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LONNIE AND JERIL YN HIPPEN, husband and wife, Plaintiffs, v. FIRST NATION AL BANK of Philipsburg, Kansas, Executor of the Wil of Bernard A.

Griffths, deceased, COMMERCIAL STATE BANK of Long Island, Kansas, a corporation, and GRIFFITHS INSURACE, INC., a corporation, Defendants.
CIVIL ACTION No. 90-2024-L

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KASAS
1992 U.S. Dist. LEXIS 6029; 30 Wage & Hour Cas. (BNA) 1402

March 19, 1992, Decided March 19, 1992, Filed

CASE SUMMARY:

OUTCOME: The court granted the bank's and the former supervisor's motions for summary judgment as to all

claims alleged by plaintiffs. The court granted the insur-

PROCEDURAL POSTURE: Plaintiffs, former employee and his wife, fied an action against defendants,

ance company's supplemental motion for summary

bank, former supervisor, and insurance company alleging, among other things, that the former supervisor sold plaintiffs a home when the former employee relocated to
take the job at the bank, and that the former supervisor promised to repurchase the home if the former employee

judgment as to all claims brought by plaintiffs except plaintifts claim for unpaid insurance commssions. The
insurance company's motion to dismiss the unpaid insurance commssions claim was granted.

LexisNexis(R) Headnotes

wished to quit his job, then failed to repurchase the home
when the former employee quit.

OVERVIEW: Plaintiffs purchased a home from the
former supervisor. Plaintiffs alleged that the former supervisor verbally offered to repurchase the home if the former employee left the employ of the bank. The former
employee decided to quit and asked the former supervisor to repurchase the home. The former supervisor be-

Civil Procedure )0 Summary Judgment )0 Supporting Papers & Affidavits Civil Procedure )0 Summary Judgment )0 Burdens of Production & Proof

judge an (HNl) A motion for summary judgment gives a initial opportnity to assess the need for a trial without
weighing the evidence or determning credibility. Sum-

came upset, pounded his fists on a desk, and threatened the former employee with bodily harm. The former employee fied an action against the defendants. The cour dismissed all claims against all defendants and held, in
part, that the alleged oral promise by the former supervi-

mary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file,

together with affdavits, if any, show that there is no
genuine issue as to any material fact and that the moving
part is entitled to judgment as a matter of law. Fed. R.

sor to repurchase the house fell within the statute of frauds and plaintiffs failed to show a basis to take the alleged promise outside the statute of frauds, so the
promise was unenforceable. As such, summary judgment
was granted in the former employee's action for breach

Civ. P. 56(c). The requirement of a "genuine" issue of
fact means that the evidence is such that a reasonable
jury could retur a verdict for the nonmoving party. Es-

of contract, promissory estoppel, implied in fact contract, fraud, promissory fraud, declaratory judgment, and reci-

sentially, the inquiry is "whether the evidence presents a suffcient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.

sion and restitution as to the note and mortgage. The
court held that the former supervisor's actions were in-

suffcient to sustain the former employee's action for

intentional infliction of emotional distress.

Civil Procedure )0 Summary Judgment )0 Burdens of

Production & Proof

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(HN2) The party who fies a motion for summary judgment has the initial burden of demonstrating the absence
of a genuine issue of

material facts concerning its claims.

classic factual scenario in which cours have applied the part performnce doctrine involves a purchaser who has made partial payment, taken possession of property, and
made improvements.

This burden may be met by showing that there is an absence of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for triaL. The nonmoving party may not simply rest on its pleadings in the case but has the affrmative duty to come forward with facts to establish that a genuine issue exists necessitating a trial in the case. Thus, the mere existence of some alleged factual dispute between
the parties wil not defeat an otherwise properly sup-

Real & Personal Property Law )0 Sales, Exchanges &
Remedies )0 Statutes of Frauds

(HN7) The basis for removal of a case from application
of the statute of frauds under the theory of detrimental

reliance or promissory estoppel is the reliance by one of
the parties to the oral contract to his detriment under cir-

cumstances where gross injustice would result unless the oral contract were endorsed.

ported motion for summary judgment. The court must
consider the record in the light most favorable to the

part opposing the motion. More than a "disfavored procedural shortcut," summary judgment is an important procedure designed to secure the just, speedy and inexpensive determination of every action. Fed. R. Civ. P. 1.

Real & Personal Property Law )0 Sales, Exchanges &
Remedies )0 Statutes of Frauds

(HN8) An oral contract, within the statute of frauds, cannot be made the basis of an action for damages for its breach; nor, ordinarily, can any other action be main-

Real & Personal Property Law )0 Sales, Exchanges &
Remedies )0 Statutes of Frauds

tained which requires proof of such contract to sustain the cause of action. The statute of frauds operates as a bar to all actions brought on oral contracts falling within
its terms. The operation of the statute is not confined to

(HN3) Kan. Stat. Ann. § 33-106 (1986) provides in clear language that an agreement for the sale of an interest in real estate is unenforceable if the agreeand unequivocal

cases where an action is brought directly on the contract. Whatever the form of the action may be, if the proof of a

ment is not in writing. It states, no action shall be
brought whereby to charge a part upon any contract for
the sale of lands, tenements, or hereditaments, or any

promise or contract within the statute is essential to
maintain it, there can be no recovery unless the statute is satisfied. Even an action sounding in tort may be barred by the statute where an essential element of the cause of action is an oral contract within the statute.

interest concerning them unless the agreement upon
which such actions shall be brought, or some memorandum or note thereof, shall be in writing and signed by the
part to be charged therewith, or some other person

thereunto by him or her lawfully authorized in writing.

Contracts Law )0 Defenses )0 Fraud & Misrepresentation

Contracts Law )0 Statutes of Frauds

rescind a contract or to compensate a part when the
other party has negligently misrepresented a material fact
regarding the transaction. Negligent misrepresentation

(HN9) Negligent misrepresentation is normally used to

(HN4) A contract which is unenforceable under the statute of frauds affords no basis for an action to recover

damages for its breach.

consists of the following elements: (1) misrepresentation of a past or existing material fact, (2) made without reasonable grounds for believing it to be tre, (3) with intent
to induce another's reliance, (4) ignorance of the trth

Real & Personal Property Law )0 Sales, Exchanges &
Remedies )0 Statutes of Frauds

(HN5) The statute of frauds requires that contracts for
the sale of real propert must be in writing in order to be

and justifiable reliance by the party to whom the misrepresentation was directed, and (5) resulting damages.

enforceable whether standing alone or as part of a larger transaction.

Real & Personal Property Law )0 Sales, Exchanges &
Remedies )0 Statutes of Frauds

Contracts Law )0 Contract Interpretation )0 Fiduciary Responsibilities (HN10) A fiduciary relationship does not depend upon some technical relation created by, or defined in, law. It

(HN6) Part performance can remove an oral agreement for the sale of real estate from the statute of frauds. The

may exist under a variety of circumstances, and does exist in cases where the has been a special confdence reposed in one who, in equity and good conscience, is

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bound to act in good faith and with due regard to the
interests of

the one reposing the confidence.

Contracts Law )0 Contract Interpretation )0 Fiduciary

Labor & Employment Law )0 Wage & Hour Laws )0 Exemptions (HNI4) Under the "short" test for administrative employees, the employee's work need only include work
requiring the exercise of discretion and independent

Responsibilties (HN11) In order to show a fiduciary relationship between the parties, plaintiffs must establish something
substantially more than a mere employer/employee or

judgment, as opposed to customarily and regularly exer-

cising such discretion and judgment. In general, the exercise of discretion and independent judgment involves

buyer/seller relationship. Plaintiffs must show that they reposed a special trst or confidence in one or more of the defendants, and that they relied upon said defendant to handle their affairs. Fiduciary relationships are not presumed, their existence depends on the facts of each
individual case.

the comparison and evaluation of possible courses of
conduct and acting or making a decision after the various possibilities have been considered. 29 C.F.R. § 541.207.
The phrase implies that the person has the authority or power to make an independent choice, free from imme-

diate direction or supervision and with respect to matters of significance.

Labor & Employment Law )0 Wage & Hour Laws )0 Exemptions (HN12) Administrative employees are exempt from the
overtime provisions of the Fair Labor Standards Act

Labor & Employment Law )0 Wage & Hour Laws )0
Overtime & Work Period

(FLSA), 29 Us.es. § 201 et seq. 29 uS.es. §
213(a)(1) provides that the overtime provisions of the

(HN15) There is a presumption of law that all services rendered by an employee during the period for which he
is employed, of a natue similar to those required of him
in the course of his regular duties, are paid for by his

FLSA do not apply with respect to: Any employee employed in a bona fide executive, administrative or professional capacity (as such terms are defined and limited
form time to time by regulations of

salary, and to overcome this presumption he or she must show an express agreement for extra compensation.

the secretary).

Torts )0 Intentional Torts )0 Intentional Infliction of
Labor & Employment Law )0 Wage & Hour Laws )0 Exemptions (HN13) The administrative regulations relating to the
Fair Labor Standards Act (FLSA), 29 Us.es. § 201 et

seq., establish two tests for use when evaluating the de-

gree of discretion and independent judgment required to
establish an administrative exemption from the overtime
provisions of

Emotional Distress (HN16) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

the FLSA under 29 Us.es. § 213 Under

the "long test" an administrative employee qualifies as exempt only if his job requires that he customarily and regularly exercise discretion and independent judgment.
29 ep.R. § 541.2(b). The "short test", which is set forth

Torts )0 Intentional Torts )0 Intentional Infliction of
Emotional Distress (HN17) To commt the tort of outrage, the conduct of the defendant must be intentional or in reckless disregard of the plaintiff; (2) the conduct must be extreme and outrageous; there must be a causal connection between the

in 29 C.F.R. § 541.14, is applicable to high salaried
administrative employees. That particular regulation provides, in part, as follows: § 541.2 contains a special
proviso including within the definition of "administra-

defendant's conduct and the plaintiff's mental distress; and plaintiff's mental distress must be extreme and severe.

tive" an employee who is compensated on a salary or fee
basis at a rate of not less than $ 250 per week exclusive

of board, lodging or other facilities, and whose primary duty consists of either the performance of offce or nonmanual work directly related to management policies or general business operations of the employer or the employer's customers, where the performance of such primary duty includes work requiring the exercise of discretion and independent judgment.

Torts )0 Intentional Torts )0 Intentional Infliction of

Emotional Distress (HN18) It is for the court to determne whether the defendant's conduct is so outrageous as to permit recovery.
Conduct suffcient to support an action for outrageous

conduct must be beyond the bounds of decency and utterly intolerable in a civilized society.

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assault where the defendant is too far away to make contact.

Torts )0 Intentional Torts )0 Intentional Infliction of
Emotional Distress (HN19) It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language

and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene

Workers' Compensation & SSDI)o Coverage)o Actions Against Employers )0 Intentional Misconduct Workers' Compensation & SSDI)o Compensability )0 Course of Employment (HN24) Kansas cases hold that workplace assaults are
covered by the Kansas Workers' Compensation Act. In

order to be covered by the Workers' Compensation Act,

where someone's feelings merely are hurt. Freedom remains to express an unflattering opinion and to blow off relatively harmless steam which comes from an uncontrollable temper. Conduct to be a suffcient basis for an
action to recover for emotional distress must be outra-

an assault, like any other injur, must "arise out of" and
be "in the course of" employment. The two phrases,

"arising out of" and "in the course of," have separate and
distinct meanings and they are conjunctive; each condi-

geous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.

tion must exist before compensation is allowable under the Act. Generally, the requirement that the injury be sustained "in the course of employment" simply means that the injury happens while the worker was at work in
his employer's service. The phrase refers to the time,

Torts )0 Negligence )0 Duty )0 Negligent Infliction of Emotional Distress

place and circumstances under which the injury occured. The requirement that the injury "arise out of" employment points to the cause or origin of the accident and requires some causal connection between the injury and the employment. An injury "arises out of" employment if it arises out of the natue, conditions, obligations,

raneous physical injury is required in order to state a
claim for negligent infliction of emotional distress.

(HN20) It is well-settled law in Kansas that a contempo-

and incidents of the employment.
Evidence )0 Witnesses )0 Personal Knowledge (HN21) Witnesses who are not expert witnesses are permitted to testify only from their personal knowledge.
Fed. R. Evid. 602.

Torts )0 Intentional Torts )0 Assault & Battery (HN22) Kansas recognizes a civil action and remedy for
an assault. An assault is defined as an intentional threat

Civil Procedure )0 Jurisdiction )0 Diversity Jurisdiction )0 Amount in Controversy (HN25) In order for a federal court to assert jurisdiction over a plaintiff's state law claims under diversity of citizenship, plaintiffs must meet the $ 50,000 jurisdictional amount of 28 Us.es. § 1332. A court lackingjurisdiction must dismiss the case at any stage of the proceed-

or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary. Pattern Instrctions Kansas (Civil) 14.01 (2d ed.).
Torts )0 Intentional Torts )0 Assault & Battery (HN23) Words alone do not constitute an assault. Words

ings in which it becomes apparent that jurisdiction is
lacking.

COUNSEL: (*1) For the Plaintiff:

Caleb Boone, 1200 Main Street - Ste. 304, P. O. Box
711, Hays, KS 67601-0711, 913-625-6551.

do not make an actor liable for assault unless together
with other acts or circumstances they put the other in

For the Defendant:

reasonable apprehension of immnent harmful or offensive contact with his person. The courts have been reluctant to protect extremely timid individuals from exaggerated fears of contact, and have often stated that the ap-

Myron L. Listrom, Sloan, Listrom, Eisenbarth, Sloan & Glassman, 714 Capitol Federal Building, 700 Kansas Avenue, Topeka, KS 66603, 913-357-6311.

prehension must be one which would normally be
aroused in the mind of a reasonable person. It is usually
held that the defendant's act must amount to an offer to use force, and there must be an apparent ability and opportnity to carry out the threat immediately. There is no

K. Gary Sebelius, Catherine A. Walter, Davis, Wright, Unrein, Hummer & McCallster, Commerce Bank Building, Downtown, 100 S.E. 9th Street - 2nd Fl, P. O. Box
3555, Topeka, KS 66601-3555, 913-232-2200.

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Myron L. Listrom, Sloan, Listrom, Eisenbarth, Sloan & Glassman, 714 Capitol Federal Building, 700 Kansas Avenue, Topeka, KS 66603,913-357-6311.
JUDGES: Lungstrm
OPINIONBY: JOHN W. LUNG

various claims can be placed into four general categories. The first set of claims arise out of an alleged promise by the defendants to repurchase a home located in Long Island, Kansas which plaintiffs purchased from Griffths in March of 1987. n3 The second set of claims arise out

of alleged nonpayment of overtime hours worked by
STRUM

OPINION:

MEMORADUM AND ORDER
On January 24, 1990, plaintiffs, residents of Iowa,
fied a complaint in this cour against defendants, domi-

ciled in Kansas, claiming damages under a plethora of
fraud, breach of contract and tort theories. As is to be

plaintiff Lonnie Hippen at Commercial State Bank. The third set of claims arise out of a pair of alleged abusive confontations that occurred between defendant Griffths and plaintiff Lonnie Hippen in Hippen's offce at Commercial state Bank on January 23, 1989. The fourth and final set of claims arise out of an alleged failure to pay insurance commssions due and owing to plaintiff Lonnie Hippen. Defendants are seeking summary judgment on

all claims brought by the plaintiffs. n4 The cour wil
specifically address the facts, as established for the purposes of these pending motions, as pertinent to the challenged claims.

expected when a plaintiff fies a complaint containing a
virtal grab-bag of theories for recovery, defendants

have fied a number of dispositive motions with the
court. The following motions are currently pending be-

fore the court: (1) motion to dismiss and/or for summary

judgment fied (*2) by defendant Griffths Insurance, Inc. (Docs. # 26-1 and 26-2); (2) motion for summary
judgment filed by defendant Commercial State Bank n1 (Doc. #41); (3) supplemental motion for summary judgment fied by defendant Griffths Insurance, Inc. (Doc. #63); (4) motion to dismiss filed by defendant Bernard A. Griffths n2 (Doc. #86); and (5) motion for summary judgment and/or for dismissal fied by defendant Bernard A. Griffths (Docs. #90-1 and 90-2). For the reasons set forth below, defendant's motions are granted in their entirety except as to the claim for unpaid insurance premiums against Griffths Insurance, Inc. Furthermore, the

n3 The claims ansiig out of the alleged
promise to repurchase the house are the only

claims brought by both plaintiffs Jerilyn Hippen and Lonnie Hippen in this case. All other claims
are brought only by plaintiff

Lonne Hippen.

(*4)

n4 Plaintiffs assert that all claims in this action are brought against all three defendants. The

motion of Griffths Insurance, Inc. to dismiss due to lack of subj ect matter jurisdiction is granted.

language contained in the plaintiffs' factual contentions in the pretrial order refers to defendants collectively and this court wil treat all claims in

this case as being made against all defendants collectively, and where individual defendants
have asserted that certain claims do not pertain to that particular defendant, the court wil separately

n1 Defendant Commercial State Bank wil be referred to as the "Bank" throughout this opinion.

analyze the applicability of those claims to the
individual defendant.

n2 Bernard A. Griffths was an original
named defendant. Mr. Griffths was the president
of defendant Commercial State Bank and Grif(HN1)

fihs' Insurance, Inc. Mr. Griffths died during
the pendency of this action. As a result, the First
National Bank of Philipsburg, Kansas, Executor

A motion for summary judgment gives a judge an initial opportunity to assess the need for a trial without
weighing the evidence or determing credibility. Sum-

of the Wil of Bernard A. Griffiths, deceased was substituted for Mr. Griffths. For the sake of clarity, this defendant wil be referred to as "Griffiths" or "Mr. Griffths" throughout this motion.
(*3)

mary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on fie,

together with affdavits, if any, show that there is no
genuine issue as to any material fact and that the moving
part is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(c). The requirement of a "genuine" issue of
fact means that the evidence is such that a reasonable

The varied theories of recovery espoused by plaintiffs in their complaint and in the pretrial order evolve from several different factual situations. However, the

jury could return a verdict for the (*5) nonmoving part. Anderson v. Liberty Lobby, Inc., 477 Us. 242, 248 (1986). Essentially, the inquiry is "whether the evidence

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1992 U.S. Dist. LEXIS 6029, *; 30 Wage & Hour Cas. (BNA) 1402

presents a suffcient disagreement to require submission

Long Island that was owned by Griffths and his wife. In

to a jury or whether it is so one-sided that one party must prevail as a matter oflaw." Id. at 251-52.
(HN2) The part who fies a motion for summary

judgment has the initial burden of demonstrating the absence of a genuine issue of material facts concerning its

claims. This burden may be met by showing that there is
an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 Us. 317, 325 (1986).

Once the moving party has properly supported its motion
for summary judgment, the burden shifts to the nonmov-

March, 1987, plaintiffs purchased the house from Griffiths for $ 20,000. This transaction is evidenced by ordinary written documents utilized in real estate transactions, including a disclosure statement, a promissory note in the amount of $ 16,000 dated March 16, 1987, a real estate mortgage dated March 10, 1987, a title opinon and a real estate appraisaL. None of these documents, nor any other writing whatsoever, evidences a promise by any of the defendants to repurchase the house from the
plaintiffs.

ing party to show that there is a genuine issue of material

fact left for triaL. Anderson, 477 Us. at 256. The nonmoving part may not simply rest on its pleadings in the case but has the affrmative duty to come forward with
facts to establish that a genuine issue exists necessitating a trial in the case. /d. Thus, the mere existence of some alleged factual dispute between the parties (*6) wil not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.Supp. 1387,1396 (10th Cir.
1984), cert. denied, 469 Us. 1214 (1985). More than a

According to the plaintiffs, the only reason they agreed to purchase the house was their reliance on an oral promise made by Griffths that in the event Hippen left his employment with the Bank, Griffths and/or the Bank would buy the house back from the plaintiffs for the original purchase price plus the cost or value of any improvements made by the plaintiffs. All defendants
have denied that any such oral agreement to repurchase

the house was ever made. Plaintiffs (*8) additionally allege that Griffiths threatened Hippen with the loss of
his job if he refused to purchase the house, and that this threat caused them to purchase the house.
On December 26, 1988, Hippen notified the bank of his intention to resign his employment with the Bank at
the end of January, 1989. At that time there were no

"disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just,
speedy and inexpensive determnation of every action.'

Fed. R. Civ. P. 1." Celotex, 477 Us. at 327.

discussions between any of the parties to this action regarding the alleged oral agreement to repurchase the

i. Plaintiffs' claims arising out of the al-

house. Hippen first mentioned the oral agreement to
repurchase on January 23, 1989, in discussions between Hippen and Griffths in Hippen's offce at the Bank. n6 At that time, Griffiths denied there was ever any agreement by any of the defendants to repurchase the house
from the plaintiffs.

leged oral promise to repurchase their

house.

Lonnie Hippen commenced employment with defendants Commercial State Bank and Griffths Insurance,
Inc. on June 1, 1986. Upon moving to Long Island, Kan-

sas at the start of his employment, Hippen n5 moved into

a rental propert.
n5 In discussing the claims arising out of the
alleged oral promise to repurchase the house,

n6 Hippen's claims for assault, intentional infliction of emotional distress and negligent infliction of emotional distress, discussed later in this opinion, arise out of these discussions.

which are brought by both Jerilyn and Lonnie

Hippen, the term plaintiff(s) shall refer to both plaintiffs collectively. When discussing all other claims which are asserted only by Lonnie Hippen, the term plaintiff shall refer only to Lonne Hippen. "Hippen" shall refer only to plaintiff
Lonnie Hippen throughout.
(*7)

The plaintiffs' complaint and the pretrial order contain seven different claims that have as a common nexus (*9) the fact that they arise out of the failure of the defendants to follow through with their alleged oral promise to repurchase the house. These claims include breach of contract, promissory estoppel, implied in fact contract, fraud, promissory fraud, declaratory judgment, and recision and restitution as to the note and mortgage. Plaintiff
has utilized a shotgun method of pleading, hoping that

In the middle of February, 1987, Hippen and Grif:'
fiths entered into discussions regarding the possible

one of his multiple theories of recovery wil hit the target. In this case, all claims brought by plaintiffs regarding the alleged oral promise to repurchase the house miss

rental or purchase by the plaintiffs of a house located in

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the mark and none survive defendants' motions for summary judgment.

as part of an "employment contract." (HN5) The

statute of frauds requires that contracts for the
sale of real propert must be in writing in order to

An analysis of the multiple claims brought by plain-

tiffs regarding the alleged promise to repurchase the house must begin with a discussion of the statute of
frauds. (HN3) Kansas Statutes Annotated section 33-106
provides in clear and unequivocal language that an

be enforceable whether standing alone or as part of a larger transaction.

agreement for the sale of an interest in real estate is unenforceable if the agreement is not in writing.

No action shall be brought whereby
to charge a party. . . upon any contract for
the sale of lands, tenements, or heredita-

Plaintiffs argue that they fall within the part performance exception to the statute of frauds. Plaintiffs state that they made improvements to the house based upon the defendants' oral promise to repurchase the
house for an amount equal to the original purchase price
plus the amount of (*12) any improvements made by

ments, or any interest concerng them. .

. unless the agreement upon (*10) which

such actions shall be brought, or some
memorandum or note thereof, shall be in
writing and signed by the part to be

plaintiffs. Plaintiffs state that it would be impossible to recoup the value of the improvements upon a resale of the house given the state of the housing market in Long
Island, and that the only reason they made the improve-

charged therewith, or some other person thereunto by him or her lawfully authorized in writing.

ments was because they knew they could recoup the cost of the improvements upon repurchase of the house by the defendants. Plaintiffs maintain that their improvements to the house constitute an act of part performance suffcient to bring the alleged oral promise to repurchase outside the statute of frauds.

K.s.A. § 33-106 (1986).

The plaintiffs purchased the house in question by
executing the ordinary written documents consummating

a sale and purchase of real estate. Nothing in any of
these documents nor in any other writing mentions anything about a promise by any of the defendants to repurchase the house from the plaintiffs. Thus, any alleged agreement here runs afoul of the statute of frauds.
(HN4) A contract which is unenforceable under the statute of frauds affords no basis for an action to recover
damages for its breach. Evans v. Lynch, 200 Kan. 331, 333, 436 P.2d 867 (1968). The alleged promise by de-

(HN6) Part performance can remove an oral agreement for the sale of real estate from the statute of frauds. Evans v. Lynch, 200 Kan. 331, 436 P.2d 867 (1968). However, cases which rely on the part performance doctrine have significant factual differences from the situation in this case. The classic factual scenario in which cours have applied the part performance doctrine involves a purchaser who has made partial payment, taken

possession of propert, and made improvements. See
Murphy v. Cole, 175 Kan. 822, 267 P.2d 959 (1954).

Plaintiffs' claim that an owner making improvements (*13) to propert he already owns somehow triggers the part performnce doctrine is a novel twist to the classic
part performance argument. The part performance doc-

fendants to repurchase the house is clearly a contract for

the sale of real propert encompassed by the statute of
frauds. n7 Because there is no writing evidencing the

alleged promise to repurchase, the plaintiffs cannot recover under a breach of contract theory unless they satisfy one of the exceptions to the statute of

trine has generally been applied only in favor ofpurchasers and not vendors. E. Farnsworth, Contracts, § 6.9 (2d ed. 1990). Plaintiffs have failed to cite any authority indicating that the part performance doctrine should ap-

frauds. (*11)

ply under the factual situation occurring in this case,
where plaintiffs are the vendors. Therefore, this cour finds that the improvements made to the house by plain-

n7 Plaintiffs argue that the promise to repurchase the house was somehow a part of an employment contract between Hippen and the Bank, and thus not subject to the statute of frauds. This argument fails for at least two reasons. First, none of the documents that plaintiffs have produced that they contend evidence an employment

tiffs in no way satisfy the part performance doctrine to remove the alleged oral agreement to repurchase from
the statute of

frauds.

Plaintiffs also argue that the doctrines of detrimental
reliance and estoppel should operate to take the alleged

oral promise to repurchase outside the statute of frauds.

Plaintiffs claim that Hippen worked many overtime
hours at the bank, and that the reason Hippen was wiling to work overtime was because of the promise to repurchase. Plaintiffs claim that these overtime hours worked

contract refer in any way to a promise to repurchase the house. Second, plaintiffs cannot take

the promise to repurchase the house out of the statute of frauds simply by labeling the promise

by Hippen, along with the improvements made to the

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house by plaintiffs, constitute detrimental reliance by
plaintiffs (*14) on the promise to repurchase that should take the contract out of the statute of frauds.
In cases where the doctrines of detrimental reliance and estoppel have been successfully asserted to defeat the statute of frauds, there has been far more reliance

barred. In order to prevail on their promissory fraud

than anything the plaintiffs have demonstrated in this
case. (HN7) The basis for removal of a case from application of the statute of frauds under the theory of detri-

claim, plaintiffs would be required to show that defendants, secretly intending not to perform entered into the precise oral agreement to repurchase the house which this court finds is barred by the statute of frauds. Based on the holding of the Kansas Supreme Court in Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805 (1977), the plaintiffs' promissory fraud claim is also barred.

The general rule, as stated in 37 C.JS., Frauds, Stat-

mental reliance or promissory estoppel has been the reliance by one of the parties to the oral contract to his detriment under circumstances where gross injustice would
result unless the oral contract were endorced. Walker v.

ute of, § 224, pp. 724-725 and adopted by the cour in
Mildfelt, is as follows:

(HN8)

An oral contract, withi the statute,
cannot be made the basis of an action for damages for its breach; nor, ordinarily,
can any other action be maintained which

Ireton, 221 Kan. 314, 320, 559 P.2d 340 (1977). There is
no evidence in the record linking the overtime hours

worked by Hippen to reliance on the promise to repurchase. n8 Plaintiffs did not purchase the house until six months after Hippen moved to Long Island and began working at the Bank. There is no evidence that Hippen's duties at the Bank increased or changed in any way after
the purchase of the house. Additionally, the improve-

requires proof of such (*17) contract to
sustain the cause of action.

. . . The statute of frauds operates as a bar to all actions brought on oral contracts fallng within its terms. . .

ments to the house made by plaintiffs are normal improvements that any homeowner might (*15) undertake to make his or her house more liveable. Therefore, they

neither give rise to an inference that they were made in reliance on the promise to repurchase nor do they satisfy the gross injustice standard necessary to enforce an oral
contract under the theories of detrimental reliance or

estoppel. Plaintiffs have set out no facts in the record suffcient to show detrimental reliance or estoppel. They
have failed to meet their burden under Anderson to show
that there is a genuine issue of material fact left for triaL.

. . . The operation of the statute is not confined to cases where an action is brought directly on the contract. Whatever the form of the action may be, if the proof of a promise or contract within the statute is essential to maintain it, there can be no recovery unless the statute is satisfied . . . Even an action sounding in tort may be barred by the statute where an essential element of the cause of action is an oral contract within the statute. . .

n8 If plaintiffs had known the alleged oral
contract to repurchase was not enforceable,

would Hippen have quit his job at the Bank? Would Hippen have never worked overtime?
There is nothing such as this in the record indicating that the overtime hours worked by Hippen at the Bank were in reliance on the oral promise to repurchase.

Mild/elt, 221 Kan. at 566.

In Mildfelt, the court refused to permt the plaintiff
to predicate an action for fraud upon an allegation that the defendant never intended to honor a contractually

unenforceable promise alleged against him. The cour
held that because breach of contract was the gravamen of plaintiff's theories of fraud and deceit, plaintiff's fraud

Because the alleged oral promise by defendants to
repurchase the house falls within the statute of frauds and plaintiffs have shown no basis to take the alleged (*16) promise to repurchase outside the statute of frauds, any such promise is unenforceable. Therefore, defendants are entitled to summry judgment on plaintiffs' claims of breach of contract, promissory estoppel, and implied in fact contract as regards the alleged oral promise to repurchase the house.
This court next turns to the question of whether

and deceit theories were also barred by the statute of
frauds. Id. at 568. As was the case in Mild/elt, plaintiffs'

claim of promissory (* 18) fraud is grounded in breach of contract and is therefore unenforceable under the statute of frauds. Therefore, defendants are entitled to summary judgment on plaintiffs' promissory fraud claim. n9

n9 Zurn Constructors, Inc. v. B.F. Goodrich Co., 746 F.Supp. 1551 (D. Kan. 1990), cited by

plaintiffs' alternative claim of promissory fraud is also

plaintiffs, is distinguishable. In Zurn, the claim

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of fraud did not involve an unenforceable oral

to handle their affairs. See Denison State Bank v. Madeira, 230 Kan. 684, 640 P.2d 1235 (1982). Plaintiffs
have not made such a showing.

promise. Instead,the claim of fraud in that case
was one of fraudulent concealment.

Plaintiffs include a claim against defendants for negligent misrepresentation arising out of this same fact setting. That claim lends nothing to plaintiffs' theories of recovery and is not supported by the facts as alleged by
plaintiffs. (HN9) Negligent misrepresentation is nor-

There is nothing in the record to suggest a fiduciary the defendants. Fiduciary relationships are not presumed, their existence
relationship between plaintiffs and any of

depends on the facts of each individual case. Denison

State Bank, 230 Kan. at 684. There is no evidence that
plaintiffs justifiably reposed special confidence or trst

mally used to rescind a contract or to compensate a part when the other party has negligently misrepresented a material fact regarding the transaction. See Johnson v.
Geer Real Estate Company, 239 Kan. 324, 720 P.2d 660
(1986). (*19) Negligent misrepresentation consists of

in any of the defendants. Plaintiffs (*21) have failed in their Anderson burden of producing facts which would
support the existence of a fiduciary relationship. There-

fore, defendants are granted summary judgment on plaintiffs' breach of fiduciary duty claim.

the following elements: (1) misrepresentation of a past or
existing material fact, (2) made without reasonable

grounds for believing it to be true, (3) with intent to induce another's reliance, (4) ignorance of the trth and

II. Claims arising out of alleged nonpayment for overtime hours worked by Hippen at defendant Bank

justifiable reliance by the part to whom the misrepresentation was directed, and (5) resulting damages.

Mirkin v. Wasserman, 227 Cal.App.3d 1537, 278

Cal.Rptr. 729 (1991). Plaintiffs cannot sustain a claim that defendants "negligently" entered into an oral promise they did not intend to keep. The negligent misrepre-

Hippen commenced his employment with the Bank
on June 1, 1986, having been hired as an executive vice
president. He served as a loan offcer and was responsi-

sentation theory of recovery simply does not fit the facts
of this case as alleged by plaintiffs. Therefore, defen-

ble for the creation of loan documents. He also participated in the restrcturing of the Bank's agricultural and
commercial

dants are granted summary judgment on this claim.

loan portfolio. Hippen served on the Bank's

loan commttee and also was on the board of directors.

Plaintiffs also added a claim for breach of fiduciary duty in the pretrial order. The court in Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254
(1976), enunciated some basic guidelines on the existence of a fiduciary relationship:

He needed to obtain authority from Griffths to make large loans, but was able to make loans of up to approximately $ 50,000 on his own. Hippen's salary was $

(HN1O) A fiduciary relationship does
not depend upon some technical relation

2100 per month when he began with the bank and it was increased to $ 2150 per month in 1987 and $ 2225 per month in 1988.
Hippen claims that he is entitled to recover overtime

created by, or defined in, law. It may exist under a variety (*20) of circum-

pay from the defendants for which he was never compensated. He asserts that Griffths informed him when

stances, and does exist in cases where the
has been a special confidence reposed in
one who, in equity and good conscience,

is bound to act in good faith and with due regard to the interests of the one reposing
the confidence.

he stared work that Hippen would not (*22) be required to work more than 40 hours per week. He claims he actually had to work more than 40 hours per week on many occasions. Hippen also claims Griffths promised him on many occasions that he would be compensated for his overtime work, but that in fact he never was.
In Count IV of the complaint, Hippen seeks an

award of overtime wages and liquidated damages under the Fair Labor Standards Act (FLSA), 29 Us.c. § 201
Ford, 220 Kan. at 244. (HN II) In order to show a fiduciary relationship beet. seq. Hippen claims that he is entitled to payment for

all hours he worked in excess of 40 for every regular
work week during the calendar years of 1987 and 1988 at
a rate of one and one-half times his regular hourly rate. Hippen also claims that the underpayment of overtime

tween the parties, plaintiffs must establish something
substantially more than a mere employer/employee or

buyer/seller relationship. Plaintiffs must show that they reposed a special trst or confidence in one or more of the defendants, and that they relied upon said defendant

wages was wilful and, as a result, he is entitled to double
damages pursuant to 29 Us.c. § 216(b).

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the overtime provisions of the FLSA. 29 Us. C. §
213(a)(1) provides that the overtime provisions of the

(HNI2) Administrative employees are exempt from

FLSA do not apply with respect to:

§ 541.207. The phrase implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. Id.

Any employee employed in a bona
fide executive, administrative or profes-

sional capacity . . . (as such terms are de-

As an offcer and executive vice president of the Bank, plaintiff Lonnie Hippen clearly falls within the administrative exception. Hippen admtted in deposition
testimony that he had authority to approve loans of up to

fined and limited form time to time by
regulations of

the secretary) . . .

$ 50,000 without seeking prior approval from (*25)
Griffths. This authority alone demonstrates the exercise

(HN 13)

of discretion and independent judgment necessary to
qualify Hippen as an administrative employee, exempting Hippen from the overtime provisions of the FLSA. In addition, moreover, Hippen describes himself in deposition testimony as the "number two" man at the Bank and he was a member of the board of directors and the
loan commttee at the bank. The unmstakable conclu-

The administrative (*23) regulations relating to the FLSA establish two tests for use when evaluating the
degree of discretion and independent judgment required to establish an administrative exemption from the overtime provisions of the FLSA under 29 Us.c. § 213 See

O'Dell v. Alyeska Pipeline Service Company, 856 F.2d 1452 (9th Cir. 1988). Under the "long test" an administrative employee qualifies as exempt only if his job requires that he "customarily and regularly exercise discretion and independent judgment." 29 C.FR. § 541.2(b). The "short test", which is set forth in 29 C.F.R. §
541.214, is applicable to high salaried administrative

sion is that Hippen was an admnistrative employee as
defined in 29 C.F.R. § 541.214 and, as such, was exempt from the overtime provisions of the FLSA. Defendants are therefore granted summary judgment on plaintiffs' FLSA claim.

In addition to the claim for overtime pursuant to the

employees like Hippen. That particular regulation provides, in part, as follows:

FLSA, in Count II of the complaint plaintiff states a claim for unpaid overtme under a common law breach
of employment contract theory. Hippen alleges that his employment contract with the Bank was for 40 hours of
work each week and no more. Plaintiff claims that during his employment with the Bank he actually worked
approximately 47.5 hours per week, and that he was
never compensated for the overtime hours he worked.

Section 541.2 contains a special proviso

including within the definition of "admin-

istrative" an employee who is compensated on a salary or fee basis at a rate of not less than $ 250 per week exclusive of board, lodging or other facilities, and
whose primary duty consists of either the
performance of offce or non-manual

Hippen bases his contention that an employment contract

existed (*26) between himself and the bank on certain verbal representations made by Griffths to Hippen n10
and on language contained in a document prepared by the Bank entitled "Bank Personnel Policy Information."

work directly related to management policies or general business operations of the employer or the employer's customers . . .
where the performance (*24) of such

nll
n10 In his deposition testimony, Hippen re-

primary duty includes work requiring the
exercise of discretion and independent

judgment.

lates four different responses that were made by Griffths in response to various queries by Hippen
regarding overtime pay. On one occasion, Griffiths related that Hippen's compensation would be "adjusted accordingly." On other occasions, Grif-

One important ramification of the "short test" for administrative employees is that, (HN14) under the test,
the employee's work need only include work requiring

fiths stated that he would "make it right" or
"make it up to you sometime." On another occasion, Griffths simply told Hippen to quit complaining about overtime hours. Finally, on another occasion Griffiths told Hippen to "just cut
your hours down."
nIl The "Bank Personnel Policy Informa-

the exercise of discretion and independent judgment, as opposed to customarily and regularly exercising such discretion and judgment. See Dymond v. United States
Postal Service, 670 F.2d 93, 95 (10th Cir. 1982). In gen-

eral, the exercise of discretion and independent judgment

involves the comparison and evaluation of possible
courses of conduct and acting or making a decision after
the various possibilities have been considered. 29 C.F.R.

tion" is a three page document which is attached

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to plaintiff's complaint as Exhibit "B". The
document was obviously generated after Hippen

became an employee of the Bank, because the document identifies Hippen as an officer and director of the Bank. The language of the document plainly indicates that the document is addressed to employees of the Bank other than offcers and directors. Since Hippen is identified in

18 extra Sundays during the period. It was alleged that on various occasions, when plaintiff told defendant he required more money, defendant replied with such expressions as, "We wil fix it up satisfactorily"; "Let it ride, I will pay you that much as bonus"; and "We wil fix it up in another contract." Id. at 630. In holding that the plaintiff was not entitled to additional compensation,
the court referred to these vague expressions, and stated:

the document as an officer and director, it is difficult for this court to see how Hippen can rely on
any statement in the document as effecting his compensation.
Furhermore, the statement Hippen relies on

But no agreement was ever entered into that any particular sum should be paid for any extra services that might have been
rendered. He continued to work under the

as establishing his right to overtime pay is extremely vague and poorly worded. The paragraph reads "It is doubtful that you wil seldom
be required to work more than 40 hours per week. Should this occur however then your compensation wil be adjusted accordingly." (The Court

written contract and it . . . did not stipulate that payment would be made for any extra services.

notes that the first sentence relied on by Hippen, if read literally, indicates that it is probable that employees would often be forced to work more
than 40 hours a week).

Sheets, 147 Kan. at 237. (*29)
This cour fiids that the cumulative evidence pre-

(*27)

sented plaintiff, giving him the benefit of all inferences to which he is entitled, fails to show any agreement to pay Hippen overtime wages for hours worked per week
in excess of forty. There is no writing evidencing an

It is undisputed in this case that Hippen was paid a

monthly salary at the Bank. His initial salary was $ 2,100 per month. His monthly salary increased to $
2,150 per month during calendar year 1987 and $ 2,225
per month during calendar year 1988. In addition, Hippen received a $ 1,000 year end bonus in 1986 and a $
1,075 year end bonus in 1987.
A pair of Kansas cases are instrctive as to Hippen's

agreement to pay overtime wages. n12 Additionally, the
vague expressions attibutable to Griffths are akin to

those attributable to the employer in Sheets. Therefore,

the court finds that plaintiff has failed to meet his Anderson burden to show an agreement between Hippen and defendants for payment of overtime, and defendants are
granted summary judgment on that claim. Furhermore,

claim for overtime wages under a breach of employment

contract theory. The Kansas Supreme Cour has stated that (HN15) there is a presumption of law that all services rendered by an employee during the period for

which he is employed, of a nature similar to those required of him in the course of his regular duties, are paid for by his salary, and to overcome this presumption he or she must show an express agreement for extra compensation. Sheets v. Eales, 135 Kan. 627, 11 P.2d 1020

as the cour's decision in Sheets makes clear, because an express agreement is required to overcome the presumption that the services rendered by Hippen were paid for by his salary, and because plaintiff has failed to set out facts in the record to support his claims, defendants are granted summary judgment as to plaintiff's claims for overtime pay based upon the theories of promissory estoppel, implied in fact contract and detrimental reliance.

(J 932). In Sheets, the plaintiff agreed to assist the defendant in carrying on the business of sellng tires, tubes and gasoline, and of general tire repairing for a compensation of one fourh of the "net profits" of the business, plaintiff to have no interest in the business (*28) itself, or in the
tools and equipment. It was fuher agreed that the em-

n12 The paragraph referred to by Hippen in
the Bank Personnel Policy Manual is so vague

and poorly worded that it cannot possibly be said to create an agreement by the Bank to pay Hippen

ployee would devote his entire time to the business from 7:00 a.m. to closing, which was usually 10:00 p.m., and that the employee should have time off every other evening and every other Sunday. After working under this
contract for about three years, plaintiff claimed addi-

any overtime wages. Additionally, the plain wording of the document indicates that it does
not apply to Hippen, an offcer with the Bank.

Furhermore, the document was extended initially by the Bank after Hippen accepted his contract with the Bank; Hippen in no way bargained for
his position at the Bank of the basis of the poli-

tional compensation for work on 148 extra evenings and

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cies defined in the document; and there is no evidence of mutual assent to the policies listed in the document. Thus, the Bank Personnel Policy Manual cannot be the basis of an implied contract. See Rouse v. Peoples Natural Gas Co., 605
F.Supp. 230, 232 (D.Kan. 1985).

The case of Moore v. State Bank of Burden, 240
Kan. 382, 729 P.2d 1205 (1986) listed the constituent elements of the tort as follows:

(*30)

(1) (HN17) The conduct of the defendant must be intentional or in reckless disregard of the plaintiff; (2) the conduct must
be extreme and outrageous; (3) there must
be a causal connection between the de-

II. Plaintiff's claims arising out of the

January 23, 1989 confrontation between

Hippen and Griffths

fendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress must be extreme and severe.

In the complaint and pretrial order, plaintiff has
listed claims for intentional infliction of emotional distress, negligent infliction of emotional distress and assault. All of these claims arise out of two separate confrontations which occurred between Griffths and Hippen during meetings in Hippen's offce at the Bank on January 23, 1989. These meetings involved discussions be-

Moore, 240 Kan. at 388. (*32)

(HN18) It is for the cour in the first instance to determne whether the defendant's conduct is so outrageous
as to permt recovery. Bradshaw v. Swagerty, 1
Kan.App.2d 213, 216, 563 P.2d 511 (1977). Conduct
suffcient to support an action for outrageous conduct

tween Griffths and Hippen regarding the alleged promise to repurchase the house. It is uncontroverted that

Griffths became very angry during these meetings,

must be beyond the bounds of decency and utterly intolerable in a civilized society. Neu/eldt v. L.R. Foy Const.
Co., 236 Kan. 664, 669, 693 P.2d 1194 (1985).

pounded his fist upon Hippen's desk, and made statements to Hippen to the effect of "I ought to punch you
out" and "I ought to get you down and pound you". Hippen has asserted that he thought Griffiths was going to

It certainly cannot be said that verbal tirades and
threats, combined with the pounding of fists upon a desk, such as are alleged to have occurred in this case, are to be encouraged, or even condoned, by society. In an ideal

hit him, that he was afraid, and that he took off his
glasses because he believed Griffiths was going to punch him. Hippen did not leave the Bank following either of

world, people would never lose their temper and such
actions would not occur. However, it also cannot be said that the civilized society of today absolutely condemns such activities to a level necessary to constitute grounds for the tort of outrage, or finds such activities to be "beyond the bounds of decency and utterly intolerable."

the two meetings with Griffths, and in fact stayed at
work until the end of the day. Hippen worked full days at the bank on January 24, 25 and 26, apparently (*31) without incident and under amicable terms with Griffiths.

A claim for intentional infliction of emotional distress is commonly known in Kansas law as the tort of outrage. Kansas courts recognized the tort of outrage in Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974), where the court held:(HNI6)
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The court in Roberts v. Saylor, 230 Kan. 289, 637
P.2d 1175 (1981) addressed the level of magnitude

which must be attained (*33) by the defendant's conduct in order to constitute the tort of outrage. The court stated:

(HNI9) It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and
to occasional acts and words that are defi-

nitely inconsiderate and unind. The law
should not intervene where someone's feelings merely are hurt. Freedom re-

mains to express an unflattering opinion

Dawson, 215 Kan. at 820.

and to blow off relatively harmess steam which comes from an uncontrollable tem-

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per. Conduct to be a suffcient basis for an action to recover for emotional distress

judgment. The affdavit establishes that the only personal consultation between plaintiff and Tiffany occurred on
January 29, 1988. This was approximately one year be-

must be outrageous to the point that it
goes beyond the bounds of decency and is
utterly intolerable in a civilized society.

fore the confrontations between Griffths and plaintiff
which allegedly caused plaintiff's ulcerative colitis. The personal consultation (*36) between plaintiff and Tiffany occurred when plaintiff was admitted to Psychological Growth Associates, Inc., which was Tiffany's full time independent psychology practice. Plaintiff visited with Tiffany regarding marital problems and other matters unrelated to the present litigation. Tiffany had no further personal contact with plaintiff. Paragraph 9 of
the affdavit provides that the conclusions stated in the

Roberts, 230 Kan. at 293.

Based on the above authorities, this court finds that the spontaneous outbursts of Griffiths in the January 23, 1989 confrontations in Hippen's office are not suffcient

to permt recovery under the tort of outrage. See also
Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979)

affdavit are based upon Hippen's deposition testimony,

medical records and published documents. The conclu-

(*34) (assault with a pitchfork held not to be extreme
and outrageous conduct necessary to satisfy threshold

sions are not based upon any consultation or examination
of Hippen following the January 23, 1989 confrontation

requirement for tort of outrage). For these reasons, defendants are granted summary judgment on plaintiff's claim of intentional infliction of emotional distress.
As an alternative to the claim for intentional inflic-

between Hippen and Griffths. The affdavit has been
offered for the purpose of providing an expert opinon as
to the connection between the confrontation between

Griffiths and Hippen and Hippen's later diagnosis of ulcerative colitis.

tion of emotional distress, plaintiffs allege a claim for negligent infliction of emotional distress. (HN20) It is
well-settled law in Kansas that a contemporaneous

By an order dated May 4, 1990, this court established a deadline of

physical injury is required in order to state a claim for negligent infliction of emotional distress. See Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 276, 662 P.2d 1214 (1983), and cases cited therein. It is uncontroverted that Griffths did not strike Hippen during either of the confrontations nor did Griffths harm Hippen physically in any manner during either confrontation. However, several months after the confrontations, plaintiff was diagnosed as suffering from a medical con-

November 13, 1990 for the parties to fie proposed lists of witnesses and exhibits. That order specifically provided that "witnesses expected to testify as experts shall be so designated." Prior to the November 13 deadline, witness and exhibit lists were (*37) fied by

defendants. These lists fied by defendants included Tiffany as a possible witness. However, Tiffany was not listed as an expert witness. No witness and exhibit list

has ever been fied by plaintiffs. n13 On December 26, 1990, the Magistrate issued an order declaring that the
deadline for designating expert witnesses had expired.

dition known as ulcerative colitis. Plaintiff claims that his ulcerative colitis occurred as a direct result of the confrontation between Griffths and plaintiff, and that the ulcerative (*35) colitis suffered by plaintiff satisfies the contemporaneous physical injury requirement necessary to state a claim for negligent infliction of emotional distress.

On January 31, 1991, the Magistrate issued an order denying plaintiff's request for additional time to designate expert witnesses. Finally, on March iI, 1991, this cour issued an order denying plaintiff's request for relief from
the January 31, 1991 order.

Plaintiff was first diagnosed with ulcerative colitis in July, 1989 by a Dr. Peterson, an internist in Mason City, Iowa. Plaintiff subsequently consulted several other doctors regarding the condition. Neither Dr. Peterson nor

n13 The pretrial order in this case does provide that any party wil be entitled to call any witnesses listed by another party.
Discovery deadlines and scheduling orders are serious matters that should be complied with by all parties with litigation before this cour. Scheduling orders are critical to insure the orderly flow of litigation and protect the rights of all parties to the litigation. Plaintiff has no
excuse for (*38) his dereliction in complying with the

anyone of the other doctors subsequently consulted by
plaintiff attibuted a causal connection between plaintiff's ulcerative colitis and the acts of Griffths.

The only evidence offered by plaintiff to establish a
causal connection between plaintiff's ulcerative colitis and the acts of Griffths is an affidavit of Donald W. Tiffany (the "affdavit"), a psychologist licensed to practice

scheduling orders regarding designation of expert witnesses. Plaintiff was fully apprised of the time guide-

in the state of Kansas. The affdavit is attached to plaintiff's response to defendant Bank's motion for summary

lines established by this court, yet plaintiff failed to des-

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ignate any expert witnesses (or any witnesses of any

kind) within those time guidelines. This cour finds
plaintiff's argument that it should be allowed to utilize Tiffany as an expert witness simply because Tiffany was

knowledge is not admissible, and if not admissible at trial neither is it admissible
in an affdavit used to support or resist the
grant of summary judgment. Fed. R. Civ.
P. 56(e).

listed as a possible fact witness by the defendants to be without merit. n14 The mere fact that one party may
have listed a witness who may have personal knowledge about a matter material to the case does not automatically
open the door to use of that witness by the opposing

part to offer opinions based on a review of supposed

Visser v. Packer Engineering Associates, Inc., 909 F.2d 959 (7th Cir. 1991). n15
n15 See also Ritchie Enterprises v. Honey-

facts which are not within that witness's personal knowledge. The reason behind the rule generally permitting

one party to call a witness listed by another party is that
there should be no unfair surprise under those circum-

stances. That reason does not hold tre in this case
where the witness is fed additional information and
asked to process if for opinion testimony beyond the

well Bull, Inc., 730 F.Supp. 1041, 1043 (D. Kan. 1990) (noting that evidence must be admissible at trial in order to be considered in connection with a motion for summary judgment).
(*41)

reasonable scope of the facts personally known to the witness (*39) of which the part listing him or her is
deemed to be privy. Clearly, here, where Tiffany'