                                                                                         July 24 2012


                                       DA 12-0025

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2012 MT 161N



OBER E. SPEAR,

          Plaintiff and Appellant,

     v.

STATE OF MONTANA, MONTANA HIGHWAY
PATROL, COLONEL MIKE TOOLEY and
KIM FLATOW,

          Defendants and Appellees.



APPEAL FROM:        District Court of the Thirteenth Judicial District,
                    In and For the County of Yellowstone, Cause No. DV 10-543
                    Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                    Ober E. Spear, self-represented, Billings, Montana

            For Appellees:

                    Steve Bullock, Montana Attorney General; Zach Zipfel, Assistant Attorney
                    General, Helena, Montana


                                                 Submitted on Briefs: June 12, 2012
                                                            Decided: July 24, 2012




Filed:

                    __________________________________________
                                      Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Ober E. Spear (Spear) appeals from the District Court’s order dismissing his wrongful

discharge complaint. We affirm.

¶3     Spear began work as a Montana Highway Patrol (MHP) trooper in 1958. Spear

applied for permanent disability treatment in 1962. MHP placed Spear on sick leave. The

Retirement Board (Board) held two hearings. The Board determined that Spear did not have

a permanent and total disability due, in part, to Spear’s admission that he had gone hunting,

bowling, and water skiing following his injuries. Spear appealed and this Court affirmed.

Spear v. MHP Retirement Board, 149 Mont. 7, 422 P.2d 348 (1967).

¶4     Spear had returned to “light duty” with MHP in 1962 while his case was still pending.

Spear quit reporting for duty on December 12, 1962. Spear never again performed work for

MHP.

¶5     Spear made a series of unsuccessful attempts to receive further benefits. Spear filed a

petition for sick leave benefits in 1966. He requested a review of his previous petition for

disability requirement in 1974. Spear contacted MHP in 1983 concerning benefits that he

felt he had been denied. He again contacted MHP in 1984 claiming additional sick leave

benefits. Spear further attempted to claim additional sick leave benefits in 1985 based upon

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a statute passed in 1979. Spear waited about a decade before he requested another review of

his disabilities claim in 1996 from the Public Employees’ Retirement Division.

¶6      Spear contacted MHP during 1999-2000 concerning additional sick leave benefits.

Assistant Attorney General Kim Kradolfer (Kradolfer) responded to Spear in March 2000 to

address why Spear was not entitled to any additional benefits from MHP. Kradolfer sought

to clarify Spear’s “misconception” that he still worked for MHP. Kradolfer informed Spear

that his employment with MHP had ended in December 1962 when he stopped reporting for

duty.

¶7      MHP’s chief administrator, Mike Tooley (Tooley), wrote to Kim Flatow (Flatow) of

the Montana Public Employees Retirement Administration on August 31, 2009, in response

to a request from Flatow. Spear apparently had been inquiring with Flatow regarding his

retirement eligibility. Tooley noted that Spear had not been an employee with MHP since at

least 1982 and that Spear was not in MHP’s records.

¶8      Spear filed a “wrongful dismissal” claim against MHP and the State of Montana on

March 26, 2010. Spear alleged that Tooley’s letter had “effectively discharged” him from

employment with MHP. The District Court dismissed Spear’s complaint on two grounds.

The court determined that Spear’s employment had been “severed” in 1962 when he quit

reporting to duty. The court also determined that, even if Spear had a viable claim,

Kradolfer’s March 2000 letter effectively had put him on notice that MHP no longer

considered him an employee. The filing of his complaint in 2010 failed to comply with the



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one-year statute of limitations for a wrongful discharge from employment case. Section 39-

2-911(1), MCA.

¶9     This Court reviews a district court’s grant of summary judgment using the same

standards the district court uses under M. R. Civ. P. 56. Wagner v. Woodward, 2012 MT 19,

¶ 16, 363 Mont. 403, 270 P.3d 21. Where there are cross-motions for summary judgment

and the district court is not called upon to resolve factual issues, but only to draw

conclusions of law, this Court determines whether those conclusions are correct. Wagner, ¶

16. A moving party is entitled to summary judgment when there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Wagner, ¶ 16

(internal citation omitted).

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules which provides for noncitable memorandum opinions. It is

manifest on the face of the briefs and the record before us that the District Court properly

granted summary judgment pursuant to M. R. Civ. P. 56, as the Court correctly applied the

law to the undisputed facts. Spear’s employment with MHP had been terminated in 1962

and the filing of his complaint in 2010 was untimely pursuant to § 39-2-911(1), MCA.

¶11    Affirmed.


                                                        /S/ BRIAN MORRIS


We Concur:



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/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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