                            NO.    94-620
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


ANN HUSCHKA, an incompetent person,
by Orville Reather, Guardian and/or
Conservator of her Person and Estate,
          Plaintiff and Appellant,


U. S. WEST DIRECT, Publisher of the
White and Yellow Pages, Incorporated,             2.2 .%rr$i
a Division of U. S. West Marketing          fii;lb~m BP ~~i~l~~~~   BGiwg
Resources Group, Inc., Colorado,
          Defendant and Respondent.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Lewis E. Brueggemann, Attorney at Law,
               Billings, Montana

          For Respondent:
               C. W. Leaphart, Jr., The Leaphart Law Firm,
               Helena, Montana (for U.S. West Direct)
               Rodney T. Hartman, Herndon, Hartman,
               Sweeney & Halverson, Billings, Montana
               (for Ginny Wanner's Personal Care, Inc.)


                              Submitted on Briefs:            April 20, 1995
                                            Decided:          June 27, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

     Appellant Ann Huschka appeals the decision of the Thirteenth
Judicial   District    Court,   Yellowstone      County,    granting     respondent

U.S. West Direct's motion for summary judgment.                  We affirm.
     The issue on appeal is:

     Did the District Court err when it granted respondent's motion

for summary judgment?

     Appellant,    who is in her        7Os, underwent surgery, after which
she needed more care than her family could provide.                   Appellant   and
her family looked in respondent U.S. West's Yellow Page advertising

to find a suitable place for her.                Under     the   "Nursing     Homes"
classification,    they located an advertisement for Ginny Wanner's

Personal Care, Inc., which stated that it offered 24 hour care,

7 days a week,        and   that   it   was    licensed     by    the   state.      It

characterized   itself      as "A Retirement Personal Care Facility for

the Elderly," offering a "Home Environment," a "Quiet Residential

Setting," and stated that it was "Privately              Owned    &    Operated."    A

few days after appellant began living at the facility, her large

colon ruptured.       Her condition went undiscovered by Ginny Wanner's

personnel for approximately three and one-half hours.                   As a result

of delayed medical treatment,           appellant is now mentally retarded

and totally dependent on others.              The facility is not a licensed

nursing home.     Respondent does not dispute these facts.

     Appellant's amended complaint of June 15, 1994, stated four

causes of action: false advertising, res ipsa loquitur, negligence,
and willful and malicious neglect.         Respondent filed an answer and
a motion for summary judgment.      The District Court granted summary
judgment on November 30, 1994, concluding that there were no issues

of material fact and that respondent was entitled to judgment as a

matter of law.

       Did the District Court err when it granted respondent's motion

for summary judgment?

       Our standard of review on summary judgments is the same as the

district    court's.    Groshelle v. Reid (Mont. 1995), 893      P.2d 314,

316,   52 St. Rep. 261,     261 (citing Cooper v. Sisters of Charity

(1994),    265 Mont. 205, 207, 875 P.2.d 352, 353).        When there is no

genuine issue of material fact,          the moving party is entitled to

summary judgment as a matter of law.          Groshelle,   893 P.2d at 316

(citing Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441,

444,   872 P.2d 330, 332).     The burden of proof rests on the party

seeking summary judgment to give the district court evidence that

no genuine issue of material fact exists.         Groshelle,    893 P.2d at

316 (citing Morton v. M-W-M, Inc. (1994), 263 Mont. 245, 249, 868

P.2d 576, 579).        If the moving party meets that burden of proof,

then the burden shifts to the nonmoving party to show that there is

a genuine issue of fact. Wolf v. Williamson (Mont. 1995), 889 P.2d

1177, 1178, 52 St. Rep 51, 52 (citing Morton, 868 P.2d at 579).
       When raising allegations that disputed issues of fact
       exist, the non-moving party has an affirmative duty to
       respond by affidavit or other sworn testimony containing
       material facts that raise genuine issues; conclusory or
       speculative statements will not suffice.


                                     3
Wolfe,    889 P.2d at 1178-79, 52 St. Rep. at 52 (citing Koepplin v.

Zortman Mining (1994), 267 Mont. 53, 58-59, 881    P.2d 1306, 1309).

     Appellant    argues that respondent's advertisement      listing

Ginny Wanner's Retirement and Personal Care Home for the Elderly,

Inc., not a licensed nursing home, under the "Nursing Home" section

of its yellow pages advertising, violated § 50-5-107, MCA, and that

respondent's violation of that statute amounted to negligence per

se
     50-5-107 Unlawful use of the word nursing. It is unlawful
     for any facility operating in this state to use the word
     "nursing" in its name, signs, advertising, etc., unless
     that facility does in fact provide 24-hour nursing care
     by licensed nurses.

"Facility" is defined in 5 50-5-lOl(lP), MCA
     "Health care facility" or "facility" means all or a
     portion of an institution, building, or agency, private
     or public, excluding federal facilities . . used,
     operated, or designed to provide health services, [orI
     medical treatment . to any individual.

Respondent publisher does not fit into any of the definitions of

"facility."      Thus,   5 50-5-107,   MCA, is   not    applicable to

respondent.    The elements of negligence per se are:

     1.     The defendant violated a particular statute:

     2.   The statute was enacted to protect a specific class
     of persons;

     3.     The plaintiff is a member of that class;

     4.   The plaintiff's injury is the sort the statute was
     enacted to prevent; and

     5.   The statute was intended to regulate a member of
     defendant's class.
Hislop    v. Cady (1993), 261 Mont. 243, 247, 862        P.2d 388, 391.

Respondent is clearly not a "facility" as defined by the statute.

Its published advertisement of Ginny Wanner's under the "Nursing

Home" classification in its Yellow Pages did not violate 5 50-5-

107,    MCA.     Respondent fails to meet the threshold element of

negligence per se because the statute is inapplicable to it as a

publisher.

        Appellant further asserts that respondent violated the false

advertising provisions of the Montana Unfair Trade Practices and

Consumer Protection Act when it listed Ginny Wanner's advertisement

under the "Nursing Homes" section even though it was not a nursing

home.
        The    Act   contains   exemptions to   its     applicability   in

5 30-14-105, MCA, as follows:

              (2) acts done by the retail merchant, publisher
        . . . of a newspaper, periodical . . or advertising
        agency in the publication . . of an advertisement, when
        the owner, agent, or employee did not have knowledge of
        the false, misleading, or deceptive character of the
        advertisement  and did not have a direct financial
        interest in the advertised product or service.

Appellant failed to offer any evidence that respondent knew that

Ginny Wanner's        advertisement   might be false,     misleading, or

deceptive as listed under the "Nursing Home" section.            Further,

appellant showed no evidence that respondent had a direct financial

interest in the transaction between appellant and Ginny Wanner's.

Respondent publisher is exempt from the Act.
     Appellant     appears    to argue     that respondent fraudulently
misrepresented the services of Ginny Wanner's by listing it under

the "Nursing Home" classification when it was not a nursing home.

Appellant asserts that as a result of this advertisement,                   she
sustained    damages   at   Ginny   Wanner's   facility.   The   elements    of
actual fraud must include proof of the following nine elements:

     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 on its truth;

     8.      the right of the hearer to rely upon it;

     9.      the hearer's consequent and proximate injury or damage.

Davis v. Church of Jesus Christ of Latter Day Saints (1993),                258

Mont. 286, 293, 852 P.2d 640, 644 (citing Lee v. Armstrong (1990),

244 Mont. 289, 293, 798 P.2d 84, 87).            Appellant does not allege

the elements of fraud with particularity, as required by Rule 9(b),

M.R.Civ.P.      Appellant does not allege or offer any proof that

respondent knew that Ginny Wanner's advertisement was false or that
respondent published the advertisement with an intent to deceive

readers.     U.S. West did not make a representation to appellant. It


                                       6
published Ginny Wanner's            advertisement in       its   Yellow Pages.
Respondent's act of publishing Ginny Wanner's advertisement is not

a representation of itself and does not meet the first required

element      of     fraudulent   misrepresentation,     thus the whole claim

fails.

        Appellant appears to contend that respondent is liable for

negligent         misrepresentation, claiming that respondent had a duty to

"correctly . . . list businesses under these . . classifica-

tions."      Negligence requires the plaintiff to prove the existence

of a duty to the plaintiff from the defendant, a breach of that

duty,      proximate causation, and damages.           Lence v. Hagadone Inv.

co.     (19931,    258 Mont. 433, 446, 853 P.2d 1230, 1238 (citing Scott

v. Robson (19791, 182 Mont. 528, 535-36, 597 P.2d 1150, 1154). The

facts do not support the existence of the threshold element of a

duty between appellant and respondent.

         The record shows that respondent met its burden of showing

that no issue of material fact exists.                As a result, the burden

shifted to appellant who failed to meet her burden of proof to

establish that there is any genuine issue of material fact.

        We hold that the District Court did not err when it granted

respondent's motion for summary judgment.

        Pursuant to Section I, Paragraph 3(c),          Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
