Mont. Bd. of Pharmacy v. Kennedy
| Decision Date | 27 October 2010 |
| Docket Number | No. DA 10-0025.,DA 10-0025. |
| Parties | MONTANA BOARD OF PHARMACY, Plaintiff and Appellee, v. Thomas E. KENNEDY, d/b/a Canadian Connection, Respondent and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Thomas E. Kennedy, self-represented litigant; Billings, Montana.
For Appellee: Steve Bullock, Montana Attorney General; Michael L. Fanning, Annjeanette Lindle; Special Assistants Attorney General; Helena, Montana.
¶ 1 Thomas E. Kennedy d/b/a Canadian Connection (Kennedy) appeals from the order of the District Court for the First Judicial District, Lewis and Clark County, denying his motion for summary judgment and granting summary judgment in favor of the Montana Board of Pharmacy (the Board). We affirm.
¶ 2 We consider the following issues on appeal:
¶ 3 Whether the District Court erred in granting the Board's motion for summary judgment, permanently enjoining Kennedy from engaging in the practice of pharmacy or assisting in the unlicensed practice of pharmacy, in violation of § 37-7-301, MCA, and in denying Kennedy's motion for summary judgment seeking dissolution of the preliminary injunction and reversal of his contempt of court conviction.
¶ 4 This case arises out of a nearly decade-long battle between the Board and Kennedy, which has played out in several lawsuits involving multiple business entities. The earliest legal proceeding involved Rx Depot, Inc. (Rx Depot), a company of which Kennedy's wifeSandra was the titular owner, but that Kennedy himself admittedly operated. Like Canadian Connection, Rx Depot assisted individuals with prescription drug orders, advising and enabling its customers to order prescription medicines from low-cost, out-of-state sources, in return for a commission paid by the foreign pharmacy. In August 2003, District Judge Jeffrey Sherlock of the First Judicial District entered a preliminary injunction against Sandra Kennedy d/b/a Rx Depot, enjoining Rx Depot from continuing business on the grounds that its activities were violative of various provisions of the Montana Pharmacy Act, § 37-7-101, et seq., MCA ("the Act"). Several months later, the United States District Court for the Northern District of Oklahoma granted a preliminary injunction against Rx Depot's parent company (also named "Rx Depot, Inc."), which enjoined all affiliates and d/b/a entities such as Mrs. Kennedy's. Judge Sherlock's injunction was then dissolved, as he concluded that the federal injunction was binding on Mrs. Kennedy's Rx Depot franchise, thereby eliminating any threat of irreparable harm, and also for lack of adequate notice.
¶ 5 Kennedy subsequently ceased doing business as Rx Depot, but carried on virtually identical business activities under the new name "Canadian Connection." The Board continued its pursuit of Kennedy by filing a new petition seeking to enjoin Canadian Connection from engaging in its now-familiar prescription drug business. An initial hearing on the petition for injunctive relief was held in Judge Honzel's Court in the First Judicial District in September, 2004, after which Judge Honzel granted the Board's petition for injunctive relief. Kennedy was undeterred by the injunction. Canadian Connection continued business as usual in defiance of Judge Honzel's order, and Kennedy even penned a letter to Governor Schweitzer in July of 2007 openly proclaiming that he was violating the injunction. Far from attempting to fly under the radar, Kennedy continued to aggressively promote his business, arguing earnestly and openly for the need for his services as a matter of public policy, and repeatedly asserting that his activities were outside the Board's regulatory authority.
¶ 6 The Board invited Kennedy to its meetings to discuss his business and seek a resolution, but Kennedy declined all such invitations on the basis of his continued position that the Board had (and has) no authority over him as he is not, in the commonly used sense of the word, a pharmacist. In 2007, the Board served discovery requests on Kennedy and filed a motion for sanctions on the basis of Kennedy's continued disobedience of Judge Honzel's order. Responding pro se as he had in the initial proceedings, Kennedy offered up a number of arguments against the motion for sanctions, and responded to eachdiscovery request seeking information about his activities at Canadian Connection by invoking his Fifth Amendment privilege against self-incrimination. After a hearing in January 2009, the Court (now under the Hon.Kathy Seeley after the retirement of Judge Honzel) issued an order finding Kennedy in contempt of court for violating Judge Honzel's preliminary injunction of 2004, imposing a $4,000 civil penalty and ordering Kennedy to immediately comply with all portions of the injunction.
¶ 7 Kennedy appealed the finding of contempt of court to this Court, but we dismissed his appeal as contempt orders are not appealable except within strictly drawn parameters, which were not met in this case. Board of Pharmacy v. Canadian Connection, DA 09-0151. We also declined a writ of supervisory control. Kennedy v. District Court, OP 09-0366. The parties filed cross-motions for summary judgment in District Court, the Board seeking to permanently enjoin Kennedy from his business activities, and Kennedy seeking dissolution of the preliminary injunction and reversal of the contempt of court conviction. A hearing was held on the motions for summary judgment in November 2009, after which Judge Seeley issued an order granting the Board's motion and denying Kennedy's. It is from this order that Kennedy appeals.
¶ 8 We review a district court's grant or denial of a motion for summary judgment de novo. State v. Butte-Silver Bow County, 2009 MT 414, ¶ 17, 353 Mont. 497, 220 P.3d 1115, Goettel v. Estate of Ballard, 2010 MT 140, ¶ 10, 356 Mont. 527, 234 P.3d 99. Applying the criteria contained in M.R. Civ. P. 56, we determine whether the moving party has established both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Goettel, ¶ 10, citing Watson v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, 136 P.3d 973, Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, 119 P.3d 47.
¶ 9 The determination of the existence of genuine issues of material fact "is one that is not always easily ascertained ... mere disagreement about the interpretation of a fact or facts does not amount to genuine issues of material fact." Gliko v. Permann, 2006 MT 30, ¶ 25, 331 Mont. 112, 130 P.3d 155, quoting Sprunk v. First Bank Sys., 252 Mont. 463, 466, 830 P.2d 103, 105 (1992). Important in the determination is "whether the material facts are actually disputed by the parties or whether the parties simply interpret the facts differently." Sprunk, 252 Mont. at 466, 830 P.2d at 105.
¶ 10 We review a district court's findings of fact to determine if they are clearly erroneous. Goettel, ¶ 11, citing Watson, ¶ 17, Ramsey v. Yellowstone Neurosurgical Assocs., P.C., 2005 MT 317, ¶ 13, 329 Mont. 489, 125 P.3d 1091. We review a district court's conclusions of law and statutory interpretations for correctness. Signal Perfection, Ltd. v. Rocky Mt. Bank—Billings, 2009 MT 365, ¶ 10, 353 Mont. 237, 224 P.3d 604.
¶ 11 Kennedy presents numerous issues. As with many pro se litigants, it is difficult to tell precisely what Kennedy seeks to appeal, as nearly all the findings adverse to Kennedy in the various District Court cases are contested at some point in his brief. Nevertheless, it is clear that Kennedy has invested considerable time and effort on the arguments he advances, and we do not find his principal contentions unclear. Kennedy appeals the order of the District Court granting summary judgment in favor of the Board, and denying his motion for reversal of the contempt of court conviction and for dissolution of the 2004 injunction. We affirm the District Court both with respect to its grant of summary judgment in favor of the Board, and with respect to its denial of Kennedy's motion for summary judgment.
¶ 12 Whether the District Court erred in finding that there was no issue of material fact precluding a determination that Kennedy's business activities were prohibited by the Act.
¶ 13 In determining whether the District Court correctly entered summary judgment in favor of the Board, we consider several sub-issues. First, we consider whether the District Court's findings of fact regarding Canadian Connection's business activities were clearly erroneous. We then considerwhether the District Court correctly concluded that these activities fall within the applicable statutory parameters regulating the unlicensed practice of pharmacy. We conclude with whether the permanent injunction was appropriately entered through a grant of summary judgment.
¶ 14 The District Court's grant of the Board's motion for summary judgment turned on its finding that Kennedy was in violation of § 37-7-301, MCA, which provides:
¶ 15 The "practice of pharmacy" is defined in § 37-7-101(33), MCA, as:
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