State Bd. of Dentistry v. Kandarian
| Citation | 886 P.2d 954,268 Mont. 408 |
| Decision Date | 12 January 1995 |
| Docket Number | No. 93-519,93-519 |
| Parties | STATE of Montana, BOARD OF DENTISTRY, Plaintiff, Counter-Defendant and Respondent, v. R. Brent KANDARIAN, Defendant, Counter-Claimant and Appellant. |
| Court | Montana Supreme Court |
James C. Bartlett, Hash, O'Brien & Bartlett, Kalispell, for appellant.
I. James Heckathorn and Mikel L. Moore, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for respondent.
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 quasijudicial 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.
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.
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 (1994), 266 Mont. 502, ----, 881 P.2d 616, 618, 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 arguendo 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 § 652E (1977).
The Restatement (Second) of Torts, § 652D, discusses public disclosure of private facts as follows:
One who gives publicity to a matter concerning the 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:
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.
Kandarian's counterclaims included wrongful injunction, wrongful civil litigation and abuse of...
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