No. 85-552 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

CARL A. ROWLAND, 

Plaintiff and Appellant, 

-vsFORREST L. KLIES, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Small, Hatch, Doubek & Pyfer; Richard J. Pyfer, 

Helena, Montana 

For Respondent: 

Poore, Roth & Robinson; Douglas A. Buxbaum, Butte, 

Montana 

Submitted on Briefs: April 24, 1986 

Decided: October 6, 1986 

$]C] 6 - ::>q Filed: , 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 ~.2d 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 in jury 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 employeremployee 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 s affidavit of 2/22/83 filed 

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: