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                                                                 No. 99-084

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 293N



ALLISON CHAPMAN,

Plaintiff and Appellant,

v.

PENNY McVICKER, a/k/a PENNY VEGORAN,

Attorney In Fact for MARY E. VEGORAN,

Defendant and Respondent.




                                                           APPEAL FROM: District Court of the Twelfth Judicial
                                                           District,

In and for the County of Choteau,

The Honorable John Warner, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Allison Chapman, Pro Se; Geraldine, Montana

For Respondent:

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Lisa Swan Semansky, Luinstra & Semansky, P.C.; Great Falls, Montana



Submitted on Briefs: August 5, 1999

Decided: November 30, 1999

Filed:




__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

      1. ¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
           Operating Rules, the following decision shall not be cited as precedent but shall be
           filed as a public document with the Clerk of the Supreme Court and shall be
           reported by case title, Supreme Court cause number, and result to the State Reporter
           Publishing Company and to West Group in the quarterly table of noncitable cases
           issued by this Court.
      2.   ¶ Allison Chapman filed an action in the Twelfth Judicial District Court, Choteau
           County, against Penny L. McVicker to recover damages for breach of contract and
           infliction of emotional distress. McVicker filed a motion to dismiss which the court
           granted. Chapman appeals from the order dismissing her complaint. We affirm in
           part and reverse in part.
      3.   ¶ Chapman raises the following issues:
      4.   ¶ 1. Whether the District Court erred in dismissing Chapman's cause of action for
           breach of contract?
      5.   ¶ 2. Whether the District Court erred in dismissing Chapman's cause of action for
           infliction of emotional distress?

                                                     FACTUAL BACKGROUND

      6. ¶ On June 8, 1998, Chapman, proceeding pro se, filed a complaint with the Twelfth

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        Judicial District Court, Choteau County, seeking damages for breach of contract and
        infliction of emotional distress. For the purposes of this appeal, we look to
        Chapman's complaint and take as true the following allegations of fact.

     7. ¶ McVicker is the attorney-in-fact and holds power of attorney for Mary E.
        Vegoran. Sometime between May 15 and 21, 1997, McVicker, acting on behalf Ms.
        Vegoran, signed a Buy-Sell Agreement to sell real property, including a house,
        located at 500 Brewster Street, Geraldine, Montana, to Chapman. The Buy-Sell
        Agreement states that "[a]ll loss or damage to any of the above-described real
        property or personal property to any cause is assumed by Seller through the time of
        closing unless otherwise specified." The closing occurred on July 17, 1997. A fire
        caused damage to the house on June 30, 1997. At the time of the complaint,
        McVicker had not paid for the damage caused by the fire and had not made any
        effort to have the house repaired.

     8. ¶ McVicker has been extremely abusive towards Chapman in part because
        McVicker's insurance agent told her that Chapman intentionally set the fire which
        damaged the house. Chapman attached a letter from McVicker dated December 12,
        1997 to her complaint as evidence of McVicker's abusive behavior. Chapman has
        suffered severe mental and emotional trauma as a result of McVicker's behavior.

     9. ¶ On January 8, 1999, McVicker moved to dismiss Chapman's complaint for failure
        to state a claim. McVicker claimed Chapman's complaint contained allegations of
        fact which indicated Chapman was aware McVicker signed the Buy-Sell Agreement
        on behalf of Mary E. Vegoran. McVicker attached to her brief as an exhibit a copy
        of an instrument entitled "Durable Power of Attorney" executed by Mary E.
        Vegoran, which purports to appoint Penny L. McVicker as Ms. Vegoran's attorney.
        McVicker also attached a copy of the Buy-Sell Agreement to her brief. In the space
        provided for the seller's endorsement, the contract is signed "Mary E. Vegoran by
        Penny McVicker P.O.A." McVicker argued that because she was acting as Ms.
        Vegoran's agent she is not personally liable for any breaches of the Buy-Sell
        Agreement. McVicker also contended that Chapman did not allege facts in her
        complaint which could rise to the level of "severe or serious" emotional distress.

 10. ¶ In an order dated February 2, 1999, the District Court granted McVicker's motion
        to dismiss. Chapman appeals from this order.



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                                                      STANDARD OF REVIEW

 11. ¶ The District Court's determination that Chapman's complaint failed to state a claim
        is a conclusion of law. See, e.g., Powell v. Salvation Army (1997), 287 Mont. 99,
        102, 951 P.2d 1352, 1354. This Court's standard of review of a district court's
        conclusion of law is whether the district court's interpretation of the law is correct.
        See Powell, 287 Mont. at 102, 951 P.2d at 1354 (citing Boreen v. Christensen
        (1994), 267 Mont. 405, 408, 884 P.2d 761, 762).

 12. ¶ We review an appeal from a district court's order granting a motion to dismiss
        based on the sufficiency of the complaint. See Wood v. Den Herder (1996), 277
        Mont. 147, 151, 920 P.2d 105, 107 (citation omitted). The only relevant document is
        the complaint and any documents it incorporates by reference. See City of Cut Bank
        v. Tom Patrick Const., Inc., 1998 MT 219, ¶ 20, 290 Mont. 470, ¶ 20, 963 P.2d
        1283, ¶ 20. In reviewing a motion to dismiss, we construe the complaint in the light
        most favorable to the plaintiff and take the allegations of the complaint as true. See
        HKM Assoc. v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 191, 900 P.2d
        302, 304 (citing Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 231, 883
        P.2d 121, 123). We will affirm a district court's dismissal only if we determine that
        plaintiff is not entitled to relief under any set of facts which could be proven in
        support of the claim. See Grove v. Montana Army Nat'l Guard (1994), 264 Mont.
        498, 501, 872 P.2d 791, 793 (citing King v. State (1993), 259 Mont. 393, 856 P.2d
        954).

                                                                 DISCUSSION

 13. ¶ 1. Whether the District Court erred in dismissing Chapman's cause of action for
        breach of contract?

 14. ¶ Under the heading "Count One" of Chapman's complaint, Chapman claimed
        McVicker was liable for any damages to the house which occurred prior to closing
        under the terms of the Buy-Sell Agreement. Generally, only contracting parties are
        bound to perform the obligations of a contract. See Gambles v. Perdue (1977), 175
        Mont. 112, 115, 572 P.2d 1241, 1243. "A power of attorney is nothing more than an
        instrument in writing authorizing another to act as one's agent." McLaren Gold
        Mines Co. v. Morton (1950), 124 Mont. 382, 390, 224 P.2d 975, 979. An agent is
        not personally liable on a contract entered into on behalf of a principal if it appears

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        that the agent disclosed the principal's identity and made the engagement for the
        principal. See Budget Ins. and Fin. v. Leighty (1980), 186 Mont. 368, 372, 607 P.2d
        1125, 1127. Conversely, an agent may be held personally liable if the agent entered
        into a contract in the agent's own name for an undisclosed principal. See Como v.
        Rhines (1982), 198 Mont. 279, 288, 645 P.2d 948, 953.

 15. ¶ In certain circumstances, an agent may be liable to a third-party as a principal even
        if the agent discloses the principal's identity. Section 28-10-702, MCA, states:

        When agent responsible to third persons as a principal. One who assumes to act
        as an agent is responsible to third persons as a principal for his acts in the course of
        his agency in any of the following cases and in no other:

        (1) when, with his consent, credit is given to him personally in a transaction;

        (2) when he enters into a written contract in the name of his principal without
        believing in good faith that he has authority to do so; or

        (3) when his acts are wrongful in their nature.

 16. ¶ Chapman alleged in her complaint that McVicker was attorney-in-fact for
        Ms. Vegoran and signed the Buy-Sell Agreement on Ms. Vegoran's behalf.
        Chapman did not allege that McVicker entered into a written contract on behalf of
        Ms. Vegoran without believing in good faith that she was authorized to do so nor
        did Chapman allege that McVicker's acts were "wrongful in their nature." Instead,
        Chapman simply alleged that McVicker violated a purported contractual duty.

 17. ¶ Upon our review of the sufficiency of Chapman's first cause of action, we agree
        with the District Court that Chapman failed to plead facts sufficient to state a claim
        upon which relief can be granted. Chapman alleged that McVicker was not a party
        to the Agreement, but did not allege how McVicker could be personally obligated to
        perform its terms. Therefore, we affirm the District Court's dismissal of Chapman's
        first cause of action. However, we note that by dismissing Chapman's claim for
        contract damages for the sole reason that Chapman asserted her claim against the
        wrong party, we need not determine whether under the terms of the Buy-Sell
        Agreement Chapman waived her right to assert a claim for breach of contract
        against a party to that Agreement.


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 18. ¶ 2. Whether the District Court erred in dismissing Chapman's cause of action for
        infliction of emotional distress?

 19. ¶ Under "Count Two" of Chapman's complaint, Chapman claimed that McVicker
        "had no right to abuse the plaintiff and to cause the plaintiff mental and emotional
        trauma." An independent cause of action for the tort of infliction of emotional
        distress will arise under circumstances where serious or severe emotional distress to
        the plaintiff was the reasonably foreseeable consequence of the defendant's
        negligent or intentional act or omission. See Sacco v. High Country Indep. Press
        (1995), 271 Mont. 209, 220, 896 P.2d 411, 418. In Sacco, we adopted the definition
        of "serious" or "severe" emotional distress contained in the Restatement (Second) of
        Torts. Sacco, 271 Mont. at 233, 896 P.2d at 426. The Restatement (Second) of Torts
        § 46, comment j at 77-78 defines "serious" emotional distress as:

        Emotional distress passes under various names, such as mental suffering, mental
        anguish, mental or nervous shock, or the like. It includes all highly unpleasant
        mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment,
        anger, chagrin, disappointment, worry, and nausea. . . . The law intervenes only
        where the distress inflicted is so severe that no reasonable [person] could be
        expected to endure it.

        The distress must be reasonable and justified under the circumstances, and there is
        no liability where the plaintiff has suffered exaggerated and unreasonable emotional
        distress, unless it results from a peculiar susceptibility to such distress of which the
        actor had knowledge.

 20. ¶ Chapman alleged that McVicker was extremely abusive toward Chapman partly
        due to the fact that McVicker was told by her insurance agent that Chapman
        intentionally set the fire which damaged the house. Chapman alleged that McVicker
        called Chapman a criminal. Chapman attached a letter to her complaint from
        McVicker in which McVicker claimed that Chapman was in the house illegally and
        Chapman caused the damage to the house for which she is seeking relief. Chapman
        alleged that McVicker's abuse resulted in severe mental and emotional trauma.

 21. ¶ Chapman's complaint sets forth facts sufficient to state a claim for damages due to
        the infliction of emotional distress. We agree with the District Court that the
        standard of serious or severe emotional distress is a high one and that, on the facts

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         alleged in Chapman's complaint, it is unlikely McVicker's conduct could reasonably
         and foreseeably lead to serious or severe emotional distress. However, we cannot
         conclude Chapman is not entitled to relief under any set of facts which could be
         proven. For example, it is conceivable Chapman could prove McVicker was aware
         that Chapman was peculiarly susceptible to emotional distress and therefore it was
         reasonably foreseeable that McVicker's letter would lead to such distress.

  22. ¶ Whether Chapman can satisfy the elements of negligent or intentional infliction of
         emotional distress is a question of proof, not pleading. Cf. Poeppel v. Flathead
         County, 1999 MT 130, ¶ 19, 982 P.2d 1007, ¶ 19, 56 St.Rep. 525, ¶ 19. The most
         basic consideration in determining the sufficiency of a complaint is determining
         whether the allegations are sufficiently detailed to provide the other party with
         adequate notice of the claim so as to enable that party to prepare a responsive
         pleading. See Poeppel, ¶ 17 (citations omitted). Although Chapman's allegations
         may be somewhat conclusory, her complaint is sufficient to put McVicker on notice
         of the claim so that McVicker can prepare a responsive pleading. We note that
         should McVicker desire any further degree of specificity, she may obtain the same
         by moving for a more definitive statement, or by using discovery devices such as
         depositions, interrogatories and requests to admit. See Willson v. Taylor (1981), 194
         Mont. 123, 128, 634 P.2d 1180, 1183.

  23. ¶ We affirm the dismissal of Count One of Chapman's complaint and reverse the
         dismissal of Count Two and remand to District Court for further proceedings
         consistent with this opinion.



/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON



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/S/ W. WILLIAM LEAPHART




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