DA 12-0207

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 78

MATT STUBBLEFIELD, JOHN KNAPP,

and NEIL COURTIS,

 Plaintiffs and Appellants,

 v.

TOWN OF WEST YELLOWSTONE,

 Defendant and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. 08-807AX

Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Stephen C. Pohl, Paul Grigsby, Attorneys at Law, Bozeman, Montana

For Appellee:

James D. McKenna, Michael Q. Davis, Jr., McKenna Law, P.C., Bozeman, 

Montana

Submitted on Briefs: November 21, 2012

 Decided: March 26, 2013

Filed:

__________________________________________

Clerk

March 26 2013
2

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Plaintiffs Matt Stubblefield, John Knapp, and Neil Courtis (plaintiffs), police officers 

in West Yellowstone, Montana, appeal the District Court’s denial of their combined motions 

to amend the judgment and for a new trial. We affirm.

¶2 We restate the issue on appeal as follows:

¶3 1. Did the District Court err by denying the plaintiffs’ combined M. R. Civ. P. 59 

motions for a new trial and to amend the judgment?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Plaintiffs are employed as police officers by the defendant Town of West 

Yellowstone, Montana (the Town). West Yellowstone is a small community in Gallatin 

County and serves as the western entrance to Yellowstone National Park. West Yellowstone 

receives thousands, if not millions, of visitors during the summer months due to its proximity 

to Yellowstone. During the off-season, however, services and amenities are limited, 

expensive, or altogether unavailable. Despite its relative remoteness, the town is attractive 

for its proximity to a variety of outdoor activities.

¶5 Officer Stubblefield has been employed as police officer in West Yellowstone since 

2004, while Officers Knapp and Courtis have been employed by the Town since 2007. The 

plaintiffs largely relocated to West Yellowstone to partake in its recreational opportunities. 

However, the plaintiffs contend that the Town’s on-call policy for police officers prior to 

2009 was so restrictive that they could not engage in personal activities between shifts. They 
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thus claim that they should have been compensated for their time spent on call under the Fair 

Labor Standards Act, § 29 U.S.C. 201, et seq. (2011) (FLSA). 

¶6 The following facts concerning the on-call policy are undisputed. During the relevant 

time frame, the Town generally employed four police officers. One police officer was on 

duty at all times, with one officer working the day shift (6 a.m. to 6 p.m.) and another 

working the night shift (6 p.m. to 6 a.m.). Work periods lasted for two weeks, and officers 

worked three 12-hour shifts one week and four 12-hour shifts the next, totaling 84 hours of 

work per 14-day period.1From the beginning of their employment until a change in the 

collective bargaining agreement in March 2009, each officer was also required to be on-call 

for the 12 hours immediately preceding their shift. Thus, if an officer worked the Monday, 

Tuesday, and Wednesday day shifts, he would be on call Sunday, Monday, and Tuesday 

nights from 6 p.m. until the start of his shift at 6 a.m. the next morning. 

¶7 This on-call requirement stemmed from the Town’s policies requiring an additional 

police officer to provide backup for certain more-dangerous situations like crimes in 

progress, most disorderly conduct calls, and partner or family member assault. Other 

requests for backup were made according to the responding officer’s discretion. Because the 

on-call requirement was intended to provide backup for potentially dangerous situations, the 

on-call officer was provided a cell phone and expected to be reachable at all times. This 

responsiveness required the plaintiffs to stay within cell service areas and keep their phone 

ringers loud enough to wake them if a call came while they were sleeping. The officers were 
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also apparently expected to respond immediately, be in some sort of clothing that identified 

them as police officers, to have their police gear, and to respond in a patrol car. If an officer 

was actually called out while on call, they would receive a minimum of 2.5 hours of 

overtime pay. The officers were not otherwise compensated for their on-call time. 

¶8 The parties did dispute the nature and length of the response-time requirement. The 

plaintiffs claimed that unwritten policies required a five to ten minute response. Witnesses 

for the Town, including the Chief of Police, claimed the response time requirement was 

flexible, informal, and often longer. However, all parties agreed that the small size of West 

Yellowstone allowed for generally quick response times. 

¶9 The plaintiffs brought a complaint against the Town under the FLSA on October 6, 

2008 alleging that they should be compensated for all their time spent on call, and not just 

for call outs. Plaintiffs specifically alleged that the on-call rules were so restrictive that the 

on-call time was spent predominantly for the Town’s benefit and, thus, they should have 

been compensated. Plaintiffs claimed they were owed compensation in the form of overtime 

pay for their on-call hours. Plaintiffs also claimed liquidated damages pursuant to 29 U.S.C. 

§ 216, interest, costs, and attorney fees. 

¶10 A jury trial was conducted during the week of November 14-17, 2011. Both sides 

presented documentary and testimonial evidence concerning the details of the Town’s on-call 

policy and the plaintiffs’ activities during their on-call shifts. The plaintiffs generally 

 

1 Under exception 7(k) to the Fair Labor Standards Act, § 29 U.S.C. 207(k), police officers may 

work more than 40 hours per week without incurring overtime.
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claimed that the on-call requirements hindered their sleep, prevented them from running 

errands or doing certain chores around the house, interfered with their relationships, denied 

them the opportunity to hold second jobs, and prevented them from recreating outside West 

Yellowstone between shifts. As the Town no longer requires police officers to be on-call 

between shifts, the plaintiffs claimed that they can now engage in personal and family 

activities that would have formerly been reserved for their off-duty days. The plaintiffs 

repeatedly highlighted the isolated nature of West Yellowstone and the immediate response 

requirement for the on-call officer, claiming that these factors restricted their ability to 

engage in personal activities and rendered their on-call time primarily for the Town’s benefit. 

¶11 The plaintiffs also argued that their on-call hours were spent primarily for the benefit 

of the town by contending that their availability for backup furthered important public safety 

interests. The plaintiffs claimed that the elimination of the mandatory on-call requirement in 

March of 2009 left the Town, public, and on-duty officers less safe. The testimony of 

several of the dispatchers in West Yellowstone similarly indicated that the elimination of the 

on-call requirement made their jobs more stressful and potentially rendered the town less 

safe. 

¶12 The Town’s evidence largely questioned the plaintiffs’ claimed inability to engage in 

personal activities or sleep. The Town sought to refute the allegedly burdensome response 

requirements by eliciting testimony that officers had previously either failed to show up for a 

call or had shown up late without any consequences. The Town also developed testimony 

that the plaintiffs received seven days off out of every 14 day work period, that other 
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agencies could potentially provide backup if the on-call officer didn’t respond, and that a 

plaintiff believed the compensation rate for call outs was fair. The Town further claimed that 

the infrequent nature of calls lessened the burden of on-call shifts. A summary of the 

plaintiffs’ timesheets proffered by the Town showed that Sergeant Stubblefield was called 

out 18 times in 609 on-call shifts, that Officer Knapp was called out three times in 234 oncall shifts, and that Officer Courtis was called out six times in 186 on-call shifts. Each of the 

plaintiffs disputed these calculations, but they did not offer any evidence supporting their 

belief that call outs were more frequent. 

¶13 After reviewing the evidence and testimony, the jury rendered a verdict in favor of the 

Town on November 17, 2011. The court entered judgment on December 7, 2011. The 

plaintiffs subsequently filed a Combined Motion to Amend Judgment and Motion for New 

Trial (the Motion) pursuant to M. R. Civ. P. 59(a) and (e) on January 4, 2012. The Motion 

argued that there was insufficient evidence to support the jury’s verdict. The Motion largely 

summarized the evidence the plaintiffs presented at trial and applied these facts to the law 

contained in the jury instructions. The Motion essentially argued that the plaintiffs supported 

their contention with a “great quantity” of “uncontroverted” evidence while arguing that the 

Town only offered evidence of how the plaintiffs spent their days off. As relief, the Motion 

requested that the court “amend the judgment and rule that the Plaintiffs’ time spent while 

on-call was compensable” and order a new trial to determine damages and the statute of 

limitations. The Motion alternatively requested that the court order a new trial if it declined 
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to amend the judgment. The court denied the Motion in a February 29, 2012, order, and this 

appeal followed. 

STANDARD OF REVIEW

¶14 Where the basis of a Rule 59 motion is insufficiency of the evidence, we have 

clarified that our standard of review is de novo. Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338 

Mont. 19, 162 P.3d 134. This is because the assessment of the sufficiency of the evidence 

and the application of the law to that assessment is a question of law that cannot involve 

discretion. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 19, 336 Mont. 105, 152 P.3d 727. 

An assessment of the sufficiency of the evidence is a question of law and no deference can 

be given to the trial court. Johnson, ¶ 19. “There either is, or is not, sufficient evidence to 

convict, and the determination is not a matter of discretion,” regardless of whether the appeal 

is from the denial of a M. R. Civ. P. 59(a) or (e) motion. State v. Swann, 2007 MT 126, ¶ 19, 

337 Mont. 326, 160 P.3d 511. 

¶15 In the course of our review of whether the evidence was sufficient to support the 

jury’s verdict, we do not ask whether the jury made the right decision. Wise v. Ford Motor 

Co., 284 Mont. 336, 343, 943 P.2d 1310 (1997). Instead, we only ask whether there is 

substantial credible evidence in the record to support the jury’s verdict. Wise, 284 Mont. at 

343, 943 P.2d at 1314. Substantial credible evidence is evidence that a reasonable mind 

might accept as adequate to support a conclusion. C. Haydon Ltd. v. Mont. Min. Props., Inc., 

286 Mont. 138, 151, 951 P.2d 46 (1997). This evidence “may be less than a preponderance 

of the evidence, but must be more than a ‘mere scintilla.’ ” Murray v. Whitcraft, 2012 MT 
8

298, ¶ 7, 367 Mont. 364, 291 P. 3d 587 (quoting Styren Farms, Inc. v. Roos, 2011 MT 299, 

¶ 11, 363 Mont. 41, 265 P.3d 1230). A jury’s verdict may be supported by substantial 

credible evidence even if it is contradicted by other evidence or inherently weak. D.R. Four 

Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23, 352 Mont. 435, 218 P.3d 827 

(quoting Tinker v. Mont. State Fund, 2009 MT 218, ¶ 36, 351 Mont. 305, 211 P.3d 194). 

DISCUSSION

¶16 On appeal, the plaintiffs maintain their argument that substantial evidence did not 

support the jury’s verdict in favor of the Town. The plaintiffs further term the jury’s 

decision “baffling” and “inconsistent” in light of the District Court’s decision following our 

remand as directed in Sands v. Town of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158 

P.3d 432. We find both arguments unpersuasive, as outlined below. 

I. SUFFICIENCY OF THE EVIDENCE 

¶17 The United State Supreme Court has held that time spent waiting “on call” is 

compensable if the waiting time is spent “primarily for the benefit of the employer and his 

business.” Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S. Ct. 165 (1944). “Whether 

time is spent predominately for the employer’s benefit or for the employee’s is a question

dependent upon all the circumstances of the case.” Armour & Co., 323 U.S. at 133. The 

key, according to the Court, is whether the employee was engaged to wait, which is 

compensable, or whether the employee waited to be engaged, which is not compensable. 

Skidmore v. Swift & Co., 323 U.S. 134, 137-39, 65 S. Ct. 161 (1944). The jury instructions 

related these holdings. The instructions also listed a variety of factors that courts have found 
9

relevant in determining whether on-call time is compensable. These factors included: (1) the 

extent to which there was an on-premises living requirement; (2) the extent to which there 

were excessive geographical restrictions on employee movements; (3) the extent to which 

the frequency of calls was unduly restrictive; (4) the extent to which a fixed time limit for 

on-call response was unduly restrictive; (5) the extent to which employees could easily trade 

on-call responsibilities; (6) the extent to which the use of a pager or cell phone could ease 

restrictions; (7) the duration and danger of calls; (8) the extent to which employees benefitted 

financially from the on-call policy; (9) the extent to which the policy was based upon an 

agreement between the parties; and (10) the extent to which on-call employees engaged in 

personal activities during on-call time. The court instructed that no one factor was 

dispositive and neither party contests these instructions on appeal. The jury determined that, 

based on the evidence presented and the applicable legal standards, the plaintiffs’ on-call 

time was not compensable.

¶18 The plaintiffs claim that this verdict was not supported by substantial evidence and 

that the jury wrongly ignored credible evidence that the on-call time was primarily for the 

Town’s benefit. In support, the plaintiffs largely recount the evidence they offered at trial 

and apply this evidence to the law contained in the jury instructions. However, “[a] jury's 

verdict which is challenged as not supported by the evidence may be overturned only in the 

complete absence of any credible evidence to support the verdict.” Papich v. Quality Life 

Concepts, Inc., 2004 MT 116, ¶ 29, 321 Mont. 156, 91 P.3d 553. As noted, this substantial 

evidence need be only more than a mere scintilla of evidence, need not be more than a 
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preponderance, and may be based on weak and conflicting evidence. Campbell v. Canty, 

1998 MT 278, ¶ 18, 291 Mont. 398, 969 P.2d 268. All evidence and the inferences drawn 

therefrom must be considered in the light most favorable to the adverse party, the Town. 

Campbell, ¶ 19. Essentially, appellants may not use a Rule 59 motion to relitigate their 

claim and we will not disturb a jury’s findings “unless they are inherently impossible to 

believe.” Wise, 284 Mont. at 339, 943 P.2d at 1312.

¶19 While we review the sufficiency of the evidence de novo, it is clear from the 

foregoing that this Court does not invade the province of the jury and weigh the credibility or 

persuasiveness of the evidence presented. We do not second-guess or seek to replace the 

jury. We merely determine whether “substantial” evidence—more than a scintilla but 

perhaps less than a preponderance—supported the jury’s verdict. Campbell, ¶ 18. Here, that 

translates to at least some evidence that the plaintiffs’ time was not spent primarily for the 

benefit of the town, or that the plaintiffs were waiting to be engaged. Sands, ¶ 19. The 

question, then, is not whether substantial evidence supported the plaintiffs’ contention; 

rather, it is whether some evidence supported the proposition that the plaintiffs’ time was 

spent primarily for their own benefit. Indeed, under our conception of what constitutes 

substantial evidence, there may be a scintilla of evidence supporting several contentions. It

is for the jury to weigh these competing bits of evidence and determine which is more 

credible. See Papich, ¶ 29; Campbell, ¶ 19; Wise, 284 Mont. at 339, 943 P.2d at 1312. 

¶20 Both sides presented evidence to the jury. The Town called three witnesses, proffered 

ten exhibits, and elicited testimony through the cross-examination of the plaintiffs and their 
11

witnesses. This “substantial” evidence demonstrated that the plaintiffs spent much of their 

on-call time asleep, eating meals, doing various household chores, or watching movies. 

Officer Conlon, who was not a plaintiff, testified that his on-call shifts were primarily spent 

going to movies, going to dinner, and going to bed. The plaintiffs testified that they 

generally slept and ate meals during their on-call shifts, but also stated their sleep was often 

interrupted by calls not related to their on-call duty. The Town also presented “substantial” 

evidence that the officers received few call-outs and were not disciplined in the instances 

where they missed a call. There was not an on-premises living requirement for the plaintiffs, 

but former Police Chief William Pronovost did tell Sergeant Stubblefield he could not live 

outside town if it would inhibit his ability to respond to calls and the plaintiffs generally 

stayed within West Yellowstone during their on-call shifts. The plaintiffs thought the 

compensation rate for actual call outs was fair, but wished they would have been called out 

more. The plaintiffs were apparently able to take vacation and trade shifts but there were 

some restrictions.

¶21 The jury received evidence from both the Town and the plaintiffs that related to the 

factors listed in the jury instructions. The Town challenged the plaintiffs’ credibility through 

cross-examination. The jury was free to judge the credibility and persuasiveness of the 

testimony and evidence submitted. The Town presented more than a mere scintilla of 

evidence that would support the jury’s verdict. The jury’s verdict was therefore based on 

“substantial” evidence. Campbell, ¶ 18. The plaintiffs have failed to show that the jury’s 
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verdict is either inherently impossible to believe or that there was a complete absence of 

evidence in support of the verdict. Campbell, ¶ 19. 

