author: CHIEF JUSTICE TURNAGE

text:
    STAN CRAVER, LANCE DUBOIS, BRETT LYON, JAMES PELLETIER and JEFF TONE, Plaintiffs and Respondents, v. WASTE MANAGEMENT PARTNERS OF BOZEMAN, d/b/a THREE RIVERS DISPOSAL, a Montana general partnership, Defendant and Appellant.
    No. 93-544.
    Submitted on Briefs February 24, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 22, 1994.
    51 St.Rep. 268.
    874 P.2d 1.
    265 Mont. 37.

      For Defendant and Appellant: Mlatthew W. Williams, Williams, Jent & Dockins, Bozeman.
    For Plaintiffs and Respondents: Karl P. Seel, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Waste Management Partners of Bozeman, d/b/a Three Rivers Disposal (TRD), has appealed from a decision of the Eighteenth Judicial District Court, Gallatin County. The court found that TRD had violated Montana’s wage laws and ordered it to pay plaintiffs, who were former employees of TRD, overtime wages and statutory penalties. We affirm.

The dispositive issues on appeal are rephrased as follows:

1. Whether the District Court erred in determining the statute of limitations applicable to the plaintiffs’ wage claims against TRD.

2. Whether the court erred in finding that TRD had violated Montana’s wage laws.

3. Whether the court erred in assessing penalties against TRD.

4. Whether the court erred in ordering TRD to pay plaintiffs’ attorney fees.

Plaintiffs Stan Craver, Lance Dubois, Brett Lyon, James Pelletier and Jeff Tone were employed by TRD, a garbage collection and disposal business located in Gallatin County, Montana. Stan Craver and Lance Dubois were employed by TRD from March 1987 to July 1991. Brett Lyon and Jeff Tone were employed from March 1987 to March 1992. James Pelletier was employed from May 1989 to March 1992.

TRD paid the plaintiffs according to a fluctuating pay scale. Mathematically, TRD’s pay formula can be expressed as follows:

(Fixed Pay) / (Total Hours Worked) = Hourly Pay
(Total Hours Worked) - (40) = Overtime Hours
(.5) x (Hourly Pay) x (Overtime Hours) = Overtime Pay
(Fixed Pay) + (Overtime Pay) = Total Pay

The parties agree there was no express written or oral consent by the plaintiffs to TRD’s method of calculating wages. TRD maintains, however, that the plaintiffs impliedly consented to the arrangement.

At trial, the District Court ruled in favor of the plaintiffs, finding that the applicable statute of limitations to bring the overtime claim was five years and that TRD violated Montana’s wage laws by utilizing the above-described pay scheme. The court ordered TRD to pay the plaintiffs overtime wages, a statutory penalty, attorney fees and costs, and interest on the unpaid wages. TRD appeals.

ISSUE 1

Did the District Court err in determining the statute of limitations applicable to the plaintiffs’ wage claims against their employer?

TRD asserts that the applicable statute of limitations was two years according to § 27-2-211, MCA. We disagree.

This Court has determined that because the employment relationship is contractual in nature, see Intermountain Deaconess Home v. State (1981), 191 Mont. 309, 623 P.2d 1384, the applicable statute of limitations for claims involving employment relationships with no written contract is five years. See §§ 27-2-202(2) and 39-2-101, MCA. For the purposes of receiving unpaid wages, an employee may bring a claim any time within five years of the date the claim accrues. We conclude that the District Court did not err in so ruling.

ISSUE 2

Did the court err in finding that TRD had violated Montana’s wage laws?

TRD argues that the plaintiffs did not meet their burden of proof in establishing that it violated Montana’s wage laws. It contends that it innocently attempted to construe § 24.16.2512(e), ARM, when it calculated its employees’ overtime wages. Finally, TRD asserts that the District Court erred by finding that the plaintiffs did not know of the calculations it used to compute overtime wages.

The plaintiffs respond by contending that, in order to qualify for the salaried fluctuating pay scale found in § 24.16.2512(e), ARM, TRD was required to, and did not, mutually agree with the plaintiffs about the pay scale. They assert that the fluctuating pay scale utilized by TRD is illegal, citing Glick v. State (1973), 162 Mont. 82, 509 P.2d 1, cert. denied 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 106.

Part 2 of the wages and wage protection chapter in Title 39 (Labor) of the Montana Code Annotated discusses the payment of wages. ‘Wages” is defined by § 39-3-201(7), MCA, as “any money due an employee from the employer ....”

As to a current employee, the employer is required to pay the employee any wages earned no later than ten days after the wages are due and payable. Section 39-3-204(1), MCA. As to a terminated employee, generally the employer is required to pay the wages due within three days of termination. Section 39-3-205(1), MCA. Failure to pay wages due within these time lines is a breach of the employment contract.

Alternative means exist by which an employer may pay an employee’s overtime wages. According to § 39-3-405, MCA, Montana’s overtime compensation law, generally an employer is required to pay employees who work over forty hours per week one and one-half times their regular, hourly wage for overtime hours worked. Mathematically, the law requires an employer to pay the employee as follows:

(Hourly Pay) x (40) = Regular Pay
(Total Hours) - (40) = Overtime Hours
(1.5) x (Hourly Pay) x (Overtime Hours) = Overtime Pay
(Regular Pay) + (Overtime Pay) = Total Pay

There are, however, exceptions to the general rule. See § 39-3-405(2), MCA (farm workers exempted from overtime), and § 39-3-405(3), MCA (some seasonal student employees working at amusement or recreational areas are exempted). Additionally, the legislature has granted the Department of Labor and Industry the authority to make and revise administrative regulations to carry out the purposes of Montana’s minimum wage and overtime laws. Section 39-3-403, MCA.

Most Montana employers must compute wages based on Montana’s Constitution and statutes providing for an eight-hour workday rather than on the provisions of the federal Fair Labor Standards Act (FLSA). See Glick, 509 P.2d at 4; 29 U.S.C. § 218. The FLSA provides a floor under which a state’s statutory hourly pay scheme cannot descend, but states are free to give greater benefits to their workers. See 29 U.S.C. § 218(a).

To support its pay formula, TRD relied on § 24.16.2512(e), ARM. In relevant part this regulation provides:

An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the law if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate of not less than one-half his regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment of overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.

The above regulation permits an employer to use a salaried, fluctuating pay scheme as long as the employer and employee mutually agree to the scheme. Mathematically that scheme can be expressed as follows:

(Fixed Pay) / (number of hours worked up to 40) = Hourly Pay
(Total Hours Worked) - (40) = Overtime Hours
(.5) x (Hourly Pay) x (Overtime Hours) = Overtime Pay
(Fixed Pay) + (Overtime Pay) = Total Pay

The scheme allows the employee to benefit by receiving a guaranteed, regular periodic wage and some overtime, if applicable; the employer benefits by paying out a more or less static wage to employees each pay period.

Two problems exist with the pay scheme devised by TRD. First, to determine regular pay, TRD divided fixed pay by the total number of hours an employee worked. This pay scheme, while permissible under federal law, is not permissible as applied to most employment relationships in Montana. See Glick, 509 P.2d at 4; Plouffe v. Farm & Ranch Equip. Co. (1977), 174 Mont. 313, 318, 570 P.2d 1106, 1109; Cf. Phillips v. Lake County (1986), 222 Mont. 42, 721 P.2d 326.

Second, the District Court found, contrary to TRD’s assertions, that TRD and the plaintiffs did not mutually agree to TRD’s pay scheme. This fact alone is fatal to any allegation that TRD’s pay scheme fit the requirements of § 24.16.2512(e), ARM. We conclude that the court did not err in finding that TRD violated Montana’s wage laws.

ISSUE 3

Did the court err in assessing penalties against TRD?

TRD argues that § 39-3-207, MCA, limits the amount of statutory penalties provided for in § 39-3-206, MCA, to penalties based on unpaid wages which have accrued during the eighteen-month period prior to the filing of plaintiffs’ complaint. Further, it claims that the court erred by awarding prejudgment interest on the plaintiffs’ unpaid overtime wages. We disagree.

In addition to receiving unpaid wages, an employee claimant may receive statutory penalties from employers who violate Montana’s wage laws. Section 39-3-206, MCA (1991), applicable here, provided:

(1) An employer, as defined in this part, who fails to pay employees as provided in this part or violates any other provision of this part is guilty of a misdemeanor. Apenalty must also be assessed against and paid by the employer to the employee in an amount not to exceed 100% of the wages due and unpaid.
(2) The employer shall also pay the employee annualized interest on the unpaid wages from the date the wages were due. The interest must be calculated by the department and compounded annually, but the annualized rate may not be less than 2 percentage points a year above the prime rate of major New York banks on the date of settlement.
(3) Nothing in this section maybe construed to relieve an employer from the requirement to pay an employee the full amount of wages due, including interest, if the employer is found in violation of this part. This Court has determined that § 39-3-207, MCA, must be read in

conjunction with § 39-3-206, MCA. Pope v. Keefer (1979), 180 Mont. 454, 591 P.2d 206. The former section provides that an employee may recover the penalties in the latter section “which have accrued ... at any time within the 18 months succeeding ... default or delay in the payment of... wages.” To determine the parameters of the eighteen-month statute of limitation, we examine when a wage claim accrues, when it commences and when, if applicable, it becomes extinct.

A claim arises but once, and when it accrues it remains in force until it is extinguished, satisfied, or barred by statute of limitations, irrespective of the plaintiff’s knowledge of it. Bergin v. Temple (1941), 111 Mont. 539, 111 P.2d 286. A contractual wage claim accrues when the employer’s duty to pay the employee matures and the employer fails to pay the employee. See generally §§ 27-1-104 and -105, MCA. The employer’s good or bad faith is immaterial to the accrual of the employee’s wage claim and penalty assessment under Montana law. Rosebud County v. Roan (1981), 192 Mont. 252, 263-64, 627 P.2d 1222, 1228.

A claimant commences a claim by filing a complaint, Rule 3, M.R.Civ.P., and the rights of the parties are determined at that time. Wage claimants may either use the administrative process of filing a claim against their employer at the Department of Labor and Industry, or file an action in district court. Boegli v. Glacier Mountain Cheese Co. (1989), 238 Mont. 426, 777 P.2d 1303; Dep’t of Labor and Indus. v. Wilson (1980), 189 Mont. 52, 614 P.2d 1066. Generally, inaction or delay on the plaintiff’s part after the claim has accrued does not impair his right to file the complaint, subject, of course, to an applicable statute of limitation.

The eighteen-month statute of limitations in § 39-3-207, MCA, is the period of time in which an employee has to file a penalty claim against the employer. Pope, 591 P.2d at 213. Terminated employees have eighteen months after the third day following their termination in which to file a penalty claim. See § 39-3-205(1), MCA. Employees who are currently working for an employer have eighteen months following the employer’s contract breach in which to file a penalty claim. See § 39-3-204(1), MCA. Certainly, where an employer continually fails to comport with Montana’s wage laws on a monthly basis, the employee’s wage claims accrue on a monthly basis.

Here two plaintiffs, Stan Craver and Lance Dubois, were terminated at the time they filed their wage claims against TRD. They were terminated during July 1991 and they filed their claims on March 27, 1992, well within the eighteen-month time period. The other three plaintiffs, Brett Lyon, James Pelletier and Jeff Tone, were continuously employed at TRD up until the time they filed their wage claims. Because their wage claims were accruing monthly, their complaint was filed within the eighteen-month period, also.

Employees who filed wage claims within the eighteen-month period described in § 39-3-207, MCA (1991), are entitled to receive penalties not to exceed 100 percent of the unpaid wages for a period of five years prior to the filing of the complaint. Section 39-3-206(1), MCA (1991). Successful wage claimants are also entitled to receive annualized interest on the unpaid wages. See § 39-3-206(2), MCA (1991). We conclude that the District Court did not err in awarding plaintiffs statutory penalties totaling 100 percent of their unpaid wages and annualized interest.

ISSUE 4

Did the court err in ordering TRD to pay plaintiffs’ attorney fees? [14] TRD argues that the plaintiffs did not timely file their memorandum of costs with the District Court. We disagree.

As provided by statute, claimants in whose favor a judgment is rendered may recover or tax costs, including attorney fees, by delivering a copy of the memorandum of costs to the court and to the adverse party within five days of the judgment. Section 25-10-501, MCA.

The court in the instant case issued its findings of fact, conclusions of law and order on June 14, 1993, which provided:

Plaintiff’s attorney shall submit to Defendant an Affidavit of Costs and Attorney’s Fees to which Defendant may file a response. The Court will order such attorney fees and costs after hearing. Plaintiffs attorney shall prepare an appropriate judgment.

On June 17, 1993, the plaintiffs filed their memorandum of costs, detailing costs and stating that attorney fees would follow in a separate affidavit. Plaintiffs sent this notice of taxing their attorney fees, the amount of which had yet to be fixed by the court after hearing, well within the applicable time limit set by statute. We hold that they satisfied the requirements of § 25-10-501, MCA, and therefore conclude that the District Court did not err.

Affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    NORTHERN LIGHTS, INC., an Idaho corporation, Plaintiff and Respondent, v. THE STATE OF MONTANA, DEPARTMENT OF HIGHWAYS, Defendant and Appellant.
    No. 93-554.
    Submitted on Briefs April 7, 1994.
    Decided May 3, 1994.
    51 St.Rep. 394.
    874 P.2d 6.
    265 Mont. 47.

      For Defendant and Appellant: Nick A, Rotering and James R. Beck, Department of Transportation, Helena.
    For Plaintiff and Respondent: Larry D. Epstein and Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana, Department of Highways, now the Department of Transportation (Department), appeals from a summary judgment order of the First Judicial District Court, Lewis and Clark County. The court ordered the Department to reimburse Northern Lights, Inc. (Northern), an Idaho utility company, for 75 percent of expenses incurred in relocating its utility facilities which were situated near a federal-aid secondary road in rural Lincoln County, Montana. We affirm.

. The Department questions whether the District Court erred in determining that § 60-4-403, MCA, required the State to reimburse Northern for 75 percent of its relocation expenses and whether Northern’s claim for reimbursement was barred by § 27-2-211, MCA.

Northern owns certain utility facilities located in Lincoln County. Portions of the facilities are located on United States Forest Service land and portions are located on private properties.

Prior to 1986, the Federal Highway Administration (FHWA) decided to finance and construct a forest highway on Montana’s federal-aid secondary road located in Lincoln County. By agreement with FHWA, the Department purchased necessary rights-of-way and administered the road project for the FHWA.

Part of the Department’s administration of the project entailed asking Northern to relocate its utility facilities which were located on Forest Service land. Northern complied. The District Court specifically noted:

Northern Lights began the process of moving its utilities in November of 1987 and completed the principal portion of its work by April of 1988. However, the entire relocation project was not completed until March 1989.

The Department and Northern did not operate pursuant to any written contract; the Department did, however, prepare and offer Northern a utility relocation agreement, which Northern refused to sign.

In January 1989, Northern requested a hearing pursuant to § 60-4-402, MCA, and the Department declined to grant the request. This declaratory judgment action followed that denial and the Department’s refusal to reimburse Northern for a portion of the cost of relocating its utility facilities.

ISSUE 1

Did the District Court err in determining that the Department must reimburse Northern for 75 percent of relocation expenses as set forth in § 60-4-403, MCA?

This Court reviews a district court’s decision for or against summary judgment by utilizing the same criteria the court used in its deliberations. Knight v. City of Missoula (1992), 252 Mont. 232, 827 P.2d 1270. Summary judgment is appropriate when there are no disputed issues of material fact and one party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Here, where both parties agree there are no disputed issues of material fact, we review whether Northern is entitled to judgment as a matter of law.

The Department asserts that judgment in favor of Northern is improper because it believes that the provisions of § 60-4-403, MCA, do not apply when federal funds are used to construct a highway in Montana and when the utility company involved has a Forest Service permit to be on the land. We disagree.

When interpreting statutes, courts are to “simply ... ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA; see also State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 203-04. Section 60-4-403, MCA, provides:

Seventy-five percent of all costs of relocation, including the costs of acquisition of new right-of-way, of dismantling and of removal, shall be paid by the department as a cost of highway construction.

The section does not list any prerequisites for payment, contrary to the Department’s assertions. It does not contemplate, mention or refer to federal or state ownership of the highway. Cf. § 60-4-401, MCA. It does not require that the utility company own, rent or lease the land. Nor does it require that the Department and the utility company have a written contract, specifying payment provisions.

The only requirement before 75 percent of relocation costs must be paid by the Department under § 60-4-403, MCA, is that a utility company relocate its utility facilities in order for the Department to further highway construction. Northern did relocate its facilities. We therefore conclude that the District Court did not err in determining that the Department must pay 75 percent of Northern’s relocation costs.

ISSUE 2

Was Northern’s claim for reimbursement of relocation expenses barred by § 27-2-211, MCA?

The Department argues that Northern’s claim for reimbursement was barred by the statute of limitations set forth at § 27-2-211, MCA, because it alleges that Northern completed relocation of the utility facilities during April 1988. While we agree that Northern’s claim for reimbursement was a statutory claim with a two-year statute of limitations pursuant to § 27-2-211, MCA, we disagree with the Department’s allegation that the relocation was completed during April of 1988.

The Department bases its allegation on answers it received during the discovery phase of this litigation, which were filed in connection with the Department’s June 1991 motion for summary judgment. Specifically, when the Department asked Michael Fox, the general manager of Northern, whether the relocation project was completed during April, 1988, Fox said yes. Fox later clarified his response by stating:

As indicated in [the answer to the Department’s question], ... the major portion of the relocation work for which reimbursement is sought in this action, was completed by the latter part of April, 1988. It was this work to which affiant referred in response to Defendant’s counsel’s question at deposition herein, indicating that this portion of the work was, in fact, completed in April of 1988.
Plaintiff corporation utilized the services of an independent contractor in the major portion of this relocation project and it was that work, referred to as “primary utility relocation” to which affiant referred in his response to deposition questioning by counsel for defendant and in response to Interrogatories from Defendant. This contractor’s work was substantially completed in April of 1988.
Plaintiff’s claim upon which this action is based includes various items of work that were conducted in relocation of facilities for this project in the months following April of 1988 including work done directly by Plaintiff in November of 1988 and relocation of poles as recently as March, 1989. Work Orders Nos. 88-865, 88-822 and 89-820 (referred to in affiant’s deposition and Defendant’s brief) were completed after the main project was completed and are a part of Plaintiff’s claim herein.

In its November 4, 1991, Order, the court stated:

In this claim for payment under Section 60-4-403, the utility is entitled to recover a percentage of all costs of relocation. Thus, the full demand for payment cannot be made until the entire relocation project is completed. On this basis, Northern Light’s cause of action accrued upon completion of its relocation project, in March of 1989. Since the complaint was filed in July of 1990, less than two years later, the action is not barred.

After reviewing the record, we conclude that the court did not err in determining that Northern’s claim was not barred by § 27-2-211, MCA. Affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF TERRY L. HILL, Joint-Petitioner and Appellant, and RONALD S. HILL, Joint-Petitioner and Respondent.
    No. 94-046.
    Submitted on Briefs April 7, 1994.
    Decided May 3, 1994.
    51 St.Rep. 396.
    874 P.2d 705.
    265 Mont. 52.

      For Joint-petitioner and Appellant: Don M. Hayes, Herndon, Hartman, Sweeney & Halverson, Billings.
    For Joint-petitioner and Respondent: James Robert Graves, Oliver, Graves & Toennis, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellant Terry L. Hill petitioned the District Court for the Thirteenth Judicial District in Yellowstone County for a modification of the child custody and support provisions of the parties’May 22,1990, settlement agreement and decree of dissolution. Prior to the hearing, the parties stipulated to future child custody arrangements and support obligations. The District Court approved the oral stipulation of the parties with regard to future child support, but refused to award Terry child support retroactive to the date of the petition for modification. Terry appeals. We affirm in part, reverse in part, and remand for further proceedings.

The following issues are raised on appeal:

1. Did the District Court abuse its discretion when it ordered child support in accordance with the oral stipulation entered into by the parties on August 30,1993?

2. Did the District Court abuse its discretion when it refused to award child support retroactive to the date the petition for modification was filed?

3. Should the District Court have awarded attorney fees to Terry pursuant to the parties’ settlement agreement and dissolution decree?

The parties’ marriage was dissolved on May 22, 1990. The final decree incorporated a child custody and property settlement agreement entered into by the parties on April 16, 1990. At the time of dissolution, Terry and Ronald had two minor children, Brendon, age 10, and Coulter, age 8.

The original decree provided for joint custody, made Terry primary residential custodian, and required Ronald to pay child support in the amount of $200 per child per month. After the dissolution, the residential status of the children changed on several occasions. Thereafter, the parties stipulated to a modification of the custody and support provisions of the original agreement. The stipulation provided that Ronald would be the primary physical custodian of both children and would receive $33 per child per month for support from Terry. The stipulation also provided that Ronald would pay to Terry the sum of $1800 as “full and final payment of all child support owed to her through October of 1992.” That stipulation was adopted by order of the court dated November 12, 1992.

Circumstances changed again, and both minor children returned to live with Terry. On January 29, 1993, Terry filed a petition for modification of custody in which she requested that Ronald be ordered to pay child support in the amount set forth in the original decree or in the amount necessary to comply with the child support guidelines. Although the parties attempted to reach an agreement subsequent to the date on which the petition was filed, they were unable to resolve their differences regarding child support obligations. Therefore, the matter was set for hearing on August 30, 1993.

Brendon and Coulter continued to reside with Terry until June 1993, and then began to split their time between the two residences. They continued this arrangement throughout the summer months. No child support payments were made by either party subsequent to the date of the petition.

The parties eventually agreed on a custody arrangement for their sons which left two issues to be resolved at the hearing: (1) future support obligations, and (2) whether Terry was entitled to support retroactive to the date the petition was filed. Prior to the hearing, each party submitted child support calculation worksheets utilizing real and imputed income figures for the court’s determination of the parties’ appropriate child support obligations.

On the date of the scheduled hearing, following a conference with the District Court Judge, the parties agreed to base child support calculations on their average incomes for the previous three years. Utilizing calculations that Terry’s attorney had prepared based on three-year income averages, the parties, in open court, accepted those calculations and stipulated to the amount of child support which resulted from those calculations. Ronald’s counsel was instructed to reduce the stipulation to writing following the hearing. The court then heard testimony on the issue of retroactive support.

Subsequent to the hearing, Terry refused to sign the stipulation prepared by Ronald’s counsel, based on her contention that the calculations originally prepared by her attorney were incorrect. On September 23, 1993, Terry submitted amended calculations which she requested the court to use in its determination of child support obligations. She alleged that the initial support calculations were neither in accordance with the child support guidelines nor the stipulation of the parties because an erroneous three-year income average for Ronald was used.

The District Court issued its findings of fact and conclusions of law on November 10, 1993, and issued an amended order on November 15, 1993. The court rejected the recalculations of child support that had been requested by Terry, and adopted the figures agreed upon prior to the hearing. In pertinent part, the court stated the following in its amended order:

On August 30th, 1993, the above-named parties, with counsel, appeared before this court, whereupon, the parties entered into a stipulation for future child support. Counsel for Ronald S. Hill was to reduce the stipulation to writing, which he did, and forwarded the proposed stipulation and order to counsel for Terry L. Hill on September 1,1993. After some delay, counsel for Terry advised that she did not agree with the stipulation. ... It appeared that there was a disagreement with the stipulation and order as prepared by counsel for Ronald S. Hill. Accordingly, the court obtained a transcript of the stipulation by the parties and notes that the stipulation as prepared by counsel for Ronald S. Hill conforms to the stipulation made on the record. The court also notes that each party was asked by the court if the stipulation was agreeable with them; each answered in the affirmative. The court then advised the parties that, “it is a done deal as of now.” Accordingly, said stipulation is incorporated in this order as follows:
4. When Ronald S. Hill (herein Ronald) has residential custody of one child, and Terry L. [Hill] Whitten (herein Terry) has residential custody of one child, Ronald shall pay Terry the sum of $100 per month in child support.
5. When Terry has residential custody of both children, Ronald shall pay Terry the sum of $400 per month in child support.
6. When Ronald has residential custody of both children, Terry shall pay Ronald the sum of $146 per month is child support.

Further, the court denied Terry’s request for child support retroactive to the date notice was given of the motion to modify. In its order, the court took into consideration the allegations raised by Ronald that even though he had paid $1800 previously by stipulation, he had not actually owed that amount of past child support. However, during the trial when evidence was adduced concerning that earlier stipulation, the court had stated that any dispute about the previous amount of past due child support had been resolved by stipulation, was res judicata, and would not be considered by the court.

Terry filed combined motions requesting the court to amend its findings and to grant a new trial. The bases for these motions were that the court’s determination of child support was erroneous and was not in accordance with the child support guidelines, and the court’s denial of retroactive child support was based upon evidence which it had specifically rejected during the hearing. By order dated December 16,1993, Terry’s motions were denied. From the court’s findings, conclusions and order, and the denial of her post-trial motions, Terry appeals.

ISSUE 1

Did the District Court abuse its discretion when it ordered child support in accordance with the oral stipulation entered into by the parties on August 30,1993?

The standard of review for modification of a child support award is whether the district court abused its discretion. In re Marriage of D.F.D. and D.G.D. (1993), 261 Mont. 186, 203, 862 P.2d 368, 378; In re Marriage of Purkett (1986), 222 Mont. 225, 229, 721 P.2d 349, 351. Whenever a court modifies an order concerning child support, the court must apply the uniform child support guidelines adopted by the Department of Social and Rehabilitation Services. Section 40-4-204(3)(a), MCA (1991).

In this instance, during a prehearing conference with the presiding judge, the parties stipulated to respective child support obligations which were calculated in accordance with the child support guidelines using an agreed upon three-year income average. However, when this stipulation was reduced to writing, Terry refused to sign the agreement, alleging that the amounts stipulated to were derived from an erroneous income average. The District Court rejected Terry’s request to amend the calculations and ordered child support in accordance with the oral stipulation.

Terry contends that the stipulation was based on an incorrect three-year income average, and therefore, the court-ordered support amounts do not comport with the guidelines. In addition to the statutory mandate which requires a court to apply the guidelines, she notes that Rule 46.30.1507(5), ARM, does not allow a court to base a determination of child support on an oral stipulation which varies from the guidelines.

However, we conclude that Terry’s reliance on Rule 46.30.1507(5), ARM, is misplaced. The rule requires that if the parties stipulate or agree to vary from the guidelines, the stipulation, among other requirements, must be in writing and signed by both parties before a court can accept the stipulation. Here, the parties’ stipulation was not an agreement to vary from the guidelines. Rather, the parties stipulated to use three-year income averages which were computed by Terry to arrive at the amount of child support due under the guidelines. Terry makes no argument that if we assume those figures to be correct, the guidelines have not been correctly applied. We conclude that the stipulation involved in this case is not the type of stipulation encompassed by the administrative rule upon which Terry relies. Therefore, Rule 46.30.1507(5), ARM, is inapplicable in this instance.

