No. 85-541 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

3 986 

JAMES F. FLEMING, 111, 

Plaintiff and Appellant, 

FLEMING FARMS, INC., FLEMING LAND 

PARTNERSHIP, and. WILMA M. (FLEMING) 

WEST, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twentieth ~udicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larrivee Law Offices; Noel Larrivee, Fissoula, 

Monta.na 

For Respondent: 

McGarvey, Lence & Heberling; John A. Lence, Kalispell, 

Montana 

Yardley & Yardley; Dan Yardley, Livingston, Montana 

Submitted on Briefs: Feb. 20, 1986 

Decided: April 30, 1986 

Filed. : 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, James F. Fleming, 111, appeals from the 

judgment of the District Court, Twentieth Judicial District, 

County of Lake, entered fallowing the District Court's order 

granting the mot-ion for summary judgment of Wilma M. 

(Fleming) West in favor of all defendants. We affirm. 

Fleming raises three issues for our review: 

1. Ojrhether the District Court abused its discretion in 

granting summary judgment because numerous issues of material 

fact exist; 

2. Whether there was actual or constructive fraud 

committed upon Fleming; 

3. Whether there was extrinsic fraud committed in the 

probate of an estate in which Fleming was an heir. 

The record of this case shows that in the early 1940's 

James F. Fleming, Jr., and his wife, Wilma M. Fleming, 

presently Wilma Ivl. Kest, began a ranch-farm operation near 

Pablo, Montana. Over the next 30 years the Flemings acquired 

approximately 800 acres of commercial farm land. During this 

period the Flemings had eleven children, five sons and six 

daughters, including appellant, James F. Fleming, 111. 

During 1975 James, Jr. retained Dan Yardley, an 

attorney, and David Green a certified public accountant to 

advise him with his estate planning. As part of this estate 

planning, it was decided to incorporate the family business, 

excluding the land holdings. As a result, in 1975, Fleming 

Farm, Inc. was formed as a Montana corporation. A total of 

2,000 shares of class "A" voting stock were issued with 1,500 
shares issued to James, Jr., and 500 shares to Wilma. In 

addition, 4,313 class "B" nonvoting shares were issued with 

James, Jr. receiving 3,225 shares and Wilma receiving 1,078 

shares. Late in 1975 the Flemings gave to each of their five 

sons 68 shares of the class "A" stock and 172 shares of the 

class "B" stock. 

As a further part of the estate planning, Fleming Land 

Partnership was formed and all of the commercial land was 

conveyed to the partnership. James, Jr. retained an 80.98% 

ownership interest, Wilma a 10% ownership interest and the 

eleven children each received a .82% ownership interest. The 

partnership leased its land to the family corporation. 

James, Jr. died on October 12, 1975. As specified in 

his Will, Wilma was appointed personal representative. Wilma 

retained Dan Yardley to represent her in that capacity. 

Under the terms of James, Jr. Is Will, one-fourth of his net 

estate was distributed equally to the eleven children. 

One-half of the net estate was placed in Trust "A" with 

income to Wilma, with the right of request for the corpus, 

thus qualifying for the estate tax marital deduction 

available at that time. The remaining one-fourth of the 

estate was placed in Trust "B" with income to be distributed 

either to the wife or children. 

In the fall of 1977, a distribution 'Yn kind" of the 

estate assets was completed. Once the distribution had been 

made, pursuant to the terms of Trust "A", Wilma requested in 

writing that the corpus of that trust be conveyed to her, 

thus terminating the trust. At the request of Wilma, Trust 

"B" was terminated by court order and the property was 

distributed equally to the eleven children, thus in effect 

giving the children one-half of the net estate. 
Wilma received James, Jr.'s corporate stock as the major 

portion of her distributive share, while the children 

received their father's partnership interest. The division 

of James, Jr.'s partnership interest among the eleven 

children equaled a 7.36% interest to each, which combined 

with the .82% interest earlier given to ea-ch child totaled an 

8.18% interest in the partnership per child. 

In the spring of 1980, the Internal Revenue Service 

contested the valuation of certain assets of the estate. In 

1981, an agreement was reached with the I.R.S. increasing the 

valuation of some assets of the estate. A d.ispute with the 

Montana Department of Revenue was resolved on a similar 

basis. Under the terms of these agreements, the gross 

valuation of the estate of James, Jr. was increased from 

$659,109 to $805,203. All of the additional taxes paid by 

the revaluation were paid by Wilma. There was no attempt to 

revise the in-kind distribution of assets made in 1977 or to 

recoup any of the additional costs from the children. 

During the winter and spring of 1976, James, I11 

borrowed $42,500 from the family corporation for construction 

of a house for himself and his family. A promissory note 

dated August 2, 1976, evidenced the indebtedness. James, 111 

made a few payments on the debt, reducing his unpaid balance 

to $42,196. On January 10, 1978, at a meeting with the other 

family members, James, 111 transferred his 240 share interest 

in the family corporation and 8.18% interest in the family 

partnership to the family corporation in exchange for the 

cancellation of the promissory note. 

This action arises out of a promise made to James, I11 

by his mother at the January 10, 1978, meeting. James, 111 

testified regarding the promise as follows: 
Q. Let's go on. According to the Complaint, you 

alleged that you were promised the difference in 

value between the value of the stock and 

partnership interest and the amount of the 

note--the difference in those two values when the 

farm is sold. A. Yes, that's what my mother told 

me. 

Q. Do you know when this happened? When did your 

mother tell you this? A. I was signing the 

corporation shares and out of the clear blue sky, 

she said, "If I ever sell the farm, Jim, I'll give 

you the rest of your money." 

Q. Let's get back to the promise for a moment. 

It's my understanding from your testimony as you 

were signing the back of the corporate stock, 

signing it back to the corporation, your mother 

said to you, "If I ever sell the farm, I'll give 

you the rest of your money. " A. That's what she 

said. 

Q. And that was the only time she ever made such a 

promise? A. Yep. 

(1. And that was not the reason that you were 

signing the corporate stock? A. Not really, I 

guess. 

Q. You were not being induced by that promise to 

sign the stock? A. No. I felt an obligation to, 

I guess, do it. 

Count I of James, 111's complaint alleged that the above 

promise made by Wilma induced him to convey his interest in 

the partnership and corporation and constituted fraud, actual 

or constructive, as well as, undue influence. In count I1 of 

his complaint, James, I11 requested an accounting of the 

proceeds of the trusts created by the death of James, Jr. 

On July 15, 3.985, Wilma filed a motion for summary 

judgment. After considering the pleadings, interrogatories, 

request for admissions, the depositions of James, I11 and 

Wilma, the affidavit of attorney Yardley, Wilma's brief and 

James, 111's oral argument the District Court, having found 

no genuine issue as to any material fact granted summary 

judgment to all defendants. 
The general purpose of Rule 56, M.R.Civ.P., is to 

eliminate unnecessary trial, delay and expense. The purpose 

of the hearing and the motion is not to resolve factual 

issues, but to determine whether there is any genuine issue 

of material fact in dispute. The opposing party's facts must 

be material and of a substantial nature, not fanciful, 

frivolous, gauzy nor merely suspicions. Westlake v. Osborne 

(Kont. 1986), 713 P.2d 548, 550, 43 St.Rep. 200, 203; 

Silloway v. Jorgenson (19651, 146 Mont. 307, 310, 406 P.2d 

167, 169. The party moving for summary judgment has the 

initial burden of showing that there is no genuine issue as 

to any fact d.eemed material in light of the substantive 

principles that entitled the movant to judgment as a matter 

of law. Cereck v. Albertson's, Inc. (Mont. 1981), 637 P.2d 

509, 511, 38 St.Rep. 1986, 1987-88. Once the movant has met 

this burden, the party opposing the motion must supply 

evidence supporting the existence of a genuine issue of fact. 

Pretty On Top v. Hardin (1979), 182 Mont. 311, 315, 597 P.2d 

58, 60; Harland v. Anderson (1976), 169 Mont. 447, 451, 548 

P.26 613, 615. As we will discuss in detail below, we find 

that Wilma met her burden and the District Court properly 

granted summary judgment for all defendants as there existed 

no genuine issue of material fact. 

Section 28-2-405, MCA, provides: 

Actual fraud, within the meaning of this part, 

consists in any of the following acts committed by 

a party to the contract or with his connivance with 

intent to deceive another party thereto or to 

induce him to enter into the contract: 

(1) the suggestion as a fact of that which is not 

true by one who does not believe it to be true; 

(2) the positive assertion, in a manner not 

warranted by the information of the person making 

it, of that which is not true, though he believes 

it to be true; 
(3) the suppression of that which is true by one 

having knowledge or belief of the fact; 

(4) A prom.ise made without any intention of 

performing it; or 

(5) a.ny other act fitted to deceive. 

It is well settled that 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; Gallatin Trust & Savings Bank v. Henke (1969), 

154 Mont. 170, 175, 461 P.2d 448, 450. Rather, one must 

prove that the maker of the promise had no intention of 

performing it when he made it. Howe v. Messimer (1929), 84 

Mont. 304, 313, 275 P. 281, 283. This Court has also stated 

that one must make a prima facie showing of nine elements for 

a fraud claim to survive. Van Ettinger v. PappFn (1978) , 180 

Mont. 1, 9, 588 P.2d 988, 993-94. The nine elements are: 

(1) a representation; (2) falsity of the representation; 

(3) ma-teriality of the representation; (4) speaker's 

knowledge of the falsity of the representation or ignorance 

of its truth; (5) speaker's intent it should be relied upon; 

(6) the hearer's ignorance of the falsity of the 

representation; ( 7 1 the hearer ' s reliance on the 

representation; (8) the hearer's right to rely on the 

representation; and (9) consequent and proximate injury 

caused by the reliance upon the representation. Wright v. 

Blevins (Mont. 1985), 705 P.2d 113, 117, 42 St.Rep. 1311, 

1315; Wortman v. Griff (Mont. 1982), 651 P.2d 998, 1000, 39 

St.Rep. 1916, 1918; Cowan v. Westland Realty Company (1973), 

162 Mont. 379, 383, 512 P.2d 714, 716; Cl-ough v. Jackson 

(1971), 156 Mont. 272, 279-80, 479 P.2d 266, 270. 

In the instant case, James, 111 testified that his fraud 

claim was based upon the promise made by Wilma at the time he 
assigned his interest in the corporation and partnership to 

the corporation in exchange for cancellation of the $42,000 

promissory note. James, I11 also testified that Wilma. had no 

intent to deceive him: 

Q. I guess I asked you this and then you digressed 

or I didn't get the final answer. When your mother 

made the promise, did she intend to deceive 

you? A. No, I don't think she made it in that 

way, no. I can't imagine--I can't think of my own 

mother trying to deceive me. That's just, you 

know, I don't think of it that way, really. I feel 

like I've been had, but. Let's--Can I say one 

thing? I have found out--found in the years gone 

by that Mom does tend to, a little bit, tell people 

what they--what she thinks that they want to hear 

because of comparing notes, kind of you could say 

comparing notes. We figure that she, you know, she 

used to come back. She would tell me one thing, 

she would tell John and Lyd another thing, she 

would tell sister Ruth another thing, you know, 

about the same thing. 

And finall-y, James, I11 testified that he did not rely 

upon Wilma's promise in executing the assignment. 

James, 111's own testimony clearly establishes that his 

fraud claim was deficient in that the fourth and seventh 

elements of the prima facie case were lacking. This the 

District Court noted in its order granting defendants summary 

judgment when it wrote: 

Plaintiff's claim of actual fraud. fails because, in 

his own deposition, he admits that only his mother, 

the Defendant West, ever made any alleged promise 

to pay him additional money, and that he did not 

rely upon said promise in signing over his share of 

the land partnership and stock in the family 

corporation. Plaintiff further admits that his 

mother did not intend to deceive him and 

defendants, therefore, have satisfied their burden 

of showing that there is no genuine issue as to any 

material fact as to the issue of actual fraud. By 

his own admission, there was no intent to deceive 

and he did not act in reliance upon any 

representation of his mother. 

Section 28-2-406, MCA, provides: 

Constructive fraud consists in: 

(1) any breach of duty which, without any actually 

fraudulent intent, gains an advantage to the person 
in fault or anyone claiming under him by misleading 

another to his prejudice or to the prejudice of 

anyone claiming under him; or 

(2) any such act or omission as the law especially 

declares to be fraudulent, without respect to 

actual fraud. 

In Mends v. Dykstra (1981), 195 Mont. 440, 448, 637 P.2d 

502, 506, we said breach of a duty to disclose material facts 

constitutes constructive fraud. As the District Court noted, 

James, 111's claim of constructive fraud fails for 

essentially the same reason his actual fraud claim failed. 

That is the record is void of any facts to establish any duty 

owed to James, I11 or that any such duty was breached to his 

prejudice. 

Finally, Wilma contends the fraud claims are also barred 

by the two year statute of limitations. Section 27-2-203, 

MCA. The act of alleged fraud took place January 10, 1978, 

and the complaint was filed on December 20, 1984. The only 

way James, 111's claims would not be barred by the statute is 

to claim that the statute did not begin to run until 

discovery of the alleged fraud. See Turley v. Turley (~ont. 

1982), 199 Mont. 265, 273-74, 649 P.2d 434, 438. James, I11 

apparently made no such showing. Thus, the fraud claims fail 

for the reasons stated and because of the statute of 

limitations. 

With regard to the third claim of count I of James 111's 

complaint, undue influence, the District Court determined it 

was barred by the statute of limitations. Section 27-2-215, 

bJCA. James, 111 does not contest this aspect of the summary 

judgment on appeal. 

Finally, count I1 of James, 111's complaint requests an 

accounting of the proceeds of the trusts created by the death 

of his father. James, I11 here contends that because there 
exists questions of fact concerning: (1) the value of 

James, Jr.'s estate; (2) the value of James, 111's 

inherited share of the estate; (3) circumstances 

surrounding the transfer therefore; and (4) whether there 

was fraud surrounding the probate of the estate, the summary 

judgment should be set aside. 

The District Court, in granting all defendants summary 

judgment on count I1 stated: 

Defendants are entitled to Summary Judgment upon 

Count Two of Plaintiff's complaint because none of 

said defendants have ever had any duty to account 

to any person for anything arising out of the 

trusts or estates of James F. Fleming, Jr. The 

Court has reviewed Lake County Probate file No. 

4581 in the Matter of the Estate of James F. 

Fleming, Jr. and finds that the above-named 

defendants, Fleming Farms, Inc. and Fleming Land 

Partnership, have absolutely nothing to do with 

said estate. The above-named defendant Wilma M. 

(Fleming) West is named individually and not as the 

Personal Representative of the Estate of James F. 

Fleming, Jr., and as such individual has no duty or 

obligation to account to any person concerning said 

estate or trust which resulted therefrom. 

Summary judgment on the claim for an accounting was 

proper. 

We, therefore, affirm the grant of summary judgment by 

the District Court. 
We concur: