IN THE SUPREME COURT OF THE STATE OF MONTANA

TIMOTHY SCOTT BRAULICK, Plalntiff and Respondent,

V. HATHAEAYMEATS, INC., Defendant and Appellant.

APPEAL FROM: District Court ofthe Eighth Judicial District, In and for the County of Cascade, TheHonorable Kenneth R. Ne~ll, Judge presiding.

COLWSEL OF RECORD: For z4ppellant: Jeffrey T. McAllister, Conklin, Nybo, Le-veque& Lanning, P.C.; Great Falls, Montana For Respondent: J. Kim Schulke; Linnell. Newhall. Martin & Schulke,P C ; Great Falls, Montana

Filed: Submitted on Briefs: January 23, 1999 Decided: Mruch 23. 1999Justice Jim Regnier delivered the opinion oftheCourt. 

## 71 Hathaway !Meats9 Inc., appeals from the S3l$M judgment entered against it after a jury inthe Eighth Judicial District, Cascade County, found for Hathaway's former employee, 'I'imorhy Scott Braulick, in this wrongful discharge action. We affirm. 72 ,I The iss~~e is whether the District Court ened in denying Hathaway's motions for judgment as a matter of law and submitting the case to thejury. '13 In October 1994, Hathaway, a wholesale meat distributing business in Spokane, Washington, purchased the Great Falls, Montana, wholesale meat distributing business for which Braulick worked as a warehouseman and delivery truck driver. Braulick was dischatgcd from Hathas-ayes empioy in February 1996, ostensibly as part of downsizing of the business. Braulick filed this action approximately one year later, in January 1997. 

### 74 At trial, Braulick's theory was that he was discharged not because ofdownsizing, but because hewasresented for his absence froin work due to a December 1905nonwork-related injury to his hand, and for the costs to Hathaway ofproviding health insurance for himself andhis family. Following Braulick's presentationofhis case, Hathaway moved forjudgment

as a matter ofiawpursuant to Rule SO11M.K.Civ.P. Hathaway arguedthat Braulick had failed toprovide evidence establishingthat he ;vas not terminated forgood cawc. The court dcnicd the motion, as it did Hathaway's second motion for judgment as a inatter oflaw at the close of trial. Thejury reached a verdict for Brauliclc. awarding him about half the amount of damages he requested. Hathaway appeals.51d the District Court crr in denying Hathanay's motion forjudgment as a matter of lam and suhmitr~ng the case to the jury? 

### 36 

### kmotion forjudgment as amatter oflaw maybe granted only ifit appears as a matter ofIan that 3party could not preva~l upon any view ofthc ewdence, including the leg~timate infeiences to be drawn therefrom. Km,oIaizd v.Luzerrac Amencn,Inc 

### , 1998 

### itlT 130.7 53, 961 P 2d 725,T 53.55 St Rep. 531.11 53 In other words, a motion forjudgment as a matter oflaw 1sproperly granted only when there IS a complete absenceof any ecidence to uarrant submission to a jury. Kneeland, at 

## 7 53. Conflicts in the evidence, including witness credibility, arc properly resolved by the finder of fact. Cumemit v.

### Mercer, !998 

### MT 134, 

## 7 18, 960 P.2d 302,T 18. 55 St. Rep. 531.1 18. 

### 77 Adischarge is wrongful under Montana's Wrongful Discharge From Employment Act if it uas not for good cause and the employee has completed the employer's probationary per~od. Section 39-2-904(2), MCA. ifthe discharge mas for a legit~mate business reason, it docs not amount to wrongful discharge. In Buck Y. Billings hlorztmza Clzew.olet,Itrr. (i90l),248 Mont. 270. 81i P.2d 537, we stared: A !egitimatebusiness reason is a reason that is neither false, whimsjcal, arbitrary [nlor capricious, and it must have some logical relationship to the needs ofthebusiness. In applying this definition, one must take into account the right of an employer to exercise discretion over who it u-illemploy and keep in employment. 

### Of equal importance to this right, however, is the legitimate interest[] ofthe employee to secure employment. Buck, 248 Mont. at 281-82,8i 1P.2d at 540

### qS Hathaway gave several justifications for raulick's tcnninatian. Onc was that a reduction 

### in the amount of stock 

### it warehoused in Great Falls reduced the neec! for warehousemen in Great Falls, According to Braufick's testimony on direct examination, however, tl~e majority ofhis time was spent as a delivery driver. 9 Randy Bogden, the manager of I-latllaway's Great Falls operation, testified during Braulick's presentation of his case-in-chief that business was siow at the time Hail~away terminated Braulick's employment. However, Braulick testified that Bogden called him several times to ask him to work in January, saying that they were "really busy." Bogden acknowledged that after Braulick was terminated, Hathaway contracted \vith another company to do some ofthe deliveries Braulick had done and hired part-time and temporary employeesto doothers. Braulick elicited evidence that Hathaway thereby incurred expenses totaling Sl,P78 per month as compared with Braulick's salary and benefits of $2,244 per month. 710 On several points, the jury had to decide whether to believe testimony by Braulick or testimony by Bogden or Hathaway's ownerlMike Hathaway. As another example, Braulick tcstitied that Bogden told him when he was discharged that it would be cheaper to pay son1ec;ne else to dohis work. Bogden denied saying that. Determining witness credibility is a classic jury function. Cmzeron,at 

# ./ 18. 

### 11 1 1 Hathawaycontended it made senseto getrid ofBraulick because hewas not cel-tified to drive the large truck the company used to make twice-weekly delivery runs to Missouia, Montana. However, Braulick testified that at Hathaway's request he used the smaller truck 

### 4to make the Missoula run t'itice atthe end ofJanuary 1996. Thus. thcrc was cvidencc that the truck which Braulick was certified to drive couldbe used for the Missoula runs. C112 Oncross-examination duringHathaway's case-in-chief;Mike Hathaway admitted that the deliveries znd customers which the business had before the Great Falls warehouse reduction were similar after the warehouse reduction. This, again, supported Braulick's position that the reduction in warehouse inventory in Great Falls did not reduce the need for drivers. 113 Hathaway asserted that the GreatFalls operation made a netprotit ofonly $1,977 for the fiscal year May 1995to April 1996and that this provided a legitimate business reason to terminate BrauIick. However, as Brauiick pointed out, he was terminated in February 1996,at least two months before those fiscal year figures were available. Braulick fitrther demonstrated from Hathaway's financial records that the bulk of Hathaway's business loss

was attributable to its larger Spokane, Washington, operation. Braulick argued that it would have been more logical to make larger cutbacks in Spokane than to fire him. r14 The record includes evidence supporting Hathaway's position that itstermination of Braulick's e~nplo}~ was justified by legitimate business reasons. However: that is not a sufficient basis for ajudgment as a matter oflaw. The standard is whether Branlick failed to introduce any evidence at all in support ofhis contentions. Weighing ofthe evidence is, again, a classic jury function. Cutrteron,at

## 7 18. 11 5 Based upon the record, we conclude that both after presei~tation ofhis case-in-chief and at the close ofthe evidence, Braulick met theminimal standard set forth in 

### Kneeland that 5unless there is a complete absence of evidence 

### to support a verdict for the nonmoving party, judgment as a matter of law is not appropriate. We therefore affirm the District Court's denial of Hathaway's motions for judgment as a matter of law. '1 6 inhis ansxverbrief and 

### by separare motion, Branlick asks that this Court award 

### him damages under Rule 32, M.K.App.P., on the basis that Hathaway has taken this appeal without merir. Such damages are only proper when there is evidence that the appeal was taken without substantial reason or grounds or that the arguments were not made in good faith. Sorenson v. hfassev-Fergusen, fnc. (19961, 279 Wont. 527, 531, 927 P.2d 1030, 1032-33. There is no such evidence 

### in this case. We therefore decline to award damages under Rule 32, 34.R.App.P. 

### $1 17 Affirmed.

We Concur: