NO. 87-410 

IN THE 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 ,L FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hash, O'Brien & Bartlett; James C Bartlett, Kalispell, 

Montana 

For Respondent : 

Norman C. Peterson, Agency Legal Services Bureau, 

Helena, Montana 

Submitted on Briefs: April 28, 1988 

Decided: June 13, 1988 

Filed: &UW 

33- 

tp, 

Clerk 
Mr. Justice Fred 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 for Mr. Myers but offset the award by deducting $671.05 awarded earlier by a grievance panel and $178.95 

for unemployment benefits paid to Mr. Myers for the period 

following his termination. The court refused to award attorney fees or costs to Mr. 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 

for previous unemployment benefits? 

2. Did the District Court err by granting partial 

summary judgment on the statutory wage claim? 

3. Was plaintiff entitled to -recover penalties, 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 facts were stipulated to the lower 

court prior to trial: 

1. The plaintiff was hired by the Department 

of Agriculture on February 14, 1984, as a potato 

inspector. He was 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 and 
federal 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, "I absolutely refuse to have Bill 

Myers inspecting on my 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 

continued working at the Snell farm. 

5. April 13, 1984, was the plaintiff's last 

day of work as a potato inspector. 

6. Some potato inspection of crops occurred 

subsequent to April 13, 1984. 

7. Following plaintiff's separation from 

employment, Dayle Mercier completed the inspection 

on the Streich farm and smaller farms continued to 

be inspected by 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 Mercier worked 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 the panel's decision: 

Specifically, the grievance panel recommended 

on December 20, 1984 that Mr. 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 of Agriculture. 

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 unemployment benefits? 

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 offset by the grievance panel award of $671.05 and 

unemployment benefits received. The court explained its 

reasoning: 

The parties agreed prior to trial, and it was 

consistent with the claim made by Plaintiff to 

Department of Agriculture in his 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 is made 

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 through May 8, 1984. 

Mr. Myers has not refuted the lower court's statement that 

the parties agreed to the offsets prior 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 

judgment on the statutory wage claim? 

Prior to trial, the defendant moved for partial 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 that had he not been discharged 
he would have worked for the remainder of the potato season 

and would have collected wages for the whole season. Those 

lost wages, he argued, constituted "wages" as anticipated by 

§§ 39-3-204 through -206, MCA. Those statues read, in pertinent part, as follows: 

39-3-204. Payment of wages generally. (1) Every 

employer of labor in the state of Montana shall pay 

to each employee the wages earned by such employee . . . and no person for whom labor has been performed may withhold from any employee any 

wages earned or unpaid for a longer period than 10 

business days after the same are due and payable. 

39-3-205. Payment of wages when employee separated 

employment prior to payday. (1) Except as provided 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 of Montana and its political subdivisions who 

would be paid on the next regular payday for the 

pay period during which the employee was separated 

from employment or 15 days from the date of separation from employment, whichever occurs first . . . 

39-3-206. Penalty for failure to pay wages at times 

s~ecified in law. Anv em~lover. &.L, as such em~lo~er .. 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 this part 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 

wages were due. (Emphasis added. ) 
The District Court granted partial summary judgment for 

the defendant. The court reasoned that the damages sought by 

Mr. Myers were not "wages" within the meaning 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 allegedly wrongful discharge. . . . Consequently, as a matter of 

law, Plaintiff has no basis for a wage claim 

against defendant. 

Although this question has never been considered in Montana, 

the lower court found the reasoning in Cumo v. 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 Sound West, Inc. Relying upon that agreement, Mr. 

Cumo moved his family from Minnesota to Missoula, 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 court held 

that a breach occurred and awarded damages, as well as penalties, costs, and attorney fees pursuant to SS 39-3-206 and 

-214, MCA. This Court concluded that Mr. Cumo never 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 is whether the wage 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 been 
performed 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 statutory description 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 (previously S 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 concerned with the compensation of 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, falls within part 1, a distinct part 

of what is now Chapter 3, Title 39. For these reasons 

Ameline clearly is distinguishable and not determinative of 
Mr. 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 or pursued 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 District 
Court'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 previously mentioned, the court also concluded that each party had 

acted in good faith in bringing and defending the lawsuit and 

that, in light of the result, each party should pay their own 

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 contractual or statutory right to fees and costs. We affirm the 

order of the District Court which refused to award attorney 

fees and costs. 

Affirmed. 

/" Justices