Gliko v. Permann

• Decision Date: 14 February 2006
• Docket Number: No. 04-600.,04-600.
• Citation: 2006 MT 30,130 P.3d 155,331 Mont. 112
• Parties: 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.
• Court: Montana Supreme Court

130 P.3d 155

2006 MT 30

331 Mont. 112

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.

No. 04-600.

Supreme Court of Montana.

Submitted on Briefs July 26, 2005.

Decided February 14, 2006.

COPYRIGHT MATERIAL OMITTED

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).

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.

¶ 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 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):

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 (quoting Tokarz v. Frontier Fed. Sav. & Loan Ass'n (1983), 33 Wash.App. 456, 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 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...