Osterman v. Sears11/26/2003
ented from reading it or having it read to him by some fraud, trick, artifice, or devise by the other party," Cartwright , 276 Mont. at 26, 914 P.2d at 992, she has not shown that to be the case here. Accordingly, the District Court was correct in holding Osterman's claims for actual and constructive fraud and unfair trade practices to be barred under the statute of limitations because she discovered, or reasonably should have discovered, the facts constituting the alleged fraud and deceptive practices more than two years prior to filing suit.
Turning to Osterman's claim for negligent misrepresentation, the District Court correctly concluded this claim was not barred by the statute of limitations. See Cechovic v. Hardin & Assoc., Inc. (1995), 273 Mont. 104, 119, 902 P.2d 520, 529 (holding that because negligent misrepresentation is couched in terms of negligence, the three-year statute of limitations for negligence applies). However, the court found that Osterman failed to make a prima facie showing of negligent misrepresentation and granted summary judgment in favor of K-Designers and Sears on that basis.
This Court has long recognized the tort of negligent misrepresentation. See Yellowstone II Dev. Gr. v. First Amer. Title Co. , 2001 MT 41, 78, 304 Mont. 223, 78, 20 P.3d 755, 78. To prevail on a claim for negligent misrepresentation, the plaintiff must prove the following elements:
a) the defendant made a representation as to a past or existing material fact;
b) the representation must have been untrue;
c) regardless of its actual belief, the defendant must have made the representation without any reasonable ground for believing it to be true;
d) the representation must have been made with the intent to induce the plaintiff to rely on it;
e) the plaintiff must have been unaware of the falsity of the representation; it must have acted in reliance upon the truth of the representation and it must have been justified in relying upon the representation;
f) the plaintiff, as a result of its reliance, must sustain damage.
Yellowstone II , 78.
Here, the gravamen of Osterman's claim is that the vinyl siding was sold, furnished, and installed on her home under false and misleading circumstances. Essentially, Osterman argues that Sluder's failure to clearly identify his relationship with Sears and K-Designers when he visited her home on August 15, 1996, along with the sales brochures' heavy promotion of the product as "SEARS SIDING," lulled her into believing she was dealing exclusively with Sears. During the proceedings for summary judgment, however, Osterman failed to specify any false statements allegedly made by K-Designers or Sears causing her to believe this was true.
As this Court has often noted, the party opposing summary judgment must "set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements." Sprunk v. First Bank System (Sprunk II) (1992), 252 Mont. 463, 466-67, 830 P.2d 103, 105; Klock v. Town of Cascade (1997), 284 Mont. 167, 174, 943 P.2d 1262, 1266. Here, Osterman's claim fails to offer evidence demonstrating the primary element of the cause of action; namely, that Sears or K-Designers made a false representation of material fact. Her claim for negligent misrepresentation accordingly fails, entitling Sears and K-Designers to judgment as a matter of law.
Did the District Court abuse its discretion in applying a pro rata reduction to Osterman's requested attorney fees?
We review a district court's award of attorney fees to determine whether the court abused its discretion. Mort
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