NO. 87-410
INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

WILLIAM G. MYERS, JR.,
Plaintiff and Appellant,-vsDEPARTMENT OF AGRICULTURE, STATE OF MONTANA,
Defendant and Respondent.

APPEA,LFROM: DistrictCourtof the EleventhJudicial District, Inand for the Countyof Flathead, TheHonorableLeif Erickson, Judge presiding.
COUNSEL OF RECORD:
ForAppellant: Hash, O'Brien & Bartlett; James C Bartlett, Kalispell, Montana
ForRespondent:
Norman C. Peterson, Agency Legal Services Bureau, Helena, Montana

Submittedon Briefs: April28, 1988
Decided: June 13, 1988
Filed:

## &UW 33- 

# tp, ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court.

Mr. Myers filed suit against the defendant in the Eleventh Judicial District, Flathead County, alleging wrongful termination of employment and seeking unpaid wages. Prior to trial the court granted summary judgment for the defendant on the issue of unpaid wages. The jury returned a verdict for Mr. Myers and awarded him $850.00. The District Court entered judgment forMr. Myers but offset the award by deducting $671.05 awarded earlier by a grievancepanel and $178.95 for unemployment benefits paid to Mr. Myers for the period followinghis termination. The court refused to award attorney fees or costs toMr. Myers. Mr. Myers appeals the decision to offset the award and the decision not to award fees and costs. We affirm. We consider the following issues: 

### 1. Did the District Court err by ordering the offset forprevious unemploymentbenefits? 2. Did the District Court err 

### by granting partial summary judgmenton the statutorywage claim? 3. Was plaintiff entitled to-recoverpenalties, attorney fees,and costs? Mr. Myers has not filed a trial transcript on appeal, although he did file a transcript 

### of the hearing on his motion to amend the judgment or for new trial. Consequently, the only facts before us are those contained in the district court file. The following factswere stipulated to the lower courtprior to trial:

1. The plaintiff was hired by the Department of Agriculture on February 14, 1984, as a potato inspector. Hewas paid $5.347 per hour. 2. Training began on February 22, 1984. The plaintiff completed the training necessary to be an inspector and received the necessary state andfederal certifications. He was licensed on March 24, 1984. 3. The Department of Agriculture received a letter from Orrin R. Streich dated April 9, 1984, stating in part, "Iabsolutely refuse to have Bill Myers inspecting onmy farm." 4. The plaintiff was no longer assigned to Orrin Streich's farm following receipt of the letter of April 9, 1984. However, the plaintiff continuedworking at the Snell farm. 5. April 13, 1984, was the plaintiff's last day ofwork as apotato inspector. 6. Some potato inspection of crops occurred subsequenttoApril 13, 1984. 7. Following plaintiff's separation from employment, Dayle Mercier completed the inspection on the Streich farm and smaller farms continued to be inspectedby other inspectors. 8. For the 1984 season, Bill Myers worked a total of 162.5 hours; Linda Lidstrom worked a total of 368.5 hours; and Dayle Mercierworked a total of 78.5 hours.
Mr. Myers contended he had been told by his supervisor that he would work approximately as many hours as Linda Lidstrom would work. His employer, Department of Agriculture, stated that he was terminated because there was no further inspection work to do in his area. Mr. Myers believed that no just cause existed for his termination; he therefore requested that a grievance panel conduct administrative review of his termination. The record does not contain the grievance panel's decision. However, the District Court, in its judgment, refers to thepanel's decision: Specifically, the grievance panel recommended on December 20, 1984 thatMr. Myers be compensated in the amount of $671.05. A warrant in that amount, minus costs, was sent to Mr. Myers on January 2, 1985 by Keith Kelly, Director of the Department ofAgriculture. Dissatisfied with the panel's decision, Mr. Myers brought this action in district court.Did the District Court err by ordering the offset for previous unemploymentbenefits? After his termination from employment, Mr. Myers received $184.00 in unemployment benefits from the Department of Labor. The District Court ordered that the jury award of $850.00 be offsetby the grievancepanel award of $671.05 and unemployment benefits received. The court explained its reasoning:

The parties agreed prior to trial, and itwas consistent with the claim made by Plaintiff to Department ofAgriculture inhis Employee Grievance Form, that the amount awarded to Plaintiff for lost wages should be offset by (1) the amount of the grievance panel award and (2) by the amount of unemployment benefits received "so that he ismade whole." This claim is in accord with generally accepted principles of law as to damages and is adopted 

### by the Court. Hence, the offset by this Court for the grievance award of $671.05 and unemployment compensation for the period of April 14, 1984 throughMay 8,1984.
Mr. Myers has not refuted the lower court's statement that the parties agreed to the offsetsprior to trial. Without a transcript, we may not question the lower court's reliance upon such an agreement. Therefore,we affirm the District Court's judgment and order that the jury award be offset by the grievance panel award and by unemployment benefits collected by Mr. Myers. I1 Did the District Court err by granting partial summary judgmenton the statutorywage claim? Prior to trial, the defendant moved forpartial summary judgment on grounds that Mr. Myers had no basis for a wage claim pursuant to Title 39, Chapter 3, Part 2, MCA. Mr. Myers responded by contending thathad he notbeen discharged

### he would have worked for the remainder of the potato season and would have collected wages for the whole season. Those lostwages, he argued, constituted "wages" as anticipated by §§ 

### 39-3-204 through -206,MCA. 

### Those statues read, inpertinentpart, as follows:
39-3-204. Paymentofwages generally. (1) 

### Every employerof labor in the stateofMontana shallpay toeach employee thewages earned by such employee



# . . . and no person for whom labor has been performed may withhold from any employee any wages earned orunpaid for a longer period than 10 business days after the same are due and payable.

39-3-205. Paymentofwageswhen employee separated employment prior topayday. (1) 

### Except asprovided in subsection (2), whenever any employee is separated from the employ of any employer, all unpaid wages of such employee shall become due and payable within 3 days, except for employees of the State ofMontana and itspolitical subdivisionswho would be paid on the next regular payday for the pay period during which the employeewas separated from employment or 15

### days from thedate of separation from employment,whichever occurs first

# . . . 39-3-206. Penalty for failuretopay wages at times s~ecifiedin law. Anv em~lover.as such em~lo~er

&.L, 

## .. A 

## ii defined in this part, who fails to pay any of his employees as provided in this part or violates any other provision of thispart shall be guilty of a misdemeanor. A 

### penalty shall also be assessed against and paid by such-employer and become due such employee as follows: a sum equivalent to the fixed amount of 5% 

### of the wages due and unpaid shall be assessed for each day, except Sundays and legal holidays, upon which such failure continues after the day upon which such wages were due, except that such failure shall not be deemed to continue more than 20 days after the date such wageswere due. (Emphasisadded.)The District Court granted partial summary judgment for the defendant. The court reasoned that the damages soughtby Mr. Myers were not "wages" within themeaning of the statute:
"Wages" within the scope of Title 39, Chapter 3, are wages actually earned, and not wages which could have been earned but for an allegedlywrongful discharge.

# .. . Consequently, as a matter of law, Plaintiff has no basis for a wage claim againstdefendant. Although this question has never been considered in Montana, the lower court found the reasoning in Cumov. Rhines (1982), 198 Mont. 279, 645 P.2d 948, to be "instructive". In that case, Mr. Cumo entered an oral employment contract with Mr. Rhines and SoundWest, Inc. Relying upon thatagreement,Mr. Cumomoved his family fromMinnesota toMissoula,Montana, to begin employment. Soon after the move, Mr. Rhines informed Mr. Cumo that he did not have a job at Sound West. Mr. Cumo sued for breach of employment contract. The trial courtheld that abreach occurred and awarded damages,aswell aspenalties, costs, and attorney fees pursuant to SS 39-3-206 and -214,MCA. This Court concluded thatMr. Cumonever actually performed work for Sound West; therefore, he was not an employee within the meaning of the wage statutes. Cumo, 645 P.2d at 951. The damages resulted from a breach of employment contract and as such were more properly measured under S 27-1-311, MCA, because the wage statutes were not applicable. Cumo, 645 P.2d at 951-52. The question before us now iswhether thewage statutes are applicable to Mr. Myers' claim. The statutes refer to "wages earned" (S 39-3-204(1) )

## , "unpaid wages" ($ 39-3-205

### (1) )

## , "wages due and unpaid" (S 39-3-206), and "wages due" (S 39-3-214(1) )

# . In addition, S 39-3-204(1)

### , MCA, provides that "no person 

## -- for whom labor 

## -- has beenperformed may withhold from any employee any wages earned 

### - or unpaid." We have located no case law under these or similar wage statutes which would allow statutory penalties to be applied to wages which could have been earned but were not earned because of an alleged breach of contract or wrongful termination. By the statutorydescription and references to wages earned, unpaid wages, and wages due and unpaid, it is apparent that the protection granted under the statutes is to apply to labor or services actually performed or completed,
as distinguished from labor or services to be performed in the future. Here the plaintiff does not have a claim for wages earned or unpaid. He seeks recovery for amounts he could have earned had he been given the opportunity. We hold that Mr. Myers's wage claim under Title 39, Chapter 3,MCA,
was properly dismissed. Mr. Myers argues that this Court in Ameline v. Pack and Company (1971), 157 Mont. 301, 485 P.2d 689, applied $ 39-3-102, MCA (previouslyS 41-307, RCM (1947) )

## , to a set of circumstances identical to his case. Evidently he believes Ameline is authority for this Court to apply the wage statutes to the present case. His argument is faulty for several reasons. This Court did not rely upon S 39-3-102, MCA, in Ameline as Mr. Myers contends. That statute, which is concernedwith the compensationof employees dismissed for cause, was inapplicable because the defendant in that case had failed to establish that the dismissal was for cause. The issue now before us was not before the Court in Ameline. Further, the provisions of Title 39, Chapter 3, Part 2, relied upon by Mr. Myers, are by their terms applicable only to wage claims within part 2. Section 39-3-102,MCA, cited in the Ameline opinion, fallswithin part 1,a distinct part 

### of what is now Chapter 3, Title 39. For these reasons Ameline clearly is distinguishable and not determinative ofMr. Myers's case. We affirm the District Court's order granting partial summary judgment on the plaintiff's wage claim.

Was plaintiff entitled to recover penalties, attorney fees,and costs? Mr. Myers sought penalties pursuant to § 39-3-206,MCA, and costs and attorney fees pursuant to § 39-3-214,MCA. We have already concluded that Title 39, Chapter 3, Part 2 is not applicable to Mr. Myers's case. Therefore,the District Court properly refused to award penalties, fees, and costs under part 2. Mr. Myers presents two other grounds for an award of fees and costs. He cites 5 25-10-711(1),MCA,which provides
as follows:

Award of costs against governmental entity when suit or defense is frivolous orpursued in bad faith. (1) In any civil action brought by 

### or against the state 

# . . 

# . or an agency of the state

# . . . the opposing party, whether plaintiff or defendant, is entitled to the costs enumerated in 25-10-201 and reasonable attorney's fees as determined by the court if: (a) he prevails against the state 

# . . 

# . or agency; and (b)the court finds that the claim or defense of the state 

# .

# . . or agency that brought or defended the action was frivolous or pursued in bad faith.
Under this statute,Mr. Myers must establish that he was the prevailing party and that the State's defense was frivolous
or pursued in bad faith. The District Court, in explaining its judgment, concluded that the plaintiff had not prevailed in the action and also concluded that each party acted in good faith in bringing and defending the lawsuit. Without a transcript on appeal, we will not question the DistrictCourt's finding of good faith. We hold that Mr. Myers has not presented grounds for an award of attorney fees and costs under 

### 5 25-10-711, MCA. Mr. Myers next argues that the District Court should have exercised its equity power to award attorney fees and costs. The District Court concluded that, in light of the offsets, the plaintiff had not prevailed and should not therefore recover either costs or attorney fees. As previouslymentioned, the court alsoconcluded thateach party had acted ingood faithinbringing and defending the lawsuit and that, inlightof theresult, each party shouldpay theirown costs. In the absence of a complete record, we do not find any facts warranting reversal of the District Court's decision. We hold that Mr. Myers has failed to establish a contractualor statutoryrighttofees and costs. We affirmthe order of the District Court which refused toaward attorney fees and costs. Affirmed.



# /" Justices