                                            No. 05-361

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2006 MT 285


VALLEY BANK OF RONAN,

              Plaintiff, Counterdefendant
              and Respondent,

         v.

CHARLES R. HUGHES, Trustee under
Charles R. Hughes Loving Trust,

              Defendant, Counterclaimant
              and Appellant.



APPEAL FROM:         The District Court of the Twentieth Judicial District,
                     In and For the County of Lake, Cause DV 03-28,
                     Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     G. Patrick HagEstad and Elizabeth A. O’Halloran,
                     Milodragovich, Dale, Steinbrenner & Binney, P.C., Missoula, Montana

              For Respondent:

                     David B. Cotner and Trent N. Baker, Datsopoulos,
                     MacDonald & Lind, P.C., Missoula, Montana


                                                         Submitted on Briefs: May 3, 2006

                                                                   Decided: November 8, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Charles R. Hughes (Hughes) appeals the orders entered in the Twentieth Judicial

District Court, Lake County, granting summary judgment to Valley Bank of Ronan

(Valley Bank) and granting Valley Bank’s motion in limine to exclude the testimony of

Hughes’ expert witness. We affirm in part, reverse in part, and remand for further

proceedings.

¶2    The following issues are dispositive on appeal:

¶3    Did the District Court err by granting summary judgment against Hughes on his

counterclaims?

¶4    Did the District Court err by granting summary judgment to Valley Bank on

Hughes’ promissory note?

¶5    Did the District Court abuse its discretion by excluding the testimony of Hughes’

banking expert, Cynthia Shea?

                                    BACKGROUND

¶6    The District Court’s approach to the factual issues in this matter was set forth in its

summary judgment order:

      The facts set forth herein are Hughes’ “version” of the facts. While several
      are contested by Valley Bank, the Court has assumed these facts to be true
      in analyzing the Motion for Summary Judgment presented by Valley Bank.

On appeal, the parties have utilized the same framework. In its appellate briefing, Valley

Bank urges us to “likewise . . . test Hughes’ facts and determine whether Valley is

entitled to judgment as a matter of law.” Except for an argument it makes in response to

defenses raised by Hughes to foreclosure of the promissory note, wherein it asserts that
                                             2
Hughes has not raised a genuine issue of material fact, Valley Bank urges us to rule that it

was entitled to judgment as a matter of law “assuming [Hughes’] facts to be true.” Thus,

except as otherwise noted, we consider the issues raised herein under that portion of the

summary judgment standard of review, see ¶ 14, infra, which requires us to determine

whether the movant is entitled to judgment as a matter of law.

¶7     Lured by the promise of quick wealth, Hughes was conned by a “Nigerian scam.”

The swindlers promised Hughes a $3 million to $4.5 million commission for his aid in

procuring agricultural equipment for import into Africa and then proceeded to bilk him

for hundreds of thousands of dollars in advanced fees. At least some of the funds Hughes

advanced were wired via the services of Valley Bank, resulting in a dispute over which

party should bear the loss from the flimflam.

¶8     On Friday, March 22, 2002, Hughes received four checks from one of the con-

artists and deposited them into accounts Hughes held at Valley Bank. Two of them were

“official” checks, and the other two were personal checks. One official check, for

$1 million, was drawn on Colonial Bank. The other official check, for $500,000, was

drawn on Firstar. The personal checks were for $62,000—drawn on the account of

Maximilian H. Miltzlaff—and for $70,000—drawn on a Capital One credit card account

held by Sarah Briscoe and Mary Bullard.

¶9     Prior to depositing the checks, Hughes requested that Nancy Smith, a cashier and

officer of Valley Bank, verify the validity of the official checks. In his deposition,

Hughes described his conversation with Smith:


                                             3
              Well, my question was, how long do you have to hold money to
      have—how long do you have to hold these checks before they’re sufficient
      funds; I think the bank calls them collected funds. And she said, these are
      official checks, Chuck. These two big ones are official checks. You will
      be transferring these? And I said I will be transferring a large sum. We’ll
      have to determine next week what it will be. And she says, official checks,
      same as cash. You can do whatever you want to do.

Smith also assured Hughes that official checks were “just like” cashier’s checks.

Milanna Shear, another bank employee, told Hughes to believe whatever Smith said

regarding the validity of the checks. According to the deposition testimony of Hughes’

wife, Barbara, Hughes had told her that “everybody at the bank assured him that the

checks would be good.”

¶10   On Tuesday, March 26, 2002, Hughes delivered a written request to Valley Bank

to wire $800,000 to Ali dh. Abbas, an accountholder at the Housing Bank for Trade and

Finance in Amman, Jordan. Valley Bank executed the transfer no later than 1:51 p.m. on

the same day. The transfer proceeded through two intermediary banks, Wells Fargo, near

Denver, Colorado, and Citibank in New York, before being sent to Amman. Upon

receipt in Amman, the funds were promptly withdrawn, never to be seen again.

¶11   At about 2:00 p.m.—approximately ten minutes after initiation of the transfer—

Valley Bank and Hughes learned that one of the personal checks was being returned

marked “nonsufficient funds.” Hughes immediately requested the wire to be stopped.

No later than 3:26 p.m. Valley Bank requested that Wells Fargo reverse the wire transfer.

The record is unclear about what happened during the interim between Hughes’ request

for cancellation and Valley Bank’s attempts to comply with the request. The efforts of

the several banks involved in the transfer to reverse the transaction were unsuccessful,
                                           4
and the later discovery that the two official checks were counterfeit resulted in Hughes’

account being overdrawn by $800,000.

¶12   Valley Bank subsequently exercised its right to charge back the account and

collect the $800,000 from Hughes. Allen Buhr (Buhr), Valley Bank’s president, met with

Hughes on March 29, 2002, to discuss Hughes’ liability and suggested at that time that

Hughes could be involved in a criminal prosecution for fraud. On April 11, 2002,

Hughes deposited $607,838, which he had withdrawn from his retirement account, into

the Valley Bank account. Also, on April 30, 2002, Hughes executed a promissory note to

Valley Bank on behalf of his trust in the amount of $400,000, secured by mortgaged

property. Of the $400,000 in proceeds generated by the secured note, $202,751.21 was

used to pay off a previous loan against the mortgaged property, and the balance,

$197,248.79, was applied to satisfy the charge-back liability in Hughes’ account. Hughes

was under the impression, given by Buhr, that the bank needed the note and loan

agreement because it expected to be the subject of a government audit in the near future,

and though Hughes thought that a new agreement might be reached after resolution of the

“fraud situation,” he understood that the loan may not be forgiven.            The trust

subsequently made the first interest payment on the note on August 1, 2002, though it

was one month late. The trust made no other payments on the note, and Valley Bank sent

a notice of default and acceleration on October 15, 2002. Hughes requested that the bank

forebear foreclosure until the end of the year, and the bank complied. However, when

Hughes failed to make any more payments on the note, Valley Bank initiated an action

for judicial foreclosure.   Hughes asserted counterclaims of negligence, negligent
                                           5
misrepresentation, constructive fraud, unjust enrichment, breach of contract, breach of the

implied covenant of good faith and fair dealing, promissory estoppel, and intentional

infliction of emotional distress (which was later abandoned).

¶13    On April 15, 2005, the District Court granted Valley Bank’s motion in limine to

exclude Cynthia Shea as an expert witness for Hughes. In an order dated April 20, 2005,

the District Court granted Valley Bank summary judgment on Hughes’ counterclaims.

On the same day, the District Court granted Valley Bank summary judgment on its

claims regarding the promissory note. From these orders Hughes appeals.

                               STANDARD OF REVIEW

¶14    This Court articulated the standard of review we apply to grants of summary

judgment in Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d

47, ¶ 14 (citations and quotation marks omitted):

              This Court’s review of a district court’s grant of summary judgment
       is de novo. Our evaluation is the same as that of the trial court. We apply
       the criteria contained in Rule 56, M.R.Civ.P. According to this rule, the
       moving party must establish both the absence of a genuine issue of material
       fact and entitlement to judgment as a matter of law. If this is accomplished,
       the burden then shifts to the non-moving party to prove, by more than mere
       denial and speculation, that a genuine issue does exist. If the court
       determines that no genuine issues of fact exist, the court must then
       determine whether the moving party is entitled to judgment as a matter of
       law.

¶15    We review conclusions of law for correctness. Galassi v. Lincoln County Bd. of

Comm’rs, 2003 MT 319, ¶ 7, 318 Mont. 288, ¶ 7, 80 P.3d 84, ¶ 7.

¶16    This Court described the standard of review for evidentiary rulings in McDermott

v. Carie, 2005 MT 293, ¶ 10, 329 Mont. 295, ¶ 10, 124 P.3d 168, ¶ 10:

                                            6
               We review a district court’s evidentiary rulings for an abuse of
       discretion. Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 353,
       916 P.2d 122, 128. Absent a showing of such abuse we will not overturn a
       district court’s ruling on the admissibility of evidence. Christofferson v.
       City of Great Falls, 2003 MT 189, ¶ 8, 316 Mont. 469, ¶ 8, 74 P.3d 1021,
       ¶ 8 (citation omitted). A court abuses its discretion if it acts “arbitrarily
       without employment of conscientious judgment or exceed[s] the bounds of
       reason resulting in substantial injustice.” VonLutzow v. Leppek, 2003 MT
       214, ¶ 14, 317 Mont. 109, ¶ 14, 75 P.3d 782, ¶ 14 (citation omitted).

                                      DISCUSSION

¶17    A short introduction to the check settlement process will give context to our

following legal analysis. When a customer deposits a check at a bank, the bank will

sometimes (but not always) credit the customer’s account immediately with the face

amount of the check and permit the customer to draw on the deposited funds. This

practice is known in Uniform Commercial Code 1 parlance as “provisional settlement”

because the bank has not yet presented the check to the drawee bank and received

payment from the check maker’s account (which would constitute “final settlement”).

The depositary bank, however, may “charge back” the depositor’s account in the event

the check is subsequently dishonored by the drawee bank. Thus, the UCC encourages the

provisional settlement process by protecting a depositary bank from fraudulent or

otherwise unenforceable check deposits. With this overview of the check settlement

process in mind, we turn now to the specifics of the case before us.



       1
         Codified at Title 30, Chapters (also called “Articles”) 1 through 9A, Montana
Code Annotated, and referred to as the “UCC.” Citations to UCC provisions that do not
include “MCA” are to the UCC as adopted by the National Conference of Commissioners
on Uniform State Laws. All other references, except as used in a quotation, to “UCC”
refer to the statutory scheme as adopted in Montana.
                                             7
¶18    Did the District Court err by granting summary judgment against Hughes on

his counterclaims?

UCC Preemption and Ordinary Care

¶19    Hughes argues that the District Court erroneously concluded that the UCC

preempts Hughes’ equitable and common law claims. Hughes asserts that preemption

does not occur because “[t]here are no regulations or UCC provisions which expressly

regulate . . . promises and representations that bank personnel make to their customers.”

Further, Hughes contends that the “practical effect of the District Court’s interpretation

affords banks absolute immunity for negligence, fraud, misrepresentation and other acts

which are not expressly addressed in the UCC . . . .”

¶20    The District Court rested its conclusion on its interpretation of § 30-1-103, MCA,

which reads as follows:

              Unless displaced by the particular provisions of this code, the
       principles of law and equity, including the law merchant and the law
       relative to capacity to contract, principal and agent, estoppel, fraud,
       misrepresentation, duress, coercion, mistake, bankruptcy, or other
       validating or invalidating cause shall supplement its provisions.

The District Court stated that the “official comments to UCC § 1-103 [on which § 30-1-

103, MCA, is based] show that preemption of common law and equitable claims is one

purpose of the . . . statute . . . .” The official comment to which the District Court

referred clarifies that

       while principles of common law and equity may supplement provisions of
       the Uniform Commercial Code, they may not be used to supplant its
       provisions, or the purposes and policies those provisions reflect, unless a
       specific provision of the Uniform Commercial Code provides otherwise. In
       the absence of such a provision, the Uniform Commercial Code preempts
                                             8
       principles of common law and equity that are inconsistent with either its
       provisions or its purposes and policies.

              The language of subsection (b) is intended to reflect both the concept
       of supplementation and the concept of preemption.

UCC § 1-103, cmt. 2. The District Court also concluded that three cases from other

jurisdictions, Chase v. Morgan Guarantee Trust Co., 590 F.Supp. 1137 (S.D.N.Y. 1984),

Allen v. Carver Federal Sav. and Loan Ass’n, 477 N.Y.S.2d 537 (N.Y. App. Div. 1984),

and Call v. Ellenville Nat. Bank, 774 N.Y.S.2d 76 (N.Y. App. Div. 2004), “support

preemption of equitable and common law claims under the applicable UCC provisions

and facts of this case.” 2

¶21    We disagree with the District Court’s interpretation of § 30-1-103, MCA, and of

Chase, Allen, and Call. A bank receiving checks from depositors must use “ordinary

care”—as that term is defined and used in the UCC—in settling those checks. See §§ 30-

4-103(3), 30-4-103(5), and 30-4-212, MCA. 3         Section 30-3-102(g), MCA, defines

“ordinary care” as follows:

             “Ordinary care” in the case of a person engaged in business means
       observance of reasonable commercial standards, prevailing in the area in
       which that person is located, with respect to the business in which that
       person is engaged. In the case of a bank that takes an instrument for
       processing for collection or payment by automated means, reasonable

       2
        The District Court also relied on Daniels-Sheridan v. Bellanger, 2001 MT 235,
307 Mont. 22, 36 P.3d 397, in support of its conclusion. However, Daniels-Sheridan
considered whether equitable principles displaced the UCC’s Article 9 priority rules. As
our discussion will show, the pivotal issue here is not whether equitable principles
displace the applicable portions of the UCC but whether the UCC wholly displaces
common law and equitable principles. Thus, reliance on Daniels-Sheridan is inapposite.
       3
        Section 30-4-104(3), MCA, incorporates the definition of ordinary care in § 30-3-
102(g), MCA, into Article 4.
                                            9
       commercial standards do not require the bank to examine the instrument if
       the failure to examine does not violate the bank’s prescribed procedures and
       the bank’s procedures do not vary unreasonably from general banking
       usage not disapproved by this chapter or chapter 4.

In its order, the District Court examined the meaning of “ordinary care” but did not

distinguish the term’s application to the two different actions at issue here: the settlement

of the deposited checks and the alleged representations about the check settlement

process. The second sentence of the definition of ordinary care specifically states that,

subject to certain exceptions, a bank does not have a duty to examine instruments, in this

case, checks. Pursuant to § 30-1-103, MCA, and UCC § 1-103, cmt. 2, such specificity

preempts any common law concepts that might otherwise supplement the UCC. Thus, to

the extent that Hughes’ common law claims relate to Valley Bank’s processing of the

checks, they are preempted by the UCC.

¶22    Indeed, Hughes presents a claim directed toward the UCC-defined standard of

ordinary care with respect to check processing. Hughes asserts that, by failing to comply

with its own policies and the applicable federal regulations, Valley Bank inappropriately

charged back his account after the dishonor of the deposited checks. However, § 30-4-

212(4), MCA, states, “[t]he right to charge back is not affected by . . . failure by any bank

to exercise ordinary care with respect to the item but any bank so failing remains liable.”

Official Comment 5 to § 30-4-212(4), MCA, expounds on this point, stating that “charge-

back is permitted even where nonpayment results from the depositary bank’s own

negligence.” (Emphasis added.)      Accordingly, in evaluating the propriety of Valley



                                             10
Bank’s actions with regard to check processing, it is irrelevant whether Valley Bank

exercised ordinary care in exercising its charge back rights, and the claims are preempted.

¶23    However, Hughes’ claims encompass not only Valley Bank’s processing of the

checks but also the bank’s communications to Hughes about that process. Because such

communications are not addressed with specificity by the UCC, common law and

equitable principles supplement the UCC and govern the legal rights and responsibilities

that apply to Valley Bank’s representations to Hughes, upon which Hughes allegedly

relied. See § 30-1-103, MCA; First Georgia Bank v. Webster, 308 S.E.2d 579, 581 (Ga.

Ct. App. 1983) (UCC does not provide relief from common law negligence; thus,

common law actions are permissible.); see also Henry J. Bailey & Richard B. Hagedorn,

Brady on Bank Checks ¶ 24.05, n.84 (8th ed., 1999). 4 Thus, the District Court erred by



       4
        Some courts, in confirming the propriety of asserting common law and equitable
principles in similar factual contexts, have concluded that the doctrine of equitable
estoppel prevents a bank from exercising its charge-back rights under their states’
equivalent of UCC § 4-212. First National Bank of Denver v. Ulibarri, 557 P.2d 1221
(Colo. Ct. App. 1976); Webster, 308 S.E.2d 579; Symonds v. Mercury Sav. and Loan
Ass’n, 275 Cal. Rptr. 871 (Cal. Ct. App. 1990); Burke v. First Peoples Bank of N.J., 412
A.2d 1089 (N.J. Super Ct. 1980). These cases support our conclusion that common law
and equitable principles apply to supplement the UCC in this context, but they run
counter to the District Court’s conclusion that equitable estoppel is inapplicable, a
conclusion for which there is support. See Bailey & Hagedorn, Brady on Bank Checks
¶ 24.05, n.84 (“It would seem that a bank should have the right of chargeback
notwithstanding its negligence or any act amounting to estoppel, in view of UCC § 4-
212(4)(b) (1962), but the right of chargeback should be offset by the loss sustained by the
customer because of reliance on the bank’s representation and the customer’s change of
position because of such reliance.”); Hanners v. Industrial State Bank, 791 P.2d 752
(Kan. Ct. App. 1990) (not designated for publication but citable as persuasive authority
pursuant to Kan. Sup. Ct. Rule 7.04(f)(1)) (right to charge back not affected by failure of
the bank to exercise ordinary care). In any event, because the District Court’s
determination that equitable estoppel is inapplicable is not challenged on appeal, and thus
                                            11
concluding that the UCC preempted common law and equitable principles with respect to

the alleged misrepresentations. Therefore, while Hughes bore the obligation to repay

Valley Bank to satisfy the bank’s right of charge-back under § 30-4-212, MCA, it

nevertheless is possible for Hughes to obtain a judgment to compensate him for the

charge-back debt, though we express no opinion on the ultimate merits of these common

law claims in this case. 5

¶24    Although holding in favor the bank in each case, Chase, Allen, and Call do not

support preemption with regard to Valley Bank’s alleged misrepresentations. Rather,

there is support within these decisions for this Court’s determination that common law

principles apply to bank communications to a depositor inquiring about the processing of

checks. In each of these cases, the bank exercised its right of charge-back under UCC

§ 4-212 and the plaintiff depositor alleged either that the bank had informed him that the

deposited check had “cleared” or that the bank had led him to believe that it would clear

in a certain amount of time.

¶25    The Chase court expressly acknowledged the possibility that common law

principles could apply to the type of communications at issue here:



waived, we reserve judgment on the issue until it is properly presented to this Court in
another case.
       5
        Although we would prefer, for guidance on remand, to specifically state which of
Hughes’ delineated counterclaims survived summary judgment and which did not, we
cannot do so, given the manner in which they are pled. For example, the negligence
counterclaim alleges a breach of ordinary care by Valley Bank. As discussed above,
entry of summary judgment was proper with regard to breach of ordinary care in check
processing, but was not proper with regard to breach of ordinary care in the making of the
alleged representations about the validity of the checks.
                                           12
       [B]anks have nothing to gain by misleading customers into believing that
       uncleared items have cleared. Indeed, banks are usually overly cautious in
       giving provisional credit precisely because of the uncertainty of uncollected
       items. A bank could be liable for a misstatement in these general
       circumstances if the misstatement were part of a scheme to defraud a
       customer in Chase’s position by, for example, a conspiracy between the
       bank and the party to whom Chase transferred the funds. This of course is
       merely one example. As discussed supra, however, [UCC] § 4-212(4)
       simply does not hold liable for charge-back a bank whose employee
       inadvertently in some remark misleads a customer as to the precise
       likelihood that an item will clear.

              The outcome might be different if a bank expressly informed a
       customer that it had made a final settlement on the account, but that is not
       the case here.

Chase, 590 F.Supp. at 1139 n.3 (emphasis added).

¶26    The court in Allen also acknowledged the potential for common law liability in

this context:

       We are dubious that the mere statement of a depositor that an unidentified
       teller told her (mistakenly) that a check had “cleared”, when in fact it had
       not, constitutes that quantum of proof of negligence which will enable a
       customer to prevail against the bank under the circumstances disclosed
       here.

Allen, 477 N.Y.S.2d at 538. Though the Allen court did not distinguish the bank’s duties

in processing the check at issue from its duties in its communications to its depositor

about that process, the language employed in the opinion suggests that some “quantum of

proof” would be sufficient “to prevail against the bank” on common law claims in

different circumstances.




                                            13
¶27    Similarly, in Call, the court indicated that the “term ‘cleared’ . . . is not the

equivalent of ‘final settlement’” 6 and that, “although Mr. Call apparently assumed such,

he did not allege that this was a result of any inquiry with or representation to that effect

by the defendant bank.” Call, 774 N.Y.S.2d at 79 (emphasis added). Thus, the court,

though not squarely addressing the issue, left open the possibility that a bank’s

misrepresentation of the status of the check settlement process could lead to liability for

the bank.

¶28    In each of the above cases, the defendant bank was granted summary judgment

because the plaintiff depositor failed to allege facts sufficient to impute liability to the

bank. However, though the bank prevailed in each case, the analyses do not support the

proposition that common law and equitable principles have been preempted by the UCC.

Instead, they intimate that, in certain circumstances, common law and equitable

principles may supplement the UCC where the bank—though not violating its UCC-

defined duty of ordinary care with respect to processing checks—breaches a duty to its

depositor by misrepresenting the status of the check settlement process.

¶29    In summary, the District Court correctly determined that Valley Bank did not

violate the UCC-defined duty of ordinary care in processing the checks. However, the

District Court erred by failing to consider whether common law and equitable principles

       6
         Though it does not affect our analysis here, we pause to express bewilderment at
this statement of the Call court. If the term “cleared” means anything in common
banking usage, it is that final settlement has occurred. See Black’s Law Dictionary (7th
ed., 1999) (defining “clear” as “to pay (a check or draft) out of funds held on behalf of
the maker <the bank cleared the employee’s check>”); see also § 30-4-104(1)(j), MCA
(defining “settle”), and Southside Nat. Bank v. Hepp, 739 S.W.2d 720, 723 (Mo. 1987)
(final settlement occurs when “the payor bank has paid the item.”).
                                             14
supplement the UCC-defined duty of ordinary care with respect to the representations

about the check settlement process. Therefore, we reverse the District Court’s order and

remand for further proceedings on the matter.

Holder in Due Course

¶30    Hughes argues that he took the counterfeit checks in good faith and that under the

provisions of § 30-4-205, MCA, he became a “holder in due course.” He also alleges that

by then depositing those checks, Valley Bank became a holder in due course of the

checks. According to Hughes, under the UCC’s rules regarding holders in due course,

Firstar and Colonial then “had no defenses to the ‘checks’ and were required to pay the

sums to Valley.”        Consequently, Hughes argues, assuming Valley Bank took the

deposited checks in good faith, it should have sought to recoup its losses from Firstar and

Colonial, not Hughes, which it failed to do. Alternatively, Hughes contends that if Valley

Bank knew of the “potential irregularities” with the checks, then Valley Bank “acted

outside the bounds of UCC-defined ‘good faith’ banking standards” and “must be the

‘stuckee’ of this transaction . . . .”

¶31    Valley Bank correctly points out that this is a new argument on appeal that was

not raised in the District Court and that should not be entertained by this Court.

               The general rule in Montana is that this Court will not address either
       an issue raised for the first time on appeal or a party’s change in legal
       theory. Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866
       (citation omitted). The basis for the general rule is that “it is fundamentally
       unfair to fault the trial court for failing to rule correctly on an issue it was
       never given the opportunity to consider.” Day, 280 Mont. at 276-77, 929
       P.2d at 866 (citation omitted).


                                             15
Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d

100, ¶ 15. Therefore, we do not address this issue.

The Wire Transfer

¶32    Hughes contends that the District Court erred by ruling that Article 4A of the UCC

applies to the $800,000 wire transfer and that Hughes’ negligence claims with respect to

the transfer cannot proceed to trial. Both parties agree that the wire transfer was executed

via Fedwire and that the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq. (2004),

does not apply, but Hughes fails to offer authority demonstrating that Article 4A does not

apply. As the District Court correctly concluded, “Federal Reserve Regulation J governs

wire transfers via the Fedwire system,” and Appendix B to that regulation incorporates

UCC Article 4A. 12 C.F.R. § 210.25 et seq. Further, the District Court rightly held:

       There is no requirement or duty under Regulation J or UCC Article 4A that
       a bank agree to cancellation under any circumstances. Here, it is
       undisputed that the soonest the stop order if any was made, was after Valley
       Bank executed the payment order. As such, there is no liability that can be
       alleged.

Therefore, we conclude that the District Court did not err by granting summary judgment

to Valley Bank on Hughes’ negligence claims with respect to the wire transfer.

¶33    Did the District Court err by granting summary judgment to Valley Bank on

Hughes’ promissory note?




                                            16
¶34    Hughes maintains that the promissory note he signed to satisfy his charge-back

debt is invalid by reason of illegal purpose, lack of consideration, lack of consent due to

menace and undue influence, and unconscionability. 7

¶35    First, Hughes asserts that the promissory note was invalid because it was made for

the illegal purpose of “hiding Valley’s unlawful transaction from a government auditor.”

Valley Bank correctly responds that Hughes failed to raise this affirmative defense in the

proceedings below and is therefore barred from raising it here. See Easley, ¶ 15.

¶36    Hughes next contends that if he is not liable for the charge-back, then the

promissory note fails for lack of consideration because he would have received nothing in

exchange for his agreement to pay the note. As discussed in ¶¶ 20-21 above, Hughes’

liability for the charge-back and Valley Bank’s potential liability for its representations to

Hughes are separate issues.       Under § 30-4-212, MCA, Hughes became liable for

satisfying the entire charge-back debt; thus, the promissory note does not fail for lack of

consideration.

¶37    Hughes argues that Buhr “threatened Hughes that he could be charged with fraud”

and that this “threat” constitutes menace under § 28-2-403, MCA, and A.H. Averill

Machinery Co. v. Taylor, 70 Mont. 70, 223 P. 918 (1924). However, Averill makes clear

that

       [i]f a party, who relies upon menace to relieve him from the consequences
       of his contract, remains silent for an unreasonable time after the removal of
       the menace, he may be held to have elected to waive the wrong and ratify

       7
        Hughes also mentions actual fraud and constructive fraud in his opening brief, but
he fails to develop any argument thereon. Accordingly, we do not address these issues.
See M. R. App. P. 23(a)(4).
                                             17
       the contract; but it is the general rule that to constitute an affirmance the
       conduct of the injured party must be such as to indicate an intention to
       condone the wrong and a purpose to abide by its consequences, and the
       influence of the menace must be removed before the conduct becomes
       voluntary.

Averill, 70 Mont. at 79-80, 223 P. at 921. Regardless of whether Buhr’s statement

constitutes conduct that could amount to menace within the statutory definition, we

conclude that Hughes’ first quarterly payment made on August 1, 2002—three months

after executing the note—and his subsequent renegotiation of the note sometime after

October 15, 2002, comprise a ratification of the contract under Averill. Therefore, the

note does not fail for lack of consent due to menace.

¶38    Hughes also contends that “Buhr exercised undue influence by utilizing his

knowledge of Hughes’ assets and took unfair advantage of Hughes’ apparent distress

over the situation in order to gain a legal advantage over Hughes.” Undue influence is

defined by statute in § 28-2-407, MCA, but in Heintz v. Vestal, 185 Mont. 233, 237, 605

P.2d 606, 608 (1980), we summarized the test: “The influence exerted must be such as to

destroy the free agency of the influenced person with the will of another substituted.” In

addition, we held that a court must take “into consideration the mental and physical

health of the party being influenced” and “all of the surrounding circumstances.” Heintz,

185 Mont. at 237, 605 P.2d at 608. Here, whatever influence Buhr may have exerted

over Hughes, it did not rise to the level of substituting his will for that of Hughes.

Moreover, there is no indication that Hughes was in a mentally or physically weak state

or in a confidential relationship with Buhr. Thus, the note does not fail for lack of

consent as a result of undue influence.
                                            18
¶39    Finally, Hughes asserts that the contract is unconscionable, but he fails to cite to

any legal authority to support his position, and he does not develop his argument beyond

a mere conclusory statement. Therefore, we do not consider it. See M. R. App. P.

23(a)(4)

¶40    Accordingly, based upon the claims made and facts asserted herein, we affirm the

District Court’s grant of summary judgment to Valley Bank on the promissory note.

¶41    Did the District Court abuse its discretion by excluding the testimony of

Hughes’ banking expert, Cynthia Shea?

¶42    The District Court disqualified Cynthia Shea as an expert witness because she

lacked adequate knowledge of the UCC standard of ordinary care defined in § 30-3-

102(g), MCA. The District Court reasoned that, though Shea is “well qualified by

education, special training and experience in banking policies and procedures,” the

“record here establishes that Shea has no knowledge of the reasonable commercial

standards prevailing in the area in which the Plaintiff bank is located in Ronan,

Montana.”

¶43    Hughes relies on this Court’s holding in Burlingham v. Mintz, 270 Mont. 277, 891

P.2d 527 (1995), to challenge the District Court’s ruling. Hughes argues that banking

practices are “so basic that the standard of ordinary care is universal with respect to those

duties of a bank.”

¶44    In Burlingham, we overruled Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d

436 (1968), which required dentists to “exercise such reasonable care and skill as is

usually exercised by a dentist in good standing in the community in which he or she
                                             19
resides.” Burlingham, 270 Mont. at 280, 891 P.2d at 529. We held in Burlingham that

the standard for non-emergency dental care is the same as that required throughout the

United States. Burlingham, 270 Mont. at 280, 891 P.2d at 529. This uniform standard

stood in contrast to the standard of care for a general practitioner physician in rural

communities, who “is held to the standard of a reasonably competent general practitioner

acting in the same or similar community or in the same or similar circumstances.”

Burlingham, 270 Mont. at 280, 891 P.2d at 529.

¶45    Burlingham set forth a judicially defined standard of care applicable to the type of

service at issue. That is not the case here. The UCC statutes define a bank’s duty of

ordinary care with respect to the community in which the bank is situated. Therefore,

Burlingham is inapplicable, and we reject Hughes’ contention that the relevant standard

of care is universal. Hughes has neither demonstrated that Shea possesses any knowledge

of the reasonable commercial standards prevailing among Montana’s banks nor that she

has knowledge of procedures that fall within Montana’s general banking usage.

Accordingly, we conclude that the District Court did not err by excluding Shea’s

testimony regarding the UCC-defined standard of ordinary care.

¶46    Hughes raises other issues on appeal. However, given our holdings herein, it is

unnecessary for us to address those additional issues.

                                     CONCLUSION

¶47    The District Court correctly concluded that Valley Bank did not violate the UCC-

defined duty of ordinary care in processing the checks. Thus, it did not err by granting


                                            20
summary judgment to Valley Bank on the promissory note and did not err by excluding

Shea’s testimony, and we affirm on those issues.

¶48   The District Court erred by failing to consider whether common law and equitable

principles supplement the UCC-defined duty of ordinary care with respect to the bank’s

representations about the check settlement process. Therefore, we reverse the District

Court’s order with regard to Hughes’ counterclaims based upon those representations and

remand for further proceedings.

¶49   Affirmed in part, reversed in part, and remanded for further proceedings.



                                                      /S/ JIM RICE



We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




                                           21
