author: JUSTICE McDONOUGH JUSTICE GRAY JUSTICE TRIEWEILER,

text:
    IN THE MATTER OF THE SEIZURE OF A 1988 CHEVROLET VAN, CALIFORNIA LICENSE NUMBER 3M38781.
    No. 91-027.
    Submitted on briefs July 16, 1991.
    Decided December 30, 1991.
    48 St.Rep. 1154.
    251 Mont. 180.
    823 P.2d 858.

      For Appellant: Marc Racicot, Attorney General, Paul D. Johnson, Assistant Attorney General, Helena; Mike Salvagni, County Attorney, and Marty Lambert, Deputy County Attorney, Bozeman.
    For Respondent: Helene Orenstein, Attorney at Law, Bozeman.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The State of Montana appeals the order of the District Court of the Eighteenth Judicial District, Gallatin County, dismissing the State’s petition for forfeiture and releasing the respondent’s Chevy Van. The District Court found it within its discretionary power to release the van to protect the interests of a lienholder despite entering default against that lienholder. We reverse.

The dispositive issue on appeal is whether the District Court abused its discretion by denying and dismissing the petition for forfeiture.

Brian Soule and his wife Elizabeth Soule were arrested for possession of dangerous drugs and paraphernalia, violations of Title 45, Chapter 9, MCA. The circumstances surrounding their arrest were as follows. Law enforcement authorities in Los Angeles, upon a security check at the airport, discovered a package containing drugs bound for Brian Soule via Gallatin Field. The authorities in Los Angeles notified Gallatin County and a search warrant was obtained. Upon arrival of the package at Gallatin Field, Brian Soule claimed the package, walked to the subject Chevy Van, which was owned by Brian Soule, and drove it across the airport to a parking lot. The officers approached the van, presented the warrant and the subsequent search yielded illegal drugs and paraphernalia. Brian and Elizabeth entered a plea agreement and pled guilty to felony possession of dangerous drugs, misdemeanor possession of dangerous drugs and misdemeanor possession of drug paraphernalia.

The instant case is a civil proceeding filed under § 44-12-102(l)(d), MCA, which provides in part for the forfeiture of “all conveyances, including ... vehicles, ... that are used or intended for use in any manner to facilitate the commission of a violation of Title 45, Chapter 9.” There is no dispute that Brian’s father, Peter Soule, has a security interest in the Chevy Van. Both Peter and Brian were served with copies of the summons and petition. The State presented an affidavit of service on Peter Soule.

Brian Soule filed an answer to the complaint, alleging the forfeiture of the Chevy Van was subject to his father’s secured interest because his father neither had knowledge of, nor consented to Brian’s violation of Title 45, Chapter 9. Peter Soule did not respond on his own behalf and at the hearing, the court entered a default of Peter Soule.

However, the District Court, relying on § 44-12-205(3), MCA, found broad discretionary powers to release the vehicle to protect the interests of Peter Soule. Section 44-12-205(3), MCA, provides:

“In making a disposition of property under this chapter, the court may take any action to protect the rights of innocent persons.”

The District Court found:

“there (was) not a scintilla of evidence that Peter W. Soule was aware of, or had anything to do with Brian and Elizabeth Soule’s possession or use of illegal drugs, or drug paraphernalia.”

As such, the District Court determined Peter Soule to be an innocent person within the meaning of § 44-12-205(3), MCA, and the court acted to protect his interest.

The standard of review for discretionary trial court rulings is whether the trial court abused its discretion. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Section 44-12-205(3), MCA, makes clear that the legislature was sensitive to the rights of innocent persons and granted broad discretion to the courts to protect those rights. However, the legislature has also provided specific provisions regarding the protection of the rights of claimants with a security interest in seized property. See §§ 44-12-204, and 205(2), MCA. Section 44-12-203, MCA, states:

“There is a rebuttable presumption of forfeiture as to all property listed in 44-12-102 ...” (Emphasis supplied.)

The Chevy Van is clearly within the scope of property listed in § 44-12-102, MCA. Section 44-12-204, MCA, provides:

“In order to rebut the presumption of forfeiture:
“(3)a claimant of a security interest in the property who has a verified answer on file must prove that his security interest is bona fide and that it was created after a reasonable investigation of the moral responsibility, character, and reputation of the purchaser and without knowledge that the property was being or was to be used for the purpose charged ....” (Emphasis supplied.)

Here, Peter Soule failed to file an answer, failed to appear and offered no proof of anything whatsoever.

Section 44-12-205(2)(a), MCA, provides the following:

“If proper proof of his claim is presented at the hearing by the holder of a security interest, the court shall order the property released to the holder of the security interest...”

Brian Soule, not his father, claimed the lien, in his answer, as an affirmative defense to the forfeiture. Brian has no standing nor did he present any evidence to support his father’s claim.

“The judicial function in construing and applying statutes is to effect the intention of the legislature. In determining legislative intent, the court looks first to the plain meaning of the words used in the statute.” State ex rel. Roberts v. Public Service Commission (1990), 242 Mont. 242, 790 P.2d 489. The language of the forfeiture statutes cited above is clear.

Apparently, the court was apprehensive about placing an affirmative duty on Peter Soule to prove that he was an ‘innocent person’ entitled to return of the Chevy Van. The legislature had no such apprehension. The presumption is for forfeiture and the burden rests on the secured interest holder to rebut that presumption. Sections 44-12-203 to -204, MCA. It has long been held under Montana statutes that a presumption remains until rebutted by preponderance of contrary evidence and disappears only when the party to whom it is opposed produces sufficient evidence to preponderate against it. N.Y. Life Insurance Company v. Gamer, (9th Cir. 1939), 106 F.2d 375.

Peter Soule received proper notice and failed to assert his rights and therefore default was properly entered. Peter Soule failed to rebut the presumption as required by § 44-12-102, MCA.

We conclude that the District Court abused its discretion by acting in a manner inconsistent with the statutes on forfeiture. The order of the District Court is reversed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the opinion of the majority. Briefly stated, the majority notes the existence of § 44-12-205(3), MCA, granting the district court broad discretionary authority, and then goes on to ignore it altogether. The majority does not attempt to construe the subsection either on a stand-alone basis, as part of the statute within which it is contained, or in relation to the other statutes comprising the Montana Forfeiture Act. This lack of analysis results in giving § 44-12-205(3), MCA, no effect whatsoever. I cannot agree.

Facts in addition to those set forth in the majority opinion are important to an appropriate analysis of the case before us. A bench trial on the forfeiture petition was held on June 25,1990. Brian Soule was represented by counsel, but neither he nor his father appeared. At the outset of the proceeding, the State requested, and the court entered, a default of Peter Soule for failure to respond or appear; no default judgment was entered.

The proceeding continued, with Lieutenant Christie as the only witness. Christie first testified to the circumstances surrounding the arrest of Brian and Elizabeth Soule. He explained, on direct examination, that he had found a receipt in the vehicle indicating that Peter Soule was the holder of a security interest in the van. Christie then testified in some detail about a telephone conversation he had with Peter Soule; Peter Soule indicated during the conversation that he had co-signed a GMAC loan with Brian in order to help Brian purchase the van. Peter Soule later paid off the loan on the understanding that Brian would pay him back, which Brian never did. Peter Soule told Christie that he was aware of Brian’s drug problems and had attempted to help by paying for a drug treatment program for both Brian and Elizabeth, and by sending them to Brian’s grandmother in Montana after their release from that program in hopes of getting them away from drugs.

Briefs were submitted on July 9, 1990. The District Court subsequently entered its judgment releasing the van to Peter Soule and dismissing the petition for forfeiture with prejudice.

The issue is whether the District Court erred in finding Peter Soule an innocent person and dismissing the petition for forfeiture pursuant to § 44-12-205(3), MCA. The standard of review for discretionary trial court rulings is whether the trial comb abused its discretion. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.

The procedural requirements for forfeiture proceedings of the type before us are set forth in §§ 44-12-201 et seq., MCA. Section 44-12-204, MCA, provides detailed provisions by which owners and claimants of security interests with verified answers on file can rebut the presumption of forfeiture which arises under § 44-12-203, MCA. Subsections (1) and (2) of § 44-12-205, MCA, provide for mandatory dispositions of property in the event certain findings are made by the court based on proof presented at the hearing by an owner or a holder of a valid security interest in the property at issue. Section 44-12-205(3), MCA, on the other hand, allows the court to “take any action to protect the rights of innocent persons” in disposing of property otherwise subject to forfeiture.

This Court consistently follows the fundamental rule of statutory construction that:

“[T]he judicial function in construing and applying statutes is to effect the intention of the legislature. In determining legislative intent, the Court looks first to the plain meaning of the words used in the statute. If intent cannot be determined from the content of the statute, we examine the legislative history.”

State ex rel. Roberts v. Public Service Commission (1990), 242 Mont. 242, 246, 790 P.2d 489, 492.

The language of § 44-12-204, MCA and subsections (1) and (2) of § 44-12-205, MCA, are clear and plain and susceptible of only one interpretation on a stand-alone basis. Under these subsections, the court has no discretion in how it disposes of property subject to forfeiture. There is no doubt that Peter Soule did not make the requisite showing to protect this interest in the van under these sections.

The intended interplay between the sections discussed above and subsection (3) of § 44-12-205, MCA, as well as the intended meaning of “innocent persons” therein, however, cannot be ascertained from the words themselves. Therefore, it is necessary to focus specifically on both the language and the legislative history of § 44-12-205(3), MCA.

Section 44-12-205(3), MCA, provides that “[i]n making disposition of property under this chapter, the court may take any action to protect the rights of innocent persons.” (Emphasis added.) This wording clearly grants a trial court the broadest possible discretion in protecting the interests of innocent persons. It is also clear, from the absence of any limiting language, that such discretion can be exercised in favor of any innocent person. In addition, nothing in the sweeping grant of discretion suggests that an “innocent person” must have jumped through the procedural hoops otherwise provided for lienholders.

The majority adopts the State’s position that we must read into § 44-12-205(3), MCA, the requirements of § 44-12-204 and § 44-12-205 (1) and (2), MCA. Nothing contained therein suggests such a reading. “In the construction of a statute, the office of the judge is ... not to insert what has been omitted ....” Section 1-2-101, MCA.

For the most part, the Montana Forfeiture Act is patterned after the federal act found at 21 U.S.C. § 881. Section 44-12-205(3), MCA, however, is unique to Montana and, as such, we must assume that the legislature included it for a particular reason. It is this Corut’s duty to ascertain that legislative intent and, insofar as possible, give it meaning in interpreting and construing the statutes involved. Palmer v. Montana Ins. Guar. Ass’n (1989), 239 Mont. 78, 779 P.2d 61. Thornock v. State (1987), 229 Mont. 67, 745 P.2d 324; Darby Spar, Ltd. v. Dept. of Revenue (1985), 217 Mont. 376, 705 P.2d 111.

The Montana legislature added § 44-12-205(3), MCA, to the Montana Forfeiture Act in 1987. The statute must have meaning as we presume the legislature does not pass meaningless laws. Mills v. Commissioner of Insurance (1987), 226 Mont. 387, 736 P.2d 102; Crist v. Segna (1981), 191 Mont. 210, 662 P.2d 1028. We also presume that this amendment changed the law in some way or the legislature would not have added it to the existing law. Cantwell v. Geiger (1987), 228 Mont. 330, 742 P.2d 468.

The 1987 bill amending the Montana Forfeiture Act originally was introduced to expand and broaden the Act and to enhance cooperation between federal and state agencies; as introduced, it did not contain what ultimately became § 44-12-205(3), MCA. Serious questions were raised by members of the Senate Judiciary Committee during the hearing on the bill relating to jointly owned property. The Committee was assured that the existing provisions of §§ 44-12-204 and -205, MCA, protected innocent owners and that the district courts would determine who was an innocent owner able to retain property under those sections. Minutes, Legislative Hearing S.B. 241, February 6, 1987, at 2. Notwithstanding those assurances, one legislator expressed concern about how innocent victims really would be protected; another stated that clearer language was needed dealing with innocent parties. Id.

Section 44-12-205(3), MCA, was added to S.B. 241 as a committee amendment to address the expressed concerns. The committee had before it, but did not adopt, alternative language granting the district courts discretion to “take any action ... not inconsistent with the provisions of this chapter.” (Emphasis added.)

Based on this legislative history, it is clear that the legislature consciously chose the term “persons,” rather than the narrower term “owners,” in enacting a provision significantly more protective than it considered the existing statutes. Furthermore, in doing so, it did not support alternative language limiting subsection (3)’s application only to situations consistent with other provisions of the Act. The legislature specifically having rejected the “consistent with” approach as not sufficiently protective, the majority now adopts it.

Legislative concern for the rights of innocent persons continued even after enactment of § 44-12-205(3), MCA. When additional amendments to the Act were proposed in 1989, legislators received further assurances that the forfeiture statutes would not unnecessarily burden innocent persons. “[TJhis entire procedure is subject to the scrutiny and control of the District Courts of the State of Montana,” which constitute a “significant balancing factor.” Minutes, Legislative Hearing, S.B. 377, March 9, 1989, at 2. The majority simply ignores the legislative history and intent of § 44-12-205(3), MCA, dismissing it with a cavalier reference to the fact that “the legislature was sensitive to the rights of innocent persons.”

When the legislature uses a particular term, this Court’s duty is to construe it “according to the context and the approved usage of the language ....” Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 336, 682 P.2d 695, 701. Therefore, I would read “innocent persons” as a general term which includes, but is not limited to, “owners,” and find that, according to the language of § 44-12-205(3), MCA, a person is “innocent” when so determined by the district court on the particular facts before it.

In my opinion, this close review of the legislative history mandates a conclusion that, in enacting § 44-12-205(3), MCA, the legislature intended the broadest conceivable grant of discretion to the courts in protecting the rights of innocent persons with regard to property otherwise subject to forfeiture. I further conclude that the “under this chapter” language in that statute is sufficiently broad, and intended, to override the other detailed forfeiture statutes when necessary, in the court’s discretion, to protect innocent persons and prevent unjust results. To conclude otherwise ignores the legislature’s clear intent. Finally, absent any indication in the statute or the legislative history to the contrary, I conclude that the only reasonable interpretation of the legislature’s failure to include any burden of proof requirement for an innocent person, as it clearly included for lienholders filing a verified answer, is that no such specific burden was intended. The majority’s imposition of the requirements of other statutory provisions into § 44-12-205(3), MCA, totally negates and eviscerates the broad discretion granted to the district court by that section.

It remains only to apply the conclusions set forth above regarding § 44-12-205(3), MCA, to the facts and judgment in the instant case. Here, Peter Soule was served with the petition for forfeiture and summons, as an owner or claimant of the van, under § 44-12-201, MCA. A verified answer was filed by the registered owner of the van, Brian Soule, as required by § 44-12-202, MCA, but no answer was filed individually by Peter Soule. At the outset of the forfeiture hearing and upon a motion by the State, the District Court entered a default against Peter Soule due to his failure to file an answer as required by § 44-12-202, MCA. The entry of the default was neither based on, nor related to, the question of whether Peter Soule was an innocent person under § 44-12-205(3), MCA. No default judgment was entered.

A “default entry is simply an interlocutory order that in itself determines no rights or remedies ....” Cribb v. Matlock Communications, Inc. (1989), 236 Mont. 27, 30, 768 P.2d 337, 339. Thus, the District Court’s entry of Peter Soule’s default did not finally determine his rights or status in the proceeding. Nor did the entry of the default, in and of itself, foreclose the District Court’s ability to “take any action to protect the rights of innocent persons” under § 44-12-205(3), MCA.

