Huschka v. U.S. West ( 1995 )

  •                             NO.    94-620
    ANN HUSCHKA, an incompetent person,
    by Orville Reather, Guardian and/or
    Conservator of her Person and Estate,
              Plaintiff and Appellant,
    U. S. WEST DIRECT, Publisher of the
    White and Yellow Pages, Incorporated,             2.2 .%rr$i
    a Division of U. S. West Marketing          fii;lb~m BP ~~i~l~~~~   BGiwg
    Resources Group, Inc., Colorado,
              Defendant and Respondent.
    APPEAL FROM:   District Court of the Thirteenth Judicial District,
                   In and for the County of Yellowstone,
                   The Honorable Robert W. Holmstrom, Judge presiding.
              For Appellant:
                   Lewis E. Brueggemann, Attorney at Law,
                   Billings, Montana
              For Respondent:
                   C. W. Leaphart, Jr., The Leaphart Law Firm,
                   Helena, Montana (for U.S. West Direct)
                   Rodney T. Hartman, Herndon, Hartman,
                   Sweeney & Halverson, Billings, Montana
                   (for Ginny Wanner's Personal Care, Inc.)
                                  Submitted on Briefs:            April 20, 1995
                                                Decided:          June 27, 1995
    Justice William E. Hunt, Sr., delivered the opinion of the Court.
         Appellant Ann Huschka appeals the decision of the Thirteenth
    Judicial   District    Court,   Yellowstone      County,    granting     respondent
    U.S. West Direct's motion for summary judgment.                  We affirm.
         The issue on appeal is:
         Did the District Court err when it granted respondent's motion
    for summary judgment?
         Appellant,    who is in her        7Os, underwent surgery, after which
    she needed more care than her family could provide.                   Appellant   and
    her family looked in respondent U.S. West's Yellow Page advertising
    to find a suitable place for her.                Under     the   "Nursing     Homes"
    classification,    they located an advertisement for Ginny Wanner's
    Personal Care, Inc., which stated that it offered 24 hour care,
    7 days a week,        and   that   it   was    licensed     by    the   state.      It
    characterized   itself      as "A Retirement Personal Care Facility for
    the Elderly," offering a "Home Environment," a "Quiet Residential
    Setting," and stated that it was "Privately              Owned    &    Operated."    A
    few days after appellant began living at the facility, her large
    colon ruptured.       Her condition went undiscovered by Ginny Wanner's
    personnel for approximately three and one-half hours.                   As a result
    of delayed medical treatment,           appellant is now mentally retarded
    and totally dependent on others.              The facility is not a licensed
    nursing home.     Respondent does not dispute these facts.
         Appellant's amended complaint of June 15, 1994, stated four
    causes of action: false advertising, res ipsa loquitur, negligence,
    and willful and malicious neglect.         Respondent filed an answer and
    a motion for summary judgment.      The District Court granted summary
    judgment on November 30, 1994, concluding that there were no issues
    of material fact and that respondent was entitled to judgment as a
    matter of law.
           Did the District Court err when it granted respondent's motion
    for summary judgment?
           Our standard of review on summary judgments is the same as the
    district    court's.    Groshelle v. Reid (Mont. 1995), 
    893 P.2d 314
    316,   52 St. Rep. 261,     261 (citing Cooper v. Sisters of Charity
    265 Mont. 205
    , 207, 875 P.2.d 352, 353).        When there is no
    genuine issue of material fact,          the moving party is entitled to
    summary judgment as a matter of law.          Groshelle,   893 P.2d at 316
    (citing Spain-Morrow Ranch, Inc. v. West (1994), 
    264 Mont. 441
    872 P.2d 330
    , 332).     The burden of proof rests on the party
    seeking summary judgment to give the district court evidence that
    no genuine issue of material fact exists.         Groshelle,    893 P.2d at
    316 (citing Morton v. M-W-M, Inc. (1994), 
    263 Mont. 245
    , 249, 
    868 P.2d 576
    , 579).        If the moving party meets that burden of proof,
    then the burden shifts to the nonmoving party to show that there is
    a genuine issue of fact. Wolf v. Williamson (Mont. 1995), 
    889 P.2d 1177
    , 1178, 52 St. Rep 51, 52 (citing Morton, 868 P.2d at 579).
           When raising allegations that disputed issues of fact
           exist, the non-moving party has an affirmative duty to
           respond by affidavit or other sworn testimony containing
           material facts that raise genuine issues; conclusory or
           speculative statements will not suffice.
    Wolfe,    889 P.2d at 1178-79, 52 St. Rep. at 52 (citing Koepplin v.
    Zortman Mining (1994), 
    267 Mont. 53
    , 58-59, 
    881 P.2d 1306
    , 1309).
         Appellant    argues that respondent's advertisement      listing
    Ginny Wanner's Retirement and Personal Care Home for the Elderly,
    Inc., not a licensed nursing home, under the "Nursing Home" section
    of its yellow pages advertising, violated § 50-5-107, MCA, and that
    respondent's violation of that statute amounted to negligence per
         50-5-107 Unlawful use of the word nursing. It is unlawful
         for any facility operating in this state to use the word
         "nursing" in its name, signs, advertising, etc., unless
         that facility does in fact provide 24-hour nursing care
         by licensed nurses.
    "Facility" is defined in 5 50-5-lOl(lP), MCA
         "Health care facility" or "facility" means all or a
         portion of an institution, building, or agency, private
         or public, excluding federal facilities . . used,
         operated, or designed to provide health services, [orI
         medical treatment . to any individual.
    Respondent publisher does not fit into any of the definitions of
    "facility."      Thus,   5 50-5-107,   MCA, is   not    applicable to
    respondent.    The elements of negligence per se are:
         1.     The defendant violated a particular statute:
         2.   The statute was enacted to protect a specific class
         of persons;
         3.     The plaintiff is a member of that class;
         4.   The plaintiff's injury is the sort the statute was
         enacted to prevent; and
         5.   The statute was intended to regulate a member of
         defendant's class.
    Hislop    v. Cady (1993), 
    261 Mont. 243
    , 247, 
    862 P.2d 388
    , 391.
    Respondent is clearly not a "facility" as defined by the statute.
    Its published advertisement of Ginny Wanner's under the "Nursing
    Home" classification in its Yellow Pages did not violate 5 50-5-
    107,    MCA.     Respondent fails to meet the threshold element of
    negligence per se because the statute is inapplicable to it as a
            Appellant further asserts that respondent violated the false
    advertising provisions of the Montana Unfair Trade Practices and
    Consumer Protection Act when it listed Ginny Wanner's advertisement
    under the "Nursing Homes" section even though it was not a nursing
            The    Act   contains   exemptions to   its     applicability   in
    5 30-14-105, MCA, as follows:
                  (2) acts done by the retail merchant, publisher
            . . . of a newspaper, periodical . . or advertising
            agency in the publication . . of an advertisement, when
            the owner, agent, or employee did not have knowledge of
            the false, misleading, or deceptive character of the
            advertisement  and did not have a direct financial
            interest in the advertised product or service.
    Appellant failed to offer any evidence that respondent knew that
    Ginny Wanner's        advertisement   might be false,     misleading, or
    deceptive as listed under the "Nursing Home" section.            Further,
    appellant showed no evidence that respondent had a direct financial
    interest in the transaction between appellant and Ginny Wanner's.
    Respondent publisher is exempt from the Act.
         Appellant     appears    to argue     that respondent fraudulently
    misrepresented the services of Ginny Wanner's by listing it under
    the "Nursing Home" classification when it was not a nursing home.
    Appellant asserts that as a result of this advertisement,                   she
    sustained    damages   at   Ginny   Wanner's   facility.   The   elements    of
    actual fraud must include proof of the following nine elements:
         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 on its truth;
         8.      the right of the hearer to rely upon it;
         9.      the hearer's consequent and proximate injury or damage.
    Davis v. Church of Jesus Christ of Latter Day Saints (1993),                
    258 Mont. 286
    , 293, 
    852 P.2d 640
    , 644 (citing Lee v. Armstrong (1990),
    244 Mont. 289
    , 293, 
    798 P.2d 84
    , 87).            Appellant does not allege
    the elements of fraud with particularity, as required by Rule 9(b),
    M.R.Civ.P.      Appellant does not allege or offer any proof that
    respondent knew that Ginny Wanner's advertisement was false or that
    respondent published the advertisement with an intent to deceive
    readers.     U.S. West did not make a representation to appellant. It
    published Ginny Wanner's            advertisement in       its   Yellow Pages.
    Respondent's act of publishing Ginny Wanner's advertisement is not
    a representation of itself and does not meet the first required
    element      of     fraudulent   misrepresentation,     thus the whole claim
            Appellant appears to contend that respondent is liable for
    negligent         misrepresentation, claiming that respondent had a duty to
    "correctly . . . list businesses under these . . classifica-
    tions."      Negligence requires the plaintiff to prove the existence
    of a duty to the plaintiff from the defendant, a breach of that
    duty,      proximate causation, and damages.           Lence v. Hagadone Inv.
    co.     (19931,    
    258 Mont. 433
    , 446, 
    853 P.2d 1230
    , 1238 (citing Scott
    v. Robson (19791, 
    182 Mont. 528
    , 535-36, 
    597 P.2d 1150
    , 1154). The
    facts do not support the existence of the threshold element of a
    duty between appellant and respondent.
             The record shows that respondent met its burden of showing
    that no issue of material fact exists.                As a result, the burden
    shifted to appellant who failed to meet her burden of proof to
    establish that there is any genuine issue of material fact.
            We hold that the District Court did not err when it granted
    respondent's motion for summary judgment.
            Pursuant to Section I, Paragraph 3(c),          Montana Supreme Court
    1988 Internal Operating Rules, this decision shall not be cited as
    precedent and shall be published by its filing as a public document