Plakorus v. Univ. of Mont., DA 20-0014

Citation477 P.3d 311, 402 Mont. 263, 2020 MT 312
Case DateDecember 15, 2020
CourtUnited States State Supreme Court of Montana

402 Mont. 263
477 P.3d 311
2020 MT 312

Mark PLAKORUS, Plaintiff and Appellant,
The UNIVERSITY OF MONTANA, a unit of the Montana University System, Defendant and Appellee.

DA 20-0014

Supreme Court of Montana.

Submitted on Briefs: September 2, 2020
Decided: December 15, 2020

For Appellant: Quentin M. Rhoades, Rhoades, Siefert & Erickson, PLLC, Missoula, Montana

For Appellee: Quinlan L. O'Connor, Special Assistant Attorney General, Helena, Montana

Justice Beth Baker delivered the Opinion of the Court.

477 P.3d 313
402 Mont. 265

¶1 Former University of Montana women's soccer coach Mark Plakorus appeals the Fourth Judicial District Court's dismissal of his claims against the University after it refused to renew his contract upon finding alleged private contacts with Las Vegas escort services on Plakorus's phone records. Plakorus alleges that the University unlawfully disclosed confidential information from his personnel file, defamed him, interfered with his future business prospects, and violated his privacy rights. The District Court dismissed his tort claims, concluding that they all arose from the employment contract and were barred by the one-year statute of limitations for contract claims under § 18-1-402(2), MCA. We affirm in part, reverse in part, and remand for further proceedings.


¶2 Prior to working at the University, Plakorus held numerous

402 Mont. 266

coaching positions for about seventeen years. From 2011 through 2018, the University employed him under contract as head coach of the women's soccer team. During Plakorus's tenure, the University gave him one performance evaluation. It was positive and indicated that he was "committed to the team's academic success; committed to complying with National Collegiate Athletic Association (NCAA) rules and regulations; committed to complying with UM policies and procedures; and committed to student welfare." The evaluation recognized Plakorus's work in effecting the team's "athletic turn-around" and success.

¶3 In 2017, one or more players complained that Plakorus was messaging them too often or too late at night. The University's Title IX office undertook a "climate survey" and concluded that the complaints lacked merit. The investigation did, however, lead to an audit of Plakorus's University-issued cell phone.2 The audit allegedly found text messages and phone calls to and from individuals associated with Las Vegas escort services. Plakorus claims this finding is false.

¶4 On January 29, 2018, the University advised Plakorus it would not renew his employment contract, set to expire five months later. Plakorus alleges he was advised the University President would be notified of this decision and Plakorus should continue working as normal until then. The next day, the athletic director allegedly stated that he would advise the soccer players only that "it was time for [Plakorus] to move on," without disclosing any other information.

¶5 On February 1, 2018, the Missoulian newspaper published an article entitled, "UM women's soccer coach fired after texts to Vegas escort services surface." The article reported that the University had launched an investigation due to players’ complaints about Plakorus's texting habits and asked Plakorus to resign after finding he had contacted escort services on recruiting trips to Las Vegas. Other local and national articles followed. Some included redacted copies of Plakorus's cell phone records, information from his personnel file, and information related to the non-renewal of his contract. Plakorus alleges the University wrongfully and falsely implied in its communications with the media that he had committed acts of sexual misconduct,

402 Mont. 267

endangered his players’ safety, and inappropriately used University resources. Plakorus claims that he has been unable to find a position coaching soccer at any level since leaving the University and has had to obtain lesser-paying employment outside of his preferred career.

¶6 Plakorus filed his Complaint on April 29, 2019, alleging violation of his constitutional right of privacy, defamation, and breach of contract. He filed an Amended Complaint on

477 P.3d 314

August 7, 2019, removing his breach of contract claim and adding claims for tortious interference, negligence, and invasion of privacy. The University moved to dismiss the Amended Complaint for lack of subject matter jurisdiction based on Plakorus's failure to first grieve his claims under § 18-1-402, MCA, and alternatively for failure to state a claim based on Plakorus's failure to timely file a complaint for contract claims pursuant to § 18-1-402(2), MCA.

¶7 The District Court granted the University's motion to dismiss pursuant to Mont. R. Civ. P. 12(b)(6), declining to rule on the 12(b)(1) grievance argument. The court reasoned that "[t]he filing date is more than one year after the alleged breach occurred and regardless of Plaintiff's failure to follow any grievance procedure, Plaintiff failed to timely file his Complaint under Mont. Code Ann. § 18-1-402(2)."3 This appeal followed.


¶8 "We review de novo a district court's ruling on a M. R. Civ. P. 12(b) motion to dismiss." Dickson v. Marino , 2020 MT 196, ¶ 6, 400 Mont. 526, 469 P.3d 159 (citations omitted). We review a district court's conclusions of law for correctness. Dickson , ¶ 6 (citations omitted). A complaint fails to state a claim pursuant to Mont. R. Civ. P. 12(b)(6) if the plaintiff "would not be entitled to relief based on any set of facts that could be proven to support the claim." Plouffe v. State , 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316 (citation omitted). On review of a district court's dismissal pursuant to Mont. R. Civ. P. 12(b)(6), we construe all facts alleged in the complaint as true and in a light most favorable to the plaintiff. Plouffe , ¶ 8.

402 Mont. 268


¶9 Plakorus pleaded five counts in his Amended Complaint. Count I alleges that the University's acts and omissions violated his right to privacy under Montana Constitution Article II, Section 10, through the publication of his employment information. Count II alleges that the University defamed Plakorus when it released confidential personnel information and phone records and publicized materially false information about him "with the intent to besmirch Plakorus's character and destroy his career." Count III alleges intentional and willful tortious interference, claiming the University's actions "were calculated to cause damage to Plakorus's ability to obtain employment in his chosen field ... without right or justifiable cause" and resulting in damages. Count IV alleges that the University breached its duty of ordinary care "in handling and maintaining confidential, private information about Plakorus" and is therefore liable for negligence. Finally, Count V alleges invasion of privacy because the matters publicized were of a kind that: (a) would be highly offensive to a reasonable person; and (b) were not of legitimate concern to the public.

¶10 Relying solely on the factual allegations and these claims, the District Court concluded:

The gravamen of [Plakorus's] Amended Complaint consist of the terms and conditions of his employment, including the documents within [his] personnel file, investigation into [his] work, and investigation into [his] University-issued cell phone. The auditing of [Plakorus's] University supplied cell phone and the public dissemination of information from [his] cell phone use and his employment status/history are the essence of [Plakorus's] claims and directly relate to [his] contractual relationship with Defendant. ... The Court finds that [Plakorus] alleges no duty separate from duties under his employment contract, and [his] Amended Complaint sounds in contract. [Record citations omitted.]

¶11 Plakorus argues on appeal that his claims, as pleaded in the Amended Complaint and taken as true, were actionable under the Montana Constitution, Montana statutes, and Montana common law of torts because the duties existed separate from his employment contract and were violated after the University

477 P.3d 315

notified him it was terminating his employment relationship. He further argues that the contract was not before the court and it thus could draw no conclusion that the claims arose from its contents. He maintains that the University has not identified any contract language that would prevent disclosure of personnel information, prevent interference with future

402 Mont. 269

employment prospects, or create a duty to be truthful when disclosing results of investigations of employees to the public. Plakorus thus contends that the two-year statute of limitations for defamation claims pursuant to § 27-2-204(3), MCA, and the three-year statute of limitations applied to claims "not founded upon an instrument in writing"...

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