                                          No. 02-472

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2003 MT 96N


BARBARA FLETCHER,

              Plaintiff and Appellant,

         v.

PARK COUNTY,

              Defendant and Respondent.



APPEAL FROM:         District Court of the Sixth Judicial District,
                     In and for the County of Park, Cause No. DV-01-105,
                     The Honorable Mark L. Guenther, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     John Frohnmayer, Attorney at Law, Bozeman, Montana

              For Respondent:

                     Michael Dahlem, Attorney at Law, Bigfork, Montana


                                                  Submitted on Briefs: November 14, 2002

                                                            Decided: April 23, 2003
Filed:


                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2      Barbara Fletcher (“Fletcher”), a former employee of Park County, Montana, filed a

claim against Park County for wage and hour violations. The District Court granted Park

County’s motion for summary judgment, ruling that her claim was barred by the applicable

statute of limitations. Fletcher appeals. Affirmed in part, reversed in part and remanded for

proceedings consistent with this Opinion.

¶3     We address the following issues on appeal:

¶4     1. Did the District Court err when it concluded that Fletcher’s claim was barred by

the statute of limitations?

¶5     2. Did the District Court err when it concluded no issue of material fact existed

regarding an alleged waiver of a statute of limitations defense?

                                     BACKGROUND

¶6     Barbara Fletcher was employed by Park County (“County”) from March 1997 until

May 2001. On February 7, 2000, Fletcher filed a wage claim against the County with the

Montana Department of Labor and Industry, alleging she was not paid certain wages to

which she was entitled. The claim was dismissed and Fletcher appealed, requesting an


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administrative hearing pursuant to § 24.16.7537, ARM. Fletcher’s claim was transferred to

the Hearing Bureau, Legal/Centralized Services Division on February 27, 2001. Pursuant

to § 39-3-216, MCA, the matter was then referred to mediation prior to scheduling of the

administrative hearing.

¶7      After the March 29, 2001, mediation session, the County concluded that Fletcher had

not been paid for three holidays she worked in 1999 and 2000. On September 13, 2001, the

County paid Fletcher $346.76 for the aforementioned holidays.

¶8      Fletcher filed a complaint with the District Court on September 24, 2001. She claims

the County failed to pay her on dates ranging from January 1, 1998, through January 11,

2000.

                                STANDARD OF REVIEW

¶9      We review a district court's grant of summary judgment de novo, applying the same

evaluation under Rule 56, M.R.Civ.P., as the district court. Vivier v. State Dept. of Transp.,

2001 MT 221, ¶ 5, 306 Mont. 454, ¶ 5, 35 P.3d 958, ¶ 5.

                                        DISCUSSION

                                        ISSUE ONE

¶10     Did the District Court err when it concluded that Fletcher’s claim was barred by the

statute of limitations?

¶11     Fletcher filed her claim against the County on September 24, 2001. She alleged the

County failed to give her holiday pay she earned. She alleges violations spanning from

January 1, 1998, to January 11, 2000.


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¶12    Section 39-3-206, MCA, provides for a penalty for employers who fail to pay wages

as required by statute. Section 39-3-207, MCA, defines the period within which an

employee may recover wages and penalties. The Montana Legislature amended § 39-3-207,

MCA, in 1999. Prior to 1999, the statute stated, in relevant part:

       Any employee may recover all such penalties as are provided for in the
       violation of 39-6-206 which have accrued to him at any time within 18 months
       succeeding such default or delay in the payment of such wages.

Section 39-3-207, MCA (1997). In other words, the statute provided an 18-month statute of

limitations for claiming a statutory penalty, but was silent as to a deadline for claiming

unpaid wages. The current version of § 39-3-207, MCA, as amended in 1999, provides that

“[a]n employee may recover all wages and penalties provided for the violation of 39-3-206

by filing a complaint within 180 days of default or delay in the payment of wages." The

effective date of the current statute was April 23, 1999.

¶13    In its Order granting summary judgment in favor of the County, the District Court

applied the 18-month statute of limitations to Fletcher’s claims for wages and statutory

penalties that accrued prior to April 23, 1999. The District Court reasoned that a complaint

for the pre-1999 claims would have had to have been filed by October 23, 2000, 11 months

before she filed her complaint. As for her claims which arose after April 23, 1999, the

District Court applied the 180-day statute of limitations instituted in § 39-3-207, MCA

(1999), and concluded the statute of limitations had also expired as to those claims.

¶14    Fletcher claims that the District Court erred by ruling that § 39-3-207, MCA (1997),

establishes a period of 18 months from the default or delay for the recovery of her pre-1999

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wage claim. On appeal, both Fletcher and the County agree that § 39-3-207, MCA (1997),

is silent regarding a limitation for filing wage claims; it only establishes a limitation

regarding penalties for default or delay.

¶15    The parties disagree, however, on what statute of limitations should apply to the pre-

1999 wage claims. We addressed a similar issue in Craver v. Waste Mgt. Partners of

Bozeman (1994), 265 Mont. 37, 874 P.2d 1 (overruled on other grounds by In re Estate of

Lande, 1999 MT 179, 295 Mont. 277, 983 P.2d 316). In Craver we concluded that it was

necessary to borrow a limitation period for wage claims from another statute since no

specific statute of limitation existed at the time for wage claims. We adopted the 5-year

limitation period found in § 27-2-202(2), MCA, which applies to contracts, because an

employment relationship is contractual in nature. Craver, 265 Mont. at 40-41, 874 P.2d at

3. With regard to any penalty claimed, it is clear that such claims must be filed within 18

months from the default or delay. Craver, 265 Mont. at 45, 874 P.2d at 5.

¶16    The County argues that Craver does not control the present facts because Fletcher's

claim is based on a statutory entitlement to holiday pay. Therefore, the claim is not

contractual but statutory. The County further argues that this case is controlled by our

decision in Teamsters v. Cascade County School District No. 1 (1973), 162 Mont. 277, 511

P.2d 339, where we held the applicable statute of limitations for a wage claim by a

nonteaching school district employee for paid vacation leave was 2 years because the

entitlement was created by statute. See, § 27-2-211(1)(c), MCA.




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¶17    Our review of Teamsters reveals that the statute of limitations was not an issue in the

appeal and our reference to a 2-year limitation was dicta. In light of our clear and

unequivocal statement in Craver, we agree with Fletcher that the 5-year statute found in §

27-2-202(2), MCA, controls for her wage claims while the 18-month statute found in § 39-

3-207, MCA (1997), controls her claims for penalties.

¶18    We next turn to Fletcher's claims that are controlled by the 1999 revisions of § 39-3-

207, MCA. Fletcher argues that the County delayed paying her, in the very least as to the

$374.76 payment made on September 13, 2001. Fletcher focuses on the statutory language

which provides that the complaint must be filed “within 180 days of default or delay in

payment of the wages.” Section 39-3-207, MCA (emphasis added). Since Fletcher filed her

complaint on September 24, 2001, just eleven days after the payment, she urges us to

conclude her complaint was filed well before the expiration of the 180-day statute of

limitations.

¶19    The County responds by again directing us to Craver. In Craver we held that a

contractual wage claim accrues when the “employer's duty to pay the employee matures and

the employer fails to pay the employee.” Craver, 265 Mont. at 44, 874 P.2d at 5. The

County argues that the insertion of “delay” in the statute was for purposes of calculating the

penalty. Any other interpretation would make it difficult to see how the Department of

Labor and Industry could determine an appropriate penalty. We agree with the County. It

is clear the word “delay” was included in the statute for purposes of computing the penalty.

Therefore, since none of Fletcher's claims are within 180 days of September 24, 2001, we


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agree with the County that as to her claims that accrued after April 23, 1999, such claims are

time-barred.

¶20     Fletcher next argues that the September 13, 2001, payment by the County of $374.76

revives the statute of limitations pursuant to § 27-2-409, MCA. Section 27-2-409, MCA,

states, in relevant part:

       (1) An acknowledgment or the part payment of a debt is sufficient evidence to
       cause the relevant statute of limitations to begin running anew.
       (2) An acknowledgment must be contained in some writing signed by the party
       to be charged thereby.

In response, the County argues that the payment did not constitute an acknowledgment or

partial payment of a larger debt; it contends the payment constituted the full amount due to

Fletcher.

¶21    We note, however, that Fletcher did not present her “revival” theory to the District

Court until she filed her Motion to Alter or Amend Judgment based upon Rule 59(g),

M.R.Civ.P., after the District Court had entered judgment in favor of the County. In Nelson

v. Driscoll (1977), 285 Mont. 355, 360-61, 948 P.2d 256, 259, we stated that despite the fact

that Rule 59, M.R.Civ.P., does not identify any specific grounds for a motion to alter or

amend judgment, commentators have identified four areas where parties have had success

in their pursuit of such motions: (1) to correct manifest errors of law or fact upon which the

judgment was based; (2) to raise newly discovered or previously unavailable evidence; (3)

to prevent manifest injustice resulting from, among other things, serious misconduct of

counsel; or (4) to bring to the court’s attention an intervening change in controlling law.



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¶22    In Nelson, we also looked to federal cases interpreting the federal counterpart to

Montana’s Rule 59, M.R.Civ.P. We stated, “A motion to alter or amend is ‘not intended

merely to relitigate old matters nor are such motions intended to allow the parties to present

the case under new theories.’” Nelson, 285 Mont. at 360-61, 948 P.2d at 259 (citing Diebitz

v. Arreola (E.D.Wis. 1993), 834 F.Supp. 298, 302).

¶23    Fletcher essentially raised a new theory with the District Court when it presented the

“revival” argument in its Motion to Alter or Amend Judgment. As we explained in Nelson,

this practice of raising new issues in such a motion is not allowed, nor is it permitted on

appeal. Therefore, we decline to entertain Fletcher’s “revival” argument on its merits.

                                        ISSUE TWO

¶24    Did the District Court err when it concluded no issue of material fact existed

regarding an alleged waiver of a statute of limitations defense?

¶25    Fletcher also argues that summary judgment should have been precluded because a

genuine issue of material fact exists. She contends the County agreed to waive the statute

of limitations, an allegation the County denies.

¶26    A district court may grant a summary judgment motion when there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of law. Rule

56(c), M.R.Civ.P. This Court's standard of review of a summary judgment motion is the

same as that of the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431,

849 P.2d 212, 214. The moving party must establish that there is a “complete absence of any

genuine issue of material fact.” D'Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d


                                              8
919, 924. While the initial burden is on the movant, the non-moving party must then

produce some evidence which shows a genuine issue of fact is in question. This can be done

through sworn testimony or affidavits. First Security Bank of Anaconda v. Vander Pas

(1991), 250 Mont. 148, 152, 818 P.2d 384, 386. Mere conclusory or speculative statements

will not raise a genuine issue of material fact. Anderson v. Burlington Northern, Inc. (1985),

218 Mont. 456, 462, 709 P.2d 641, 645. In Palin v. Gebert Logging, Inc. (1986), 220 Mont.

405, 407, 716 P.2d 200, 202, we stated, “summary judgment is proper when the party

opposing the motion fails either to raise or to demonstrate the existence of the genuine issue

of material fact, or to demonstrate that the legal issue should not be determined in favor of

the movant.”

¶27    In the District Court, Fletcher submitted an affidavit dated January 11, 2002, in

support of her brief opposing the County’s motion for summary judgment. In ¶ 7 of the

affidavit, Fletcher states:

       When I began negotiating with the County on these issues, both the County
       and I agreed that the Statute of Limitations would be waived during the time
       that we were negotiating. The County by its Motion herein, has reneged upon
       and violated that agreement.

¶28    The first sentence of ¶ 7 of Fletcher’s affidavit is sufficient to preclude summary

judgment. It shows a genuine issue of material fact exists for the finder of fact to determine.

¶29    The County argues that Fletcher’s statement does not satisfy the requirements of Rule

56(e), M.R.Civ.P., because it is not based on personal knowledge. This assertion is




                                              9
nonsensical. If Fletcher and the County entered into an agreement, as Fletcher purports is

the case, then her statement necessarily must be based upon personal knowledge.

¶30    The County argues further that summary judgment was proper because Fletcher’s

“waiver assertion was clearly disputed by the County in an affidavit executed . . . on April

19, 2002 . . . .” This statement shows that the County misunderstands the essence of

summary judgment. Through this statement, the County demonstrates that even it believes

a material fact is in dispute, which by definition means summary judgment should not have

been granted.

¶31    Affirmed in part, reversed in part and remanded for proceedings consistent with this

Opinion.

                                                        /S/ JIM REGNIER


We Concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE




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