Board of Dentistry v. Kandarian ( 1994 )


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  •                             NO.    93-519
    
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1994
    
    
    STATE OF MONTANA, BOARD OF DENTISTRY,
             Plaintiff, Counter-Defendant
                  and Respondent,
    
    
       BRENT KANDARIAN
              Defendant, Counter-Claimant
                   and Appellant.
    
    
    
    
    APPEAL FROM:   District Court of the Eleventh Judicial District,
                   In and for the County of Flathead,
                   The Honorable Michael H. Keedy, Judge presiding.
    
    
    COUNSEL OF RECORD:
              For Appellant:
                   James C. Bartlett; Hash, O'Brien    &   Bartlett,
                   Kalispell, Montana
    
              For Respondent:
                   I. James Heckathorn and Mike1 L. Moore; Murphy,
                   Robinson, Heckathorn & Phillips, Kalispell, Montana
    
    
    
                                 Submitted on Briefs:      August 18, 1994
                                                Decided:   December 16, 1994
    Filed:
    Justice Karla M. Gray delivered the Opinion of the Court
         R. Brent Kandarian (Kandarian) appeals from an order entered
    by the Eleventh Judicial District Court, Flathead County, granting
    the State of Montana, Board of Dentistry's motion for summary
    judgment on his counterclaims. We affirm.
         Kandarian is a licensed denturist practicing in Kalispell.
    Kandarian ran an advertisement in a Kalispell paper stating that
    temporomandibular joint disfunction (TMJ) evaluations would be
    performed at Kandarian's place of business. On August 26, 1986, a
    Kalispell dentist wrote a letter to the Board of        Dentistry
    informing it    that, in the dentist's   opinion, Kandarian was
    performing the unauthorized practice of dentistry.    The dentist
    stated that evaluating TMJ was the practice of dentistry, and that
    he had personal knowledge of an offer by Kandarian to treat a
    patient with TMJ disorder via construction of a partial denture.
         On September 22, 1986, the Board of Dentistry informed
    Kandarian of the complaint and requested a response. The Board of
    Dentistry also wrote to the Board of Denturitry, informing it of
    the complaint against Kandarian.   On November 6, 1986, Kandarian
    replied to the Board of Dentistry.    His letter stated that TMJ
    evaluations were within the scope of his practice of denturitry,
    and that the Board of Dentistry did not have the power to regulate
    his practice.
         On November 12, 1986, the Board of Dentistry met and decided
    to request the Flathead County Attorney to file criminal charges
    against Kandarian for practicing dentistry without a license. At
    an open meeting held on December 8, 1986, the Board of Denturitry
    discussed the complaint filed against Kandarian and decided to wait
    and see what action the Flathead County Attorney would take.             On
    the same day, the Board of Dentistry's counsel released the
    contents of     the    complaint against     Kandarian    to   a   newspaper
    reporter. An Associated Press news story subsequently reported the
    correspondence between Kandarian and the Board of Dentistry's
    counsel regarding the allegation that Kandarian was practicing
    dentistry without a license.          The story quoted the Board of
    Dentistry's counsel as saying that Kandarian's response to the
    Board of Dentistry "threw down the gauntlet," and that the Board of
    Dentistry had no choice but to pursue legal action.
         On December 30, 1986, the Flathead County Attorney informed
    the Board of Dentistry's counsel that his office had decided not to
    prosecute Kandarian.      On February 2, 1987, the Board of Dentistry
    filed a complaint with the District Court seeking to enjoin
    Kandarian from practicing dentistry without a license.             Kandarian
    filed an answer and counterclaims against the Board of Dentistry on
    April 6, 1987.
         James Stobie, D.D.S., whom the Board of Dentistry identified
    as its expert witness, stated in his deposition that as long as a
    denturist is practicing denturitry, it would be misfeasance or
    malfeasance not to do a TMJ evaluation while fitting for partial or
    full dentures. As a result of Stobie's deposition and the Board of
    Dentistry's    failure to produce       testimony that     Kandarian had
    performed     dental   work   on   natural   teeth, the    court     granted
    Kandarian's motion for summary judgment on the Board of Dentistry's
    request for an injunction. In January of 1989, the District Court
    denied the Board of Dentistry's motion for summary judgment on
    Kandarian's counterclaims.
         Kandarian filed an amended answer and counterclaims on March
    13, 1989.   His amended counterclaims included:   violation of his
    right of privacy, wrongful injunction, intentional interference
    with business and patients, slander and libel, wrongful civil
    litigation, abuse of process, outrage and intentional infliction of
    emotional distress, and negligence.     On February 8, 1990, the
    District Court vacated its earlier order and granted the Board of
    Dentistry summary judgment on Kandarian's counterclaims. The basis
    of the court's order was that the Board of Dentistry had quasi-
    judicial immunity from suit.     Kandarian appealed the grant of
    summary judgment to the Board of Dentistry on his counterclaims,
    and the Board of Dentistry cross-appealed the grant of summary
    judgment to Kandarian on its request for an injunction.
         In State Board of Dentistry v. Kandarian (1991), 
    248 Mont. 444
    , 
    813 P.2d 409
     (Kandarian I), this Court affirmed the District
    Court's grant of summary judgment to Kandarian on the Board of
    Dentistry's request for an injunction and reversed its grant of
    summary judgment in favor of the Board of Dentistry on the basis of
    quasi-judicial immunity.     On remand, the District Court again
    granted the Board of Dentistry summary judgment on Kandarian's
    counterclaims. Kandarian appealed.
         On April 22, 1994, this Court issued an order remanding the
    case to the District Court for the court to set forth its rationale
    for granting summary judgment to          the Board of   Dentistry on
    Kandarian's counterclaims. The order also stated that the parties
    would have the opportunity to further brief the issues after the
    District Court issued its explanatory memorandum.         On June 27,
    1994, the District Court issued its memorandum.          Neither party
    filed a supplemental brief.
           The sole issue on appeal is whether the District Court erred
    in granting the Board of Dentistry's motion for summary judgment
    and in dismissing Kandarian's counterclaims in their entirety.
                               STANDARD OF REVIEW
           Our standard in reviewing a district court's grant of a motion
    for summary judgment is the same as that utilized by the district
    court; we are guided by Rule 56, M.R.Civ.P.         Minnie v. City of
    Roundup (1993), 
    257 Mont. 429
    , 431, 
    849 P.2d 212
    , 214.        Thus, we
    determine whether a genuine issue of material fact exists and
    whether the moving party is entitled to judgment as a matter of
    law.    Minnie, 849 P.2d at 214.
                                 PRIVACY CLAIMS
           Kandarian identifies three separate theories of recovery under
    his privacy counterclaim.        His first theory is that the Board of
    Dentistry tortiously intruded on his physical and mental solitude.
    We previously have recognized the elements of an invasion of
    privacy action. "An invasion of privacy cause of action is defined
    as a 'wrongful intrusion into one's private activities in such a
    manner    as   to   outrage or    cause mental   suffering, shame, or
    humiliation to a person of ordinary sensibilities.'" Rucinsky v.
    Hentchel (Mont. l994), 
    881 P.2d 616
    , 618, 51 St.Rep. 887, 888;
    citing Sistok v. Northwestern Telephone Systems, Inc. (1980), 
    189 Mont. 82
    , 92, 
    615 P.2d 176
    , 182.
        Kandarian claims that the Board of Dentistry's efforts to
    obtain a list of Kandarian's patients through discovery was an
    attempt to invade his privacy. We reject Kandarian's argument by
    noting that the Board of Dentistry never obtained a list of
    Kandarian's patients. Even assuming arquendo that Kandarian could
    establish an attempt to invade his privacy, an attempted invasion
    of privacy is not the equivalent of an actual invasion of privacy.
    Thus, Kandarian's claim for invasion of privacy under this theory
    must fail.
         Next, Kandarian raises a false light invasion of privacy claim
    and a claim that the Board of Dentistry invaded his privacy by
    releasing private facts to the public.        We have recognized the
    elements of false light invasion of privacy as:
         (1) the publicizing of a matter concerning another that
         (2) places the other before the public in a false light,
         when (3) the false light in which the other is placed
         would be highly offensive to a reasonable person, and (4)
         the actor knew of or acted in reckless disregard as to
         the falsity of the publicized matter.
    Lence v. Hagadone Investment Co. (1993), 
    258 Mont. 433
    , 444, 
    853 P.2d 1230
    , 1237; citing Restatement     (Second) of Torts    §   6523
    (1977).
         The Restatement (Second) of Torts,   §   652D, discusses public
    disclosure of private facts as follows:
         One who gives publicity to a matter concerning the
                                       6
         private life of another is subject to liability to the
         other for invasion of his privacy, if the matter
         publicized is of a kind that
         (a) would be highly offensive to a reasonable person, and
         (b) is not of legitimate concern to the public.
    Kandarian asserts that release of the contents of the complaint
    against him to the press constituted a public disclosure of private
    facts which also placed him in a false light.         We conclude,
    however, that Kandarian waived his privacy rights in relation to
    the complaint.
         The Board of Dentistry's counsel released the complaint
    against Kandarian to the press on December 8, 1986. The minutes of
    the Board of Denturitry meeting that same day indicate that the
    Board of Denturitry discussed the complaint against Kandarian. The
    minutes   also   reflect   Kandarian's statement   that   he   wanted
    discussion of the matter to be open.       In addition, Kandarian
    testified in his deposition as follows:
    
         Q: And that was an open meeting [the meeting of December
         8, 19861 of the Board of Denturitry?
    
    
         A: Yes, it was.
         Q: And in fact, you wanted it open; isn't that true?
         A: Absolutely.   I think that reflects that in the
         minutes. I had nothing to hide and I still don't.
         Because the Board of Denturitry meeting was open to the public
    and Kandarian affirmatively desired that the complaint against him
    be discussed openly at the meeting, Kandarian waived his privacy
    claims of false light and releasing private facts to the public.
    We hold that the District Court properly granted the Board of
    Dentistry summary judgment on Kandarian's privacy counterclaims.
                                      7
                            WRONGFUL LITIGATION CLAIMS
         Kandarian's   '   counterclaims   included   wrongful   injunction,
    wrongful civil litigation and abuse of process as separate claims.
    First, Kandarian advances a claim for wrongful injunction despite
    the fact that no injunction was issued in this case.            Kandarian
    cites no authority holding that an action for wrongful injunction
    may be maintained absent the issuance of an injunction.
         Kandarian relies on Interstate National Bank v. McCormick
    (19231, 
    67 Mont. 80
    , 
    214 P. 949
    , as support for his argument.
    
    However, that case involved the issuance of a wrongful injunction
    in favor of McCormick against          a third party    which    affected
    Interstate National Bank's property. McCormick is distinguishable
    from the case before us in that the court had issued an injunction
    which affected the plaintiff's property and the plaintiff succeeded
    under a theory of conversion, not wrongful injunction. McCormick,
    214 P. at 951.
    
         Here, the Board of Dentistry never obtained an injunction.
    Thus, Kandarian could not demonstrate that the i.ssuance of an
    injunction damaged him.      We hold that the District Court properly
    granted the Board of Dentistry summary judgment on Kandarian's
    wrongful injunction counterclaim.
         With regard to Kandarian's abuse of process claim, such a
    claim can succeed only where a claimant can establish an attempt to
    use process to coerce him or her to do some collateral thing which
    the claimant could not be legally or regularly compelled to do.
    Brault v. Smith        (1984), 
    209 Mont. 21
    , 29, 
    679 P.2d 236
    , 240.
    Kandarian argues that the Board of Dentistry's collateral purpose
    in filing a lawsuit was to identify a list of Kandarian's patients
    to build a stronger case against him.
         The effort to obtain the names of Kandarian's patients was
    part of the Board of Dentistry's discovery in this case. "Pressing
    valid legal claims to their conclusion, even with an ulterior
    motive, does not by    itself constitute an abuse of process."
    Brault, 679 P.2d at 240.     The Board of Dentistry's attempt to
    strengthen its case through discovery does not amount to an abuse
    of process. We hold that the District Court properly granted the
    Board of Dentistry summary judgment on Kandarian's abuse of process
    counterclaim.
         Kandarian also included a claim for wrongful litigation.
    However, Montana has never adopted the tort of wrongful civil
    litigation. Kandarian urges this Court to recognize the tort, but
    offers no compelling argument in favor of our doing so. Under the
    facts of this case, we decline to adopt the tort of wrongful civil
    litigation and hold that the District Court properly granted the
    Board   of   Dentistry summary judgment on   Kandarian's   wrongful
    litigation counterclaim.
                       INTENTIONAL INTERFERENCE CLAIM
         Kandarian claims that the Board of Dentistry intentionally
    interfered with his business and patients by releasing the contents
    of the complaint against him to the press and instituting an action
    seeking to enjoin him from performing TMJ evaluations.
         We have stated that:
         [iln order to establish a prima facie case of tortious
         interference with business relations, the pleader must
         show that the acts (1) were intentional and willful; (2)
         were calculated to cause damage to the pleader in his or
         her business; (3) were done with the unlawful purpose of
         causing damage or loss, without risht or justifiable
         cause on the Dart of the actor; and (4) that actual
         damages and loss resulted.
    Richland National Bank     &   Trust v. Swenson (19911, 
    249 Mont. 410
    ,
    419, 
    816 P.2d 1045
    , 1051; citing Bolz v. Meyers (1982), 200 MOnt.
    286, 295, 
    651 P.2d 606
    , 611.         In order to establish a cause of
    action, the Board of Dentistry must have intentionally committed a
    wrongful act without justification or excuse. Swenson, 816 P.2d at
    1051; citing Lythgoe v. First Security Bank of Helena (1986), 
    222 Mont. 163
    , 165, 
    720 P.2d 1184
    , 1185.
         Here, the Board of Dentistry's counsel released the contents
    of the complaint to the press at the same time the Board of
    Denturitry discussed the complaint in a meeting open to the public.
    The information was open to the public at that time; therefore,
    releasing it to the press was not wrongful
         Kandarian also alleges that, by filing for an injunction, the
    Board of Dentistry attempted to interfere with his business.          The
    law in effect at the time the Board of Dentistry attempted to
    obtain an injunction against Kandarian stated:
         Notwithstanding any other provision of law, a board may
         maintain an action to enjoin a person from engaging in
         the practice of the occupation or profession regulated by
         the board until a license to practice is procured. A
         person who has been enjoined and who violates the
         injunction is punishable for contempt of court.
    Section 37-1-136(3),MCA (1985). The Board of Dentistry received
    a   complaint   from   a   dentist   who   claimed   that   Kandarian was
    performing TMJ evaluations and that TMJ evaluations constituted the
    practice of dentistry. The Board of Dentistry's action in seeking
    an injunction against Kandarian was authorized by statute and was
    not tortious. We hold that the District Court properly granted the
    Board of Dentistry summary judgment on Kandarian's intentional
    interference counterclaim.
                               SLANDER AND LIBEL
         Kandarian claims that the release of the complaint against him
    to the press and statements made to the press constitute slander
    and libel. Slander and libel both require falsity. Sections 27-1-
    802 and -803, MCA.    The article which Kandarian claims contains
    defamatory information provided by       counsel for the Board of
    Dentistry essentially reports the fact that the Board of Dentistry
    intended to pursue legal action against Kandarian and recounts
    correspondence between Kandarian and the Board of Dentistry's
    counsel.   This account of events is substantially true.
         Kandarian asserts that counsel's statements that Kandarian
    "threw down the gauntlet" by his responses to the Board of
    Dentistry's correspondence constitute slander and libel. However,
    we previously have noted that       "a basic tenet of the law of
    defamation is that an expression of opinion is generally not
    actionable. "                                          ,
                    Frigon v. Morrison-Maierle, Inc. (1988) 
    233 Mont. 113
    , 121, 
    760 P.2d 57
    , 62.     Comments by counsel for the Board of
    Dentistry amounted    to   statements of   opinion which were    not
    actionable. We hold that the District Court properly granted the
    Board of Dentistry summary judgment on Kandarian's         libel and
    slander counterclaim.
        OUTRAGE AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
        Kandarian contends that the District Court erred in granting
    summary   judgment   on   his    claims    of    outrage   and    intentional
    infliction of emotional distress.          Montana has not recognized a
    tort of outrage, and Kandarian offers no significant argument in
    favor of its adoption.          We have stated that for a claim of
    emotional distress to succeed,
         [tlhe victim must show that the defendant's tortious
         conduct resulted either in physical or mental injury or
         in "a substantial invasion of a legally protected
         interest,'I and that it "caused a significant impact,"
         including emotional distress "so severe that no
         reasonable person could be expected to endure it."
    Lence, 853 P.2d at 1237; citing First Bank v. Clark (1989), 
    236 Mont. 195
    , 205-06, 
    771 P.2d 84
    , 91.
          In Lence, we affirmed the district court's grant of summary
    judgment in favor of the defendant on the plaintiff's claim of
    emotional distress.       We noted that the plaintiff offered no
    evidence of severe emotional distress.           Lence, 853 P.2d at 1237.
    In the present case, Kandarian argues that an alleged invasion of
    privacy by a government agency naturally produces severe emotional
    distress, but he produces no evidence that he actually suffered
    severe emotional distress.          We hold that the District Court
    properly granted the Board of Dentistry summary judgment on
    Kandarian's counterclaims of outrage and intentional infliction of
    emotional distress.
                                     NEGLIGENCE
         Finally,   Kandarian       claims    that   the   Board     of   Dentistry
                                         12
         negligently     released     the     contents        of       its   complaint    against
         Kandarian and negligently filed suit against Kandarian.                         We held
         above that Kandarian waived his right to privacy regarding release
         of the complaint. Thus, release of the complaint cannot provide a
         basis for a proper negligence claim here
               Kandarian also claims that the Board of Dentistry negligently
         filed suit against him. We disagree. As we previously noted, the
         law in effect at the time the Board of Dentistry attempted to get
         an injunction against Kandarian authorized the Board of Dentistry
         to obtain injunctions against those practicing dentistry without a
         license. Section 3 7 - 1 - 1 3 6   (3),   MCA ( 1 9 8 5 ) .    The Board of Dentistry
         believed that Kandarian was practicing dentistry without a license.
         The Board of Dentistry's action in seeking an injunction against
         Kandarian was not tortious.                We hold that the District Court
         properly granted the Board of Dentistry summary judgment on
         Kandarian's negligence counterclaim.
                                                                   7                     :7
               Affirmed .
    
    
         We concur:
    
    
                  Chief Justice
    
    
    
    
    I/                Justices
    Justice Terry N. Trieweiler dissenting.
         I dissent from that part of the majority opinion which rejects
    
    the tort of wrongful civil litigation, as applied to the facts in
    this case.   In an age when a few frivolous lawsuits threaten to
    undermine the civil justice system and preclude claims which do
    have merit, it is especially important to deter and sanction
    lawsuits like the one filed by the Board of Dentistry.           The
    elements of wrongful civil litigation, as set forth in Restatement
    (Second) of Torts 5 674 (1977) are as follows:
         One who takes an active part in the initiation,
         continuation or procurement of civil proceedings against
         another is subject to liability to the other for wrongful
         civil proceedings if
              (a) he acts without probable cause, and primarily
         for a purpose other than that of securing the proper
         adjudication of the claim in which the proceedings are
         based, and
              (b) except when they are ex parte, the proceedings
         have terminated in favor of the person against whom they
         are brought.
         We have, as far back as 70 years ago, recognized a tort known
    as "malicious prosecution" in Montana (Stephensv. Conley (1914), 
    48 Mont. 352
    , 
    138 P. 189
    ), based on the important public policy that
    everyone has a right to be free from unjustifiable litigation. The
    right to be free from unjustifiable civil litigation, as described
    in 5 674, is simply a more specific approach from a broad range of
    rights to be free from unjustifiable litigation and the attendant
    invasion of a person's privacy and exhaustion of an individual's
    financial resources.
          I disagree with the majority's conclusion that "Kandarian
    
    urges this Court to recognize the tort, but offers no compelling
    argument in favor of our doing so."         The very facts set forth in
    
    this Court s previous decision, S a e Board o D n i t y v. Kandarian
                                     tt          fetsr                     ( 1991)   ,
    
    
    248 Mont. 444
    , 
    813 P.2d 409
     (Kandarian I), establish a compelling
    
    argument in favor of doing so.        In that case we noted:
         [Oln February 2, 1987, the Board filed for an injunction
         against Kandarian.
              The Board identified James Stobie, D.D.S., as            the
         expert witness who would testify as to whether                TMJ
         evaluations were within the practice of denturitry.           His
         deposition stated that as long as a denturist                  is
         practicing denturitry, it would be misfeasance                 or
         malfeasance     to do a TMJ evaluation while fitting          for
         "partials" or "fulls."
              Kandarian counterclaimed and moved for summary
         judgment. The Board asked for "follow up discovery" and
         represented that it had witnesses who would be contacted
         and who would produce, by way of af fidavit, evidence that
         Kandarian had done nondenture work on them.
              On January 8, 1988, the court dismissed the
         complaint against Kandarian because the Board had failed
         to produce affidavits showing that Kandarian had
         performed work on the natural teeth of two individuals
         previously named by the Board.
    Kandarian I, 813 P.2d at 411 (emphasis added) .
    
         As I noted in my concurring and dissenting opinion to our
    prior decision:
         [TIhe Board of Dentistry made no reasonable inquiry prior
         to filing its claim for injunctive relief in naming
         Kandarian as a defendant. A member of the Association
         had sent it a copy of an ad, indicating that Brent
         Kandarian, a denturist, was available for "TMJ
         evaluations."
              However, none of Kandarian's patients were
         interviewed; no investigation was done; and no experts
         were consulted prior to the filing of suit.
              After suit was filed, the Board finally retained
         James L. Stobie, D.D.S. He was identified in court
         documents as the Board's expert for the purpose of
         establishing that it was a violation of the Dental
         Practice Act for a denturist to perform TMJ evaluations.
         When he was deposed, however, his testimony was to the
         contrary.
    
    
              Subsequent to Dr. Stobie's testimony, the defendant
         moved for summary judgment. At the time of that hearing,
         the Board's attorney offered to provide the testimony of
         two witnesses who would say that Kandarian had worked on
         their teeth, even though it was not for the purpose of
         fitting dentures.    The Board was given ten days to
         provide such information, but failed to do so. In fact,
         one of the witnesses was subsequently offered as a
         witness by Kandarian and testified contrary to the
         representations of the Board's attorney.
    Kandarian I, 813 P.2d at 413
    
         Kandarian presented evidence that, at the time the Board of
    Dentistry frivolously sought its injunction, its purpose was to
    discredit him as chairman of the Board of Denturitry before the
    Montana Legislature. Therefore, I conclude that the facts in this
    case alone are sufficient to provide a compelling reason for
    adopting and applying, in this case, a cause of action for wrongful
    civil litigation.
         However, I am also confused by the inference in the majority
    opinion that the tort of wrongful civil litigation is somehow
    radically different than the common law which already exists
    pursuant to the present tort of malicious prosecution. It is not.
    It is simply a more specific variation of the same tort
         For these reasons, I dissent from the majority opinion.    I
    
    would adopt the tort of wrongful civil litigation in Montana.   I
    
    conclude that the plaintiff has proven sufficient facts in this
    case to support a cause of action based on that tort.   Therefore,
    I would reverse the District Court's order awarding summary
    judgment to the defendant.
                                       December 16, 1994
    
                                 CERTIFICATE OF SERVICE
    
    I hereby certify that the fallowing certsed order was sent by United States mail, prepaid,
    to the following named:
    
    
    James C. Bartlett, Esq.
    Hash, O'Brien & Bartlett
    P.O. Box 1178
    Kalispell, MT 59903-1178
    
    
    I. James Heckathorn, Esq. & Mike1 L. Moore, Esq.
    Murphy, Robinson, Heckathorn & PhilIips, PC.
    P.O. Box 759
    Kalispell, MT 59903-0759
    
    ED SMITH
    CLERK OF THE SUPREME COURT
    STATE OF MONTANA