Berberet v. Signature Flight

Majority Ingrid Gustafson

01/21/2020 DA 19-0359 Case Number: DA 19-0359 IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 11N ALBERT J. BERBERET, Plaintiff and Appellant, v. SIGNATURE FLIGHT SUPPORT CORPORATION, a Delaware Corporation, individually and d/b/a Yellowstone Jet Center by Signature Flight Support; and YELLOWSTONE JET CENTER, LLC, a Montana Corporation, Defendants and Appellees. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-16-388A Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Edward P. Moriarity, Shandor S. Badaruddin, Moriarity & Badaruddin, PLLC, Missoula, Montana For Appellees: Joshua B. Kirkpatrick, Michelle L. Gomez, Littler Mendelson, PC, Denver, Colorado Submitted on Briefs: November 20, 2019 Decided: January 21, 2020 Filed: cir-641.—if __________________________________________ Clerk  Justice Ingrid Gustafson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), 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 Plaintiff and Appellant Albert J. Berberet (Berberet), appeals the Order on Defendants Signature Flight Support Corporation and Yellowstone Jet Center, LLC’s Motion for Summary Judgment issued by the Montana Eighteenth Judicial District Court, Gallatin County, on March 15, 2019. Berberet also appeals the Order on Plaintiff’s Motion to Reconsider the Order Granting Defendants Signature Flight Support Corporation and Yellowstone Jet Center, LLC’s Motion for Summary Judgment issued by the District Court on April 9, 2019. We affirm. ¶3 Berberet was employed as a truck driver by CityServiceValcon, LLC (CSV). As part of his duties at CSV, Berberet delivered aviation fuel to Signature Flight Support Corporation (SFS), who owned and operated the Yellowstone Jet Center, LLC (YJC), and its fuel tank farm at Gallatin Field near Bozeman. Berberet also occasionally delivered aviation fuel to other airports—including Dillon Flying Service, Butte Aviation, and ExecAir. ¶4 On the morning of May 15, 2015, Berberet was delivering a load of aviation fuel to SFS. The fuel tank farm is a locked facility, and truck drivers must wait for SFS employees to come and open the gate before they may enter the facility. The wait can last for minutes 2  to a few hours. On this occasion, Berberet arrived around 6:20 a.m., notified SFS employees of his arrival, and requested access to the fuel tank farm. After waiting for a few minutes, Berberet exited his truck and urinated on the ground outside. SFS employees arrived at this time to unlock the gate and observed Berberet urinating. ¶5 The SFS employees contacted Al Sandvold (Sandvold), SFS’s Operations Supervisor, by text message to inform him that they observed Berberet urinating, that his genitals were visible, and that they were uncomfortable with the situation. Sandvold forwarded the text message to Tia Komberec at CSV, who shared the message with Roger English (English), CSV’s Transportation Manager. English then called Sandvold to discuss the incident. Sandvold informed English that Berberet was no longer allowed at the YJC. English consulted with other CSV employees and decided to terminate Berberet’s employment. Berberet was fired from CSV by letter on May 16, 2015, “[d]ue to an incident of inappropriate conduct that took place at the Yellowstone Jet Center on Friday, May 15, 2015[.]” ¶6 Berberet filed suit against CSV, SFS, and the YJC. Berberet ultimately settled his claims against CSV. Berberet brought a claim against SFS and the YJC (collectively SFS) for tortious interference, along with related willful and wanton misconduct and punitive damages claims. SFS filed a motion for summary judgment, arguing that Berberet could not meet the elements of a tortious interference claim and, alternatively, that Berberet’s claims were preempted by Montana’s Wrongful Discharge from Employment Act (WDEA). 3  ¶7 The District Court granted SFS summary judgment on all claims against it, finding that Berberet could not meet all the elements of a tortious interference claim and not reaching SFS’s WDEA preemption argument. Berberet then filed a motion to reconsider, which the District Court denied. Berberet appeals both orders. ¶8 We review summary judgment orders de novo, performing the same M. R. Civ. P. 56 analysis as the district court. Kelly v. Teton Prairie LLC, 2016 MT 179, ¶ 9, 384 Mont. 174, 376 P.3d 143. Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Needham v. Kluver, 2019 MT 182, ¶ 14, 396 Mont. 500, 446 P.3d 504 (citations omitted). ¶9 In order to establish a claim of tortious interference with contractual or business relations, “it must be shown that the defendant’s acts (1) were intentional and willful, (2) were calculated to cause damage to the plaintiff in his or her business, (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor, and (4) that actual damages and loss resulted.” Grenfell v. Anderson, 2002 MT 225, ¶ 64, 311 Mont. 385, 56 P.3d 326 (citing Bolz v. Myers, 200 Mont. 286, 295, 651 P.2d 606, 611 (1982)). “The element of malice . . . meaning the intentional doing of a wrongful act without justification or excuse, is an essential element of an action for interference with contract. Such malice is not presumed and cannot be inferred from the commission of a lawful act.” Taylor v. Anaconda Fed. Credit Union, 170 Mont. 51, 56, 550 P.2d 151, 154 (1976). ¶10 Berberet argues the District Court erred by granting summary judgment to SFS on his tortious interference claim because genuine issues of material fact exist regarding 4  whether the actions of SFS were intentionally and willfully calculated to cause damage to Berberet by interfering with his employment. The District Court found Berberet could not establish the second element of a tortious interference claim—that the acts were calculated to cause damage to the plaintiff in his or her business—because SFS did not ask CSV to fire Berberet, and SFS did not otherwise intend to interfere with Berberet’s employment. We agree with the District Court. ¶11 Berberet, while delivering a load of fuel for CSV, was observed urinating on SFS property by SFS employees who were arriving to allow him into the fuel tank farm. SFS’s Sandvold then contacted CSV’s English to notify him of the incident and inform him Berberet was no longer allowed at SFS’s fuel tank farm. Sandvold told English the decision of what to do about Berberet was up to CSV, but it may be “a good time for change in Bozeman.” Roughly a half-hour after this conversation, English called Sandvold back and informed him CSV was going to terminate Berberet’s employment. The District Court found it was undisputed that SFS did not ask CSV to fire Berberet and SFS did not intend that result when it advised CSV that Berberet was no longer allowed on SFS property. The District Court is correct. ¶12 A customer who observes a delivery man urinating on the customer’s property certainly has a right to complain to the delivery man’s employer about the situation. SFS quite reasonably informed CSV and expressed displeasure about the uncomfortable situation Berberet created by urinating outside in the view of SFS employees. SFS was well within its rights to complain and did not act with malice by reporting the urination incident to CSV. Taylor, 170 Mont. at 56, 550 P.2d at 154. SFS did not ask CSV to fire 5  Berberet. Berberet delivered aviation fuel to several different facilities for CSV. Berberet himself assumed he could continue to make deliveries for CSV to these other facilities even after being banned from SFS’s fuel tank farm at Gallatin Field. ¶13 Berberet spends several pages of his briefing arguing CSV’s investigation of the urination incident was insufficient. Berberet settled his claims with CSV and it is not a party to this appeal. Further, SFS had neither a duty nor the authority to direct CSV’s internal investigation of its own employee. What remains clear, even after these complaints about CSV’s investigation, is that it is undisputed that SFS did not ask CSV to fire Berberet. ¶14 Because SFS did not ask CSV to fire Berberet, Berberet attempts to fashion an argument that SFS intentionally and willfully interfered with his employment by creating the conditions which forced him to urinate outside on SFS property—where he was observed by SFS employees. This argument is unconvincing. Though there were sometimes long wait times to access the fuel tank farm, on this occasion Berberet waited less than 20 minutes before exiting his truck to urinate, in public, on SFS property. There was a bathroom at the station where Berberet fueled his truck immediately before heading to the fuel tank farm and there are numerous truck stops with restrooms in and around the Bozeman area. Berberet could have simply used the bathroom at any of these places. Berberet could have also called SFS to let them know he needed to use the restroom and find out how long the wait would be. He did not. Berberet was not trapped by SFS and could have also informed them he would leave to use the restroom if they did not arrive promptly. There were numerous opportunities to avoid urinating outside—in public—on a customer’s property available to Berberet, but he took none of them. 6  ¶15 To support a claim of tortious interference, Berberet would have to show SFS intentionally understaffed its facility with the goal of making Berberet wait on several occasions all so that one day he would be forced to urinate in public on SFS property less than 20 minutes after arriving and SFS employees could be exposed to him in the act, finally allowing SFS to complain to CSV about Berberet so that he would be fired. This Rube Goldberg-esque contention defies both logic and belief and was appropriately rejected by the District Court. ¶16 After our de novo review of the record, we find the District Court correctly granted summary judgment to SFS. Berberet did not, and could not, meet the elements of a tortious interference claim, because there is no evidence SFS acted intentionally to damage his employment with CSV by either complaining about his urination or somehow forcing him to urinate in public. Without these elements being met, Berberet does not have a claim for tortious interference against SFS. Grenfell, ¶ 64. Because Berberet did not have a viable claim of tortious interference, the District Court did not need to reach SFS’s WDEA preemption argument in its summary judgment order. We also need not address the WDEA preemption argument in deciding this appeal. ¶17 Berberet also appeals the denial of his Motion to Reconsider the Order Granting Defendants Signature Flight Support Corporation and Yellowstone Jet Center, LLC’s Motion for Summary Judgment. As noted by the District Court, a motion for reconsideration does not exist under Montana law. “[A] motion for reconsideration is not one of the post-judgment motions provided for, or authorized by, the Montana Rules of Civil Procedure.” Horton v. Horton, 2007 MT 181, ¶ 7, 338 Mont. 236, 165 P.3d 1076 7  (citation omitted). A motion for reconsideration has no effect unless the court equates it to another type of motion which is allowed under the Montana Rules of Civil Procedure. ABC Collectors, Inc. v. Birnel, 2006 MT 148, ¶ 14, 332 Mont. 410, 138 P.3d 802 (citing Anderson v. Bashey, 241 Mont. 252, 254, 787 P.2d 304, 305 (1990)). ¶18 In this case, the District Court correctly found Berberet’s motion for reconsideration could not be equated to an M. R. Civ. P. 59 motion to alter or amend a judgment, as it presented no new legal or factual basis beyond that already unsuccessfully argued by Berberet in opposing SFS’s summary judgment motion. The District Court correctly granted summary judgment to SFS and correctly denied Berberet’s motion for reconsideration. ¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶20 Affirmed. /S/ INGRID GUSTAFSON We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ DIRK M. SANDEFUR 8