NO. 96-03a 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

MARTIN "DOC" BASTA, 

Plaintiff 

vs. 

and Appellant, 

CRAGO, INC., d/b/a PRINTING 

CENTER, a Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Marge Johnson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Lynch, Lynch & Chisholm, Great Falls, 

Montana 

For Respondent: 

Lon T. Holden, Jardine, Stephenson, Blewett & 

Weaver, Great Falls, Montana 

Submitted on Briefs: July 18, 1996 

Decided: December 31, 1996 

Filed: 

Cl&k 
Justice James C. Nelson delivered the Opinion of the Court. 

This is an appeal from the Eighth Judicial District Court, 

Cascade County. Following a hearing, the District Court granted 

Defendant Crago's motion for summary judgment. From this judgment, 

Plaintiff Basta appeals. We affirm. 

The sole issue raised on appeal is whether the District Court 

erred when it concluded that Basta and Crago did not enter into a 

written contract of employment for a specific term for the purposes 

of § 39-2-912(2), MCA (1991). 

FACTUAL AND PROCEDURAL BACKGROUND 

Defendant Crago, Inc. (Crago) operates a locally-ownedgeneral 

printing business known as the Printing Center located in Great 

Falls, Montana. Craig Barber (Barber) is the president, chief 

executive officer and the only shareholder of the business. 

Therefore, Barber is Crago's agent. Plaintiff Martin "Dot" Basta 

(Basta) worked at a different local printing shop in Great Falls 

from 1971 until Barber hired him to work as shop foreman at the 

Printing Center in March 1992. 

In December 1991, Barber contacted Basta about hiring him to 

work for the Printing Center. Over the next two months, Barber 

sent Basta two letters and a memorandum concerning their employment 

negotiations. The memorandum, dated January 23, 1992, referred to 

"Terms of employment" and was signed by Barber. The memorandum set 

forth several items including medical insurance coverage, vacation 

time, a salary and bonus figure for the first year of employment, 

a salary and undetermined bonus system for the second year of 

2 
employment, and a description of the employment position and 

responsibilities. Barber sent the memorandum to Basta with a 

letter explaining that the memorandum'was a "written copy of what 

we had talked about previously" and requesting that Basta contact 

Barber so that they could discuss Basta's starting date. On March 

1, 1992, Basta began working at the Printing Center. 

Barber had hired Basta to perform the shop foreman duties that 

Barber had performed previously. Barber planned for Basta to take 

over Barber's old duties so that Barber could attend to matters 

concerning expansion of the business. However, Barber's plans were 

not realized and the economic conditions of the business declined. 

In response to this economic decline, Barber determined that the 

payroll must be reduced. Consequently, he discharged Basta on 

February 26, 1993, and one other employee. 

On February 23, 1994, Basta filed his complaint, alleging that 

he had been wrongfully discharged without good cause pursuant to § 

39-2-904(2), MCA (1991). Crago answered and denied the allegations 

of Basta's complaint. Crago then moved for summary judgment, 

alleging that Basta's discharge was for good cause. To support the 

motion, Crago submitted an affidavit indicating that Basta was 

terminated from employment due to financial stresses within the 

corporation, a legitimate business reason. The District Court 

initially denied Crago's summary judgment motion. However, Crago 

filed a motion for reconsideration. Initially, Basta opposed 

Crago's motion for reconsideration. However, Basta ultimately 

conceded that Crago's motion should be granted and requested leave 

3 
to file an amended complaint. On September 6, 1995, the District 

Court granted both Crago's motion for reconsideration and Basta's 

motion for leave to file an amended complaint. 

Basta's amended complaint set forth two claims: 1) breach of 

contract and 2) breach of the implied covenant of good faith and 

fair dealing. Crag0 answered and denied the allegations. 

Thereafter, Crago filed a Motion for 'Summary Judgment Concerning 

the Amended Complaint. Crago alleged that the parties never 

entered into a written contract for a specific term, and, 

therefore, Basta's claims were barred by Montana's Wrongful 

Discharge From Employment Act, § 39-2-901, et seq., MCA (1991). 

After reviewing the briefs and considering the testimony of Basta 

and the arguments of counsel at the hearing on the motion, the 

District Court granted Crago's motion for summary judgment on 

December 12, 1995. It is from this judgment that Basta appeals. 

STANDARD OF REVIEW 

Our standard of review for an appeal from an order granting 

summary judgment is de nova. Motarie v. Northern Montana Joint 

Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 

156. We review the order granting summary judgment using the same 

evaluation as did the district court, based on Rule 56, M.R.Civ.P. 

Motarie, 907 P.2d at 156. Our inquiry is set out as follows: 

The movant must demonstrate that no genuine issues 

of material fact exist. Once this has been accomplished, 

the burden then shifts to the non-moving party to prove, 

by more than mere denial and speculation, that a genuine 

issue does exist. Having determined that genuine issues 

of fact do not exist, the court must then determine 

whether the moving party is entitled to judgment as a 

4 
matter of law. We review the legal determinations made 

by a district court as to whether the court erred. 

Bruner v. Yellowstone County (19951, 272 Mont. 261, 264-65, 900 

P.2d 901, 903 (citations omitted). 

In the case before us, Basta has not raised an issue 

concerning any genuine issues of material fact. Instead, Basta 

only raises the legal issue whether Basta and Crago entered into a 

written contract of employment for a specific term. Accordingly, 

we review the District Court's conclusion that Montana's Wrongful 

Discharge From Employment Act (the Act) bars Basta's breach of 

contract and breach of covenant claims under § 39-2-913, MCA 

(1991), because the parties did not enter into a written contract 

of employment for a specific term as required by § 39-2-912(2), MCA 

(1991) I to determine if the court was legally correct. 

DISCUSSION 

Did the District Court err when it concluded that Basta and 

Crago did not enter into a written contract of employment for a 

specific term for the purposes of § 39-2-912(2), MCA (1991)? 

Basta contends that he and Barber entered into a written 

contract of employment for a specific term, and, therefore, the Act 

does not bar his claims for breach of contract and breach of 

implied covenant of good faith and fair dealing. Crago responds 

that Barber and Basta did not enter into a written contract of 

employment for a specific term, and, therefore, the Act does bar 

Basta's claims. We conclude that the District Court correctly 

determined that the parties did not enter into a written contract 

5 
of employment for a specific term, and that the court properly 

granted Crago's motion for summary judgment. 

The Act provides that "no claim for discharge may arise from 

tort or express or implied contract." Section 39-2-913, MCA 

(1991). We have determined that the plain meaning of "claim for 

discharge" is simply "those claims for damages caused by an 

asserted wrongful discharge." Beasley v. Semitool, Inc. (1993), 

258 Mont. 258, 261, 853 P.2d 84, 86. Therefore, not all tort or 

contract claims are barred by § 39-2-913, MCA (19911, merely 

because they arise from employment. Beaslev, 853 P.2d at 86. 

Rather, only those tort or contract claims which are "for 

discharge" will be barred by 5 39-2-913, MCA (1991). Beaslev, 853 

P.2d at 86. 

In the present case, Basta bases both his breach of contract 

and breach of covenant claims on his discharge. First, Basta 

alleges that Crago violated the contract with Basta "by virtue of 

terminating [Basta] on February 26, 1993. . . .'I Second, Basta 

alleges that Crago violated its obligation to act in good faith 

with Basta "in that termination was false and dishonest in fact." 

By virtue of this language contained in Basta's amended complaint, 

we conclude that both claims are "completely and inextricably 

intertwined with and based upon" Basta's discharge. See Beasley, 

853 P.2d at 87. Consequently, Basta's claims are "claims for 

discharge" and will be barred under s 39-2-913, MCA (1991), unless 

one of the exemptions to the Act applies. 

The exemptions to the Act are set forth as follows: 

6 
39-2-912. Exemptions. This part does not apply to a 

discharge: 

(1) that is subject to any other state or federal 

statute that provides a procedure or remedy for 

contesting the dispute. Such statutes include those that 

prohibit discharge for filing complaints, charges, or 

claims with administrative bodies or that prohibit 

unlawful discrimination based on race, national origin, 

sex, age, handicap, creed, religion, political belief, 

color, marital status, and other similar grounds. 

(2) of an employee covered by a written collective 

bargaining agreement or a written contract of emolovment 

for a specific term. [Emphasis added.1 

The issue raised on appeal is whether the parties entered into a 

written contract of employment for a specific term. If they did, 

Basta's claims are exempted from the Act pursuant to 5 39-2-912(2), 

MCA (1991), and will not be barred under § 39-2-913, MCA (1991). 

If not, Basta's “claims for discharge" are preempted by the Act 

pursuant to 5 39-2-913, MCA (1991), and will be barred 

In order for the exemption under § 39-2-912(2), MCA (1991), at 

issue here, to apply, there must be (a) a written contract and (b) 

this contract must be for a specified term. Under the plain 

language of the statute, if either the contract is not in writing 

or it is not for a specified term, then the exemption does not 

apply, and Basta's claims will be barred. Without so deciding, we 

will simply assume for purposes of this appeal that Crago's 

memorandum to Basta was a written contract and that Basta's 

employment was therefore governed by a written contract. We make 

this assumption because our determination that, regardless, the 

contract was not for a specified term, is dispositive. 

At best, the memorandum simply states Basta's proposed salary 

for the first two years of his employment. In fact, nothing in the 
memorandum sets out a specific term, whether for two years or more. 

The memorandum not only fails to specify a termination date; it 

does not even designate a hiring date. Indeed, at the time Basta 

received the memorandum, the parties were still negotiating Basta's 

starting date. This is evidenced by the letter Barber sent with 

the memorandum wherein Barber asked Basta to call him to discuss 

Basta's starting date. 

Moreover, Basta's testimony at the summary judgment hearing 

held on November 6, 1995, shows that he was unclear as to what the 

parties had actually agreed would be the "specific term" of Basta's 

employment: 

Q: 

A: 

Q: 

A: 

Q: 

A: 

[Mr. Lynch, Basta's attorney] Now, does that 

agreement [referring to the memorandum]--it--what 

are the terms of that agreement? Without reading 

it, I mean, you know, how long was your employment 

with him to be? 

[Bastal When we first talked about this and came 

out with this, he said I would be with him for at 

least five years. . . . And he told it in front of 

me and my wife, hell, I would be there for five 

years. He had no plans of me going anywhere, that 

he was going to keep me employed. So, then he came 

up with this "I'll start you at this, and after a 

year I'll start you at this figure, and if my 

business progresses, you'll progress." 

. . . 

And let me ask you this. That agreement doesn't 

say anything--how many years does that agreement 

cover? 

Two years. 

Okay. Was there--when you got that agreement, was 

there any discussion about the five years? 

Yes, there was. Like I say, he said it's good for 

five years. Or longer. He just said, "I'm not 

going to let you go." I just took the man for his 

8 
Q: 

A: 

Q: 

A: 

Q: 

A: 

Q: 

A: 

Q: 

A: 

word. I didn't think I'd have to get a written 

contract or anything else. He says, "I'm going to 

do this for you the first year and second year. 

And you're going to be with me." I trusted him. 

And I thought, you know, this is a good way for me 

to go. It's what I like to do is to get shops 

going. So I didn't say, "Well, okay, you've got to 

write up a five-year agreement or a two-year 

agreement" or anything. What he wrote down here I 

took to be a good agreement, that he would face up 

to it as a man. 

But what did you understand that agreement to be, 

as far as how long? That written agreement? 

Two years. 

And why is that? 

Because that's all he did. He told me if--because 

it has down the first year I'll get so much and the 

second year 1'11 get so much. And he signed it. I 

didn't know I'd have to have it notarized or 

anything else. Or that I'd have to sign it. 

Did he say in the cover letter or that agreement 

that if there was any disagreement with it on your 

part, that you would work it out? 

Yes. That's what it says. 

And did you disagree with it? 

No, I did not. I accepted what he had written down 

here and gave to me. 

And did you feel that that was your agreement, what 

was written down? 

Yes, I did. 

After reviewing Basta's testimony, it is apparent that while 

Basta regarded the memorandum as covering the first two years of 

his employment, he anticipated that his employment with Crago would 

last for "at least five years." However, nothing in the evidence 

supports the conclusion that the parties agreed to either a twoyear or a five-year employment term. Rather, the evidence supports 

9 
the conclusion that the parties failed to agree to any specific 

term of employment at all; there was simply no meeting of the minds 

on the term of Basta's employment--whether it was two years, five 

years or longer. Therefore, based on the uncertain nature of both 

Basta's testimony and the memorandum, we conclude that the parties 

did not enter into a contract of employment "for a specific term." 

Basta also alleges that Crago violated the implied covenant of 

good faith and fair dealing and Basta seeks damages for emotional 

distress. As we stated above, Basta's claims are not exempted from 

the Act under 5 39-Z-912(2), MCA (1991), because the parties did 

not enter into a written contract of employment for a specific 

term. Therefore, § 39-2-913, MCA (lPPl), controls and Basta's tort 

claim for breach of implied covenant of good faith is barred. 

Furthermore, under the Act, Basta cannot seek damages for emotional 

distress. Section 39-2-905(3), MCA (1991). See also Dagelv. City 

of Great Falls (1991), 250 Mont. 224, 238, 819 P.2d 186, 194. 

In sum, we conclude that Basta and Crago did not enter into a 

written contract of employment "for a specific term." Therefore, 

Basta's contract and covenant claims are not exempted from the Act 

pursuant to 5 39-2-912(2), MCA (1991). Accordingly, we affirm the 

District Court's conclusion that Basta's breach of contract and 

breach of implied covenant of good faith and fair dealing are 

barred by the Act pursuant to § 39-2-913, MCA (1991). 

Affirmed. 
We Concur: 

Justices 

11 
Justice Terry N. Trieweiler dissenting. 

I conclude that the parties did enter into a written contract 

of employment for a specific term within the meaning of 

§ 39-Z-912(2), MCA (1991), and therefore, dissent from the majority 

opinion. 

Martin "Dot" Basta worked for Advanced Litho Printing Shop in 

Great Falls for twenty-one years until he was induced to leave that 

employment with a written promise from Craig Barber, owner and 

operator of the Printing Center, that he would be employed on more 

favorable terms at that business for at least two years. However, 

less than one year after he began work for Barber, he was told that 

the Printing Center could not afford him and his employment was 

terminated. 

Section 3%2-912(2), MCA (1991), provides that the Wrongful 

Discharge from Employment Act found at §§ 39-2-901 to -915, MCA, 

does not preclude a person covered by a written contract of 

employment for a specific term from enforcing the terms of the 

employment contract. 

Section 28-Z-102, MCA, sets forth the necessary elements of a 

contract. It provides as follows: 

It is essential to the existence of a contract that there 

be: 

(1) identifiable parties capable of contracting; 

(2) their consent; 

(3) a lawful object; and 

(4) a sufficient cause or consideration. 

The document which was submitted to Basta after being prepared 

and signed by Craig Barber, and which is relied on by Basta as a 

12 
"written contract of employment for a specific term" provided as 

follows : 

January 23, 1992 

TO: Dot Basta 

FROM: Craig Barber 

RE: Terms of employment 

INSURANCE The Printing Center will pay medical 

insurance for you and your wife. 

VACATION & 

DAYS OFF 

1ST YEAR 

3 weeks paid vacation 

plus 5 days off as needed 

$35,000 a year salary plus a bonus, 

not to exceed $1000 if predetermined 

goals are met. 

2ND YEAR $36,000 a year salary with a bonus 

system. 

(to be determined) 

POSITION & Position: Working Foreman 

RESPONSIBILITIES 

Camera 

Shooting 

Stripping 

Training 

Route & schedule jobs 

Quality control 

Employee supervision and training 

Involvement in customer relations as 

needed 

Assisting with the transition from 

conventional camera work to computer 

Other duties as need arises 

I hope that you find this agreeable and as we had 

discussed. 

Sincerely, 

/s/ Craig Barber 

Craig Barber 

13 
The document obviously included identification of the parties, 

the consent of Craig Barber, a lawful object, and sufficient 

consideration. There is no question presented regarding the 

capacity of either party to contract; Barber simply contends, and 

the District Court agreed, that because Basta had not signed the 

agreement, his consent had not been provided, and therefore, the 

agreement was incomplete. The District Court gave the following 

rationale for its decision: 

The Court found quite credible the Plaintiff's 

testimony, that he left a good job in reliance upon the 

Defendant's offer of employment for a term of at least 

two years, but that offer had to be finalized into a 

"written contract of employment for a specific term," if 

it is to take the Plaintiff's case outside the parameters 

of the Wrongful Discharge Act. Testimony presented by 

the Plaintiff established that the Plaintiff accepted the 

Defendant's offer by leaving his prior employment and 

beginning work with the Defendant, but his acceptance was 

not in writing as presented to the Court, but an 

acceptance based on performance. Unless both the offer 

and acceptance is finalized in the form of written 

contract, it does not appear to be exempted from the 

requirements of the Wrongful Discharge Act. Section 

39-2-912, MCA (1991). 

I disagree. When Basta actually went to work for Barber and 

fully performed, according to the terms of the contract, from 

March 1, 1992, until he was terminated on February 26, 1993, he 

accepted the terms proposed by Barber by performing his 

responsibilities set forth in the contract. Section 28-2-503, MCA, 

provides for acceptance in the following manner: 

(1) Performance of the conditions of a proposal or the 

acceptance of the consideration offered with a proposal 

is an acceptance of the proposal. 

(2) A voluntary acceptance of the benefit of a 

transaction is equivalent to a consent to all the 

14 
obligations arising from it, so far as the facts are 

known or ought to be known to the person accepting. 

Based on Basta's acceptance by performance of the contract 

terms proposed by Barber, I conclude that there was a completed 

contract of employment for a specific term and that all essential 

terms of the contract were in writing. I would conclude that, when 

the employer has set forth the conditions of employment in a 

written document which includes the term of employment and is 

signed by the employer, the requirements of 5 39-Z-912, MCA (1991), 

have been satisfied. The purpose, after all, of that section's 

requirement that there be a written contract is to protect the 

employer by limiting his employee's remedies to the provisions of 

the Wrongful Discharge From Employment Act, unless it can be 

documented that the employer offered him or her something greater 

than the Act's protections. Here, there is no question about the 

terms of employment which were offered by the employer. 

Therefore, the requirements of § 39-2-912(Z), MCA (19911, have been 

satisfied. 

However, based on Basta's testimony to the effect that he felt 

Barber had committed to a term greater than two years during their 

conversations, the majority concludes that the contract in question 

does not provide for a specific term. I disagree again. 

The written contract, which is set forth in this opinion, 

provides for a first year and a second year. It provides for the 

salary to be paid during each year, and a bonus to be determined at 

15 
a later date. Based on the plain language in the contract, it 

provided for a minimum term of two years employment. 

At most, the term of employment in defendant's proposed 

written contract is unartfully drawn and leaves some question about 

whether the term was to extend beyond two years. However, as we 

have repeatedly held, the author of a written agreement should not 

be able to avoid liability for performance of that agreement based 

on ambiguities which are his or her own creation. Those 

ambiguities are to be construed in favor of the party who did not 

draft the agreement. See, e.g., Topco, Inc. V. state (1996) , 275 Mont. 352, 

360, 912 P.2d 805, 810 ; Mueske v. Piper, Ja&zy & Hopwood, Inc. (1993 ) , 260 

Mont. 207, 216, 859 P.2d 444, 449 -50 ; St. Paul Fire & Marine Ins. Co. v. 

Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229. 

For these reasons, I would reverse the order of the District 

Court and remand to that court for further evidence regarding any 

defenses Barber might have to Basta's contract claim. 

Justices William E. Hunt, Sr., 

foregoing dissenting opinion. 

and W. William Leaphart join in the 

16