The real question in this case is whether, subsequent to the entry of the default, Peter Soule’s status in relation to the van was before the District Court, thus enabling the court to act under § 44-12-205, MCA. Under the particular facts of this case, it was.

While the record is clear that Peter Soule did not appear at the forfeiture proceeding, his status and interest were before the court via Brian Soule’s verified answer. Furthermore, the State itself established Peter Soule’s status and interest in the van through the testimony of Lieutenant Christie. That testimony also established that, while Peter Soule knew of Brian’s drug problems, he had paid to enroll Brian and Elizabeth in a treatment program for those problems and then, on their release from that program, sent them to Brian’s grandmother in Montana where they would be away from drugs. The court concluded that the record did not support any inference of knowledge or involvement by Peter Soule in the drug possession by Brian from which the forfeiture proceeding arose. On the basis of the State’s evidence, the court concluded that Peter Soule was an “innocent person” under § 44-12-205(3), MCA, and entered judgment accordingly, releasing the van to Peter Soule. The District Court concluded that to do otherwise would be grossly unfair and inequitable under the circumstances of this case.

It is a rule of statutory construction that the legislature does not pass meaningless legislation. The majority’s interpretation, or lack thereof, of § 44-12-205(3), MCA, produces precisely that result. It renders meaningless an act of the legislature, namely, the insertion into the Act patterned on the federal model of a subsection peculiar to Montana and clearly intended to balance the harshness of the forfeiture laws by protecting the rights of innocent persons without regard to other statutory provisions regarding such forfeitures. As discussed above, the majority’s interpretation of § 44-12-205(3), MCA, gives it no effect whatsoever.

Under the particular facts of the instant case, Peter Soule’s legitimate interest in the van was properly before the court. It was established at the hearing by the State’s own witness, and was not disputed. The record before us reflects a father’s repeated efforts to help get his son’s life in order; it certainly does not reflect any acquiescence in, or consent to, his son’s drug-related criminal offenses. Peter Soule’s co-signing of Brian’s loan with GMAC and paying off that loan of approximately $10,000 were further efforts by a concerned father who had no connection whatsoever with the criminal offense by Brian which formed the foundation for the forfeiture proceeding.

The circumstances of this case, the record before us, and the cited legislative history support the District Court’s conclusion that Peter Soule was an innocent person and its action in protecting the rights of such an innocent person pursuant to its broad discretion under § 44-12-205(3), MCA. I would hold that the District Court did not abuse its discretion and affirm its dismissal of the forfeiture petition.

JUSTICE TRIEWEILER,

specially concurring:

I concur with the dissent of Justice Gray, but am unable to join in her remarkable restraint.

The portions of the forfeiture statute relied upon by the majority turn traditional notions of fairness, due process, burden of proof, and presumption of innocence upside down. The statute has only one redeeming provision which is found in § 44-12-205(3), MCA. The majority opinion gives its blessing to those provisions of the forfeiture statute which are most offensive to the traditions of our justice system, and totally ignores that portion of the statute which was intended by the legislature to ameliorate the statute’s harshness.

Under our former system of justice, innocent people did not have the burden of proving innocence. The State had the burden of proving their guilt before punishing them or seizing their property. Regardless of that fact, in this case Peter Soule did not need to appear to prove his innocence because his innocence was undisputed.

While the majority opinion does substantial harm to the property rights of innocent citizens, it does nothing to further the “war on drugs.”

JUSTICE HUNT concur in the foregoing concurrence of JUSTICE TRIEWEILER.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    BRUCE SCOTT, Plaintiff and Appellant, v. EAGLE WATCH INVESTMENTS, INC., a Montana Corporation, and PETER BOUMA, Defendants and Respondents.
    No. 91-020.
    Submitted on briefs October 31, 1991.
    Decided December 19, 1991.
    48 St.Rep. 1136.
    251 Mont. 191.
    828 P.2d 1346.

      For Appellant: P. Mars Scott, Mulroney, Delaney & Scott, Missoula.
    For Respondents: Edward A. Murphy, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Bruce Scott (Scott) appeals from the judgment of the District Court of the Fourth Judicial District for Missoula County, Montana. The court held that Scott breached his oral employment contract and was properly terminated from his job as an athletic club manager, requiring him to pay respondent/employer Peter Bouma (Bouma) $755.81 with interest. We affirm.

The appellant takes issue with the District Court’s Findings of Fact, Conclusions of Law, and Judgment almost in their entirety. We address only the following dispositive issues:

I. Whether the District Court erred in concluding that an at will employment relationship existed between the parties.

II. Whether the District Court erred in concluding that the employer did not breach the implied covenant of good faith and fair dealing when he terminated the employee.

The history of this action spans nearly ten years and began sometime in 1980 when Bouma began researching investments which would provide him with tax advantages. Bouma became aware of a defunct athletic club located east of Missoula and considered it a potential investment. Through conversations with Scott, Bouma became acquainted with Scott’s previous involvement with a Missoula tennis club known as Garden City Racket Club which failed after only three months of operation in early 1980. The two men began informal talks about the possibility of opening a full service athletic club (The Club) at the site of the defunct athletic club east of Missoula. They made inquiries with financing entities and researched the existing hens on the property. Bouma and Scott toured other athletic clubs in the State of Montana. Bouma also traveled to Spokane, Washington to observe another athletic club operation.

Bouma contributed approximately $787,000 in capital to purchase The Club. He pledged the necessary collateral to obtain financing. Although Scott contributed his past experience in the area of tennis and with the failed Garden City Racket Club, he contributed no capital to the venture.

As the venture began to materialize, Bouma and Scott discussed the idea that Scott become the general manager of The Club. The parties met at various times and drafted an employment agreement. Both parties acknowledged that various parts of the agreement were not acceptable and consequently they did not sign the agreement. Although the agreement remained unsigned, the parties made compensation arrangements which involved splitting the monthly net profits of the operation after some adjustments such as depreciation. Additionally, the parties agreed that Scott would act as the general manager in charge of operations on a day-to-day basis, monitoring all aspects of The Club.

In preparation of the venture, both parties worked in various capacities to accomplish everything necessary to open The Club. Construction plans were made, approved and implemented; mechanics liens were removed; zoning problems were addressed; a staff was hired; a promotional campaign was initiated; and equipment was purchased.

On December 15, 1981, The Club membership roster immediately filled to capacity with approximately 1,200 members, and the facility opened on January 15, 1982. With such a large turnout the parties employed the Dobbins accounting firm to compile monthly financial statements and help in the billing process. The record indicates that due to the volume of financial transactions various problems were encountered with the financial records especially since all transactions were initially handled manually at The Club.

Bouma and Scott met on a regular basis to discuss the progress of The Club and work out problems. Bouma, who was financially at risk for the venture, was understandably interested in the financial elements of The Club. Bouma requested basic financial information from Scott such as the amount of accounts payable and receivable. Although Scott was the on site general manager in charge of the employees who handled the income and expenses of The Club, Scott continually referred Bouma to the Dobbins firm and simply presented The Club’s financial picture as positive. Scott did not provide Bouma with even the most basic list of accounts payable and receivable as requested.

Bouma later became aware of other problems at The Club such as lack of cleanliness, an unauthorized gift of a free lifetime membership (which was not discovered until after Scott’s termination), and lack of policy development. He also learned of an unpaid invoice when a supplier contacted him at home indicating that delivery would be suspended unless the account was brought current. Bouma became increasingly frustrated with Scott’s performance, particularly in the financial area. In view of Bouma’s investment and Scott’s performance deficiencies, Bouma considered termination but postponed such action pending a financial report from the Dobbins firm.

On June 13,1982, Bouma made an appointment with Scott for the following day to assure his availability. That same day, Scott went to see Bouma and stated that The Club’s bills were paid and there was money in The Club’s checking account. The next day Bouma acquired the financial report from the Dobbins firm which confirmed that The Club’s bank account was overdrawn, numerous outstanding accounts payable existed, and that Scott had taken two cash withdrawals totalling approximately $13,000. In view of Scott’s performance deficiencies, Bouma terminated him that day. Due to the financial state of The Club, Bouma borrowed an additional $25,000 to meet existing operating expenses.

Scott initiated suit on a variety of theories requesting monetary relief including punitive damages, but primarily seeking damages of $720,000 in lost profits due to his termination. The District Court found that Scott was an at will employee and that Scott breached the oral employment agreement. The court also found that Bouma was justified in terminating Scott and ordered Scott to pay Bouma $755.81 plus interest to compensate Bouma for draws Scott took as over- payment.

STANDARD OF REVIEW:

The trier of fact is in the best position to hear the testimony and observe the witnesses and their demeanor, therefore, on appeal, we will not overturn the findings of fact unless they are clearly erroneous. Morin v. Mapston (1985), 217 Mont. 403, 407, 705 P.2d 118, 120; Rule 52(a), M.R.Civ.P. “Particularly where credibility of witnesses is involved, we give great weight to fact-findings of a district court.” Morin, 217 Mont. at 407, 705 P.2d at 120. We will not overturn the conclusions of law unless they are incorrect. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

ISSUE I.

Did the District Court err when it found that an at will employment relationship existed between the parties.

Today, the concept of at will employment or the “employment at will rule” is deceptively simple. The employment at will rule has been defined as follows: when “an employer may dismiss an at-will employee for a good reason, bad reason, or for no reason at all.” Henry H. Perritt, Jr., Employee Dismissal Law and Practice, p. 1 (2d ed. 1987). Montana has implemented protective devices through both the legislature and case law that operate to curb the harsh effects of the rule. Prout v. Sears (1989), 236 Mont. 152, 157, 772 P.2d 288, 291 (decided on pre-Wrongful Discharge Act law and provides for four exceptions to the termination at will rule; also see Montana’s Wrongful Discharge Act §§ 39-2-901 et seq., MCA, enacted in 1987). These devices however do not obliterate the at will rule. Medicine Horse v. Trustees, Big Horn County School Dist. [251 Mont. 65,] 823 P.2d 230, 48 St.Rep. 1074, [10 Ed.Law 357],

In the case at bar, the record indicates that while the parties met and contemplated a written employment agreement with a term of five years, a contract to that effect was never finalized. The parties each indicated that they wished to make various revisions to the agreement and therefore did not sign the agreement. Section 28-2-903(1)(a), MCA (1981), states:

“The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent: (a) an agreement that by its terms is not to be performed within a year from the making thereof; ...”

We have previously stated that “[t]he word ‘invalid,’ as employed in these statutes, means void; of no force or effect. Therefore the contract cannot be relied upon or furnish evidence for any purpose.” Mahoney v. Lester (1946), 118 Mont. 551, 560, 168 P.2d 339, 343; citing Dreidlein v. Manger (1923), 69 Mont. 155, 163, 220 P. 1107, 1109. Here neither party signed the agreement committing them to a specified employment term. Therefore, under the facts of this case the agreement of employment is an at will employment relationship.

ISSUE II.

Did the District Court err in concluding that Bouma did not breech the implied covenant of good faith and fair dealing when he terminated Scott.

In Montana, termination of an at will employment relationship is governed by § 39-2-503, MCA, which provides that “an employment having no specified term maybe terminated at the will of either party on notice to the other .... ” Supplementing this statute is our opinion of Crenshaw v. Bozeman Deaconess Hosp. (1984), 213 Mont. 488, 693 P.2d 487, in which we said that an employer owes even a probationary employee a duty of good faith and fair dealing. In Crenshaw, we stated that “[e]mployers can still terminate untenured employees at-will and without notice. They simply may not do so in bad faith or unfairly without becoming liable for damages.” Crenshaw, 213 Mont. at 498, 693 P.2d at 492.

With this in mind we look to the facts of the case at bar. First, Scott insists that the termination notification requirements set forth in the draft of the employment contract should be followed. However since the contract was never signed the provisions of the contract governing notice are not controlling. Instead, the notice requirements of § 39-2-503, MCA, are determinative; no prior notice is required. Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 185, 638 P.2d 1063, 1067. In the case at bar, Bouma properly followed the notice requirement when he informed Scott that their employment relationship was terminated.

Secondly, much is also made of whether The Club was profitable from its date of opening until Scott’s termination, a period of about six months. The parties hotly contested the profitability issue and numerous calculations with various inclusions and exclusions were presented at trial. The lack of profitability was again one of the written contract provisions under which Bouma could terminate the employment relationship. We have already stated that the contract provisions cannot control since they were not the final expression of the parties as evidenced by its lack of signatures. We take time to point out that the profitability of The Club was only one factor in Scott’s termination. If the profitability issue was the sole reason for termination, we must look to the belief of the employer at the time of termination. If the termination was rooted in a mistaken belief, “[e]ven an honest, though mistaken, belief that the employer for legitimate business reasons had good cause for the discharge would negate bad faith.” Heltborg v. Modern Machinery (1990), 244 Mont. 24, 37-38, 795 P.2d 954, 962; citing Pugh v. See’s Candies, Inc. (Cal. 1988), 203 Cal.App.3d 743, 770, 250 Cal.Rptr. 195, 213.

Important to the issue of bad faith in the case at bar, is that the record indicates that Bouma chose to terminate the at will employment relationship due to various deficiencies in Scott’s performance. Accordingly, the District Court stated in Findings of Fact #33 that:

“[B]ouma began to question Scott more closely about payables, policies and money. Scott was nonresponsive and nonproductive. Often when Bouma went into the facility he would see Scott on the courts playing tennis. Bouma began to show his dissatisfaction with the way he was being put off, but Scott was either unconcerned about that or did not recognize it. The former is probably the case since a reasonable manager would know why his employer kept asking the questions and that his employer expected informed responses. Scott should have been prepared to give the information that Bouma wanted. Bouma’s requests were reasonable and confined to the things that a person with overall responsibility for a business ought to know.”

Further, the District Court’s Conclusions of Law #7 follows the same train of thought:

“[Bouma] had fair and honest reasons to discharge Bruce Scott from employment. He was non-responsive when the employer made reasonable demands for information relating to the financial condition of the business. He failed to write and implement policies for the conduct of the business as requested by the employer. He made unauthorized draws of money. He jeopardized the business by withdrawing large sums of money for his own use when the funds were intended to act as working capital. He failed to fulfill his responsibilities to set up an accounting system. He failed to maintain the level of cleanliness expected by the customers of the business. He allowed payables to go unpaid. Under his management, membership levels declined. Under his management, the business ran out of cash. All of the foregoing happened in a five month period. Such events would give any employer a fair and honest reason to terminate a manager.”

Scott’s own testimony supports the court’s statements particularly with regard to the cash balances of The Club and the large draws taken by Scott. Scott acknowledged the progressively declining cash balance of The Club’s checking account and stated that he maintained possession of the checking register in his desk which he consulted “on a regular basis.” Despite this knowledge, when The Club was only a few months old and cash flow streams were unproven and unpredictable, Scott took draws totalling over $13,000 in cash. Additionally, Scott testified that he was directly responsible for the information that went to the Dobbins firm, but declined to take responsibility for the information. Scott neglected to monitor The Club’s basic income and expenses and failed to obtain such information when requested. Further, Scott did not correct this performance problem which was critical especially for assessing the viability of a new business, and referred Bouma to the Dobbins firm. Section 39-2-404, MCA provides:

“[A]n employee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful or would impose new and unreasonable burdens upon the employee.”

We conclude that obtaining a list of accounts payable and

receivable from invoices and checks received at The Club and reviewed by the manager was possible and within the capability of the general manager. Overall, Scott did not fulfill the basic functions of a general manager and Bouma honestly believed his interests were being mishandled. Bouma took steps to correct the problem and was justified in terminating Scott. Under the circumstances, the District Court did not err in concluding that Bouma did not violate the covenant of good faith and fair dealing when terminating Scott from the at will employment relationship.

In the case at bar, we find that the court’s Findings of Facts were supported by the record and were not clearly erroneous. The court also made correct Conclusions of Law. Therefore, we will not disturb the court’s ruling. Affirmed.

JUSTICES GRAY, WEBER, HUNT, and McDONOUGH concur.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    ROBERT G. KIZER, Plaintiff and Respondent, v. SEMITOOL, INC., a Montana Corporation, Defendant and Appellant.
    No. 90-427.
    Submitted June 18, 1991.
    Decided December 16, 1991.
    48 St.Rep. 1115.
    251 Mont. 199.
    824 P.2d 229.

      For Appellant: Debra D. Parker and Steven E. Cummings argued, Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, PC., Kalispell.

      For Respondent: Daniel W. Hileman argued, Murray & Kaufman; Randall S. Ogle, Ogle & Worm, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, Semitool, Inc. (Semitool), appeals from a judgment entered on a jury verdict rendered in the District Court of the Eleventh Judicial District, Flathead County, in favor of the plaintiff, Robert G. Kizer (Kizer). Kizer filed suit in the District Court seeking to recover damages from Semitool based on three claims: wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. The jury, through the use of a general verdict form, awarded Kizer damages in the amount of $51,000. We reverse and remand.

The issues are:

1. Was Semitool’s notice of appeal timely filed?

2. Did the District Court err in allowing Kizer’s expert witness to render legal conclusions that Semitool breached the implied covenant of good faith and fair dealing and that Semitool’s reduction in force was not legitimate?

3. Did the District Court err in instructing the jury on the issue of negligence?

4. Was there sufficient evidence to support the submission of Kizer’s case to the jury?

Semitool is a manufacturer of specialized capital equipment for the semiconductor industry. Its plant and principal offices have been located near Kalispell, Montana since 1979. Semitool is a closely-held corporation with Raymon and Ladeine Thompson as its principal shareholders. Raymon Thompson also serves as president.

The semiconductor industry is highly cyclical and intensely competitive; technology is continuously changing. Semitool’s success is directly related to its ability to produce a state-of-the-art product and respond to the fluctuating demands of its customers. Two important measures of customer demand and, thus, Semitool’s economic prospects are (1) sales booked (representing orders received for products to be manufactured by Semitool and delivered in the future); and (2) backlog (representing products ordered by customers and in the process of being manufactured). In the fall of 1986, Semitool suffered a significant down-turn in both sales booked and backlog which continued through the spring of 1987. During this period, Semitool reduced its number of employees. A total of thirty-five employees were terminated, including Kizer. Testimony at trial indicated that when Semitool’s economic prospects improved after April 1987, almost all of the employees were rehired or their previous positions were filled by new first-time employees.

Kizer was employed with Semitool for nearly four years. In April 1983, he began working for Semitool as the supervisor of the polypropylene department. He was promoted two months later to supervisor of the polypropylene, welding, and electropolish departments. By 1987, Kizer held the position of fabrications manager, after having been given the additional responsibility of supervising the machine shop at Semitool.

While employed by Semitool, Kizer received numerous verbal evaluations of his job performance, all of which were favorable. He also received one written performance evaluation which was favorable to him. Kizer did not receive any unsatisfactory evaluations of his job performance.

On February 16, 1987, Kizer’s employment with Semitool ended. He was called into Thompson’s office that day and, without any forewarning, told that his employment was terminated. According to Kizer’s testimony, Thompson told him that he was being “let go” because the machine shop was operating at thirty percent less efficiency than the previous year and because he was not a “journeyman machinist.”

On February 2,1988, Kizer filed suit in the District Court seeking to recover damages from Semitool based on three claims: wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. The case was tried before a jury March 26 through March 29,1990. The jury, through the use of a general verdict form, rendered a verdict in favor of Kizer and awarded damages in the amount of $51,000. Following trial, Semitool moved for judgment notwithstanding the verdict or, in the alternative, a new trial. At a hearing held on April 26, 1990, the District Court denied Semitool’s post-trial motions. This appeal followed.

I.

Was Semitool’s notice of appeal timely filed?

Kizer contends that Semitool’s notice of appeal was not timely filed and, therefore, its appeal should be dismissed. We disagree.

At the hearing on April 26, 1990, the District Court denied Semitool’s post-trial motions from the bench and the Clerk of the District Court entered the court’s denial into the record. Pursuant to Rule 5(a)(4), M.R.App.P., allowing three days for mailing, Semitool’s thirty-day period in which to file its notice of appeal expired on May 30, 1990. On May 31, 1990, Semitool filed with the District Court a motion to extend the time of filing a notice of appeal. The District Court granted the motion and Semitool filed its notice of appeal on June 8, 1990.

Rule 5(a)(5), M.R.App.R, allows the district court to extend the time for filing a notice of appeal upon a showing of excusable neglect or good cause. The request to extend the time for filing a notice of appeal must be made within thirty days after the initial thirty-day period for filing a notice of appeal has expired. Here, Semitool filed its motion to extend the time for filing a notice of appeal one day after the initial thirty-day period had expired. Apparently, it was unclear to counsel for Semitool whether the District Court had denied Semitool’s post-trial motions from the bench or would be making a decision post-hearing. Under these circumstances, the District Court found that good cause existed to extend the time for filing a notice of appeal. We hold that Semitool’s notice of appeal was timely filed.

II.

Did the District Court err in allowing Kizer’s expert witness to render legal conclusions that Semitool breached the implied covenant of good faith and fair dealing and that Semitool’s reduction in force was not legitimate?

Alan Brown, an expert in employment relations, testified on behalf of Kizer at trial. On direct examination, Kizer’s counsel established Brown’s training and qualifications and knowledge of the facts surrounding Kizer’s termination of employment. Counsel then elicited the following testimony from Brown:

“Q. Did you formulate any opinions in this case?
“A. Yes, I did.
“Q. And what are those opinions?
“A. My opinion is that Bob Kizer, the Plaintiff in this case, was not treated fairly by the Defendant, Semitool.
“Q. What forms the basis for your opinion that Semitool treated Mr. Kizer unfairly?
“A. I guess there are five bases for my opinion. The first of these bases is the fact that when you compare the actions of Semitool, the Defendant in this case, against widely accepted standards in the employee relations field, you find that their actions weren’t fair and they weren’t the actions that a company normally takes when they have a reduction in force.
“The second thing that I found was that in the past, Semitool, when they have had reductions in force, have done things differently and they have treated their employees much better than they have treated Mr. Kizer.
“The third point that I found was that the implied covenant of good faith and fair dealing, which is found in the employer relationship, was violated by the actions of Semitool.
“The fourth point that supports my opinion is the fact that when an employer has performance problems with an employee, they deal with those performance problems as opposed to terminating or firing an employee for an alleged reduction in force, when in reality, the problems lay elsewhere in the materials that I reviewed. And in my review with Mr. Kizer, I learned that in fact there were some performance problems that had existed.
“And the final point, or basis for my opinion, is that the State of Montana, if you terminate an employee, the Supreme Court has said that you must—
“MR. CHRISTENSEN: Your Honor, I am going to object to any testimony of what the Supreme Court says. That is commenting on the law, and that is your bailiwick.
“THE COURT: I appreciate that. On the other hand, I think he is looking for standards to compare with. But I would tell you not to use the Supreme Court decision. If you have some knowledge of a standard, I would allow that.
“THE WITNESS: The standard in the State of Montana is that an employer, when they terminate an employee, must have a fair and honest reason for that termination. And my review indicates to me that there was, in fact, no fair and honest reason for this termination.”
BY MR. OGLE:
“Q. So, as I understand your answer to the last question, then there are five different points that led you to the conclusion that Mr. Kizer was not treated fairly in the situation. Is that right?
“A. Yes, that is correct.
“Q. Let’s discuss them one at a time, then. One of your points was that the implied covenant of good faith and fair dealing applied to this case. Is that right?
“A. Yes, that is correct.
“Q. Did you believe it was adhered to by Semitool with regard to Bob Kizer?
“MR. CHRISTENSEN: I will object to this as invading the province of the jury. They decide this question. They don’t need this man telling them what he thinks they should do.
“THE COURT: Well, certainly the mere fact that it goes to invading the province of the Jury does not prohibit the testimony. I am not sure where we are headed with this line. I have no problem to his setting forth facts that he found that might indicate in his opinion a violation of the covenant. But as to the ultimate conclusion, I think that is a Jury question and I will allow the Jury to resolve it.”
BY MR. OGLE:
“Q. I would rephrase the question, then, as to whether or not you found any facts in this particular case by the treatment of Mr. Kizer by Semitool from which you can tell in your opinion whether or not Semitool adhered to the implied covenant of good faith and fair dealing.
“MR. CHRISTENSEN: Same objection. Same question.
“THE COURT: Overruled.
“THE WITNESS: In my view, I don’t believe that Semitool did in fact adhere to the covenant
“Q. Do you believe that the termination of Bob Kizer by Semitool was in fact a legitimate reduction in force?
“MR. CHRISTENSEN: Objection; goes to the ultimate issue in the case, invades the province of the Jury and isn’t helpful to them.
“MR. OGLE: I believe an expert witness has a right to testify, Your Honor.
“THE COURT: Again, as to allowing him to give his opinions, I will allow it. I will remind the Jury the ultimate decision is up to you folks, of course, but he may give his opinion as an expert witness.
‘You will be instructed later on that; you can give it such weight as you feel it entitled.
“THE WITNESS: In my opinion, I don’t feel it was a legitimate reduction in force.”

Semitool, citing Heltborg v. Modern Machinery (1990), 244 Mont. 24, 795 P.2d 954, contends that Brown’s testimony constituted improper legal conclusions on the issues of whether Semitool breached the implied covenant of good faith and fair dealing and whether its reduction of force was legitimate. It argues that Brown’s testimony amounted to instructing the jury on how to decide the case. Kizer, on the other hand, contends that Brown’s testimony was admissible as opinions on ultimate issues of fact in accordance with Rule 704, M.R. Evid. Kizer also contends that even if Brown’s testimony constituted legal conclusions, his testimony was properly admitted by the District Court because Semitool did not make a timely and specific objection or motion to strike as required by Rule 103, M.R.Evid., and therefore, any objections to the admission of Brown’s testimony were waived.

In Heltborg, this Court considered testimony from this same expert which was substantially similar to the testimony in the present case. The defendant claimed that the plaintiff’s employment was terminated as part of a reduction in force for economic reasons. The plaintiff asserted that the defendant breached the covenant of good faith and fair dealing, was negligent in its reduction in force, and that the reduction in force was not legitimate.

In considering the expert testimony, we emphasized the distinction under Rule 704, M.R.Evid., between testimony on the ultimate factual issue, which is allowable, and testimony on the ultimate legal issue, which is not allowable. Rule 704, M.R.Evid., states that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The Commission Comments to Rule 704, M.R.Evid., state that “the Commission intends this rule to follow the existing Montana practice of not allowing the witness to give a legal conclusion or to apply the law to the facts in his answer.”

In discussing the propriety of expert legal testimony under Rule 704, we cited our decision in Hart-Anderson v. Hauck (1988), 230 Mont. 63, 748 P.2d 937, which quoted approvingly from Marx & Co., Inc. v. Diners’ Club, Inc. (2nd Cir. 1977), 550 F.2d 505, cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977), as follows:

“[S]uch testimony ‘amounts to no more than an expression of the [witness’] general belief as to how the case should be decided.’ McCormick on Evidence, § 12 at 26-27. The admission of such testimony would give the appearance that the court was shifting to witnesses the responsibility to decide the case. McCormick on Evidence, § 12 at 27. It is for the jury to evaluate the facts in the light of the applicable rules of law, and it is therefore erroneous for a witness to state his opinion on the law of the forum.”

Heltborg, 244 Mont. at 31, 795 P.2d at 958.

We held that the expert’s testimony in Heltborg was not admissible, stating:

“The testimony by Mr. Alan Brown constituted a legal conclusion on the precise issue presented to the jury, that is, whether defendant had breached the covenant of good faith and fair dealing. Moreover, he was allowed to state his opinion that defendant was negligent in carrying out its reduction in force and that such reduction was not legitimate;... Mr. Brown’s testimony was extensive, and he repeatedly stated legal conclusions which amounted to instructing the jury on how to decide the case.”

Heltborg, 244 Mont. at 32, 795 P.2d at 958.

In light of our decision in Heltborg, we agree with Semitool that Brown’s testimony in the present case constituted legal conclusions on the very issues to be decided by the jury and exceeded the scope of allowable expert testimony under Rule 704, M.R.Evid. Having so concluded, we must now consider whether Semitool waived its objection to this evidence.

In order to preserve an objection to the admission of evidence for purposes of appeal, the objecting party must make a timely objection or motion to strike and state its specific grounds. The objection must appear on the record. Rule 103, M.R.Evid. To be timely, the objection must be made as soon as the ground for the objection becomes apparent. McCormick on Evidence, (3rd. Ed. 1984), § 52 at p. 126. The objection is sufficiently specific if it is accompanied by a reasonably definite statement of the grounds for the objection. McCormick on Evidence, (3rd. Ed. 1984), § 52 at p. 128. Failure to make such an objection constitutes a waiver of the right to claim error on appeal. Moore v. Hardy (1988), 230 Mont. 158, 163, 748 P.2d 477, 481. The effect of waiver is that the evidence is treated the same as any other admissible evidence.

Kizer asserts that the first objection made by Semitool to Brown’s testimony was made after Brown rendered his opinions that Kizer’s employment was not terminated as part of a legitimate reduction in force and that Semitool violated the implied covenant of good faith and fair dealing. He also asserts that the first objection made by Semitool related only to “commenting on the law” in response to Brown’s testimony regarding what “the Supreme Court has said,” rather than that counsel’s question called for a legal conclusion which invaded the province of the jury. Kizer argues that Semitool’s failure to make a timely and specific objection constituted a waiver of the objection and rendered the opinions, as well as the subsequent discussions regarding the opinions, admissible.

Our review of the record indicates that Semitool properly preserved its objection to Brown’s testimony for purposes of appeal. After Brown’s training and qualifications and knowledge of the facts surrounding Kizer’s termination of employment were established, Kizer’s counsel asked Brown if he had formed any opinions in this case. Brown responded that, in his opinion, Kizer “was not treated fairly by the Defendant.” He further testified that there were five bases for his opinion. Bases one, two, and four related to Kizer’s termination of employment with respect to a legitimate reduction in force. Basis three involved the implied covenant and basis five involved what “the Supreme Court has said” which was objected to as “commenting on the law.” Immediately thereafter, Kizer’s counsel delved into these bases “one at a time.” It was during the discussion of these bases that counsel first asked Brown to state his opinion of whether Semitool adhered to the implied covenant of good faith and fair dealing. Semitool objected to this question as “invading the province of the jury.” Thereafter, counsel also asked Brown for the first time if he believed that the termination of Kizer’s employment was a legitimate reduction in force. Semitool objected to this question as going to the “ultimate issue” and “invad[ing] the province of the jury.”

Under these circumstances we conclude that Brown’s initial testimony and the ensuing discussion, during which Semitool raised its objections, occurred in sufficient proximity in time to render Semitool’s objections timely. We also conclude that Semitool’s objections were sufficiently specific. This Court has previously stated that expert legal opinions invade the province of the jury. In Hart-Anderson v. Hauck (1988), 230 Mont. 63, 748 P.2d 937, the plaintiff’s expert witness testified, over objection, that the defendant, State Farm Insurance Company, violated Subsections (4), (6) and (7) of § 33-18-201, MCA, (Montana’s Unfair Claims Settlement Practices Act). In holding that the district court committed reversible error in admitting the testimony, we discussed the propriety of legal opinions under Rule 704, M.R.Evid., and stated that “[the expert’s] challenged testimony, opining that State Farm violated Subsections (4), (6) and (7) of the Act invaded the province of the jury and simply instructed the jury how to decide the case.” Hart-Anderson, 230 Mont. at 72, 748 P.2d at 943, (emphasis added). Thus, Hart-Anderson, decided more than two years prior to the trial in the instant case, not only limited the scope of expert testimony but also set forth this Court’s opinion that expert legal opinions were objectionable precisely because they invaded the province of the jury.

We hold that in the present case the District Court erred in allowing Brown to render legal conclusions on the very issues to be decided by the jury. We further hold that Semitool properly objected to the admission of Brown’s testimony. We thus reverse and remand to the District Court for a new trial.

Notwithstanding our reversal, we will address the remaining two issues raised by Semitool for the court’s guidance on retrial.

III.

Did the District Court err in instructing the jury on the issue of negligence?

The District Court gave the following negligence instructions to the jury:

“INSTRUCTION NO. 9
“Every person is responsible for injury to the person of another, caused by his or her negligence.
“Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as an ordinarily careful person would act under the circumstances.
“INSTRUCTION NO. 10
“Before you can find the defendant hable, you must find the defendant’s negligence was a cause of the plaintiff’s damage.”

Citing Heltborg, Semitool contends that the court’s instructions improperly authorized the jury to decide whether Semitool was negligent in carrying out a reduction in force by suggesting that the jury could second guess Semitool’s management decision in the context of what an “ordinarily careful person” would have done “under the circumstances.” It also asserts that the instructions improperly allowed the jury to find that Semitool negligently breached the implied covenant of good faith and fair dealing.

Heltborg is distinguishable from the present case in this regard. In Heltborg the challenged jury instructions read as follows:

“Instruction No. 18:

“When the legal duty to act in good faith exists in the employment relationship, as it does in this case, then there is a duty imposed upon the employer to exercise reasonable care in carrying out decisions concerning employment. This means that there is a duty on the part of the employer to use reasonable care under the circumstances in carrying out its business decision-making.
“Instruction No. 19:
“A reduction in force can constitute a just cause for termination of employment. However, you are instructed that the employer’s right to reduce its personnel does not excuse its obligation to act fairly and in good faith or to use ordinary and reasonable care in the process and manner of termination of employment.”

Heltborg, 244 Mont. at 33-34, 795 P.2d at 959. In addition, a special verdict form specifically directed the jury to consider whether the defendant had negligently breached the implied covenant of good faith and fair dealing.

We held that the district court improperly instructed the jury on the issue of negligence, stating that the management decision to implement a reduction in force for economic reasons is not susceptible to a negligence analysis by a jury. Heltborg, 244 Mont. at 36, 795 P.2d at 961. We also held that a breach of the implied covenant of good faith and fair dealing does not involve negligent conduct, but rather involves intentional conduct. Heltborg, 244 Mont. at 37, 795 P.2d at 962.

However, we did not hold in Heltborg that there can never be a claim for negligence in the termination of the employer-employee relationship. Indeed, in other wrongful termination cases arising, as did the instant case, prior to the Wrongful Discharge From Employment Act, this Court has recognized that negligence, as a separate and distinct cause of action, can be a basis for recovery. Flanigan v. Prudential Federal Savings & Loan (1986), 221 Mont. 419, 720 P.2d 257; Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487. We have held that an employer may be liable for negligence in violating its own written employment policies (Flanigan) or for failing to make a proper investigation before discharge (Crenshaw).

Here, Semitool’s employee handbook was admitted into evidence. Kizer presented evidence at trial that Semitool violated its own employment policies and that it failed to make a proper investigation prior to discharge regarding Thompson’s assertion that Kizer was not running the machine shop efficiently. Under these circumstances, we conclude that the District Court did not err in instructing the jury on the issue of negligence.

IV.

Was there sufficient evidence to support the submission of Kizer’s case to the jury?

Semitool contends that it was imperative that Kizer offer some specific motive or reason to contradict that he was laid off as part of a reduction in force for economic reasons. It argues that, having failed to do so, Kizer failed to rebut its claim that his employment was terminated out of economic necessity.

In support of its argument, Semitool cites Cecil v. Cardinal Drilling Co. (1990), 244 Mont. 405, 797 P.2d 232. In that case, the district court granted summary judgment in favor of the employer on the basis that there was no genuine issue of material fact that the plaintiff’s termination of employment was for other than legitimate business reasons. In affirming summary judgment, we stated that:

“Here, Cecil did not offer any other motive or reason for his termination. He merely denied that the reasons were legitimate business reasons. And while the record might arguably show that it was possible for Cardinal to keep Cecil employed during the decline in oil prices, this Court cannot speculate as to what Cardinal’s real reasons may have been, if they were in fact not as claimed. Cecil has failed to meet his burden of raising a material fact issue sufficient to withstand a motion for summary judgment.”

Cecil, 244 Mont. at 410, 797 P.2d at 235.

Cecil is factually distinguishable from the present case. Cecil was governed by and decided under the Wrongful Discharge From Employment Act, §§ 39-2-901, et seq., MCA. Under the Act, an employer may discharge for good cause an employee who has completed the employer’s probationary period of employment. Section 39-2-904(2), MCA. The Act defines good cause 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.” Section 39-2-903(5), MCA. We recognized that economic conditions constituted a legitimate business reason or good cause for dismissal and held that the employer had met its burden of demonstrating that there was no genuine issue of material fact that the plaintiff was terminated for other than legitimate business reasons. Although the plaintiff asserted that he was not terminated for a legitimate business reason, he failed to present any evidence to meet his burden of raising a material fact issue. In other words, the plaintiff’s assertion that he was not terminated for legitimate business reasons was nothing more than mere denial or speculation and was insufficient to raise a genuine issue. Cecil, 244 Mont. at 409-10, 797 P.2d at 235.

On appeal from a jury verdict, the evidence in the case is viewed in a light most favorable to the prevailing party. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636. In contrast to Cecil, the evidence presented at trial in this case was sufficient to raise a reasonable jury issue as to whether Semitool acted with other than purely economic motives when it terminated Kizer’s employment. Although it is apparent that a reduction in force for economic reasons did occur, the evidence is such that the jury could legitimately infer that Kizer’s termination was not part of, or motivated by the need for, this reduction in force.

Semitool asserts that Kizer’s termination was a result of its pretermination decision to eliminate his position in an effort to reduce its overhead costs. Significantly, however, Kizer was not told that his employment was being terminated as part of a company-wide reduction in force for economic reasons until after he filed the lawsuit against Semitool. According to Kizer’s undisputed testimony, Thompson told him on the day his employment was terminated that he was being “let go” because the machine shop was operating at thirty percent less efficiency than the previous year and because he was not a “journeyman machinist.” Thompson himself testified that he terminated Kizer’s employment because of rising costs in Kizer’s areas of responsibility and because Kizer lacked technical expertise at the machine shop level. Evidence at trial indicated that Kizer was frequently promoted and that he never received an unsatisfactory job performance evaluation while employed with Semitool. In addition, the evidence established that Kizer had issued memos to his supervisors offering suggestions on how to increase efficiency in the machine shop, including the suggestion to purchase a new lathe. Prior to Kizer’s termination, his suggestions were apparently not acted upon. However, shortly after Kizer’s termination, Semitool purchased the lathe at a cost of $86,000. In our view, the jury could have relied upon this evidence and concluded that Kizer was not terminated for purely economic reasons.

In addition, the evidence established that approximately twenty-six people were laid off around the time of Kizer’s termination. Of these twenty-six people, twenty-five were rehired or their positions were refilled because the employees had found other employment. The only person who was not rehired or whose position was not refilled was Kizer. Semitool argues that Kizer’s management position was eliminated. However, Semitool’s organizational charts showing management before and after Kizer’s termination were offered into evidence. The exhibits indicated that prior to Kizer’s termination there were ten management positions; at the time of trial there were eleven people filling the same areas of responsibility. Although Thompson testified that other employees had changed positions within the company in the past, he never discussed with Kizer the possibility of moving to another position. He further testified that he never requested his subordinates to keep Kizer in mind for job openings after his termination because “that would have been stepping out of line.” Contrary to Thompson’s testimony, Semitool’s Chief Financial Officer, Larry Viano, testified that Kizer could have moved to another position and that Semitool explored that possibility. However, Viano testified that Semitool never discussed with Kizer the possibility of his moving to another position.

We hold that sufficient evidence was presented to raise a factual issue as to whether Semitool acted with other than purely economic motives when it terminated Kizer’s employment. Thus, the District Court properly submitted Kizer’s case to the jury.

To summarize our holding in this case, the District Court did not err in instructing the jury on the issue of negligence and submitting the case to the jury. The court did err, however, in allowing Kizer’s expert witness to render legal conclusions that Semitool breached the implied covenant of good faith and fair dealing and that Semitool’s reduction in force was not legitimate. Having no way of determining to what degree Brown’s testimony influenced the jury’s decision in this case, we cannot conclude that this error was harmless. We therefore reverse and remand to the District Court for a new trial.

Reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and WEBER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with those parts of the majority’s opinion which uphold the timeliness of Semitool’s notice of appeal, affirm the District Court’s instructions on the issue of negligence, and conclude that there was sufficient evidence to submit the plaintiff’s case to the jury.

I dissent from that part of the majority’s opinion which concludes that there was a timely and appropriate objection to the testimony of Alan Brown, and which reverses the verdict in favor of the plaintiff on the basis of that objection.

In Heltborg v. Modern Machinery (1990), 244 Mont. 24, 795 P.2d 954, we distinguished between expert opinions which express a factual conclusion, and expert opinions which express a legal conclusion. We held that the former were admissible even when they embrace an ultimate issue of fact. Heltborg, 795 P.2d at 958. We held that Brown could not express his opinion that defendant had breached the covenant of good faith and fair dealing because that testimony amounted to a legal conclusion. Heltborg, 795 P.2d at 959.

In this case, Brown expressed what we previously characterized as a legal conclusion on three occasions. When first asked for his general opinions in this case, he expressed the opinion that plaintiff’s termination was not a normal reduction in work force and that it violated the implied covenant of good faith and fair dealing. There was no objection to those opinions, nor any motion to strike them. Later during that same answer the witness began to discuss decisions of this Court. That testimony was objected to on a proper basis and the witness was instructed to avoid discussing the law. He completed his answer without further discussion of the law.

Later in his testimony, he was asked specifically whether in his opinion Semitool violated the covenant of good faith, and whether their termination of the plaintiff was a legitimate reduction in force. His answers to these questions are the basis for the majority’s reversal of the jury verdict in this case. The majority concludes that his answers to these questions were impermissible legal conclusions pursuant to our decision in Heltborg. However, neither of these questions was objected to on that basis. Both were objected to for the reason that they went to the ultimate issue in the case and invaded the province of the jury.

[F]or the reason that said opinion is without adequate foundation, invades the province of the trier of fact, and is not helpful to the trier of fact in determining the ultimate issue involved in this case, pursuant to Rules 701 and 704, Montana Rules of Evidence.

Nowhere in the motion in limine did defendant state that Brown’s opinion was objectionable because it expressed a legal conclusion.

Pursuant to Rule 704, M.R.Evid., and our previous decision in Heltborg, the fact that expert opinion testimony addresses the ul~ tímate issue in the case is not a basis for excluding it. Rule 704 specifically provides:

“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

We have discussed the adequacy of the kind of objection made in this case previously. In State v. Howard (1981), 195 Mont. 400, 404, 637 P.2d 15, 17, we stated in language clearly relevant to this case:

“The objection made by defense counsel to the question calling for the doctor’s opinion on intent was that it ‘invades the province of the jury.’ This objection is not adequate to justify exclusion of the testimony. It is merely another way of saying that the testimony embraces an ultimate issue to be decided by the jury. Rule 704 of the Montana Rules of Evidence provides:
‘Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.’
“This rule reflects long-established law in Montana. State v. Petko (1978), 177 Mont. 229, 581 P.2d 425; McGuire v. Nelson (1975), 167 Mont. 188, 536 P.2d 768; Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428; State v. Campbell (1965), 146 Mont. 251, 405 P.2d 978; State v. Shannon (1933), 95 Mont. 280, 26 P.2d 360; Kelly v. John R. Daily Co. (1919), 56 Mont. 63, 181 P. 326. Thus, the fact that the doctor’s opinion on intent went to an ultimate issue is not a basis for its exclusion.” [Emphasis added.]

The fact that Brown’s testimony was not objected to for an appropriate reason is significant because Rule 103(a)(1), M.R.Evid., provides as follows:

“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... .”

By requiring that the specific ground for the objection be stated, it is implicit from Rule 103 that the objection must correctly state the reason for which the testimony objected to is inadmissible.

Rule 103 is extremely important to attorney practitioners and trial judges in the district courts. Its purpose is obvious. It is simply not fair to reverse a verdict for either party based upon error which was not brought to the attention of the district judge and the other party. For one thing, the district judge should have an opportunity to consider the objection in light of the proper reason for the objection. The rule presumes that if he has that opportunity he is more likely to make a correct ruling.

Just as importantly, the party offering the evidence should be given the opportunity to consider whether the evidence was inadmissible for a proper reason, and should have the option of withdrawing the evidence or restating the question to avoid the possibility of error. Neither the District Judge nor the plaintiff’s attorney were given that opportunity in this case because the defendant’s objection to the expert’s testimony did not identify an appropriate basis for excluding the testimony.

In concluding that the defendant’s objection was properly stated in this case, the majority rationalizes that expert legal opinions invade the province of the jury. However, the majority’s opinion demonstrates a lack of understanding about the division of responsibility between juries and judges.

Juries arrive at factual conclusions, not legal conclusions. Judges arrive at legal conclusions and instruct the jury on the law. The only “province of the jury” was to resolve the facts in this case. Rule 704 permits testimony from a qualified expert regarding the ultimate factual issue. Therefore, an objection which states that the plaintiff’s question invades the ultimate province of the jury does not state a proper basis for excluding the expert testimony.

What the majority has done in this case is extremely unfair to the trial court and the plaintiff and will create uncertainty in all future trials because of the possibility that legal issues can be raised and scrutinized on appeal that were never raised during trial. No party can be assured that he or she prevailed based on those issues that were addressed during the trial court proceedings.

I conclude that there was not a proper objection to Brown’s testimony. For that reason, any objection was waived and the verdict for the plaintiff should be affirmed.

JUSTICES HUNT and McDONOUGH concur in the foregoing concurring and dissenting opinion of JUSTICE TRIEWEILER.

       Prior to trial the defendant also filed a motion in limine to exclude certain opinions of Brown. However, the basis stated in that motion was not an appropriate basis for excluding the testimony. The reason given was as follows: