No. 85-552
I N THE SUPREME C U T O THE STATE O MONTANA
O R F F
1986
CARL A. R WA D
O L N ,
P l a i n t i f f and A p p e l l a n t ,
-vs-
FORREST L. KLIES,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e F i f 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 County o f J e f f e r s o n ,
The Honorable Byron Robb, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
S m a l l , H a t c h , Doubek & P y f e r ; R i c h a r d J. P y f e r ,
H e l e n a , Montana
F o r Respondent:
P o o r e , Roth & Robinson; Douglas A. Buxbaum, B u t t e ,
Montana
S u b m i t t e d on B r i e f s : A p r i l 2 4 , 1986
Decided: O c t o b e r 6 , 1986
Filed:
$]C] 6 - ,::>q
1u36
.
,
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Carl Rowland appeals a Jefferson County District Court
order granting partial summary judgment to the respondent,
Forrest Klies. The two issues on appeal are, (1) whether the
District Court erred in granting summary judgment to
respondent where the Judge previously sitting on this case
had denied respondent's motion for summary judgment; and (2)
whether the District Court properly entered partial summary
judgment in respondent's favor. We affirm.
In the summer of 1979, appellant was camping out in the
mountains near Basin, Montana, on the property of his friend,
Leon Dolence. Appellant is, and was at that time, suffering
from progressive muscular atrophy. Appellant had quit his
job in 1978 because of this disability. In the summer of
1979, Dolence told appellant that appellant could build a
cabin at any place on Dolence's land and stay there for the
rest of his life. During that summer, appellant first met
the respondent, Forrest Klies, and they entered into the
agreement which gives rise to this appeal. Appellant and
respondent orally agreed that respondent would build and
furnish a cabin on respondent's land for appellant to live in
for the rest of his life. The respondent's land was located
very near to Dolence's property. In return, appellant, to
the best of his ability, was to prevent people from poaching,
trespassing, cutting firewood, and damaging respondent's
other cabins on respondent's property. Appellant also stated
that he was obligated, when he was able to do so, to check
respondent's other cabins in the area. Appellant understood
that the respondent would occasionally come and stay with him
at appellant's cabin. Appellant states that he fully
informed respondent of his disability prior to entering this
agreement and that respondent agreed that appellant would
fulfill his obligations "to the best of his abilities"
knowing that appellant's disability would hamper his physical
activities. Upon his agreement with respondent, appellant
abandoned his plans to construct a cabin on Dolence's
property.
Respondent's version of the agreement is somewhat
different from appellant's. Respondent concedes that under
the agreement he was to provide a cabin for appellant so long
as appellant lived up to his obligations. According to
respondent, appellant's obligations were to maintain
trespassing signs on respondent's property, keep all
trespassers off the property, and periodically inspect
respondent's property. The main difference in the parties'
versions of the agreement is respondent's assertion that
appellant was to maintain trespassing signs on the property.
According to respondent, the parties also understood that
respondent would occasionally stay in the cabin.
The respondent offered this arrangement to appellant in
the summer of 1979. In November or December of 1979, the
appellant first moved into a mountain cabin and began living
there under the above-described agreement. In November 1979,
respondent sold an option to buy to his brother. The
respondent wrote out a document embodying the option to buy
and in December 1979, he recorded that document with the
Jefferson County Clerk and Recorder. The document refers to
the agreement between appellant and respondent and states
that appellant "has been granted permission to live out his
life in a good livable cabin at no charge and not to pay any
property taxes on and or house maintenance cost. In turn,
Carl Art Rowland will do his best at seeing to it that no one
bothers any ofw respondent's property.
As stated, appellant moved into a cabin in November
1979, under his agreement with respondent. That cabin had
been constructed by respondent and had been sold, with a
small lot, to another individual. Apparently with that
individual's consent, appellant was to live there until
respondent constructed another cabin for appellant to live
in. In the spring of 1980, respondent began constructing
another cabin for appellant to live in. Appellant began
living there in the fall of 1980 and respondent occasionally
stayed with him there. In the fall of 1980, appellant and
respondent began to have disagreements over the living
arrangement. Respondent testified by deposition that
appellant simply was not fulfilling his end of the agreement.
The parties' differences eventually resulted in appellant
signing another agreement in November 1980 which stated that
appellant would only stay on respondent's property until July
1981. Appellant testified by deposition that respondent gave
him the choice of either immediately leaving the premises or
signing the document. In July 1981, appellant vacated the
premises.
The second agreement was the result of an incident
which had caused a further split between the parties. Both
parties agree that appellant told two of respondent's
acquaintances that respondent had made very derogatory
remarks about them. Respondent denied making the derogatory
remarks. Respondent acknowledged that this incident was the
reason he asked appellant to vacate the premises. Appellant
asserted that he only repeated exactly what respondent had
said. Appellant agreed that shortly after this incident the
respondent wanted him to leave.
In May 1982, appellant filed his first complaint
against respondent. Respondent moved for, and the District
Court granted, summary judgment as to all issues of the first
complaint except for one count of the complaint which alleged
that respondent had negligently damaged appellant's vehicle.
In April 1983, appellant filed an amended complaint against
respondent which set forth numerous alternative theories of
recovery. The amended complaint again alleged that
respondent had negligently damaged appellant's vehicle. The
remaining eight counts of the amended complaint arose from
appellant's agreement with respondent to live on respondent's
property. The respondent renewed his motion for summary
judgment as to all issues of the amended complaint except
that issue alleging that respondent had negligently damaged
appellant's vehicle. In December 1983, the Jefferson County
District Court, the Honorable Frank M. Davis presiding,
denied respondent's motion for summary judgment, stating:
The Court, in denying Defendant's renewed
Motion for a summary judgment, has done
so despite a feeling that the Amended
Complaint appears to state no new
facts -- only the same facts under
different legal labels.
All courts are reluctant to summarily
deny an aggrieved party of the right to
have the merits of his grievances
determined by the trier of fact. But he
must have facts which the jury can apply
to a tenable legal theory.
The only disputed questions of fact in
this case are some of the minor ones on
the issue of just what the employment
arrangement between the Plaintiff and the
Defendant was. There is a genuine issue
of fact as to Count V of the original
Complaint.
Thus, this case will be set for trial,
with the caveat that the Defendant could.
very possibly be entitled to a directed
verdict at the close of the Plaintiff's
case.
This Court, as it did in the "life
estate" summary judgment, has gone the
last mile to keep this Plaintiff in court
for equitable reasons. But even equity
must be grounded not on sympathy, but on
tenable legal principles.
In August 1984, Judge Davis voluntarily recused himself from
further proceedings in this case upon appellant's request. In
the memorandum to the order recusing himself, Judge Davis
stated:
In withdrawing from this cause, this
Judge does not concede that he has in any
way prejudged the Plaintiff's case. The
record clearly demonstrates otherwise.
The formal motion to disqualify for cause
is not only untimely under the statute,
but it is wholly without merit. Even the
certificate of good faith is suspect in
light of the record. The
disqualification statute has been sorely
abused. Nevertheless, this Judge feels
that he should not continue to preside
where a party has even a groundless
feeling that he has been and would be
treated unfairly. This Judge feels that
to continue to preside would not be in
the best interest of either party.
The fact is, this Judge may have
committed error already in an effort to
keep this Plaintiff in Court, but the
wisdom of this decision will have to be
decided by another Judge or tribunal.
Subsequently, the Honorable Byron Robb, District Judge,
assumed jurisdiction over this case. In January 1985, Judge
Robb issued an order "[Tlhat plaintiff's counsel shall
forthwith complete a proposed pre-trial order which will
replace, not supplement, the pleadings herein ..."
(Emphasis added.) For unexplained reasons, the pre-trial
order, containing eighteen appellant's contentions and
incorporating the contentions set forth in the amended
complaint, was drafted to supplement the pleadings, in direct
contravention of the January order. In July 1985, the
respondent again moved for summary judgment on all claims
contained in the amended complaint except that claim alleging
that respondent had negligently damaged appellant's vehicle.
In August 1985, Judge Robb granted respondent's motion for
partial summary judgment. Subsequently, the parties reached
an out of court settlement for $1,300 on the one remaining
claim, the automobile damage claim, which had survived the
summary judgment motion.
The first issue is whether the District Court
improperly granted summary judgment where Judge Davis, who
had previously sat on this case, had earlier denied a motion
for summary judgment. Appellant argues that Judge Davis'
ruling denying summary judgment formed "the law of the case"
and that Judge Robb abused his discretion in subsequently
granting summary judgment. In this regard, this Court has
stated:
"Under the 'law of the case1 principle,
judges of coordinate jurisdictions
sitting in the same court and in the same
case may not ordinarily overrule the
decisions of each other. It is simply a
rule of practice that articulates the
sound policy that when an issue is once
judicially determined, that should be the
end of the matter as far as judges and
courts of coordinate jurisdiction are
concerned. The ' law of the case' is not
an imperative; does not go to the power
of the court; and does not mean that a
court does not have discretion to
reconsider a ruling made by another judge
in the same case." (Citations omitted.)
Mereness v. Frito-Lay, Inc. (Mont. 1985), 700 P.2d 182,
183-184, 42 St.Rep. 716, 718; quoting State v. Carden (19761,
170 Mont. 437, 440, 555 P.2d 738, 740. In this case, we hold
that the District Court did. not abuse its discretion simply
because it reconsidered Judge Davis' denial of summary
judgment and then granted summary judgment. The District
Court had additional deposition information upon which to
base its order granting summary judgment. In this situation,
we find that there was no error under this issue.
The second issue is the propriety of the District
Court's granting summary judgment.
The standard of review is clear. Summary
judgment is only proper under Rule 56(c),
M.R.Civ.P., where the record discloses
that no genuine issue of material fact
exists and the moving party is entitled
to judgment as a matter of law.
Mutual Service Cas. Ins. Co. v. McGehee (Mont. 1985), 711
P.2d 826, 827, 42 St.Rep. 2038, 2039-2040. Using this strict
standard, we will examine the eight theories of recovery
which were dismissed by the District Court order granting
summary judgment. Because the pre-trial order, containing
appellant's eighteen contentions, supplemented the pleadings
rather than replacing them, it has been a time-consuming
chore to fairly summarize the issues raised. We have
summarized the claims as: (1) a claim for a violation of the
employer-employee relationship; (2) a claim for a violation
of S 39-2-303, MCA, which deals with employer deception and
misrepresentation; (3 a claim for negligent
misrepresentation; (4) a claim for the negligent infliction
of mental distress; (5) a claim for a breach of the covenant
of good faith and fair dealing; (6) a claim for promissory
fraud; (7) a claim for fraudulent misrepresentation; (8) a
claim for wrongful interference with peaceful possession of
property.
We address the first two claims listed above together
as both claims require a finding of an employment
relationship. Summary judgment would be proper as to both
these claims if, as a matter of law, there was no employment
relationship between the appellant and the respondent. In
February 1983, after appellant had filed his first complaint
but prior to the filing of the amended complaint, appellant
filed a sworn affidavit with the Jefferson County District
Court Clerk of Court. that affidavit, appellant swears
that he was not "employed" by respondent; that the use of the
word "hired" in his complaint was not intended to be defined
as hired in the sense of an employer-employee rela.tionship;
that he was not hired as an employer hires an employee; that
he merely agreed to occupy the cabin and do his best to keep
off trespassers and poachers; and that the word hired as used
in the complaint did not mean that [respondent] was paying a
wage for services rendered by [appellant]. The District
Court, in considering this affidavit, stated that it "seems
to me to work a fraud upon the court for plaintiff to now
claim damages from any sort of employment status. We also
question the propriety of allowing appellant to now assert
that there was an employment relationship.
The rule is well established that during
the course of litigation a party is not
permitted to assume or occupy
inconsistent and contradictory positions,
and while this rule is frequently
referred to as "judicial estoppel," it
more properly is a rule which estops a
party to play fast-and-loose with the
courts ...
Although the rule ...
may be regarded
as a form of estoppel, it is not strictly
one of estoppel, but partakes rather of
positive rules of procedure based on
manifest justice and, to a greater or
lesser degree, on considerations of the
orderliness, regularity, and expedition
of litigation.. ,
... those elements such as reliance and
injury, or prejudice to the individual,
which are generally essential to the
operation of equitable estoppel, may not
enter into judicial estoppel, at least
not to the same extent. ..
In order to
work a judicial estoppel, the position
first assumed must have been taken
knowingly and free of inducement by the
opposite party.
... the doctrine of judicial estoppel
applies with particular force to
admissions or statements made under
sanction of oath .. .
31 C.J.S. Estoppel, § 117B, pgs. 623-627, (1964).
Although there is not an abundance of case law on this
rule, various courts have employed it. In Hurd v. DiMento &
Sullivan (1st Cir. 1971), 440 F.2d 1322, the federal court of
appeals held that the plaintiff was estopped from claiming
that the defendant attorneys had agreed to represent her.
The estoppel was predicated upon the plaintiff's letter
written support a motion for continuance, that stated
that one defendant (a member of the firm) was unable to
represent her because of prior commitments. In LaChance v.
McKown (Tex.Ct.App. 1983), 649 S.W.2d 658, 660, the court
recited the Texas rule on judicial estoppel:
Judicial estoppel may arise when a person
has taken a position or asserted a fact
under oath in a judicial proceeding
contrary to a position he is taking in
the present litigation ...
The rule's
purpose is to suppress fraud and prevent
abuse of the judicial process by
deliberate shifting of positions to suit
the exigencies of a particular action,
and it will not be applied when the
previous act or statement is uncertain or
based on undetermined facts, but only
when it is clear and certain. (Citations
omitted. )
We agree with the goal stated above.
This Court has stated that, "[tlhe rule is that parties
are bound by and estopped to controvert admissions in their
pleadings." Fey v. A. A. Oil Corporation (1955), 129 Mont.
300, 323, 285 P.2d 578, 590. We find no reason why this rule
should not be extended, at least in the peculiar context of
this case, to estop a party from controverting admissions in
his affidavit. Especially where it appears that appellant is
shifting his position on the issue of an employment
relationship simply to suit his legal maneuvering at the
time. When appellant filed the affidavit, he was advancing a
property law theory that respondent had conveyed a life
estate in the cabin to him. He apparently disclaimed an
employment relationship fearing it would defeat his life
estate theory. Appellant changed his position after the
District Court rejected the life estate claim, holding such
an estate cannot be created orally.
We hold that appellant is estopped from asserting that
an employment relationship existed and summary judgment on
the first two claims for relief was appropriate.
Appellant's third claim is entitled negligent
misrepresentation. We read this long and rambling portion of
the complaint as setting forth two separate theories of
recovery. The first theory is the tort of negligent
misrepresentation, recognized by this Court in Brown v.
Merrill Lynch, Pierce, Fenner, Etc. (1982), 197 Mont. 1, 640
P.2d 453. We described that tort as follows:
"One who, in the course of his business,
profession or employment, or in any other
transaction in which he has a pecuniary
interest, supplies false information for
the guidance of others in their business
transactions, is subject to liability for
pecuniary loss caused to them by their
justifiable reliance upon the
information, if he fails to exercise
reasonable care or competence in
obtaining or communicating the
information."
Brown, 640 P. 2d at 458-459, quoting Restatement (Second) of
Torts $ 552 (1977).
The appellant has developed no basis upon which to
claim that false information was supplied or that the
respondent failed to exercise reasonable care or competence
in obtaining or communicating information. It is not
disputed that the caretaker relationship between the parties
deteriorated because of problems that developed subsequent to
the original arrangement.
The other possible theory which appellant advances
under his claim entitled negligent misrepresentation is a
theory of constructive fraud. Appellant, in his claim, uses
some of the statutory language defining constructive fraud at
$ 28-2-406(1), MCA. However, for appellant to succeed on a
claim under this section, he must allege and demonstrate a
fiduciary relationship between the respondent and himself.
Constructive fraud is a breach of
fiduciary duty. (Citation omitted.) If
there is no fiduciary duty in the first
place, constructive fraud will not lie.
Morse v. Espeland (Mont. 1985), 696 P.2d 428, 430, 42 St.Rep.
251, 253. Here, there is nothing in the record to show a
fiduciary relationship. Instead, appellant and respondent
were dealing with each other at arm's length. The District
Court properly granted summary judgment on the issue of
negligent misrepresentation.
The fourth claim dismissed by summary judgment was a
claim for breach of the implied covenant of good faith and
fair dealing. Under this claim, appellant alleged that
respondent recklessly disregarded the rights of appellant and
interfered with appellant's rights to the cabin, all in bad
faith.
In the recent case of Nicholson v, United Pacific Ins,
Co. (Mont. 1985), 710 P.2d 1342, 42 St.Rep. 1822, this Court
articulated its concept of the tort of breach of the implied
covenant of good faith and fair dealing. We established
that, at least in Montana, the covenant does not arise from
every contract and, in fact, is not an obligation arising out
of contracts. The covenant does arise out of the justifiable
expectations of the parties. One comment in Nicholson is
especially relevant here;
[A] helpful distinction should be noted
between an intentional breach or one
motivated by self-interest, giving rise
to only contract damages, and the action
which would give rise to a breach of the
implied covenant, resulting in tort
damages. Historically, a party to a
contract generally had the right to
breach and pay damages rather than
perform. The non-breaching party,
theoretically, is "made whole" from the
damages paid following the breach and
thus still receives benefits from the
agreement.
"Contract law is based in part upon the
assumption that certain intentional
breaches are to be encouraged.
Permitting parties to breach their
contracts promotes an efficient economy,
at least when the gains from the breach
exceed the expected pecuniary injuries of
the promise."
Nicholson, 710 P.2d at 1348, quoting Diamond, The Tort of Bad
Faith Breach of Contract: When, If At All, Should It Be
Extended Beyond Insurance Transactions, 64 Marq.L.Rev. 425,
453-454 (1981).
We have carefully examined appellant's 129 page
deposition, the respondent's 123 page deposition, the
appellant's eighteen contentions in the pre-trial order, the
eleven page amended complaint, and various exhibits in the
record. This examination persuades us that as a matter of
law, respondent's conduct was not the arbitrary, capricious,
unreasonable or impermissible activity which, under
Nicholson, would justify a claim for breach of the implied
covenant. The record shows that respondent provided
appellant with a cabin for twenty months; that respondent
built a cabin for appellant; that respondent assisted
appellant in many ways in living in the mountains; that
appellant, because of his disability, was severely restricted
in acting as a caretaker; that appellant did not always act
in the best interests of respondent; and that respondent
gradually grew dissatisfied with his relationship with
appellant. The District Court did not err in granting
summary judgment on the claim for breach of the implied
covenant.
The fifth claim dismissed by summary judgment was
appellant's claim for negligent infliction of emotional
distress. In Johnson v. Supersave Markets, Inc.
(Mont. 1984), 686 P.2d 209, 213, 41 St.Rep. 1495, 1500, this
Court addressed the tort of negligent infliction of emotional
distress and stated:
[Tlhis Court adopts the species of case
approach which requires a factual
analysis of each case to determine
whether the alleged "emotional distress"
merits compensation. In determining
whether the distress is compensable
absent a showing of physical or mental
injury, we will look to whether tortious
conduct results in a substantial invasion
of a legally protected interest and
causes a significant impact upon the
person of plaintiff.
See also, Proto v. Elliot (Mont. 1986), 722 ~ . 2 d 625, 43
Here, the record fails to establish a material issue of
fact as to tortious conduct by the d-efendant, resulting in a
substantial invasion of a legally protected interest and
causing a significant impact upon the plaintiff. In
addition, this issue was previously adjudicated by Judge
Davis.
The District Court also granted summary judgment as to
appellant's claim for fraudulent misrepresentation. In order
to go to the jury on this claim, appellant must make out a
prima facie case of the nine elements of fraud:
(1) a representation; (2) its falsity;
(3) its materiality; (4) the speaker's
knowledge of its falsity or ignorance of
its truth; (5) the speaker's intent that
it should be acted upon by the person and
in the manner reasonably contemplated;
(6) the hearer's ignorance of its
falsity; (7) the hearer's reliance upon
its truth; (8) the right of the hearer to
rely thereon; and (9) the hearer's
consequent and proximate injury or
damage.
Brown v. Merrill Lynch, Pierce, Fenner, Etc. (1982), 197
Mont. 1, 11, 640 P.2d 453, 458. We find that under the
undisputed facts in the record appellant's claim of fraud is
deficient in certain elements cited above. Under these
elements, appellant asserts that respondent falsely
represented that appellant would have peaceful possession of
the property and that respondent knew that he would not allow
appellant peaceful possession. However, appellant's
testimony in deposition belies these assertions upon which
his claim rests. Appellant's deposition establishes that
respondent provided appellant with a cabin in 1979-1980;
respondent built a different cabin for appellant in the
spring of 1980; appellant understood that respondent would
occasionally stay with appellant in the cabin on respondent's
land; respondent supplied appellant several times with
venison or elk meat; respondent assisted appellant in
obtaining a generator for the cabin; appellant did live in a
cabin provided by respondent for approximately twenty months;
respondent provided appellant with six cords of wood one
fall; that respondent and appellant began to have
disagreements over appellant's hosting other people at the
cabin; and that the relationship deteriorated, and respondent
evicted appellant, after appellant told two of respondent's
acquaintances that respondent had made derogatory remarks
about them.
Appellant's testimony establishes that there was simply
a deterioration in the relationship and that respondent did
not know, at the time he made the statement, that he would
not allow appellant peaceful possession of the property.
Because appellant's testimony establishes the absence of
various elements of a prima facie case of fraud, the District
Court properly granted summary judgment on that claim.
For the same reason, we hold that the District Court
properly granted summary judgment on appellant's seventh
claim, for promissory fraud. Under this claim, appellant
alleges that respondent fraudulently promised him that he
would have an exclusive possessory interest in the cabin.
Again, appellant's claim is deficient because his own
testimony establishes that respondent did not know of the
falsity of his representations. Furthermore, "the mere
making of a promise which the promisor fails to keep is not
actionable fraud." Svennungsen v. Svennungsen (1974), 165
Mont. 161, 169, 527 P.2d 640, 644.
The last claim of appellant which was dismissed by
summary judgment is entitled "Wrongful Interference With
Peaceful Possession of Property." It is not entirely clear
what theory of recovery appellant is advancing under this
claim. Paragraph two of this count contends that "plaintiff
was entitled to the peaceful enjoyment and possession of said
cabin for the term of his employment with the defendant
... " (Emphasis added.) From that and other contentions,
it appears that this count is predicated upon a finding of an
employment relationship between appellant and respondent. We
have held previously in this decision that the appellant is
estopped from successfully alleging an employment
relationship. Therefore, the District Court properly granted
summary judgment.
In addition, it appears that the appellant's
contentions set forth in the pre-trial order were considered
by Judge Davis in his March 4, 1983, order granting summary
judgment as to all counts in the original complaint except
Count V, regarding property damage to appellant's vehicle.
Having been the subject of prior adjudication they would be
barred under the doctrine of law of the case, which doctrine
is not being used in the resolution of this appeal, but which
has been strenuously urged by counsel for appellant.
We agree with the following comments made by Judge Robb
in granting summary judgment:
1. No valid life estate was created,
Judge Davis previously so ruled on an
earlier motion for summary judgment, and
I concur. Plaintiff's counsel state they
are not now pursuing claims on that
basis, so the point would seem moot, but
yet plaintiff's other claims and theories
overlap this in many respects and it is
difficult to separate such alleged fact
and theory from the other claims.
2. The record indicates no employer-
employee relationship was created, at
least certainly not in the ordinary
sense, and although plaintiff originally
claimed there was not, now he does allege
an employment status of some sort. This
seems grossly inconsistent with
plaintiff1 affidavit of 2 / 2 2 / 8 3 filed
s
herein, and seems to me to work a fraud
upon the court for plaintiff to now claim
damages from any sort of employment
status. In any event, if an
employer-employee relationship existed at
all, it was one terminable at will by
either party.
5. What the record does establish is a
very loose, vague and ambiguous oral
agreement of the parties, with both
claiming the other failed to fulfill his
end of it in some respect. The contract
consideration appears quite illusory to
me as defendant had no way of compelling
plaintiff Rowland to stay in the cabin if
he chose not to, as that would be
involuntary servitude, and if it was not
permanently binding on plaintiff, it
should not be on defendant. This brings
the situation back to one terminable at
will by either party, is clearly
contractual in nature, and punitive
damages would not be recoverable.
6. Plaintiff executed a written
resignation or agreement to vacate the
premises, and although he argues this was
under coercion and he had no choice, the
obvious facts do not bear this out. That
is, Rowland certainly could have simply
refused to sign such document and sat
tight, or he could have sought counsel
then or during the additional seven
months he lived in the cabin, or much
earlier than he did after leaving. He
also could have signed a criminal
complaint against Klies if defendant in
fact threatened him with a qun at some
-
time. Unlike Gates v. Life of Montana,
there is no failure or refusal to return
the written resignation letter alleged,
and a bad faith fact basis does not
appear.
7. In summary, plaintiff's numerous
claims for emotional distress, negligent
misrepresentation, promissory fraud,
punitive damages etc. simply are too
factually vague, inconsistent, and
legally unsound to justify trial,
notwithstanding an extensive and
persistent effort by his attorney.
Affirmed.
We concur: