidence: 1) the existence of conduct, acts, language or silence constituting a 

representation or concealment of a material fact; 2) the fact must be known to the party to be 
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estopped at the time of the conduct or the circumstances be such that knowledge of the fact is 

necessarily imputed to that party; 3) the truth concerning the fact must be unknown to the 

party claiming estoppel at the time it was acted upon; 4) the conduct must be done with the 

intent, or at least the expectation, that it will be acted upon by the other party or under 

circumstances both natural and probable that it will be acted upon; 5) the conduct must be 

relied upon by the other party and, thus relying, the party must be led to act upon it; and 6) 

the other party must, in fact, act upon it in such a manner as to change the party’s position for 

the worse. Billings Post No. 1634 v. Dept. of Rev. (1997), 284 Mont. 84, 90, 943 P.2d 517, 

520. If the party claiming estoppel fails to establish even one of these elements, the doctrine 

of equitable estoppel cannot be invoked. Elk Park Ranch, Inc. v. Park County (1997), 282 

Mont. 154, 166, 935 P.2d 1131, 1138. 

¶25 Wurl relies on Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186, in 

support of her argument that the School District should be estopped from arguing that her 

claims are barred by her failure to pursue the MA grievance procedures. In Dagel, we held 

that, where the City of Great Falls (City) rejected the plaintiff’s grievance regarding her 

alleged unfair treatment by her supervisor on the basis that no collective bargaining 

agreement was in effect at the time the plaintiff resigned, the City was equitably estopped 

from later arguing that the plaintiff’s claim under the WDEA was barred because she was 

covered by a collective bargaining agreement. Dagel, 250 Mont. at 236, 819 P.2d at 193-94. 

 Wurl argues that the circumstances in Dagel are substantially similar to the present case and 

necessitate a conclusion that equitable estoppel applies here. The School District contends 
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that Dagel is factually distinguishable. We conclude that Dagel is of no assistance to Wurl 

here. 

¶26 In Dagel, we stated the City’s assertion that no collective bargaining agreement was in 

effect at the time the plaintiff resigned amounted to a representation of a material fact, thus 

establishing the first equitable estoppel element. Dagel, 250 Mont. at 236, 819 P.2d at 193. 

However, we made this statement without analyzing whether the assertion was legal or 

factual. Subsequent to Dagel, we clarified the application of the first element of equitable 

estoppel. In Elk Park Ranch, 282 Mont. at 166, 935 P.2d at 1138, we observed that we had 

“not had occasion before to clearly articulate the inapplicability of equitable estoppel to 

purely legal acts” and determined that “[b]ecause the imposition of equitable estoppel is 

premised on a misrepresentation of fact, it is inapplicable when . . . the conduct complained 

of consists solely of legal representations.” 

¶27 Here, the conduct on which Wurl bases her claim of equitable estoppel is the School 

District Superintendent’s assertion that Wurl could not avail herself of the MA grievance 

procedures because the MA did not apply to her employment. The Superintendent’s 

assertion regarding applicability of the MA was his legal interpretation that the MA was not 

applicable to Wurl’s employment contract. As a result, the Superintendent’s statement in this 

regard was a legal, rather than factual, representation. Dagel predated our decision in Elk 

Park Ranch clarifying the application of legal, as opposed to factual, representations to 

equitable estoppel issues. We conclude, therefore, that Dagel is not controlling in this 

instance. We further conclude that, because the Superintendent’s statement regarding 
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applicability of the MA to Wurl’s employment was a legal representation, Wurl has failed to 

establish the first element of equitable estoppel. 

¶28 As stated above, if the party claiming estoppel fails to establish even one of the six 

elements, the doctrine of equitable estoppel cannot be invoked. Elk Park Ranch, 282 Mont. 

at 166, 935 P.2d at 1138. Because Wurl has failed to establish the first element of equitable 

estoppel, we conclude she has failed to establish that the School District should be estopped 

from arguing that her failure to initiate the MA grievance procedures bars her from raising 

her claims in district court. We further conclude, therefore, that the District Court did not err 

in its alternative determination that, if the MA applies to Wurl’s employment, her failure to 

pursue the grievance procedures bars her from bringing her claims. 

¶29 Finally, Wurl contends that the District Court erred in adopting its summary judgment 

order verbatim from a proposed order provided by the School District because the order 

ignored evidence she propounded in support of her position and failed to address her 

equitable estoppel argument. While we discourage a district court’s verbatim adoption of a 

prevailing party’s proposed order, such an action is not per se error. See In re M.W., 2004 

MT 301, ¶ 28, 323 Mont. 433, ¶ 28, 102 P.3d 6, ¶ 28. A district court may adopt a party’s 

proposed order where it is sufficiently comprehensive and pertinent to the issues to provide a 

basis for the decision. In re M.W., ¶ 28. Our review of the District Court’s order in this case 

reveals that the order was sufficiently comprehensive to provide a basis for its decision and 

for our review on appeal, notwithstanding its failure to address Wurl’s equitable estoppel 

argument. Moreover, our de novo standard of review of summary judgment decisions allows 
15

us to review the record and make our own determinations regarding the existence of disputed 

issues of fact and entitlement to judgment as a matter of law. See Cole, ¶ 4. 

¶30 While we have concluded above that the District Court erred in determining that the 

MA was not incorporated by reference in the employment contract, we also have concluded 

that the court correctly determined that Wurl’s claims were barred by her failure to pursue the 

MA grievance procedures. As a result, we hold that the District Court did not err in granting 

summary judgment to the School District. 

¶31 Affirmed. 

/S/ KARLA M. GRAY 

We concur: 

/S/ PATRICIA O. COTTER 

/S/ JOHN WARNER 

/S/ BRIAN MORRIS 

/S/ JIM RICE