                            NO.     95-486
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1996


ANITA NANINI,
          Plaintiff and
     v.
NINTH JUDICIAL DISTRICT
YOUTH GUIDANCE HOME,
          Defendant and



APPEAL FROM:    District Court of the Ninth Judicial District,
                In and for the County of Glacier,
                The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                John F. Lynch; Lynch & Chisholm, Great Falls,
                Montana
          For Respondent:
                Thane P. Johnson; Werner, Epstein & Johnson,
                Cut Bank, Montana


                                  Submitted on Briefs:   March 14, 1996
                                              Decided:   May 29, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to Montana Law Week,           State   Reporter   and   West   Publishing

Company.

     Anita Nanini (Nanini) appeals from the judgment entered on the

order of    the Ninth Judicial          District   Court,      Glacier   County,
granting    the   Ninth    Judicial     District    Youth Guidance        Home's

(Guidance Home)     motion    for   summary    judgment.       We reverse and
remand.

     The sole issue on appeal is whether the District Court erred

in granting the Guidance Home's motion for summary judgment.

     Nanini was employed as a houseparent by the Guidance Home, a
nonprofit   corporation,     from July of 1990 until June of 1993.           She

was earning $4.35 per hour at the time the Guidance Home terminated

her employment.

     On June 20, 1994, Nanini filed a complaint alleging that the

Guidance Home wrongfully discharged her from employment on or about

June 30, 1993.     The Guidance Home answered Nanini's complaint and

alleged, as an affirmative defense, that Nanini's last day of work
was June 12, 1993, and, therefore, that her action was barred by

the l-year statute of limitations contained in § 39-2-911(l),              MCA.
     A scheduling     conference was held and a scheduling order


                                        2
issued.     Discovery ensued.
        On April 6,   1995,     the Guidance Home moved for summary
judgment.     The basis for the motion was that Nanini's last day of

work was June 12, 1993,       that her cause of action accrued on that
day and,     therefore,   that    the       5   39-2-911(l),       MCA,   statute of

limitations began to run on that day.                 Because   Nanini's   complaint

was not filed until June 20, 1994, the Guidance Home contended that

the action was barred by the statute of limitations as a matter of

law.     The parties fully briefed the motion.

        On September 8, 1995, the District Court granted the Guidance

Home's motion for summary judgment.              The court determined that no

genuine issues of material fact existed regarding the June 12,

1993,    date of termination and, therefore, that the Guidance Home

was entitled to judgment as a matter of law because Nanini's action

was barred by the l-year statute of limitations.                    Nanini appeals.

        Did the District Court err in granting the Guidance
        Home's motion for summary judgment?

        A motion for summary judgment will be granted by a district

court

        if    the    pleadings,   depositions,    answers    to
        interrogatories, and admissions on file, together with
        the affidavits, if any, show that there is no genuine
        issue as to any material fact and that the moving party
        is entitled to a judgment as a matter of law.

Rule 56(c), M.R.Civ.P.        Our review of a district court's grant of

summary judgment is de nova; we apply the same Rule 56(c) standards

as used by the district court.          Redfern       v. Montana Muffler (1995),

271 Mont. 333, 335, 896 P.2d 455,               456    (citation     omitted).   The

initial burden is on the moving party to establish that no genuine

                                        3
issue of material fact exists; only when       that   burden   has   been   met

does the burden shift to the party opposing the motion to establish

otherwise.     Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441,

444,   872 P.2d 330,   332 (citations omitted).

       Issues involving application of a statute of limitations to

bar an action often can be resolved as a matter of law.          Indeed, we

resolved the statute of limitations issue as a matter of law in the

context of a wrongful discharge action in Redfern.             Redfern, 896
P.2d at 457.     However, where facts necessary to a determination of

the statute of limitations question are disputed, the question must

be resolved by the trier of fact rather than as a matter of law.

See Werre v. David (Mont. 1996), 913 P.2d 625, 630, 53 St.Rep.          187,

189.

       Here,   the Guidance Home's statute of limitations-based motion

for summary judgment was premised on its position that Nanini had

been discharged on June 12, 1993.       The Guidance Home contends that

Redfern controls and mandates the conclusion here that Nanini's

action is barred by the l-year statute of limitations contained in

s 39-2-911(l), MCA. Nanini argues that, unlike Redfern, a genuine

issue of material fact exists in this case which precludes summary

judgment.

       In Redfern, we observed that      "[tlhe facts necessary to our

resolution of this appeal are undisputed."        Redfern,      896 P.2d at

456.    The undisputed facts were that the employer had terminated

Redfern's employment effective at the end of his October 24, 1992,

shift and paid him two days later for the previous two weeks' work

                                    4
plus five days of earned vacation time; we merely applied the law
to those undisputed facts and concluded that Redfern's                               "date   of

discharge" was October 24, 1992.                Redfern,       896 P.2d at 456-51.           We

rejected      Redfern's    contention   that      the        five    days'     vacation      pay

constituted      "earned    compensation" for that period after his last

work shift and,        therefore,    extended          his    discharge      date,     on the

basis that the vacation pay was a fringe benefit which had been

earned prior to the date of his discharge.                          Redfern,    896 P.2d at
457.

        It is clear that Redfern would be applicable here, if at all,

only in the event no genuine issue of material fact exists as to

Nanini's date of discharge and termination,of employment.                            Thus, we

begin by reviewing the record in that regard to determine whether

the first summary judgment prong--absence of a genuine issue of

material   fact--is    met.

        The   record      reflects   that       the     Guidance       Home's     Board of

Directors (Board) met on June 9, 1993, and voted to terminate

Nanini's      employment.     The Board ordered Kathy Black (Black), the

director of the Guidance Home,              to dismiss Nanini immediately and

pay her two weeks' severance pay.                 Black carried out the Board's

orders, and gave Nanini a check for the severance pay, on June 12,

1993.      Nanini did not perform any work at the Guidance Home after

June 12, 1993, and, indeed, applied                   for    unemployment       compensation

stating that June 12 was her last day of employment.

        On the basis of this record, the Guidance Home met its initial
burden of establishing the absence of a genuine issue of material


                                            5
fact regarding the date of Nanini's discharge.       Thus,   the burden
shifted to Nanini to come forward and establish the existence of

such a genuine issue of fact.

        Nanini relies on a letter from Black, on official letterhead

and signed by Black in her capacity as director of the Guidance

Home,     stating that Nanini   "was an employee of the Ninth Judical

[sic1 District Youth Guidance Home from July 23, 1990 to June 30,

1993. "      In addition,   Black's deposition testimony appears to

indicate that Nanini was paid through the end of June, 1993; that
is, that Nanini remained on the Guidance Home's payroll until the

end of June and was compensated for not working during the final

two weeks of that month.         This evidence is sufficient to meet

Nanini's burden of establishing a genuine issue of material fact

regarding when her employment terminated.

        We note the Guidance Home's assertion that, in her deposition,

Black "agrees" with Nanini's reliance on her letter only "to the

extent that the date of discharge was the 12th day of June, 1993."

This assertion does not negate the contents of Black's letter, but

merely highlights the existing dispute over facts relating to

Nanini's date of discharge and termination of employment.          Such

factual disputes necessary to the determination of when Nanini's

employment terminated and, thus, whether the statute of limitations

has run, can be resolved only by the trier of fact.     See Werre, 913

P.2d at 630.      On this basis, we conclude that the District Court

erred in determining that no genuine issue of material fact existed

and that the Guidance Home was entitled to judgment as a matter of

                                     6
law.

       As a final note, we take this opportunity to caution counsel

about the state of the record on appeal in this case.                 Both parties
have cited this Court to portions of depositions and deposition

exhibits which are not part of the record.                   The depositions were
not attached in their entirety to either party's submissions to the

District       Court,     no ex parte requests           to file the depositions

pursuant to Rule 5(d), M.R.Civ.P., are contained in the record and
the depositions were not filed.               Notwithstanding, both counsel seem

to assume that the depositions and deposition exhibits are part of

the record on appeal and, as a result, available for our review;

that is not the case.             Nor,    of course,     are counsel permitted to

enlarge the scope of the record on appeal merely by attaching

matters not    of record as appendices to their appellate briefs.
       Here,    neither party objected to the other party's actions in

this regard and this Court has not considered matters not part of

the record on appeal in reaching its decision.                     For purposes of
future cases, however, we caution counsel about the necessity of

ensuring that the record on appeal contains all matters needed to

support    their    clients'      positions       and about our consistency in

striking, on            request   of     an   opposing    party,   appendices--and

references thereto--which are not part of the record on appeal.
       Reversed and remanded for further proceedings consistent with

this opinion.




                                              7
we concur:



        Chief Justice
                                          May 29, 1996

                                  CERTIFICATE (3F SERVICE

I heI.eby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


John F. Lynch
Lynch & Chisholm
Box 2265
Great Falls MT 59403-2265

Thane P. Johnson
Werner, Epstein & Johnson
P.O. Box 428
Cut Bank MT 59427-0428

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                                                       SMI’I’H
                                                    CLERK OF THE SUPREME COURT
                                                  STATE OF MONTANA
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