No. 87-565 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

ALMA S. JANZ, 

Plaintiff and Appellant, 

-vsDUANE QUENZER, d/b/a BEN FRANKLIN 

STORE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ira Eakin, Billings, Montana 

Charles Peterson, Beach, North Dakota 

For Respondent: 

Moulton, Bellingham, Longo & Mather; Fred W. Robinson, 

Billings, Montana 

Terry J. Hanson, Miles City, Montana 

Submitted on Briefs: April 28, 1988 

Decided: June 28, 1988 

Filed: &&l/Vi 

,? 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal from the Sixteenth Judicial District 

concerns appellant Janz's claim for wrongful discharge in 

breach of; public policy, an express contract for employment, 

and the implied covenant of good faith and fair dealing. 

Janz alleged that the claim arose from the actions of 

respondent Quenzer as her employer. Quenzer moved for 

summary judgment contending that no employment relationship 

existed between the parties. The District Court agreed and 

granted Quenzer's motion. Janz appeals this decision. We 

affirm. 

Janz presents two issues for review: 

(1) Did the Court err when it decided that Alma Janz 

was not employed by Duane Quenzer, and when it granted 

Quenzer's motion for summary judgment on that basis? 

(2) Did the District Court err when it concluded that 

Alma Janz was not entitled to punitive damages as a matter of 

law? 

The undisputed facts are briefly as follows: Kenneth 

Heier owned the Ben Franklin Store in Baker, Montana. Janz 

and her daughter, Roxanne, worked for Heier. Heier offered 

to sell the store to Quenzer. The parties agreed to a 

purchase price which included the store and the store's 

inventory up to $160,000.00. They also agreed that Quenzer 

could negotiate to purchase any store inventory in excess of 

$160,000.00. Quenzer and Heier planned to ascertain the 

value of the store's inventory prior to closing the deal. 
Janz heard about the sale and contacted Quenzer to 

inquire whether or not he would continue her employment. 

Quenzer told Janz he planned to keep her on. 

From November 1, 1983, to at least the morning of 

November 3, 1983, Heier employed Janz to help with the 

inventory. On November 4, 1983, the inventory was either 

completed or nearing completion. In the morning hours of 

November 4, 1983, Janz and her daughter, Roxanne, arrived at 

the store to begin work for the day. Shortly after their 

arrival Quenzer told Roxanne she could not wear jeans to 

work. Roxanne told Quenzer that she had no other type of 

pants to wear, and then complained to her mother. The 

parties argued, and appellant Janz and her daughter left the 

store. As Janz left the store Quenzer asked for keys to the 

store kept by Janz. Janz refused to give the keys to Quenzer 

telling him that they belonged to Heier. 

Later that morning Heier spoke to Janz about the 

incident. He told Janz he felt bad about the incident, and 

payed Janz for her wages for the period of time through 

November 3, 1983. 

I. 

Under Rule 56 (c) , M.R.Civ.P., summary judgment is 

properly granted where the moving party meets the initial 

burden of showing the absence of a genuine issue as to any 

fact deemed material in light of the substantive principl-es 

that entitled the movant to judgment as a matter of law. 

Fleming v. Fleming Farms, Inc. (Mont. 1986), 717 P.2d 1103, 

1105-06, 43 St.Rep. 776, 779. And the party opposing the 

motion fails to come forward with evidence supporting the 

existence of a material question of fact. ~leming, 717 P.2d 

at 1106. All reasonable inferences that may be drawn from 

the offered proof must be drawn in favor of the party 
opposing summary judgment. Cereck v. Albertson' s, Inc. 

(1981), 195 Mont. 409, 411, 637 P.2d 509, 511. 

The resolution of this issue depends on the existence of 

a material question of fact on whether Quenzer employed or 

contracted to employ Janz. Malloy v. Judge's Foster Home 

Program, Inc. (Mont. 1987), 44 St.Rep. 1996, 1999, 746 P.2d 

1073, 1075. We hold that the District Court correctly 

granted summary judgment on the claims at issue because no 

reasonable inference may be drawn that either the contract or 

the relationship existed. 

Janz does not dispute that on the morning of November 3, 

1983, she worked for Heier. However, according to Janz, a 

material fact question exists as to whether Quenzer took over 

operation of the store during the afternoon of November 3, 

1983. According to Janz, deposition statements demonstrate a 

factual issue over the existence of Quenzer's control of the 

store and its employees. Janz contends that a reasonable 

inference may be drawn that Quenzer's control of the store 

created the employment relationship she has based her claims 

upon. 

Quenzer answers that he hired no employees until after 

Janz "walked out" of the store. To support this contention, 

Quenzer points out that he did not own the store until after 

he allegedly fired Janz. 

First, we agree with Janz that a showing that Quenzer 

controlled the store and its employees may be enough in the 

appropriate case to prevail against a motion for summary 

judgment on this issue. However, Janz's control assertion 

fails to raise a material question of fact as to the 

existence of an employment relationship arising from control 

under the undisputed facts of this case. 

Janz's specific contentions on Quenzer's control of the 

store and its employees appear in her brief as follows: 
Quenzer was in full control of the operation of the 

business on the afternoon of November 3, 1983, 

following the inventory. At that time, the 

Plaintiff and other employees were taking their 

directions and orders from Quenzer as the new 

owner. Quenzer advised Alma Janz and the other 

employees on November 3 when to appear for work on 

the morning of November 4. Quenzer received all of 

the receipts from the business on the afternoon of 

November 3 and November 4. Quenzer hired employees 

who began work on the morning of November 4 

following the discharge of Mrs. Janz. The 

employees were hired to replace Mrs. Janz, her 

daughter and Mary Ann Aguayo and were paid wages by 

Quenzer for their work on November 4. Quenzer 

allowed Janz to carry on her duties on the morning 

of November 4 prior to terminating her daughter's 

employment with him. Furthermore, the franchise 

agreement executed by Quenzer specifically provided 

that he was the owner of the store as of November 

1, 1983. 

We will consider these contentions individually to 

determine whether a material fact question exists as to the 

establishment of an employment relationship between the 

parties. First, the fact that Quenzer employed other workers 

on November 4, 1983, after Janz left the store fails to raise 

any inference as to Janz's alleged term of employment. The 

events at issue occurred prior to Quenzer's employment of 

other individuals. 

Second, Janz cites to a deposition statement made by 

Quenzer contending that the statement infers employment by 

control. According to Janz, Quenzer stated, as recorded on 

page 20 of his deposition, that the inventory was completed 

on November 3, 1983, and that the store reopened for business 

on the afternoon of November 3, 1983. This assertion 

exaggerates the content of Quenzer's statement. 

Quenzer stated on page 20 of the deposition that the 

inventory took two and a half days. One could deduce from 

this statement that since the inventory began on November 1, 
1983, it was over by the afternoon of November 3, 1983. 

However, on pages 24 and 25 of the deposition Quenzer 

clarified his earlier statement on when the inventory was 

completed: 

Q. Did you handle the business of the store 

on November 4th? 

A. To what degree? 

Q. Whatever was required of you at that 

point. 

A. No. Howard Philmore was the inventory 

man. He was the one in charge. 

Q. However, the inventory was completed 

November 3rd, correct? 

A. The count. Not the adding. 

9. Okay. I 'm not talking about the inventory 

directly. I'm talking about the business of the 

store, the operation of the store itself. 

A. Reword that. 

Q. Who handled the operation of the store, 

not having to do with the inventory, but the actual 

operation of the store on November 4th? 

A. Howard Philmore. 

Thus, Quenzer stated only that a part of the inventory was 

completed on November 3, 1983, and no reasonable inference 

may be drawn that Quenzer controlled the store's employees 

simply because on page 20 of his deposition he stated that 

the inventory took two and a half days. The statements of 

Quenzer, as revealed by his assertion that Philmore was in 

charge of the store, are in direct opposition to Janz's bald 

assertions on the control issue. 
Next, Janz contends that Quenzer controlled the store on 

the afternoon of November 3, 1983, because he told Janz and 

co-employee Mary Ann Aguayo what time to come to work on 

November 4, 1983. The fact that Aguayo and Janz asked 

Quenzer when they should report to work on November 4, 1983, 

fails to reasonably infer that Quenzer's control of the store 

and its employees established an employment relationship 

between Janz and Quenzer on the afternoon of November 3, 

1983, and the morning of November 4, 1983. The fact only 

infers that Quenzer and Aguayo planned to enter an employment 

relationship on November 4, 1983. Thus, no reasonable 

inference may be drawn that an employment relationship 

existed from these statements. 

Other than the statement that Quenzer responded to her 

question on what time to appear for work, Janz failed to 

specify incidents occurring on November 3, 1983, which 

demonstrate Quenzer's control of the store. Conclusory or 

speculative statements are insufficient to raise a genuine 

issue of material fact. Barich v. Ottenstror (1976), 170 

Mont. 38, 42, 550 P.2d 395, 397. The statements of Janz fail 

to reveal anything but preparation to begin an employment 

relationship, and again no reasonable inference may be drawn 

that Janz's employment was initiated by Quenzer's control of 

the store on the afternoon of November 3, 1983, or the 

morning of November 4, 1983. 

Janz also contends that Quenzer allowed her to begin 

work on the morning of November 4, 1983, because she spent 

eight or ten minutes dusting shelves prior to arguing with 

Quenzer and leaving the store. The statement on the shelves 

is recorded at page 60 of her deposition. Janz also stated 

that she began the work on the shelves without any direction 

from Quenzer. We hold that the eight or ten minutes Janz 
spent dusting is insufficient to allow a reasonable inference 

that Quenzer controlled the store and its employees. 

The two remaining assertions on control by Janz may be 

disposed of quickly. First, Janz contends that the 

commencement of a franchise agreement between Quenzer and 

Household Merchandising Inc., (Ben Franklin), on November 1, 

1983, raises a material fact question as to when Quenzer took 

over the store. We disagree. The franchise agreement infers 

that Quenzer intended an earlier sale date, but this 

inference does not create a material question of fact as to 

the date Quenzer actually did take over the store. The facts 

are undisputed that Quenzer did not take over the store on 

November 1, 1983, as provided by the agreement. 

Second, Janz argues that Quenzer's receipt of proceeds 

for store sales made during the afternoon of November 3, and 

on November 4, 1983, creates a material question of fact on 

whether Quenzer controlled the store on November 3, 1983. 

The record establishes that Quenzer was entitled to the 

proceeds only after closing occurred on the afternoon of 

November 4, 1983. If the sale had not closed, the proceeds 

would have belonged to Heier. Thus, no reasonable inference 

may be drawn that the receipt of the proceeds on a given day 

marks the beginning of an employment relationship between the 

parties. 

While Janz's references to the record fail to reveal 

material fact questions on the existence of an employment 

relationship between the parties, Quenzer has presented solid 

citations to deposition statements demonstrating the 

nonexistence of the alleged relationship: (1) Quenzer did 

not own the store at the time of the alleged termination; (2) 

Heier paid Janz's wages for November 3, 1983; (3) a Ben 

Franklin representative was in charge of the inventory which 

proceeded the sale; (4) Janz refused to give the keys to the 
store to Quenzer when she left on November 4, 1983, and told 

Quenzer they belonged to Heier. Quenzer's proof discloses 

that no genuine issue of material fact existed as to the 

absence of the employment relationship. Once the record 

discloses: 

no genuine issue of material fact, the burden of 

proof shifts to the party opposing the motion for 

summary judgment to show by present facts of a 

substantial nature that a material fact issue does 

exist. 

Mayer Bros. v. Daniel Richard Jewelers, Inc. (Mont. 1986), 

726 p.2d 815, 816, 43 St.Rep. 1821, 1823. Janzls proof fails 

to meet this burden. 

The last claim dealt with here is the alleged breach of 

an express employment contract. We hold that no contract 

existed between the parties because the absence of the terms 

of the employment makes the alleged contract fatally 

uncertain. Bishop v. Hendrickson (Mont. 1985), 695 P.2d 

1313, 42 St.Rep. 259. The record reveals that the parties1 

conflict actually arose in defining the terms of employment 

for Janzls daughter, i.e., that she not wear jeans. The 

parties' negotiations did not proceed further than the issue 

of proper attire for store employees. Thus, no contract 

existed and we affirm on this issue. 

Janz concedes in her reply brief that resolution of the 

first issue in favor of Quenzer moots the second issue. 

Thus, resolution of issue 1 disposes of this appeal. 

AFFIRMED. 

We Concur: /