                                             NO.    87-410

                 I N THE SUPREME COURT OF THE STATE O F MONTANA

                                                   1988




WILLIAM G .     MYERS,   JR.,

                   P l a i n t i f f and A p p e l l a n t ,
         -vs-

DEPARTMENT O F AGRICULTURE,
STATE O F MONTANA,

                   D e f e n d a n t and R e s p o n d e n t .




APPEA,L FROM:      D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e C o u n t y of F l a t h e a d ,
                   T h e H o n o r a b l e L e i f E r i c k s o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

         For Appellant:

                   Hash, O'Brien & B a r t l e t t ;             James C B a r t l e t t , K a l i s p e l l ,
                   Montana

         F o r Respondent :

                   Norman C. P e t e r s o n , A g e n c y L e g a l S e r v i c e s       Bureau,
                   Helena, Montana




                                                   S u b m i t t e d on B r i e f s :   A p r i l 28,     1988

                                                      Decided:         June 13, 1 9 8 8

Filed:   &W
          U
                33-

                                                tp,
                                                   Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Mr. Myers filed suit against the defendant in the Elev-
enth Judicial District, Flathead County, alleging wrongful
termination of employment and seeking unpaid wages. Prior to
trial the court granted summary judgment for the defendant on
the issue of unpaid wages. The jury returned a verdict for
Mr. Myers and awarded him $850.00.    The District Court en-
tered judgment for Mr. Myers but offset the award by deduct-
ing $671.05 awarded earlier by a grievance panel and $178.95
for unemployment benefits paid to Mr. Myers for the period
following his termination. The court refused to award attor-
ney fees or costs to Mr. Myers. Mr. Myers appeals the deci-
sion to offset the award and the decision not to award fees
and costs.   We affirm.   We consider the following issues:
     1. Did the District Court err by ordering the offset
for previous unemployment benefits?
     2. Did the District Court err by granting partial
summary judgment on the statutory wage claim?
     3. Was plaintiff entitled to -recover penalties, attor-
ney fees, and costs?
     Mr. Myers has not filed a trial transcript on appeal,
although he did file a transcript of the hearing on his
motion to amend the judgment or for new trial. Consequently,
the only facts before us are those contained in the district
court file. The following facts were stipulated to the lower
court prior to trial:

          1. The plaintiff was hired by the Department
     of Agriculture on February 14, 1984, as a potato
     inspector. He was paid $5.347 per hour.
          2. Training began on February 22, 1984. The
     plaintiff completed the training necessary to be an
     inspector and received the necessary state and
    federal certifications. He was licensed on March
    24, 1984.
         3. The Department of Agriculture received a
    letter from Orrin R. Streich dated April 9, 1984,
    stating in part, "I absolutely refuse to have Bill
    Myers inspecting on my farm."
         4. The plaintiff was no longer assigned to
    Orrin Streich's farm following receipt of the
    letter of April 9, 1984. However, the plaintiff
    continued working at the Snell farm.
         5. April 13, 1984, was the plaintiff's last
    day of work as a potato inspector.
         6. Some potato inspection of crops occurred
    subsequent to April 13, 1984.
         7. Following plaintiff's      separation  from
    employment, Dayle Mercier completed the inspection
    on the Streich farm and smaller farms continued to
    be inspected by other inspectors.
         8. For the 1984 season, Bill Myers worked a
    total of 162.5 hours; Linda Lidstrom worked a total
    of 368.5 hours; and Dayle Mercier worked a total of
    78.5 hours.
     Mr. Myers contended he had been told by his supervisor
that he would work approximately as many hours as Linda
Lidstrom would work.   His employer, Department of Agricul-
ture, stated that he was terminated because there was no
further inspection work to do in his area. Mr. Myers be-
lieved that no just cause existed for his termination; he
therefore requested that a grievance panel conduct adminis-
trative review of his termination.     The record does not
contain the grievance panel's decision.   However, the Dis-
trict Court, in its judgment, refers to the panel's decision:

         Specifically, the grievance panel recommended
    on December 20, 1984 that Mr. Myers be compensated
    in the amount of $671.05.      A warrant in that
    amount, minus costs, was sent to Mr. Myers on
    January 2, 1985 by Keith Kelly, Director of the
    Department of Agriculture.
     Dissatisfied with the panel's decision,      Mr.   Myers
brought this action in district court.
     Did the District Court err by ordering the offset for
previous unemployment benefits?
     After his termination from employment, Mr. Myers re-
ceived $184.00 in unemployment benefits from the Department
of Labor. The District Court ordered that the jury award of
$850.00 be offset by the grievance panel award of $671.05 and
unemployment benefits received.     The court explained its
reasoning:

          The parties agreed prior to trial, and it was
     consistent with the claim made by Plaintiff to
     Department of Agriculture in his Employee Grievance
     Form, that the amount awarded to Plaintiff for lost
     wages should be offset by (1) the amount of the
     grievance panel award and (2) by the amount of
     unemployment benefits received "so that he is made
     whole."   This claim is in accord with generally
     accepted principles of law as to damages and is
     adopted by the Court.    Hence, the offset by this
     Court for the grievance award of $671.05 and unem-
     ployment compensation for the period of April 14,
     1984 through May 8, 1984.
Mr. Myers has not refuted the lower court's statement that
the parties agreed to the offsets prior to trial. Without a
transcript, we may not question the lower court's reliance
upon such an agreement.   Therefore, we affirm the District
Court's judgment and order that the jury award be offset by
the grievance panel award and by unemployment benefits col-
lected by Mr. Myers.
                             I1
     Did the District Court err by granting partial summary
judgment on the statutory wage claim?
     Prior to trial, the defendant moved for partial summary
judgment on grounds that Mr. Myers had no basis for a wage
claim pursuant to Title 39, Chapter 3, Part 2, MCA.       Mr.
Myers responded by contending that had he not been discharged
he would have worked for the remainder of the potato season
and would have collected wages for the whole season. Those
lost wages, he argued, constituted "wages" as anticipated by
§§ 39-3-204 through -206, MCA. Those statues read, in perti-
nent part, as follows:

    39-3-204. Payment of wages generally.    (1) Every
    employer of labor in the state of Montana shall pay
    t o each employee the wages earned by such employee
    . . . and no person for whom labor has been per-
    formed may     withhold  from any employee any
    wages earned or unpaid for a longer period than 10
    business days after the same are due and payable.


    39-3-205. Payment of wages when employee separated
    employment prior to payday. (1) Except as provid-
    ed in subsection (2), whenever any employee is
    separated from the employ of any employer, all
    unpaid wages of such employee shall become due and
    payable within 3 days, except for employees of the
    State of Montana and its political subdivisions who
    would be paid on the next regular payday for the
    pay period during which the employee was separated
    from employment or 15 days from the date of separa-
    tion from employment, whichever occurs first  ...
    39-3-206. Penalty for failure to pay wages at times
                                                 ..
    s~ecifiedin law. Anv em~lover. as such e m ~ l o ~ e r
    ii defined in this part, who fails to pay any of
                              &   .   L   ,         A




    his employees as provided in this part or violates
    any other provision of this part shall be guilty of
    a misdemeanor.   A penalty shall also be assessed
    against and paid by such- employer and become due
    such employee as follows: a sum equivalent to the
    fixed amount of 5% of the wages due and unpaid
    shall be assessed for each day, except Sundays and
    legal holidays, upon which such failure continues
    after the day upon which such wages were due,
    except that such failure shall not be deemed to
    continue more than 20 days after the date such
    wages were due. (Emphasis added. )
     The District Court granted partial summary judgment for
the defendant. The court reasoned that the damages sought by
Mr. Myers were not "wages" within the meaning of the statute:

     "Wages" within the scope of Title 39, Chapter 3,
     are wages actually earned, and not wages which
     could have been earned but for an allegedly wrong-
     ful discharge.  . . .Consequently, as a matter of
     law, Plaintiff has no basis for a wage claim
     against defendant.
Although this question has never been considered in Montana,
the lower court found the reasoning in Cumo v. Rhines (1982),
198 Mont. 279, 645 P.2d 948, to be "instructive". In that
case, Mr. Cumo entered an oral employment contract with Mr.
Rhines and Sound West, Inc. Relying upon that agreement, Mr.
Cumo moved his family from Minnesota to Missoula, Montana, to
begin employment. Soon after the move, Mr. Rhines informed
Mr. Cumo that he did not have a job at Sound West. Mr. Cumo
sued for breach of employment contract. The trial court held
that a breach occurred and awarded damages, as well as penal-
ties, costs, and attorney fees pursuant to SS 39-3-206 and
-214, MCA. This Court concluded that Mr. Cumo never actually
performed work for Sound West; therefore, he was not an
employee within the meaning of the wage statutes. Cumo, 645
P.2d at 951. The damages resulted from a breach of employ-
ment contract and as such were more properly measured under
S 27-1-311, MCA, because the wage statutes were not applica-
ble. Cumo, 645 P.2d at 951-52.
      The question before us now is whether the wage statutes
are applicable to Mr. Myers' claim.        The statutes refer to
"wages     earned"     (S    39-3-204 (1)) ,    "unpaid    wages"
( $ 39-3-205 (1)) , "wages due and unpaid" (S 39-3-206), and
"wages due" (S 39-3-214 (1))  .   In addition, S 39-3-204 (1),
MCA, provides that "no person - - labor - -
                                     for whom           has been
performed may withhold from any employee any wages earned -
                                                          or
unpaid." We have located no case law under these or similar
wage statutes which would allow statutory penalties to be
applied to wages which could have been earned but were not
earned because of an alleged breach of contract or wrongful
termination. By the statutory description and references to
wages earned, unpaid wages, and wages due and unpaid, it is
apparent that the protection granted under the statutes is to
apply to labor or services actually performed or completed,
as distinguished from labor or services to be performed in
the future.   Here the plaintiff does not have a claim for
wages earned or unpaid.    He seeks recovery for amounts he
could have earned had he been given the opportunity. We hold
that Mr. Myers's wage claim under Title 39, Chapter 3, MCA,
was properly dismissed.
     Mr. Myers argues that this Court in Ameline v. Pack and
Company (1971), 157 Mont. 301, 485 P.2d 689, applied
$ 39-3-102, MCA (previously S 41-307, RCM (1947) , to a set
                                                  )
of circumstances identical to his case.     Evidently he be-
lieves Ameline is authority for this Court to apply the wage
statutes to the present case.    His argument is faulty for
several reasons.   This Court did not rely upon S 39-3-102,
MCA, in Ameline as Mr. Myers contends. That statute, which
is concerned with the compensation of employees dismissed for
cause, was inapplicable because the defendant in that case
had failed to establish that the dismissal was for cause.
The issue now before us was not before the Court in Ameline.
Further, the provisions of Title 39, Chapter 3, Part 2,
relied upon by Mr. Myers, are by their terms applicable only
to wage claims within part 2. Section 39-3-102, MCA, cited
in the Ameline opinion, falls within part 1, a distinct part
of what is now Chapter 3, Title 39.       For these reasons
Ameline clearly is distinguishable and not determinative of
Mr.   Myers' s case.   We affirm the District Court's order
granting partial summary judgment on the plaintiff's wage
claim.

     Was plaintiff entitled to recover penalties, attorney
fees, and costs?
     Mr. Myers sought penalties pursuant to § 39-3-206, MCA,
and costs and attorney fees pursuant to § 39-3-214, MCA. We
have already concluded that Title 39, Chapter 3, Part 2 is
not applicable to Mr. Myers's case. Therefore, the District
Court properly refused to award penalties, fees, and costs
under part 2.
     Mr. Myers presents two other grounds for an award of
fees and costs. He cites 5 25-10-711(1), MCA, which provides
as follows:

      Award of costs against governmental entity when
      suit or defense is frivolous or pursued in bad
      faith.     (1) In any civil action brought by or
      against the state      . . .  or an agency of the
      state ...     the opposing party, whether plaintiff
      or defendant, is entitled to the costs enumerated
      in 25-10-201 and reasonable attorney's fees as
      determined by the court if:
            (a) he prevails against the state  .    .
                                                   . or
      agency; and
            (b) the court finds that the claim or defense
      of the state .   . .  or agency that brought or de-
      fended the action was frivolous or pursued in bad
      faith.

Under this statute, Mr. Myers must establish that he was the
prevailing party and that the State's defense was frivolous
or pursued in bad faith. The District Court, in explaining
its judgment, concluded that the plaintiff had not prevailed
in the action and also concluded that each party acted in
good faith in bringing and defending the lawsuit. Without a
transcript on appeal, we will not question the District
Court's       finding of         good f a i t h .      W hold t h a t M r .
                                                        e                         Myers h a s
n o t p r e s e n t e d grounds f o r an award of a t t o r n e y f e e s and c o s t s
under 5 25-10-711,             MCA.
        Mr.    Myers n e x t       argues t h a t       t h e D i s t r i c t Court    should
have e x e r c i s e d i t s e q u i t y power t o award a t t o r n e y f e e s and
costs.        The D i s t r i c t C o u r t concluded t h a t ,           i n l i g h t of t h e
offsets,        the    plaintiff         had     not     prevailed        and    should    not
t h e r e f o r e recover e i t h e r c o s t s o r a t t o r n e y fees.          A s previ-
o u s l y mentioned, t h e c o u r t a l s o concluded t h a t each p a r t y had
a c t e d i n good f a i t h i n b r i n g i n g and d e f e n d i n g t h e l a w s u i t and
t h a t , i n l i g h t of t h e r e s u l t , each p a r t y s h o u l d pay t h e i r own
costs.        I n t h e a b s e n c e o f a complete r e c o r d , w e d o n o t f i n d
any     facts       warranting          reversal         of    the      District      Court's
decision.
        W hold t h a t M r .
         e                            Myers h a s f a i l e d t o e s t a b l i s h a con-
t r a c t u a l o r s t a t u t o r y r i g h t t o f e e s and c o s t s .   W affirm the
                                                                               e
o r d e r o f t h e D i s t r i c t C o u r t which r e f u s e d t o award a t t o r n e y
f e e s and c o s t s .
        Affirmed.




      /"Justices
