No. 85-631 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

FELTON INVESTMENT GROUP, 

Plaintiff and Appellant, 

-vsWAYNE E. TAURMAN, DERROLD 0. PAIGE, 

Defendants and Respondents. 

............................ 

WAYNE E. TAURMAN and DERROLD 0. PAIGE, 

Plaintiffs and Respondents, 

-vsFELTON INVESTMENT GROUP, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Boone, Karlberg & Haddon; Sam E. Haddon, Missoula, 

Montana 

For Respondent: 

Datsopoulos, MacDonald & Lind; William K. VanCanagan, 

Missoula, Montana 

Filed: 

Submitted on Briefs: April 17, 1986 

Decided: July 9, 1986 

k357,& # 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Felton Investment Group (FIG) appeals the August 20, 

1985, order of the Fourth Judicial District Court, County of 

Missoula, holding that Wayne Taurman (Taurman) , and Derrold 

Paige (Paige) are entitled to receive their pro rata shares 

of the fair market value of the assets of FIG as of the date 

their employment with Felton Construction Company (FCC) 

ended. We affirm. 

John Felton is the originator and president of FCC. In 

1969 he formed FIG. The purpose of FIG is to provide 

retirement benefits to certain deserving employees of FCC. 

Each member of FIG makes weekly contributions which are 

automatically deducted from the paycheck. The money is then 

combined and invested. The partners must all agree on the 

investments to be made. 

Initially, FIG was operated as a general partnership, 

with the only guidelines contained in oral agreements. The 

October 28, 1969, "Pre-Incorporation Minutes'' was the first 

written document reflecting the purpose behind and terms of 

FIG. Those minutes state in pertinent part: 

ADMITTANCE: Resolved that admittance is available 

to anyone employed by Felton Construction Company ... 

EMPLOYMENT: . . . 

Resolved that if a member ceases employment or is 

discharged for misconduct, his interest shall be 

returned in an amount equal to contributions paid 

into the fund plus 48 simple interest; that the 

Group shall have a period of one year in which to 

purchase the stock of such member. 

Resolved that involuntary termination caused by 

disability, death, or retirement shall not affect 

such member's interest. 

Taurman was a charter member of FIG. Paige joined in 

1970. They participated in FIG'S annual meetings and gave 
their approval to all decisions until 1974. At that time 

Felton proposed changing FIG into a limited partnership with 

Felton as the general and controlling partner. Several of 

the other partners expressed dissatisfaction with the 

potential loss of control over their assets. At Felton's 

suggestion, they discussed the situation with an attorney who 

advised the partners not to enter into a limited partnership. 

Taurman and Paige informed Felton that they did not approve 

of his plan and would not agree to form a limited 

partnership. 

Felton continued developing his limited partnership 

concept. FIG continued as a general partnership. Annual 

meetings were held. Minutes were taken and copies sent to 

each partner. A summary of resolutions adopted through 1974 

included the following: 

7. In the event of termination of employment, 

except temporary layoff, for a period of 2 weeks, 

the Group shall vote to eject such persons from 

membership. 

8. If a member ceases employment or is discharged 

for misconduct, his interest shall be returned in 

an amount equal to contributions paid into the fund 

plus 4 48 annual interest. 

In December of 1977, Felton presented a proposed limited 

partnership agreement to the partners for their discussion 

and comment. A proposed draft was accepted, as revised, and 

was subsequently given to an attorney for preparation of a 

preliminary draft. The attorney presented the preliminary 

draft at the December 1979 meeting. 

In the interim, on December 5, 1978, Paige determined 

his investment in FIG to be in jeopardy due to the proposed 

limited partnership agreement and ceased contributing to the 

fund. However, he continued to be employed by FCC until July 

of 1980. Paige believed himself to still be a member of FIG 

because he was still employed by FCC. Approximately one year 
after ceasing to contribute to FIG, Paige received a check 

from FIG reflecting his contributions to date and interest, 

$15,040.08. Not wishing to lose his rights in the 

partnership, Paige refused to endorse and cash the check. 

Taurman continued investing in FIG until July of 1980. 

At that time, he was employed by FCC in Sunburst, Montana. 

Taurman was told by Felton that once the Sunburst job was 

completed, there would be a job for him in Aberdeen, 

Washington. However, FCC had decided to go non-union and the 

job in Aberdeen was for non-union personnel. Union members 

would be fined $5,000 by their union for working a non-union 

project. After considering the choices overnight, Taurman 

told Felton he would not be quitting the union. Taurman's 

employment with FCC terminated a week or two later. 

Paige was presented with the same decision. He, too, 

decided to remain union and lost his job with FCC. 

Subsequent to Taurman's and Paige's terminations, a 

meeting of FIG was held and its members voted to expel 

Taurman from the group. Following his expulsion, Taurman was 

offered a check by FIG in an amount equal to his contribution 

plus interest, $21,448.98. Taurman refused to endorse and 

cash the check. 

FIG filed a complaint December 2, 1981, requesting that 

Taurman, Paige, and a third individual, Thomas Wackler, be 

ordered to accept the sums previously offered in satisfaction 

of their entire claims in the partnership. Also on December 

2, 1981, Taurman and Paige filed a complaint against FIG 

seeking the judicial dissolution of FIG; a formal accounting 

of FIG; and an order that the assets of FIG be sold, applied 

in full to partnership liabilities and the remainder divided 

between the partners. Following a bench trial, judgment was 
entered for Taurman and Paige, awarding them a pro rata share 

in the partnership's assets. 

FIG appeals, raising the following issues: 

1. Did the District Court err in adopting verbatim 

findings of fact and conclusions of law proposed by Taurman 

and Paige which were unsupported by the record, inconsistent 

with the evidence and contrary to stipulations of the 

parties? 

2. Did the District Court err in basing its decision 

upon an alleged violation of the National Labor Relations Act 

by a non-party to the litigation the subject matter of which 

was beyond the jurisdiction of the court to pass upon and 

further was barred by the applicable federal statute of 

limitations? 

3. Did the District Court err in holding that the 

provisions of the Uniform Partnership Act applicable to intra 

se relationships of partners in an ongoing partnership, 

§ 35-10-401, MCA, controlled a case which involved 

partnership dissolution and the rights of the partnership and 

the former partners upon such dissolution? 

The District Court did not adopt Taurman's and Paige's 

findings of fact and conclusions of law completely verbatim. 

The judge's editing of the findings and his selective use of 

the conclusions, as well as his reliance on his own 

conclusions, evidence "the thoughtful consideration of the 

judge deciding the case. . . " In re Marriage of West (Mont. 

1983), 661 P.2d 1289, 1290, 40 St.Rep. 573, 575. 

There are errors. Specifically, Paige was not employed 

at Sunburst, Montana, at the time he decided not to quit the 

union. However, neither this error nor other insignificant 

errors pinpointed by FIG affect the final result of the case. 
As a whole, the findings are supported by substantial 

credible evidence and will not be overturned by this Court. 

Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 

945. 

The trial judge did not refer to the stipulation entered 

into by the partners on December 3, 1984. That stipulation 

states that Paige was a member of FIG from 1970 through 

December 5, 1978. However, as Paige contends on appeal, the 

stipulation does not state that Paige was not a member of FIG 

between December 5, 1978 and July 31, 1980. Clearly, whether 

Paige remained a member during that time period is a factual 

dispute, resolution of which is integral to Paige's case. It 

was properly left for resolution by the trial judge. 

The only specific requirement for membership in FIG was 

employment with FCC. "Pre-Incorporation Minutes" of October 

9, 1969. Paige remained employed by FCC until July 1980. 

Therefore, we find no error in the trial judge's 

determination that Paige remained a member of FIG until that 

time . 

FIG also objects to the trial judge's reliance on the 

National Labor Relations Act (Act) in deciding this case. 

The Act was referred to solely to help determine a primary 

issue of the case, whether Taurman and Paige were 

involuntarily terminated from FCC without allegations of 

misconduct. The Act provides that a wrongful discharge from 

employment occurs when one is discharged for supporting a 

union. 

It shall be an unfair labor practice for an 

employer - (3) by discrimination in regard to hire 

or tenure of employment or any term or condition of 

employment to encourage or discourage membership in 

any labor organization. 

29 U.S.C. S 158(a) (3). 
Such a discharge is wrongful regardless the employer or 

location of employment. FCC did not have to be a party for 

this determination to be made as no adjudication or 

enforcement of a claim against FCC pursuant to the Act 

occurred. Rule 19(a), M.R.Civ.P. The Act was relied on 

solely to answer a question of state law pertinent to the 

issue raised - whether Taurman and Paige were involuntarily 

terminated from FCC absent allegations of misconduct? 

The trial judge answered this question in the 

affirmative. Again, we find no error as there is substantial 

credible evidence to support that determination. Both 

individuals worked for FCC for a substantial number of years. 

Numerous people associated with FCC testified that neither 

individual was a problem employee. Their employment, or lack 

thereof, hinged completely on their willingness to 

disassociate with their union. 

Finally, we find no error in the trial court's decision 

that pursuant to $ 35-10-401 (1) , MCA, Taurman and Paige must 

be repaid their contributions into the partnership and 

receive their pro rata share of the assets of the 

partnership. Section 35-10-401, MCA, states at the outset 

that "[tlhe rights and duties of the partners in relation to 

the partnership shall be determined, subject to any agreement 

between them, by the following rules. " The agreement 

between the partners covers the voluntary termination of a 

partner's employment with FCC as well as his discharge for 

misconduct. It also covers involuntary termination caused by 

disability, death or retirement. However, there is nothing 

in the partnership agreement concerning the effect of a 

partner's involuntary termination from FCC absent misconduct. 

Numerous members of FIG, including its controller, testified 

that this contingency was not covered in FIG'S partnership 
agreement. Since the rights of partners of FIG who were 

involuntarily terminated from FCC without cause were not 

expressed in the agreement, S 35-10-401(1), MCA, controls. 

(1) Each partner shall be repaid his contributions 

whether by way of capital or advances to the 

partnership property and share equally in the 

profits and surplus remaining after all 

liabilities, including those to partners, are 

satisfied . . . 

Taurman and Paige are entitled to receive their pro rata 

shares of the fair market value of the assets of FIG as of 

the date their 

Affirmed. 

employment wi 

We Concur: / 

Chief Justice 

/ Justices