.

No. 94-466

IN THE SUPREME COURT OF THE STATE OP MONTANA

1995

MARTIN REDFERN,

.

Plaintiff and Appellant,

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MONTANA MUFFLER, a Montana

corporation, and KIRK R. WELLS,

JOHN DOE I, JOHN DOE II,

XYz CORPORATION I, and

XYZ CORPORATION II,

Defendants and Respondents.

t -

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Anaconda-Deer Lodge,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

W. M. Hennessey; Hennessey, Joyce, McCarthy &

Wing, Butte, Montana

For Respondent:

Joseph C. Connors, Sr.; Connors Law Firm,

Anaconda, Montana

Filed:

Submitted on Briefs: May 18, 1995

Decided: June 6, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Martin Redfern appeals from the opinion and order of the Third

Judicial District Court, Anaconda-Deer Lodge County, granting the

motion for summary judgment filed by Montana Muffler and Tire,

Inc., and from the judgment of dismissal entered thereon. We

affirm.

The facts necessary to our resolution of this appeal are

undisputed. Martin Redfern (Redfern) worked for Montana Muffler

and Tire, Inc. (Montana Muffler), in Anaconda, Montana. Montana

Muffler terminated Redfern's employment effective at the end of his

October 24, 1992, shift. Montana Muffler paid Redfern his wages

for the previous two weeks by check on October 26, 1992; the check

also included compensation for five days of earned vacation time.

On October 29, 1993, Redfern filed a complaint alleging

wrongful discharge against Montana Muffler and others in the Second

Judicial District Court, Silver Bow County. Montana Muffler moved

for a change of venue, the motion was granted and the action was

transferred to the Third Judicial District Court.

Montana Muffler answered the complaint, generally denying

Redfern's allegations. It also asserted affirmative defenses,

including that the action was barred by the statute of limitations.

Montana Muffler subsequently moved for summary judgment on

statute of limitations grounds and supported its motion with‘the

affidavit of Kirk R. Wells, its president. The parties briefed the

motion, and Redfern filed his affidavit in opposition. The

District Court granted Montana Muffler's motion for summary

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judgment and entered a judgment dismissing Redfern's complaint.

Redfern appeals.

Did the District Court err in granting Montana Muffler's

motion for summary judgment?

We review a district court's grant of summary judgment de

novo; summary judgment is appropriate only when no genuine issues

of material fact exist and the moving party is entitled to judgment

as a matter of law. Spain-Morrow Ranch, Inc. v. West (1994), 264

Mont. 441, 444, 872 P.2d 330, 331-32 (citations omitted). Here,

the parties agree with the District Court's determination that no

genuine issues of material fact exist relating to the motion for

summary judgment. The sole issue before us is whether the court

erred in concluding that Montana Muffler was entitled to judgment

as a matter of law because Redfern's complaint was barred by the

statute of limitations.

Redfern's complaint alleges that Montana Muffler terminated

his employment in violation of Montana's Wrongful Discharge From

Employment Act (WIlEA). An action under the WDEA "must be filed

within 1 year after the date of discharge." Section 39-2-911(l),

MCA. The District Court determined that Redfern's employment with

Montana Muffler ended on October 24, 1992, the date of his

discharge. On that basis, the court concluded that Redfern's

October 29, 1993, complaint was barred by the one-year statute of

limitations contained in § 39-2-911(l), MCA.

Redfern asserts that he continued to earn compensation from

Montana Muffler for five days after his discharge on October 24,

1992, by virtue of the five days of vacation pay included in his

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final paycheck. Accordingly, he argues that the statute of

limitations did not begin to run until either October 30 or 31,

1992, pursuant to Allison v. Jumping Horse Ranch, Inc. (lYY2), 255

Mont. 410, a43 P.2d 753. Redfern's reliance on Allison is

misplaced.

The issue before us in Allison, as it is in the present case,

was at what point the § 39-2-911(l), MCA, one-year limitation

"after the date of discharge" begins to run. We focused first on

the 5 39-2-903(2), MCA, definition of "discharge" as "termination

of employment." Allison, a43 P.2d at 755. We then defined

"termination of employment" to mean 'Ia complete severance of the,

relationship of employer and employee by positive act on the part

of either or both." Allison, 843 P.2d at 755 (citations omitted).

Finally, we determined that the WDEA statute of limitations, like

other statutes of limitations, does not begin to run until the

cause of action accrues; in the WDEA context, "damages do not occur

until the employee is no longer earning compensation from the

employer, . . . and this can only occur upon a complete severance

of the employer-employee relationship." Allison, 843 P.2d at 756.

Applied to the undisputed facts in the present case, neither

the plain language of § 39-2-911(l), MCA, nor our decision in

Allison, supports Redfern's position. Under 5 39-2-911(l), MCA, it

is clear that Redfern's "date of discharge" was October 24, 1992.

Analogizing to Allison, the "complete severance" of the employment

relationship occurred at the end of Redfern's shift on that date;

thereafter, Redfern was no longer "earning compensation" from

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Montana Muffler.

Redfern's argument that the five days' vacation pay kept him

on Montana Muffler's payroll for five days past the date on which

he was discharged and, thus, that he was still "earning

compensation" under Allison for that period of time, is totally

without merit. The vacation pay was a fringe benefit of Redfern's

employment with Montana Muffler which he had earned during the

employment prior to the date of his discharge on October 24, 1992.

As of that date, he no longer was employed by Montana Muffler and

no longer was earning vacation pay or any other type ~of wage or

fringe benefit.

We conclude that the District Court did not err in determining

that the statute of limitations contained in 5 39-2-911(l), MCA,

bars Redfern's complaint. We hold, therefore, that the court did

not err in granting Montana Muffler's motion for summary judgment

and dismissing Redfern's complaint. n

Affirmed.