The issue on review is whether the court properly determined child support obligations on the basis of the factors set out in § 40-4-204, MCA (1991), and in an amount consistent with the uniform child support guidelines. In re Marriage of Wackler (1993), 258 Mont. 12, 850 P.2d 963. Here, the parties stipulated to facts which were then relied on to establish the appropriate amounts of child support according to the guidelines. Once the parties entered into this stipulation, the court refused to allow Terry to unilaterally change facts upon which the stipulation was based.

This Court has previously held that a court can rely on the terms of a stipulation provided the stipulation is not contrary to law, court rule, or public policy. In re Marriage of Sullivan (1993), 258 Mont. 531, 539, 853 P.2d 1194, 1199; School District No. 4 v. Colburg (1976), 169 Mont. 368, 372, 547 P.2d 84, 86-87. Although we made clear in Jensen v. Jensen (1981), 192 Mont. 547, 629 P.2d 765, that a court is not bound by an agreement concerning child support where the welfare of the children is concerned, there is no evidence in this situation that the parties’ stipulation regarding child support is contrary to law, court rule, or public policy, or that enforcement of the stipulation would endanger the children’s welfare. The stipulation merely served the purpose of eliminating certain proof that would otherwise have been necessary in order to calculate each parent’s support obligations.

Therefore, we conclude that the District Court did not err by accepting the parties’ factual stipulation. Nor did it err when it held Terry to the stipulation by rejecting her request to unilaterally alter this figure once an agreement in good faith had been reached and the hearing had proceeded in reliance on that agreement.

On this basis, we hold that the court did not abuse its discretion when it ordered child support in amounts consistent with the stipulation made by the parties on August 30, 1993.

ISSUE 2

Did the District Court abuse its discretion when it refused to award child support retroactive to the date the petition for modification was filed?

Terry contends that she had custody of one or both children from January 1993 until the time her petition for modification was granted. Although § 40-4-208, MCA (1991), allows for modification of support for installments accruing subsequent to notice of a motion for modification of support, the court did not order Ronald’s support obligation to commence until October 1,1993, even though Terry was the primary physical custodian during this time. She contends that the basis for this decision was the court’s consideration of Ronald’s allegations that even though he had previously paid $1800 of “past due child support” by stipulation, he had not actually owed that amount. Terry asserts that the court abused its discretion when it took into consideration these allegations which had already been settled by stipulation.

Whether child support is awarded retroactively to the date of notice of a motion for modification is clearly within the discretion of the district court. Fronk v. Wilson (1991), 250 Mont. 291, 297, 819 P.2d 1275, 1279. However, in this case, the court based its decision to deny retroactive support at least in part on Ronald’s contention that he did not really owe the amount he had paid pursuant to the prior stipulation.

During the hearing on this matter, Ronald reasoned that since he had already paid support he did not owe, he should not have to pay retroactive support now. In support of this claim, Ronald introduced evidence regarding this 1992 stipulation. However, Terry objected to the introduction of matters resolved by the 1992 stipulation, and the court agreed that the compromised settlement of 1992 was a settled matter and was irrelevant. The presiding judge stated that it was not appropriate to interfere with the earlier settlement, “nor am I going to consider the compromised settlement that was entered into, because these are done, as you said yourself, a done deal.”

We agree that issues involved in the earlier settlement which were resolved by stipulation are not relevant to the question of whether Terry was entitled to child support retroactive to the date notice was given of the petition for modification. Prior circumstances resolved by the 1992 stipulation should not have formed the basis for the court’s denial of Terry’s request for retroactive support. We conclude that to deny support on the basis of the prior stipulation was an abuse of discretion.

If Terry is entitled to support during the times that one or both of the children reside with her, then there is no reason to distinguish between the support necessary after the court’s order and the children’s needs from the time of Terry’s petition until the order was entered. Child support is for the benefit of the children and the obligation exists regardless of disagreements occurring between the parents. In re Marriage of Ryan (1989), 239 Mont. 100, 778 P.2d 1389.

This matter is remanded for a determination of the periods during which Terry is entitled to support, based on the custodial arrangements that existed at the various times subsequent to her petition.

ISSUE 3

Should the District Court have awarded attorney fees to Terry pursuant to the parties’ settlement agreement and dissolution decree?

The parties’ separation agreement, which was incorporated into the original dissolution decree, provided that “[s]hould any future action be commenced to enforce, modify or interpret any provision of this Agreement, the Court shall award reasonable attorneys fees for the successful party as a cost of suit.” On the basis of this provision, Terry contends she is entitled to reasonable attorney fees in this action. She contends that the court erred when it did not address this issue in any of its orders.

A review of the record reveals that Terry did not request attorney fees as a form of relief in her original petition for modification. The issue of attorney fees was not mentioned until a brief in support of the petition was filed seven months later. We conclude that an argument raised for the first time in a supporting brief does not equate with raising an issue in the pleadings and serving notice to the court and opposing parties of the relief requested. When the issue of attorney fees is omitted from the pleadings, and no evidence is presented on that issue at trial, the issue is outside the purview of the District Court. Naftco Leasing v. Finalco (1992), 254 Mont. 89, 835 P.2d 728. Accordingly, the court did not err when it did not address this issue, and this Court will not consider a claim raised for the first time after the trial, against which the opposing party had no opportunity to defend.

The court’s adoption of the parties’ stipulation regarding respective child support obligations is affirmed. The District Court’s denial of support retroactive to the date notice was given of the motion for modification of the decree is reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


author: JUSTICE NELSON

text:
    AUDREY JEAN GUERTIN, Plaintiff and Respondent, v. MOODY’S MARKET, INC. d/b/a/ SUPER 1 FOODS, Defendant and Appellant.
    No. 93-635.
    Submitted on Briefs March 17, 1994.
    Decided May 11, 1994.
    51 St.Rep. 407.
    874 P.2d 710.
    265 Mont. 61.

      For Appellant: Don Torgenrud, St. Ignatius.
    For Respondent: Thomas Alan Kragh, Rosscup & Kragh, Poison.
   JUSTICE NELSON

This is an appeal from a Twentieth Judicial District Court, Lake County, jury verdict for the plaintiff in a wrongful discharge action and an order denying defendant’s motion for a new trial. We affirm.

ISSUES ON APPEAL

The following are issues on appeal:

1. Did the District Court err in allowing Guertin to introduce evidence which related to good faith and fair dealing?

2. Did the District Court err in denying Moody’s motion for a directed verdict?

3. Did the District Court err by denying Moody’s mid-trial oral motion for leave to call Cheryl Rathbun as its witness?

4. Did the District Court err by denying Moody’s motion for a new trial due to an alleged quotient verdict?

BACKGROUND

The plaintiff in this action is Audrey Jean Guertin (Guertin), who was employed as a manager of a bakery/deli department by Moody’s Markets, Inc. Guertin was employed by Moody’s Markets, Inc, to work in its Super 1 Foods store in Poison from January 1988 until October 1991.

The defendant, Moody’s Markets, Inc. (Moody’s), d/b/a Super 1 Foods, is owned by Leonard Moody and Ralph Smith. Leonard Moody is the general manager of all five Moody’s Markets stores. Chuck Moody, Leonard’s son, is the store director of the Super 1 Foods store in Poison. Tim McGreevey is the store manager of Super 1 in Poison and Guertin’s immediate supervisor. McGreevey, in turn, is supervised by Chuck Moody.

Paul Christianson, the bakery/deli coordinator of United Retail Merchants (URM) was retained to work with Guertin to orient her to her new position. URM is a co-op and food products wholesaler that purchases in bulk from manufacturers and passes on the discount savings to member stores like Moody’s Markets. Christianson worked with Guertin to train her concerning equipment set up and maintenance, purchasing, pricing, sales, special promotions, inventory management and management of bakery/deli personnel.

Although unwritten, there is a rule that Moody’s employees must undergo a 90 day probationary period. Guertin successfully passed her probation and after her orientation with Christianson, was left to manage the bakery/deli department on her own.

Guertin developed a side line catering business from the bakery/deli department, preparing foods for holidays, weddings and other celebrations. During peak periods of catering, Guertin testified, she would often order extra inventory, which would be stored with the regular inventory. The catering business was run solely by Guertin, in addition to her general management responsibilities.

Guertin provided testimony which demonstrated that she had increasing sales over the three years she worked for Moody’s Markets:

1. First Year - $297,793.88
2. Second Year - $323,715.99
3. Third Year - $350,454.02

Leonard Moody, Ralph Smith, Chuck Moody and Tim McGreevey thought highly of Guertin, finding her a hard worker, an honest person and a loyal employee. They knew her to be a manager who maintained a successful rapport with the customers of Super 1 Foods.

Employees of Super 1 Foods are evaluated approximately every six months. An employee’s merit to the company is the primary consideration in determining whether an employee will receive a raise, with length of service also a consideration. Management testified that an employee can consider themselves to be working at or above expectations if they receive a raise; raises are not, however, automatic.

Guertin testified that she received a raise after each evaluation. She received $8.50 per hour plus benefits at the time she was hired. At the time of her termination, she was earning $11.00 per horn1 and was receiving additional fringe benefits, including participation in the company’s profit-sharing plan.

“[P]rofit sharing is designed for those managers who contribute professionally and directly to the net profit of the store.” However, even though Guertin was eligible for the profit-sharing plan, as a practical matter, she was not able to participate in the plan during her first years working in the bakery/deli department because bakery/delis are low profit centers. Management realized that although bakery/delis are low profit centers, their managers work as hard as managers in other higher profit departments and should be rewarded through the profit-sharing program. Therefore, in 1991, Moody’s made it easier for bakery/deli managers to participate in a meaningful way in the profit-sharing plan.

There were three goals which had to be met by managers in order to earn extra income through the profit-sharing plan. The three goals included man-hours, gross profit and distribution. The goal of man-hours is a measure of productivity, gross profit measures the department’s ability to make a profit and distribution is a measure of product and a display of knowledge. Guertin exceeded all three goals in her first opportunity for meaningful participation in the plan. She earned approximately $1400 and she received half of that amount with the other half being deferred until performance could be assessed for the latter quarters of the fiscal year.

On Monday, October 7, 1991, which happened to be Guertin’s day off, she was called into work to help conduct an inventory of the bakery/deli department. Leonard Moody, Ralph Smith, Chuck Moody, Tim McGreevey and Greg Hertz, the CPA/controller of the company, were in the bakery/deli department during the inventory.

The inventory took place during business hours. Any food which was out of code (beyond the date stamped on the product) for even one day was piled in open view to be thrown away. Guertin testified that she had planned appropriate uses for some of the food items which were thrown away that day.

For example, the men threw away frozen cheese which was going to be shredded for use in specialty breads. They threw away fish bought for personal use by Harold “Sarge” Campbell, the head baker. Guertin also testified that they threw away salad which had just arrived on the delivery truck. She reported that many of the food items were beyond the code date but they were frozen, not spoiled. Other food items were going to be placed on a half price table or donated to the local food pantry. (We note that Chuck Moody testified in his deposition and again during trial that Super 1 Foods sometimes intentionally orders food items which are out of date. He testified that out of date does not necessarily mean spoiled.)

After conducting the inventory and piling up food items in view of the customers for later disposal, the men sent Guertin home. She was called back approximately 20 minutes later and directed toward McGreeve/s office upstairs where the five men who conducted the inventory had assembled. Leonard Moody informed her that she was being suspended for two weeks.

Guertin testified that she called Leonard Moody on October 17, 1991, and asked if she could come to the store, pursuant to the company’s open door policy, and talk about the suspension. Although she called only ten days after her suspension, before the suspension period had lapsed, she was told “no, you’re terminated.”

She testified that she did not receive written reasons for her suspension and subsequent termination until she went to the unemployment office. Leonard Moody testified that he gave her a copy of the written reasons on the day she was suspended.

One reason given for her termination was that state sanitation laws were being broken. However, the county health and sanitation inspectors made unannounced visits to the store every six months. The bakery/deli always received high ratings and it was never cited for any major health violations.

A second reason for termination was a very dirty and unkept department. However, in the three and one-half years that Guertin worked at Super 1 Foods, Chuck Moody never had occasion to inform Guertin that she had a dirty or unkept department. Guertin testified that none of the upper level management people ever told her that the department was dirty or unacceptable.

Although Moody’s also cited inventory problems as a reason for Guertin’s termination, Chuck Moody testified that he did not specifically discuss inventory problems with Guertin during the weekly managers’ meetings. He also testified that a “bell [never went] off about inventory” and “[n]othing as store director appeared to be out of whack to [him]” as far as the bakery/deli inventory was concerned.

DISCUSSION

1. Covenant of Good Faith and Fair Dealing

First, Moody’s argues that the Wrongful Discharge from Employment Act precludes any testimony concerning an employer’s lack of “good faith and fair dealing.” It asserts that the Act preempts any claims arising from “tort or express or implied contract,” including good faith and fair dealing. Guertin counters that Moody’s failure to make specific and timely objections to the testimony it deemed prejudicial bars its objections to the testimony at this point. Moreover, Guertin did not rely on the covenant of good faith and fair dealing as a theory of liability in the case; she argued that she was terminated without good cause, in contravention of § 39-2-904, MCA.

Rule 103(a)(1), M.R.Evid., provides that:

a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context ....

Nowhere in the transcript is there a specific objection that any testimony was improper because it related to the covenant of good faith and fair dealing. Under Rule 103(a)(1), M.R.Evid., the failure to object in a timely and specific manner waives the objection. However, Moody’s asserts that the testimony affected substantial rights of the appellant, and therefore, the “plain error” doctrine should be applied, pursuant to Rule 103(d), M.R.Evid.

Rule 103(d), M.R.Evid., provides that “[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” Nonetheless, the “plain error” doctrine is only to be used in exceptional circumstances. Moreover, a narrow view of the term “substantial rights” is favored. Reno v. Erickstein (1984), 209 Mont. 36, 42, 679 P.2d 1204, 1207. Additionally:

[c]ourts have typically confined the scope of the plain error doctrine to criminal cases, because the right to life and liberty is unquestionably substantial or fundamental. “Plain error” generally involves an act or omission of a more serious nature than “reversible error,” and only on rare occasion is the former doctrine invoked in civil cases.

Reno, 679 P.2d at 1207-1208. (Citation omitted.)

We cannot say that substantial rights of the appellant have been affected. Guertin did not plead the covenant of good faith and fair dealing, she pleaded only that she was discharged without good cause. The evidence she presented related to her burden to prove that Moody’s reasons for firing her were false, whimsical, arbitrary or capricious, and not for good cause. Also, the trial court did not instruct on the theory of the covenant of good faith and fair dealing; it instructed that Guertin was required to prove that Moody did not have “good cause” to terminate her employment.

Moody cannot complain that the District Court erred in allowing evidence relating to good faith and fair dealing when it did not make a specific and timely objection on the record. Rule 103(a)(1), M.R.Evid. Moreover, the “plain error” doctrine is to be used only in exceptional cases and this case does not warrant invoking the doctrine where Guertin did not plead or argue and the court did not instruct on the covenant. We hold that the District Court did not err in allowing the testimony upon which Moody predicates error.

2. Directed Verdict

Second, Moody maintains that the District Court erred when it denied Moody’s motion for a directed verdict because Guertin failed to demonstrate that Moody’s did not have good cause for her discharge. Guertin states that she offered substantial credible evidence that she satisfactorily performed her job duties and Moody’s reasons for discharging Guertin were false, arbitrary and capricious.

Good cause is defined in § 39-2-903(5), MCA, as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” “Alegitimate business reason is a reason that is neither false, whimsical, arbitrary or capricious, and it must have some logical relationship to the needs of the business.” Buck v. Billings Montana Chevrolet, Inc. (1991), 248 Mont. 276, 281-282, 811 P.2d 537, 540.

Guertin was terminated from her position as the bakery/deli manager of Moody’s Market on about October 7, 1991. The reasons cited for her termination were gross lack of product rotation, $2000 to $5000 of unsalable product being used or kept on hand, a very dirty and unkept department and state sanitation rules being broken. Subsequent to the termination, Guertin filed a complaint against Moody’s Market, contending that she was discharged without good cause. Moody’s contends that during trial, Guertin did nothing more than “deny her employer’s explanations for her termination, and claim that the termination was unfair.” Moreover, it asserts that “Guertin did not offer evidence of any specific reason for her termination,” and therefore, a directed verdict should have been granted as a matter of law. We disagree.

A motion for a directed verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury, and all inferences of fact must be considered in the light most favorable to the opposing party. [I]f the evidence viewed in a light most favorable to plaintiff indicates reasonable men could differ as to the conclusions drawn from the evidence a directed verdict is not proper.

Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 88, 721 P.2d 303, 317. (Citations omitted.) See also Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 523, 858 P.2d 3, 6.

Our review of the record convinces us that there is evidence to warrant submission of the wrongful discharge claim to the jury. Guertin testified that she was a hard-working, loyal employee and that she had never received any complaints from her employers about her management of the bakery/deli. She also testified that she always received favorable reviews from the health inspectors when they toured the bakery/deli on a semi-annual basis. She stated that she maintained a regular cleaning schedule for the department. She further testified that she maintained a higher inventory than other Moody’s stores because she ran a successful catering business for the store on the side. Guertin further explained that she had special uses for some of the food which was discarded at the inventory which led to Guertin’s termination. She also testified that she had good relations with store management until her son was terminated for theft and at that time, she began to receive a “cold shoulder” from the company’s upper echelon.

The evidence presented by Guertin demonstrates that she was performing her job satisfactorily and it provides a possible motive for her termination for other than good cause. The evidence she presented went to her argument that Moody’s reasons for her termination were false, whimsical, arbitrary or capricious. Buck, 811 P.2d at 540. This evidence counters the evidence presented by Moody’s to support their contention that they terminated Guertin for good cause.

A district court should only grant a motion for a directed verdict if there is a complete absence of evidence to warrant submission of the issue in question to the jury. Britton, 721 P.2d at 317. In the instant case, reasonable men could differ as to the conclusions which could be drawn from the evidence presented. Britton, 721 P.2d at 317. Guertin provided evidence that she was doing a satisfactory job at Moody’s, that its reasons to terminate her were arbitrary or capricious and that perhaps, her son’s improprieties at the store were a motivation for her termination. This evidence, viewed in the light most favorable to Guertin, is enough to warrant submission of the wrongful discharge claim to a jury. Therefore, we hold that a directed verdict was not proper in the instant case.

3. Denial of Motion to Call Witness

Third, Moody’s argues that the District Court erred when it denied Moody’s oral mid-trial motion to call Cheryl Rathbun as a witness. Moody’s states that Rathbun was originally identified by Guertin as a witness but was later withdrawn from the witness list, but because she was originally listed in the pre-trial order and Moody’s had reserved the right to call any of Guertin’s witnesses, it should have been able to call Rathbun. Guertin rebuts Moody’s argument, stating that she had to delete Rathbun from her witness list and therefore, Moody’s should not be able to argue that it should have been able to call Rathbun as a witness.

Cheryl Rathbun was originally listed as a witness for Guertin on the pre-trial order of August 25, 1993. However, the pre-trial order also provides that Moody’s objected to the plaintiff calling Rathbun “on the basis of the fact that no disclosure whatsoever was made in answer to discovery of the Plaintiff’s intention to call the [witness].” On September 2, 1993, Moody’s filed a motion to continue the trial because Guertin failed to disclose certain witnesses. Moody’s attempted to locate the witnesses and depose them before trial but one of the witnesses was going to be out of state and Moody’s would not be able to depose her before the scheduled trial date. In an effort to maintain the trial date as scheduled, Guertin, on September 3,1993, responded to Moody’s motion, stating that she would delete the names of the three “late” witnesses from the potential witness list for her case in chief. Cheryl Rathbun was one of the witnesses deleted from the potential witness list. Guertin did, however, reserve the right to call Cheryl Rathbun and the other deleted witnesses as rebuttal witnesses, if necessary. Finally, in an order dated September 7,1993, the District Court denied Moody’s motion to continue the trial and deleted the names of Cheryl Rathbun and two other witnesses from the list of plaintiff’s witnesses in her case in chief.

Our standard of review for discretionary trial administration rulings is whether the trial court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.

In the present case, the District Court did not abuse its discretion in denying Moody’s motion to call Cheryl Rathbun as a witness. In response to Moody’s motion to call Rathbun, the trial judge stated that “Cheryl Rathbun as a witness, she is not now among those of plaintiff’s witnesses that the defendant has a right to call under the catch-all provision of ‘any and all of plaintiff’s witnesses ....’” Further, the trial judge ruled that Moody’s could call Rathbun as a rebuttal witness if that was appropriate but:

Surrebuttal by the defendant is limited to the scope of rebutting any new material that is raised by the plaintiff in her rebuttal. If she puts on no rebuttal, there is absolutely nothing in the nature of new material which would entitle the defendant to surrebuttal.

The trial judge was correct in denying Moody’s motion. Cheryl Rathbun was deleted from Guertin’s list of potential witnesses to preserve the trial date and Moody’s accepted this decision. At that point, Moody’s no longer retained the right to call her under the catch-all provision from the witnesses’ list, particularly since the name was deleted due to Moody’s motion to continue the trial.

The trial judge was also correct in stating that Rathbun could have been called as a rebuttal witness only if new material was raised by Guertin in her rebuttal. Massman v. City of Helena (1989), 237 Mont. 234, 243, 773 P.2d 1206, 1211. Whether proposed testimony is admissible as rebuttal testimony is within the sound discretion of the District Court. Massman, 773 P.2d at 1211.

Moreover, when the trial judge denied Moody’s motion to call Rathbun as a witness, Moody’s should have made an offer of proof concerning the testimony that would have been elicited by Rathbun. Rule 103(a)(2), M.R.Evid., provides:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Moody’s made no offer of proof, thereby not properly preserving the objection to the excluded testimony. In view of the fact that Rathbun was deleted from Guertin’s witnesses list, the opportunity to be called as a surrebuttal witness did not arise and in view of the fact that Moody’s did not properly preserve its objection by an offer of proof, we hold that the District Court did not err in denying Moody*s motion to call Rathbun as a witness.

4. Quotient Verdict

Finally, Moody’s argues that the District Court erred by denying Moody’s motion for a new trial because of the alleged use of a quotient verdict. Guertin argues that she presented nine juror affidavits which stated that although the jury used an averaging procedure as part of their deliberations, the jurors reserved the right to argue to modify the result.

The decision to grant a new trial is within the sound discretion of the trial court and will not be overturned absent a manifest abuse of discretion. Stanhope v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. The question of whether a jury agreed to be bound by a quotient verdict process is a question of fact; such question will not be set aside unless such findings are clearly erroneous. Stanhope, 787 P.2d at 1228. Findings of fact are not clearly erroneous if they are supported by substantial, though possibly conflicting, credible evidence. Stanhope, 787 P.2d at 1228.

Aquotient verdict constitutes grounds for a new trial under § 25-11-102, MCA. Whiting v. State (1991), 248 Mont. 207, 218, 810 P.2d 1177, 1184. Two elements are necessary to create a quotient verdict. First, the jurors must have agreed in advance that the result of the quotient would be their verdict. Whiting, 810 P.2d at 1184. Second, the agreement must be carried into effect. Whiting, 810 P.2d at 1184.

The question then becomes — was there substantial credible evidence to support the trial judge’s finding that the jury did not arrive at a quotient verdict. A review of the many affidavits submitted concerning this issue convinces us that the jurors did not agree to a quotient verdict.

Moody’s Markets filed the affidavit of John Stark with its October 8, 1993 motion for a new trial. Stark’s affidavit stated:

[t]hat as a result of the inability of the jurors to agree to a fixed amount to such damages the jurors agreed to each submit a damage award independently, the total of which would then be divided by 12, being the number of jurors submitting damage figures, and be bound by that result.

However, all nine of the juror affidavits filed by Guertin state that they disagree with the affidavit of John Stark. Each insists he or she was not bound by the results of the procedure described by Stark.

For example, in addition to stating that he strongly disagreed with Stark’s conclusion that the jurors agreed to be bound, Chester Zimmer also stated that:

I always reserved to myself the absolute right to either accept or reject the dollar amount arrived at by this procedure, depending upon whether or not I personally thought it was fair and reasonable.
There is no way that I would have considered myself to be bound by a result which was unknown to me.

Another juror, Claudia Ray affirmed that:

My specific recollection is that there was an express understanding among all of us jurors that if anyone disagreed with the result after the result was known, we would discuss it some more, and if anyone had any disagreement, for whatever reason, we would continue to deliberate and vote until we reached an agreement. At no time did I consider myself to be bound to the calculations results ahead of the time they were done, nor did I make any commitment to be bound by the results of the procedure we used as far as the final result is concerned.

Thomas Maestas added:

After determining the average result, I and the other members of the jury continued to deliberate and state our opinions on what the final verdict dollar amount awarded to Mrs. Guertin should be. In her affidavit, Ruby Sampson stated the following:
It was my position that I was free to either accept or reject the results of this procedure, depending upon my own personal feelings. At the same time, I didn’t hear anyone say, and I have absolutely no recollection whatsoever of us jurors or me personally agreeing ahead of time that we would be bound by the results.
It was my understanding that each of us had the ability to either accept or reject the dollar amount arrived at, depending upon how we individually felt.

Lori Freeman, another juror, reported:

I always reserved to myself the authority of either disagreeing or agreeing with the result of our calculation and of arguing for changing that result to whatever figure I felt was right, and it was my impression in listening to the other jurors that they felt the same way.

Juror Mildred Williams explained:

Both before this procedure was undertaken and after it was completed, I reserved to myself the full right to either accept or reject the result, depending upon what I thought was best.

Finally, Shirley Parker served as one of the jurors and in her affidavit, stated:

There was certainly no intent on my part or anyone else’s, that I know of, to be bound by the results before the results were determined. I wanted to know what the final result was before I gave my final approval or disapproval as to what amount of money we should award Mrs. Guertin.

Moreover, John Stark later filed a second affidavit where he recanted the statements in his first affidavit, concluding that:

After careful review and re-consideration of that Affidavit, I am not certain that it is entirely correct in paragraph 4 where it ends with the statement “and be bound by that result.”
I cannot say that I was absolutely bound by the result of our mathematical process, having felt that I could object or argue to change the result either higher or lower, as is evidenced by the actual verdict we did return.

After our review of the affidavits and pertinent evidence, we find that substantial evidence exists to support the District Court’s finding that the jury was not bound to a quotient verdict. We hold that the District Court did not err in denying Moody’s motion for a new trial.

AFFIRMED.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.