II. RELEVANCE OF SANDS

¶22 Plaintiffs also claim that because “[t]his case is a direct descendant of” Sands v. Town 

of W. Yellowstone, 2007 MT 110, 337 Mont. 209, 158 P.3d 432, we must either order the 

District Court to enter judgment in favor of the plaintiffs or order a new trial. Like the 

present case, Sands dealt with a FLSA claim against the Town of West Yellowstone. Unlike 

the present case, the plaintiffs prevailed on their FLSA claim after a bench trial. The 

plaintiffs essentially claim that this success, when coupled with the similarities between the 

cases, requires us to reverse the court’s judgment and the jury’s verdict. However, we are 

not persuaded by plaintiffs’ contention that this case is “essentially a retrial” of Sands.

¶23 Sands dealt with a FLSA claim brought by EMTs against the Town of West 

Yellowstone in 2003. The plaintiffs contested the 1/4 wages the Town paid for the hours 

they spent on call but not actually responding to a call. Following a bench trial, the district 

court entered judgment for the plaintiff EMTs. Some of the factors the district court 

considered to determine compensability mirror the factors presented to the jury in this case. 

For example, the Sands court considered response time requirements, whether employees 

could use on-call time for personal pursuits, the frequency and duration of call-outs, and 

geographic restrictions on employees. 

¶24 The district court in Sands applied these similar factors to the evidence to determine 

that the plaintiffs should have been fully compensated for their on-call time. Some of the 
13

facts the court considered in this analysis are similar to the facts in the present case. For 

instance, the EMTs were paid for their “response” time when they responded to a call, but 

were not fully compensated for all their on-call hours. The EMTs similarly worked 12-hour 

on-call shifts and were required to respond within five to seven minutes in uniform. Sands, 

¶ 7. The Sands plaintiffs also testified that the on-call requirements interrupted their sleep 

and interfered with their ability to run personal errands, travel for services or shopping, or 

recreate. 

¶25 Despite these initial similarities, the Sands case is not as “identical” to the present 

case as the plaintiffs allege. The foremost difference is the fact that the case on remand was 

conducted as a bench trial. The Sands EMTs also operated under a different collective 

bargaining agreement. Sands, ¶ 5. Moreover, if an EMT failed to respond in the required 

five to seven minute range, they would be disciplined. Sands, ¶ 7. Here, there is no 

evidence that any police officer has ever been disciplined for failing to immediately respond 

to a call. The Sands plaintiffs also testified that trading on-call hours was difficult, if not 

impossible. Here, the plaintiffs testified that trading shifts was at least possible. 

Significantly, the Sands plaintiffs received call-outs almost 50% of the time they were on 

call. In the present case, the plaintiffs were rarely called out.

¶26 While Sands presented a superficially similar claim, involving EMTs in West 

Yellowstone seeking compensation for on-call time, the case is not “identical” to the 

plaintiffs’ claim in the present case. The Sands plaintiffs worked under a separate 

agreement, were subject to different response requirements, and received significantly more 
14

call outs. In addition, the district court’s order in Sands was, somewhat surprisingly, 

admitted into evidence at trial. The jury had an opportunity to compare the Sands decision to 

the present case and they apparently decided that the cases were distinguishable. The jury 

was free to do this, just as they are free to weigh the persuasiveness of any evidence 

presented at trial. See Wise, 284 Mont. at 339, 943 P.2d at 1312 (“[T]he credibility and 

weight given to the evidence is in the jury’s province and we will not disturb the jury’s 

findings unless they are inherently impossible to believe.”). 

¶27 It is important to emphasize that our review of an appeal alleging insufficiency of the 

evidence is confined to a determination of whether substantial evidence supported the jury’s 

verdict. Campbell, ¶ 17. If there was evidence that a reasonable mind might accept as 

adequate to support the jury’s conclusion, our review ends. Campbell, ¶ 18. A prior district 

court’s determination of an arguably similar case has no bearing on this analysis. The jury 

was free to consider, and reject, the persuasiveness of the Sands decision just as it could 

consider, and reject, the persuasiveness of the plaintiffs’ testimony. Because there was 

sufficient evidence to support the jury’s verdict, we affirm the District Court’s denial of the 

Motion, regardless of Sands. 

CONCLUSION

¶28 Because we conclude that there was sufficient evidence to support the jury’s verdict in 

favor of the Town, we affirm.

¶29 Affirmed.

/S/ MICHAEL E WHEAT
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We Concur:

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE