Gliko v. Permann

No. 04-600

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 30

JERROLD L. GLIKO, TRUSTEE OF
THE EDNA URICK FAMILY TRUST,

Plaintiff and Appellant,

v.

KEN PERMANN and MARIAN PERMANN,
and BELT VALLEY BANK,

Defendants, Respondents and Cross-Appellants.

APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV 2001-286,
Honorable Julie Macek, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Patricia D. Peterman, Patten, Peterman, Bekkedahl & Green,
Billings, Montana

For Respondents:

Benjamin R. Graybill, Graybill, Ostrem, Crotty and Stubbs,
Great Falls, Montana (Bank)

Daniel B. Levine, Attorney at Law, Great Falls, Montana (Permanns)

Submitted on Briefs: July 26, 2005

Decided: February 14, 2006

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Jerrold Gliko (Gliko), in his capacity as trustee of the Edna Urick Family Trust,

appeals the orders entered in the Eighth Judicial District Court, Cascade County, granting

summary judgment to Belt Valley Bank (Bank) and a judgment, after trial, that an

easement was validly granted to Ken and Marian Permann (Permanns) across the

Appellant’s property. We affirm.

¶2 The following issues are dispositive on appeal:

¶3 Did the District Court err by granting summary judgment to the Bank on Gliko’s

claim of breach of fiduciary duty?

¶4 Did the District Court err by ruling that the granted easement was valid?

BACKGROUND

¶5 Edna Urick (Urick) spent summers on her land outside of Belt, Montana. Vic

Smerker owned a neighboring plot of land which he leased to the Permanns in 1994. To

access the leased property, it was necessary for the Permanns to cross Urick’s land.

Urick had customarily allowed Smerker to cross her land, and she extended the same

courtesy to the Permanns, permitting them to cross when they moved cattle or went

camping. In December 2000 the Permanns agreed to purchase the land from Smerker,

contingent upon the Permanns obtaining a signed, written easement across Urick’s land.

The Bank, from which the Permanns were obtaining some of their financing for the

purchase, insisted upon such an easement as a condition of the loan.

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¶6 In early December 2000, the Permanns went to Urick’s house and requested that

Urick grant the easement. She agreed. On December 14, 2000, the Permanns met Urick

at the Bank to sign an easement form, but the parties decided not to use that form. The

Bank then obtained an alternative easement form from a title company and retyped it,

filling in the relevant names and the legal description of the property.

¶7 The following day, Ken Permann and a Bank employee, Robert Helsen, brought

the new easement document to Urick for her to sign. When asked, Urick said she

understood the document. Likewise, when asked, Urick said she did not want her sons to

review the document prior to her signing. Urick was told that she did not need to sign at

that time, if she did not want to, but she proceeded to sign the document anyway.

Though the document does not contain restrictions on the easement, both parties

understood that no “freeway” would be built across Urick’s property and that the

Permanns would not subdivide their property. The easement satisfied the loan condition,

and the Permanns obtained the loan from the Bank and purchased Smerker’s land.

¶8 A few weeks later, when Urick’s sons learned about the easement, they were

displeased and persuaded Urick to rescind the agreement. On January 16, 2001, Urick

requested that the Permanns convey the easement back to her. The Permanns refused,

and on March 28, 2001, Urick filed suit alleging mistake, duress, menace, fraud,

constructive fraud, undue influence, and lack of consideration as bases for rescinding the

easement. Urick was deposed on June 5, 2001, and her deposition was later admitted into

evidence at trial. On September 26, 2003, before the cause proceeded to trial, Urick

3
passed away, and her son Jerry Gliko, as trustee of the Edna Urick Family Trust,

continued the action in her stead.

¶9 In the second amended complaint filed January 28, 2003, Urick added the Bank as

a defendant, alleging breach of fiduciary duty and negligence. However, on February 20,

2004, the District Court granted summary judgment in favor of the Bank, ruling that the

Bank owed no duty to Gliko in the easement transaction and therefore could not

negligently breach such a duty.

¶10 The cause against the Permanns proceeded to a bench trial on January 20, 2004,

and on March 3, 2004. On July 23, 2004, the District Court issued its judgment in the

matter, ruling that Urick had validly granted the Permanns an easement:

The easement may be used for agricultural and recreational use of the
Permann property and for building and using a cabin on the Permann
property. In the event of an attempt to use the easement for some other use
which increases the burden on the Urick property beyond that which would
occur with the uses specifically allowed, Plaintiff and Plaintiff’s successors
and assigns may bring a future action seeking to enjoin such use.

The District Court concluded that the easement was not obtained through duress, menace,

fraud, constructive fraud, or mistake.

¶11 Gliko appeals the orders granting summary judgment to the Bank and ruling that

the granted easement is valid.

STANDARD OF REVIEW

¶12 We articulated the standard of review of the granting of summary judgment in

Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d 47, ¶ 14 (citations

and quotation marks omitted):
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 This Court’s review of a district court’s grant of summary judgment is de
novo. Our evaluation is the same as that of the trial court. We apply the
criteria contained in Rule 56, M.R.Civ.P. According to this rule, the
moving party must establish both the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law. If this is accomplished,
the burden then shifts to the non-moving party to prove, by more than mere
denial and speculation, that a genuine issue does exist. If the court
determines that no genuine issues of fact exist, the court must then
determine whether the moving party is entitled to judgment as a matter of
law.

¶13 This Court reviews a district court’s conclusions of law for correctness and its

findings of fact for clear error. Galassi v. Lincoln County Bd. of Comm’rs, 2003 MT 319,

¶ 7, 318 Mont. 288, ¶ 7, 80 P.3d 84, ¶ 7.

DISCUSSION

¶14 Did the District Court err by granting summary judgment to the Bank on

Gliko’s claim of breach of fiduciary duty?

¶15 Gliko argues that whether the Bank had a fiduciary duty to Urick in the easement

transaction was a question of fact and, therefore, inappropriate to decide on summary

judgment. The Bank responds that whether a special relationship existed such as would

give rise to a fiduciary relationship between the Bank and Urick is a question of law, and

since the material facts were undisputed, this question was appropriately and correctly

resolved on summary judgment.

¶16 A review of our decisions on this question reveals a line of authority that has held

that the existence of a special relationship giving rise to a fiduciary duty is a question of

law. We first recognized that such a relationship could arise between a bank and its

customers in Deist v. Wachholz (1984), 208 Mont. 207, 216-17, 678 P.2d 188, 193
5
(quoting Tokarz v. Frontier Fed. Sav. & Loan Ass’n (Wash. Ct. App. 1983), 656 P.2d

1089, 1092) (citations and brackets omitted), in which this Court stated:

The relationship between a bank and its customer is generally
described as that of debtor and creditor and as such does not give rise to
fiduciary responsibilities. . . . “[M]odern banking practices involve a highly
complicated structure of credit and other complexities which often thrust a
bank into the role of an advisor, thereby creating a relationship of trust and
confidence which may result in a fiduciary duty upon the bank to disclose
facts when dealing with the customer.”

The existence of a fiduciary duty to a loan customer depends upon
satisfactory proof of a special relationship.

We again acknowledged this principle in Pulse v. North Am. Land Title Co. (1985), 218

Mont. 275, 283-84, 707 P.2d 1105, 1110, though we concluded therein that no such

relationship had developed. In subsequent decisions, this Court concluded that, in the

absence of a genuine issue of material fact, the question of the existence of a fiduciary

relationship could properly be resolved on summary judgment, thus confirming that the

question is one of law. See Simmons v. Jenkins (1988), 230 Mont. 429, 750 P.2d 1067

(affirming summary judgment in favor of bank on the grounds that no fiduciary

relationship existed between the parties where the respondent bank gave no advice to the

appellants in the disputed real estate transaction and where there was no long-standing

relationship between the parties); Shiplet v. First Sec. Bank (1988), 234 Mont. 166, 762

P.2d 242 (affirming summary judgment in favor of the respondent bank that had financed

the appellants’ ranching operations where the appellants did not rely on the bank’s

advice, did not heed the bank’s advice, and were represented by counsel in the relevant

transactions); Sprunk v. First Bank Sys. (1992), 252 Mont. 463, 830 P.2d 103 (affirming
6
summary judgment because the appellant’s relationship with a subsidiary bank did not

create a fiduciary duty extending to the respondent parent company); Simmons Oil Corp.

v. Holly Corp. (1993), 258 Mont. 79, 852 P.2d 523 (affirming summary judgment in

favor of the respondent bank where there was little involvement between the bank and the

appellant and the appellant was represented by independent counsel). 1

¶17 In Simmons v. Holly, we implicitly rejected the dissenting opinion’s contention

that “[w]hether or not there were special circumstances which should give rise to a

fiduciary duty is a classic question of fact.” Simmons v. Holly, 258 Mont. at 93, 852 P.2d

at 531 (Trieweiler, J., joined by Hunt, J., concurring and dissenting). However, this

Court introduced ambiguity on this point when we decided Davis v. Church of Jesus

Christ of Latter Day Saints (1993), 258 Mont. 286, 852 P.2d 640, which involved a

church and one of its members rather than a bank and its customers. Davis had fallen and

sustained injuries on the defendant church’s property, and she had sought compensation

from the church for her medical bills. The church appealed the district court’s denial of

its motion for summary judgment on Davis’s breach of fiduciary duty claim. Davis

argued that her extensive financial, personal, and social involvement with the church

gave rise to a fiduciary duty owed to her by the church. Davis, 258 Mont. at 295-96, 852

1
Compare Lachenmaier v. First Bank Sys. (1990), 246 Mont. 26, 803 P.2d 614. In
Lachenmaier, we affirmed summary judgment in favor of the respondent bank where the
respondent bank had entered into debt-restructuring negotiations with defaulting
borrowers. However, we did not resolve the question of the existence of a fiduciary duty
because we concluded that, even if there were such a duty, there was no breach of that
duty “when the Bank acted for solid business reasons.” Lachenmaier, 246 Mont. at 34,
803 P.2d at 619.
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P.2d at 646. In our decision affirming the district court, we cited Deist for the general

proposition that the “existence of a fiduciary duty depends upon satisfactory proof of a

special relationship,” and we concluded that “such a determination is not appropriate on

summary judgment.” Davis, 258 Mont. at 296, 852 P.2d at 646. We held that “whether a

fiduciary relationship existed” constituted an issue “of material fact which preclude[s]

summary judgment.” Davis, 258 Mont. at 296, 852 P.2d at 646.

¶18 We further muddled the point by our internally inconsistent opinion in Kondelik v.

First Fidelity Bank (1993), 259 Mont. 446, 857 P.2d 687. Stanley and Elizabeth

Kondelik sued the respondent bank for breach of fiduciary duty relating to the division of

assets and liabilities of a family-owned ranching corporation. Stanley held a 47 percent

share in the corporation, and his brother owned 53 percent. After disagreement about the

operations of the business and other related matters, the brothers agreed to split the assets

and liabilities of the corporation in proportion to their share ownership, with Stanley

relinquishing his stock and his brother obtaining full control of the corporation. The

respondent bank assisted Stanley with the division, but Stanley remained a personal

guarantor of the corporation’s loans. The bank insisted that Elizabeth, who had little

involvement with the corporation, also sign as a personal guarantor of some of the

operating debt of the corporation. The division was ultimately unsuccessful, and the

Kondeliks filed suit, alleging in part that the bank breached its fiduciary duty to them.

The Kondeliks appealed the district court’s grant of summary judgment to the bank and

its conclusion that no fiduciary duty existed between the bank and the Kondeliks.

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¶19 In our decision, we treated Stanley and Elizabeth separately because Elizabeth had

never been a shareholder or officer of the corporation. Regarding Stanley, we stated the

following:

We hold the District Court correctly determined that the Bank owed
no separate duty to Stanley Kondelik and properly granted summary
judgment in favor of the Bank on Stanley’s claim for breach of fiduciary
duty.

Kondelik, 259 Mont. at 454, 857 P.2d at 693.

¶20 Relying on Deist, Lachenmaier, and Davis, we stated the following in regard to

Elizabeth:

The existence of a fiduciary relationship is not a question of law and
it is not appropriate for a district court to make this determination on
summary judgment where genuine issues of material fact concerning this
relationship are present. . . . [W]e conclude that it was not appropriate here
for the District Court to grant summary judgment in favor of the Bank
when there are genuine issues of material fact which go to the question of
whether a fiduciary relationship existed between the Bank and Elizabeth.

Kondelik, 259 Mont. at 456, 857 P.2d at 693-94 (emphasis added).

¶21 In addition, we rejected the bank’s argument that the existence of a fiduciary

relationship is a question of law, concluding that the bank improperly relied on Simmons

v. Jenkins:

The Bank maintains here that the existence of a fiduciary duty is a
question of law properly determined through summary judgment
proceedings, citing Simmons v. Jenkins (1988), 230 Mont. 429, 435, 750
P.2d 1067, 1071. That is an inapposite statement of the law as Simmons
held that the existence of a duty of good faith is a question of law properly
determinable during summary judgment proceedings. In this case, we are
concerned with the existence of a fiduciary duty, not the existence of a duty
of good faith.

9
Kondelik, 259 Mont. at 455, 857 P.2d at 693. In so doing, we unfortunately misconstrued

the holding of Simmons that the question may be resolved on summary judgment. The

appellant in Simmons argued that there was either a breach of a fiduciary duty or a breach

of a duty of good faith and fair dealing between the parties and that the breach constituted

constructive fraud. Simmons, 230 Mont. at 432-33, 750 P.2d at 1070. In deciding the

issue, we stated “that the breach of a duty of good faith is a question of fact not

susceptible to summary judgment” but that the “existence of such a duty . . . is a question

of law properly determined during summary judgment proceedings.” Simmons, 230

Mont. at 435, 750 P.2d at 1071. Though these comments were directed toward the duty

of good faith, we nevertheless concluded that neither duty existed, and we affirmed

summary judgment in favor of the bank. Simmons, 230 Mont. at 434-35, 750 P.2d at

1070-71. We could not have affirmed summary judgment without concluding, at least

implicitly, that the existence of a fiduciary duty is a question of law.

¶22 Thus, in Kondelik, we held that the existence of a fiduciary duty between Stanley

and the bank was a question of law properly resolved on summary judgment, yet we held

that the existence of a fiduciary duty between Elizabeth and the bank was a question of

fact that was improperly resolved on summary judgment. In addition to its internal

discrepancy and its erroneous analysis of Simmons v. Jenkins, Kondelik failed to address

Shiplet, Sprunk, and Simmons v. Holly where we upheld grants of summary judgment that

resolved whether a fiduciary duty existed between the parties.

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¶23 An analytical flaw in Kondelik may have contributed to this error. The analysis in

Kondelik conflated two questions: whether the existence of a fiduciary relationship was a

matter of law or fact and whether an issue of material fact remained when the district

court rendered summary judgment. This conflation is evident in our holding regarding

Elizabeth: “The existence of a fiduciary relationship is not a question of law and it is not

appropriate for a district court to make this determination on summary judgment where

genuine issues of material fact concerning this relationship are present.” Kondelik, 259

Mont. at 456, 857 P.2d at 693. If the question was not one of law, it was one of fact;

thus, to consider whether “genuine issues of material fact concerning this relationship

[were] present” was both superfluous and misleading. Courts cannot not resolve factual

issues on summary judgment. If the question was one of law, then the district court

properly could have considered whether material facts remained disputed, and if not,

could have decided the question pursuant to the rules governing summary judgment.

¶24 We must today resolve the inconsistency in our precedent. In other contexts, we

have generally held that whether a legal duty exists between two parties is a question of

law. See, e.g., Dukes v. City of Missoula, 2005 MT 196, ¶ 11, 328 Mont. 155, ¶ 11, 119

P.3d 61, ¶ 11; Henricksen v. State, 2004 MT 20, ¶ 21, 319 Mont. 307, ¶ 21, 84 P.3d 38,

¶ 21. Consistent with our decisions in Simmons v. Jenkins, Shiplet, Sprunk, Simmons v.

Holly and even that portion of Kondelik relating to Stanley, we now reaffirm that whether

a fiduciary duty exists between two parties is a question of law, not fact, and it may be

resolved on summary judgment when no genuine issues of material fact remain.

11
Likewise, whether a “special relationship” exists between two parties such as would give

rise to a fiduciary duty is a question of law, not fact, for the relationship and the duty are

two sides of the same coin. To determine the existence or absence of a special

relationship in cases where it normally does not exist—such as between a bank and a

customer—a court may be required to make a fact-intensive inquiry. The circumstances

of the particular relationship are factual, and disputes over material facts will preclude

summary judgment. However, the conclusion drawn by a court from undisputed facts is

one of law, not of fact. To the extent that Davis and Kondelik stand for the proposition

that the existence of a fiduciary duty between two parties is a question of fact, they are

overruled.

¶25 We recognize that “[t]he determination of the existence of genuine issues of

material fact is one that is not always easily ascertained.” Sprunk, 252 Mont. at 466, 830

P.2d at 105. However, to this end, we reaffirm that “mere disagreement about the

interpretation of a fact or facts does not amount to genuine issues of material fact,”

Sprunk, 252 Mont. at 466, 830 P.2d at 105, and that “conclusory statements do not rise to

the level of genuine issues of material fact.” Sprunk, 252 Mont. at 466-67, 830 P.2d at

105.

¶26 Turning to the case before us, Gliko argues that two evidentiary issues were

sufficient to create disputes of material fact impacting on the determination of whether

12
the Bank owed Urick a fiduciary duty. 2 The first is a statement Urick made in her

deposition:

And then they had—but I did say, when I went down to sign this,
that I wanted it stipulated that [the easement] would be used for only
agricultural purposes. And they said they couldn’t put that in the paper that
they were writing up.

The second is a vague statement by Bank employee Helsen in his testimony at trial in

which he indicated that he had agreed with Ken Permann when Permann told Urick on

the day she signed the easement document that it was “just a basic document that’s used

many times.” Though the parties disagree about their import, the only factual dispute

relating to either of these statements is whether the pronoun “they” in Urick’s deposition

refers to the Bank or to the Permanns. Without more, this dispute simply does not rise to

the level of “material.” Thus, the District Court did not err by determining that no

genuine issues of material fact precluded summary judgment.

¶27 We next consider whether the District Court reached the correct conclusion of law.

Gliko argues from a narrow factual basis that the District Court reached an incorrect

conclusion of law. He contends that the aforementioned statements of Urick and Helsen,

“although disputed, show that the Bank acted as Edna’s advisor and asserted influence

2
Gliko raises for the first time in his Reply Brief that the Bank’s actions relating
to preparing the easement form amount to unauthorized practice of law, which it contends
further demonstrates the special relationship between the Bank and Urick. The Bank
moved to strike this argument on the ground that it had not been raised in Gliko’s
Opening Brief. The Bank’s motion is well-taken. Rule 23(c), M.R.App.P., provides that
the “reply brief must be confined to new matter raised in the brief of the respondent.”
“We will not address the merits of an issue presented for the first time in a reply brief on
appeal.” Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, ¶ 13, 14 P.3d 499, ¶ 13.
Therefore, we do not address this argument by Gliko.
13
over her property and affairs.” We disagree. When the statements are viewed in the light

most favorable to Gliko, they do not demonstrate a special relationship between the

parties regarding the Urick property sufficiently similar to the “banking practices” that

“involve a highly complicated structure of credit and other complexities which often

thrust a bank into the role of an advisor” that we described in Deist. Deist, 208 Mont. at

216, 678 P.2d at 193; see Simmons v. Jenkins, 230 Mont. at 433-34, 750 P.2d at 1070 (no

fiduciary relationship where the bank gave no advice to the appellants). Consequently,

we conclude that the District Court properly held that the Bank owed Urick no fiduciary

duty herein.

¶28 Therefore, we hold that the District Court did not err in granting summary

judgment in favor of the Bank.

¶29 Did the District Court err by ruling that the granted easement was valid?

¶30 Gliko argues that there are four independent and sufficient grounds upon which

the rescission of the easement rested: mutual mistake, constructive fraud, undue

influence, and lack of consideration. He contends that the District Court erred by ruling

that none of these grounds applied. The Permanns respond that the District Court ruled

correctly and that none of the grounds provided a basis to rescind the easement.

¶31 Section 28-2-1711, MCA, governs when a party may rescind a contract or an

easement: 3

A party to a contract may rescind the same in the following cases only:

3
Sections 70-1-501 and -502, MCA, apply the rules of law concerning contracts to
grants of easements.
14
 (1) if the consent of the party rescinding or of any party jointly
contracting with him was given by mistake or obtained through duress,
menace, fraud, or undue influence exercised by or with the connivance of
the party as to whom he rescinds or of any other party to the contract jointly
interested with such party;
(2) if, through the fault of the party as to whom he rescinds, the
consideration for his obligation fails in whole or in part;
(3) if such consideration becomes entirely void from any cause;
(4) if such consideration, before it is rendered to him, fails in a
material respect from any cause; or
(5) if all the other parties consent.

¶32 Gliko maintains that the easement could be rescinded because each party

mistakenly thought that the easement would permit only such use as was in accordance

with previous practice. Because the easement document contains no such limitations,

Gliko argues that the grant must be the result of a mutual mistake of fact.

¶33 Section 28-2-409, MCA, describes what constitutes a mistake of fact:

Mistake of fact is a mistake not caused by the neglect of a legal duty on the
part of the person making the mistake and consisting in:
(1) an unconscious ignorance or forgetfulness of a fact, past or
present, material to the contract; or
(2) belief in the present existence of a thing material to the contract
which does not exist or in the past existence of such a thing which has not
existed.

¶34 The operative portion of the easement document reads as follows:

FOR VALUE RECEIVED, Edna R. Urick, (“Grantor”), grants unto
Kenneth and Marian Permann, (“Grantees”), and to their successors and
assigns hereafter, an Easement and Right-of-Way, for ingress to and egress
from, and to run with and for the benefit of land owned by Grantees
described as the N1/2NW1/4 and N1/2NE1/4 of Section 21, Township 19
North, Range 8 East, Cascade County, Montana.

Said easement follows a road presently existing, extending in a northerly
direction from the Jarvi Road through a portion of the W1/2W1/2 of
Section 21, Township 19 North, Range 8 East (as shown on attached map)
15
 and continuing in a northerly direction to the south boundary of Grantees
property.

¶35 The easement document is unambiguous and simple. Gliko has not offered

evidence demonstrating that either party was unconsciously ignorant or forgetful of a

material fact. “One who executes a written contract is presumed to know the contents of

the contract and to assent to those specified terms . . . .” Quinn v. Briggs (1977), 172

Mont. 468, 476, 565 P.2d 297, 301, and each party had a duty to understand the terms of

the agreement. See Quinn, 172 Mont. at 478, 565 P.2d at 302. Here, the document’s

silence regarding the use restrictions that the parties talked about does not, without more,

negate the consent each gave to the terms of the written agreement. Therefore, Gliko has

failed to demonstrate that the parties made any mistakes of fact that would justify

rescission of the easement, and we hold that the District Court did not err on this issue.

¶36 Gliko also argues that the easement could be rescinded because the Permanns

committed constructive fraud as defined by § 28-2-406, MCA. He contends that Ken

Permann told Urick that the easement would be limited to the same uses as in the past,

and that the Permanns were unjustly enriched by this misrepresentation. However, Urick

testified that she could not recall any misleading statement made to her relating to the

easement. Thus, we conclude that the District Court correctly decided that rescission was

not appropriate on this ground.

¶37 Gliko makes the additional argument that Urick was subject to undue influence as

defined by § 28-2-407, MCA, stating that Urick “felt she had no choice but to sign” the

easement. Nothing from the record leads to this conclusion, and there is no other
16
evidence to suggest that the statutory elements of undue influence have been met in any

other way. To wit, there was no confidential relationship between the parties, Urick was

not possessed of weakness of mind, and no advantage was taken of Urick’s necessities or

distress. Therefore, we hold that the District Court did not err by ruling that Urick could

not rescind for this reason.

¶38 Lastly, Gliko contends that lack of consideration is a valid ground for rescission of

the easement. However, § 70-1-502, MCA, expressly permits voluntary transfers of

property interests without consideration, and there is no evidence that consideration was,

or was meant to be, given. Accordingly, we conclude that the District Court did not err

on this issue.

¶39 Given our holding on the foregoing issues, we need not address the other issues

raised by the parties.

CONCLUSION

¶40 The Bank did not owe a fiduciary duty to Urick, and this question of law was

properly and correctly resolved on summary judgment. In addition, the District Court did

not err in its order ruling that the granted easement was valid.

¶41 Affirmed.

/S/ JIM RICE

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We concur:

/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS

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