Board of Dentistry v. Kandarian ( 1994 )

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