                                               No.     87-565

                    I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                     1988




ALMA S . J A N Z ,

                      P l a i n t i f f and A p p e l l a n t ,
          -vs-

DUANE QUENZER, d / b / a BEN FRANKLIN
STORE,
              D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:          D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of F a l l o n ,
                      T h e H o n o r a b l e A l f r e d B. C o a t e , Judge p r e s i d i n g .

COUNSEL O F RECORD:

          For Appellant:

                      Ira E a k i n , B i l l i n g s , Montana
                      Charles Peterson, Beach, North Dakota

          For R e s p o n d e n t :

                      M o u l t o n , B e l l i n g h a m , L o n g o & M a t h e r ; F r e d W.    Robinson,
                      B i l l i n g s , Montana
                      T e r r y J . H a n s o n , M i l e s C i t y , Montana




                                                     S u b m i t t e d on B r i e f s :    A p r i l 28,       1988

                                                         Decided:         June 2 8 , 1 9 8 8

Filed:     &&l/Vi
                         ?
                         ,


                                                     Clerk
Mr. Justice R.    C. McDonough delivered the Opinion of the
Court.

     This appeal from the Sixteenth Judicial District
concerns appellant Janz's claim for wrongful discharge in
breach of; public policy, an express contract for employment,
and the implied covenant of good faith and fair dealing.
Janz alleged that the claim arose from the actions of
respondent Quenzer as her employer.       Quenzer moved for
summary judgment contending that no employment relationship
existed between the parties.   The District Court agreed and
granted Quenzer's motion.   Janz appeals this decision. We
affirm.
     Janz presents two issues for review:

        (1) Did the Court err when it decided that Alma Janz
was    not employed by Duane Quenzer, and when it granted
Quenzer's motion for summary judgment on that basis?

     (2) Did the District Court err when it concluded that
Alma Janz was not entitled to punitive damages as a matter of
law?

     The undisputed facts are briefly as follows:    Kenneth
Heier owned the Ben Franklin Store in Baker, Montana. Janz
and her daughter, Roxanne, worked for Heier. Heier offered
to sell the store to Quenzer.      The parties agreed to a
purchase price which included the store and the store's
inventory up to $160,000.00. They also agreed that Quenzer
could negotiate to purchase any store inventory in excess of
$160,000.00.   Quenzer and Heier planned to ascertain the
value of the store's inventory prior to closing the deal.
     Janz heard about the sale and contacted Quenzer to
inquire whether or not he would continue her employment.
Quenzer told Janz he planned to keep her on.
      From November 1, 1983, to at least the morning of
November 3, 1983, Heier employed Janz to help with the
inventory.    On November 4, 1983, the inventory was either
completed or nearing completion.     In the morning hours of
November 4, 1983, Janz and her daughter, Roxanne, arrived at
the store to begin work for the day.      Shortly after their
arrival Quenzer told Roxanne she could not wear jeans to
work.    Roxanne told Quenzer that she had no other type of
pants to wear, and then complained to her mother.         The
parties argued, and appellant Janz and her daughter left the
store. As Janz left the store Quenzer asked for keys to the
store kept by Janz. Janz refused to give the keys to Quenzer
telling him that they belonged to Heier.
      Later that morning Heier spoke to Janz about the
incident. He told Janz he felt bad about the incident, and
payed Janz for her wages for the period of time through
November 3, 1983.
                             I.
     Under Rule 56 (c), M.R.Civ.P.,    summary judgment is
properly granted where the moving party meets the initial
burden of showing the absence of a genuine issue as to any
fact deemed material in light of the substantive principl-es
that entitled the movant to judgment as a matter of law.
Fleming v. Fleming Farms, Inc. (Mont. 1986), 717 P.2d 1103,
1105-06, 43 St.Rep. 776, 779.    And the party opposing the
motion fails to come forward with evidence supporting the
existence of a material question of fact. ~leming,717 P.2d
at 1106.   All reasonable inferences that may be drawn from
the offered proof must be drawn in favor of the party
opposing summary judgment.     Cereck v. Albertson's, Inc.
(1981), 195 Mont. 409, 411, 637 P.2d 509, 511.
     The resolution of this issue depends on the existence of
a material question of fact on whether Quenzer employed or
contracted to employ Janz.    Malloy v. Judge's Foster Home
Program, Inc. (Mont. 1987), 44 St.Rep. 1996, 1999, 746 P.2d
1073, 1075.    We hold that the District Court correctly
granted summary judgment on the claims at issue because no
reasonable inference may be drawn that either the contract or
the relationship existed.
      Janz does not dispute that on the morning of November 3,
1983, she worked for Heier.     However, according to Janz, a
material fact question exists as to whether Quenzer took over
operation of the store during the afternoon of November 3,
1983. According to Janz, deposition statements demonstrate a
factual issue over the existence of Quenzer's control of the
store and its employees.     Janz contends that a reasonable
inference may be drawn that Quenzer's control of the store
created the employment relationship she has based her claims
upon.
     Quenzer answers that he hired no employees until after
Janz "walked out" of the store. To support this contention,
Quenzer points out that he did not own the store until after
he allegedly fired Janz.
     First, we agree with Janz that a showing that Quenzer
controlled the store and its employees may be enough in the
appropriate case to prevail against a motion for summary
judgment on this issue. However, Janz's control assertion
fails to raise a material question of fact as to the
existence of an employment relationship arising from control
under the undisputed facts of this case.
     Janz's specific contentions on Quenzer's control of the
store and its employees appear in her brief as follows:
    Quenzer was in full control of the operation of the
    business on the afternoon of November 3, 1983,
    following the inventory.       At that time, the
    Plaintiff and other employees were taking their
    directions and orders from Quenzer as the new
    owner.   Quenzer advised Alma Janz and the other
    employees on November 3 when to appear for work on
    the morning of November 4. Quenzer received all of
    the receipts from the business on the afternoon of
    November 3 and November 4. Quenzer hired employees
    who began work on the morning of November 4
    following the discharge of Mrs. Janz.           The
    employees were hired to replace Mrs. Janz, her
    daughter and Mary Ann Aguayo and were paid wages by
    Quenzer for their work on November 4.       Quenzer
    allowed Janz to carry on her duties on the morning
    of November 4 prior to terminating her daughter's
    employment with him.    Furthermore, the franchise
    agreement executed by Quenzer specifically provided
    that he was the owner of the store as of November
    1, 1983.

     We will consider these contentions individually to
determine whether a material fact question exists as to the
establishment of an employment relationship between the
parties. First, the fact that Quenzer employed other workers
on November 4, 1983, after Janz left the store fails to raise
any inference as to Janz's alleged term of employment. The
events at issue occurred prior to Quenzer's employment of
other individuals.
     Second, Janz cites to a deposition statement made by
Quenzer contending that the statement infers employment by
control. According to Janz, Quenzer stated, as recorded on
page 20 of his deposition, that the inventory was completed
on November 3, 1983, and that the store reopened for business
on the afternoon of November 3, 1983.         This assertion
exaggerates the content of Quenzer's statement.
     Quenzer stated on page 20 of the deposition that the
inventory took two and a half days. One could deduce from
this statement that since the inventory began on November 1,
1983, it was over by the afternoon of November 3, 1983.
However, on pages 24 and 25 of the deposition Quenzer
clarified his earlier statement on when the inventory was
completed:

          Q. Did you handle the business of the store
     on November 4th?
            A.   To what degree?
            Q.   Whatever   was    required   of    you    at   that
     point.
            A. No.    Howard Philmore was the inventory
     man.    He was the one in charge.
          Q. However, the           inventory      was    completed
     November 3rd, correct?
            A.   The count.     Not the adding.
          9 . Okay. I 'm not talking about the inventory
     directly.   I'm talking about the business of the
     store, the operation of the store itself.
            A.   Reword that.
          Q. Who handled the operation of the store,
     not having to do with the inventory, but the actual
     operation of the store on November 4th?
            A.   Howard Philmore.

Thus, Quenzer stated only that a part of the inventory was
completed on November 3, 1983, and no reasonable inference
may be drawn that Quenzer controlled the store's employees
simply because on page 20 of his deposition he stated that
the inventory took two and a half days. The statements of
Quenzer, as revealed by his assertion that Philmore was in
charge of the store, are in direct opposition to Janz's bald
assertions on the control issue.
     Next, Janz contends that Quenzer controlled the store on
the afternoon of November 3, 1983, because he told Janz and
co-employee Mary Ann Aguayo what time to come to work on
November 4, 1983.     The fact that Aguayo and Janz asked
Quenzer when they should report to work on November 4, 1983,
fails to reasonably infer that Quenzer's control of the store
and its employees established an employment relationship
between Janz and Quenzer on the afternoon of November 3,
1983, and the morning of November 4, 1983. The fact only
infers that Quenzer and Aguayo planned to enter an employment
relationship on November 4, 1983.       Thus, no reasonable
inference may be drawn that an employment relationship
existed from these statements.
     Other than the statement that Quenzer responded to her
question on what time to appear for work, Janz failed to
specify incidents occurring on November 3, 1983, which
demonstrate Quenzer's control of the store.    Conclusory or
speculative statements are insufficient to raise a genuine
issue of material fact.    Barich v. Ottenstror (1976), 170
Mont. 38, 42, 550 P.2d 395, 397. The statements of Janz fail
to reveal anything but preparation to begin an employment
relationship, and again no reasonable inference may be drawn
that Janz's employment was initiated by Quenzer's control of
the store on the afternoon of November 3, 1983, or the
morning of November 4, 1983.
     Janz also contends that Quenzer allowed her to begin
work on the morning of November 4, 1983, because she spent
eight or ten minutes dusting shelves prior to arguing with
Quenzer and leaving the store. The statement on the shelves
is recorded at page 60 of her deposition. Janz also stated
that she began the work on the shelves without any direction
from Quenzer.   We hold that the eight or ten minutes Janz
spent dusting is insufficient to allow a reasonable inference
that Quenzer controlled the store and its employees.
     The two remaining assertions on control by Janz may be
disposed of quickly.       First, Janz contends that the
commencement of a franchise agreement between Quenzer and
Household Merchandising Inc., (Ben Franklin), on November 1,
1983, raises a material fact question as to when Quenzer took
over the store. We disagree. The franchise agreement infers
that Quenzer intended an earlier sale date, but this
inference does not create a material question of fact as to
the date Quenzer actually did take over the store. The facts
are undisputed that Quenzer did not take over the store on
November 1, 1983, as provided by the agreement.
     Second, Janz argues that Quenzer's receipt of proceeds
for store sales made during the afternoon of November 3, and
on November 4, 1983, creates a material question of fact on
whether Quenzer controlled the store on November 3, 1983.
The record establishes that Quenzer was entitled to the
proceeds only after closing occurred on the afternoon of
November 4, 1983. If the sale had not closed, the proceeds
would have belonged to Heier. Thus, no reasonable inference
may be drawn that the receipt of the proceeds on a given day
marks the beginning of an employment relationship between the
parties.
     While Janz's references to the record fail to reveal
material fact questions on the existence of an employment
relationship between the parties, Quenzer has presented solid
citations   to   deposition   statements demonstrating    the
nonexistence of the alleged relationship:    (1) Quenzer did
not own the store at the time of the alleged termination; ( 2 )
Heier paid Janz's wages for November 3, 1983; (3) a Ben
Franklin representative was in charge of the inventory which
proceeded the sale; (4) Janz refused to give the keys to the
store to Quenzer when she left on November 4, 1983, and told
Quenzer they belonged to Heier.    Quenzer's proof discloses
that no genuine issue of material fact existed as to the
absence of the employment relationship.     Once the record
discloses:
      no genuine issue of material fact, the burden of
     proof shifts to the party opposing the motion for
     summary judgment to show by present facts of a
     substantial nature that a material fact issue does
     exist.

Mayer Bros. v. Daniel Richard Jewelers, Inc. (Mont. 1986),
726 p.2d 815, 816, 43 St.Rep. 1821, 1823. Janzls proof fails
to meet this burden.
     The last claim dealt with here is the alleged breach of
an express employment contract.    We hold that no contract
existed between the parties because the absence of the terms
of the employment makes the alleged contract fatally
uncertain.    Bishop v. Hendrickson (Mont. 1985), 695 P.2d
1313, 42 St.Rep. 259. The record reveals that the parties1
conflict actually arose in defining the terms of employment
for Janzls daughter, i.e., that she not wear jeans.      The
parties' negotiations did not proceed further than the issue
of proper attire for store employees.     Thus, no contract
existed and we affirm on this issue.



     Janz concedes in her reply brief that resolution of the
first issue in favor of Quenzer moots the second issue.
Thus, resolution of issue 1 disposes of this appeal.
AFFIRMED.



                                                          /
We Concur:
