DA 13
- 0130 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 13 MT 362N RICHARD BURNETT, JERRY BURNETT, MICHAEL JASON BURNETT, DAVID BURNETT, Individually and; COLSTRIP PROPERTIES, INC., WHISKY GULCH SALOON, and CHERRY STREET GRILL,

Plaintiffs and Appellants,
v. PPL MONTANA, LLC, WESTERN ENERGY COMPANY, COLORADO ENERGY MANAGEMENT, LLC, ROSEBUD OPERATING SERVICES, INC., WESTMORELAND RESOURCES, INC.,

Defendants and Appellees.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County

of Rosebud, Cause No. DV
- 11
- 42 Honorable Gary

L. Day (deceased), Presiding Judge COUNSEL OF RECORD:

For Appellants: Brad L. Arndorfer; Arndorfer Law Firm, P.C.; Billings, Montana For Appellee s: Richard S. Mandelson; Baker & Hostetler, LLC; Denver, Colorado (for PPL Mon

tana, Inc.) Laurence R. Martin; Felt, Martin, Frazier & Weldon, P.C.; Billings, Montana (for Rosebud Operating Systems, Inc.) Jason S. Ri

tchie, Michael

Manning; Holland & Hart; Billings, Montana (for Western Energy

Com pany and Westmoreland Resources, Inc.) December 3 20132 Submitted on Briefs: October 23, 2013 Decided: December 3, 2013 Filed:

__________________________________________ Clerk3

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Richard Burnett is the father of co -plaintiffs Jerry, Michael Jason , and David Burnett. H e is also the owner of Colstrip Properties, Whisky Gulch Saloon , and the Cherry Street Grill. From November 1989 until March 2002, Richard worked for PPL Montana
. Richard’s sons also worked in the electricity generating industry in Montana. ¶3 While employed by PPL, Richard led a group of co
- em ployees and local residents who sued PPL and other defendants for violations of various environmental laws. PPL and its co
- defendants settled the lawsuit by agreeing to pay approximately $25 million in damages. Prior to settlement, it terminated Richard’s employment and as part of settlement, Richard agreed to never seek employment with PPL again
. ¶4 Richard and his sons claim they have been unable to obtain work in the electricity generating industry in Montana since the environmental suit was filed. They claim that defendants/appellees PPL, Western Energy, Colorado Energy , 1 Rosebud Operating , and

1 The District Court record does not contain any indicat io n that Colorado Energy Management, LLC, was served wi

th the Com p laint or the Fi

rst Amended Co mp laint. No attorney of record is listed in the case register nor did Co lorado Energy make an appearance . For these reasons, reference to “defendants” in this Opinion shall be to PPL, Ro sebud, Westmo reland and Western Energy and not to Colorado Energy
.4

Westmoreland entered into a conspiracy whereby these companies refused to em ploy Richard or his sons. Richard eventually obtained work out of state. Richard also claims that PPL conducted a pervasive campaign of boycotting his businesses , and the businesses of other plaintiffs, to punish them for pursuing the environmental lawsuit. ¶5 Richard and sons filed the case at bar against PPL and the other defendants in July 2011 in the Sixteenth Judicial District Court
. They alleged civil conspiracy, unlawful restraint of trade, tortious interference with business opportunity, intentional interference with prospective economic advantage, and prima facie tort. Richard also asserted a blacklisting claim against PPL . Richard and his co
-plaintiffs re quested compensatory and punitive damages, injunctive relief, declaratory relief and attorney fees and costs. ¶6 On March 1 9 , 2012, the District Court dismissed all claims against Western Energy, We stmoreland, and Rosebud with prejudice. The court also dismissed all claims against PPL with the exception of the blacklisting allegation. PPL mo ved for summary judgment on the blacklisting claim, and on December 4, 2012, the District Court granted
summary judgment in favor of PPL and ordered all claims against PPL dismissed with prejudice. Final judgments in favor of all defendants were then entered. Richard and his
co -plaintiffs appeal. ¶7 We review de novo a district court’s order to dismiss an action for failure to state a claim. Adistrict court’s determination that a complaint failed to state a claim presents a conclusion of law, which we review for correctness. Kananen v. South , 2013 MT 232 , ¶ 10, 371 Mont. 289, 307 P.3d 309
. We review de novo a district court’s ruling on a5

motion for summary judgment, using the same criteria applied by the district court under M. R. Civ. P. 56 (Rule 56). Estate of Irvine v. Oaas , 2013 MT 271 , ¶ 12, 372 Mont. 49, 309 P.3d 986
. ¶8 Richard argues on appeal that the conspiratorial actions of defendants in refusing to hire him and his sons denied them their fundamental constitutional right to employment. The defendants counter that Richard ’s claim of conspiracy require s a wrongful act on the ir parts and they committed no wrongful acts. “The elements of a civil conspiracy are (1) two or mo re persons, and for this purpose, a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action; (4) one or more unlaw ful overt acts ; and (5) damages as the proximate result thereof. ” Schumacker v. Meridian Oil Co ., 1998 MT 79 , ¶ 18, 288 Mont. 217, 956 P.2d 1370 (emphasis added)
. Defendants claim that failing to em ploy Richard or his sons
was not a wrongful or unlawful overt act, and therefore Richard could not establish the elements of his conspiracy claim
. ¶9 Similarly, Westmoreland and Western Energy assert that as non- governmental employers, they could not violate Richard or his sons ’ Montana constitutional right to pursue employment. Moreover, they distinguish the right to pursue employment from the right to obtain em

ployment with a particular employer. Westmoreland and Western Energy argue that they had no duty to hire the Burnetts and “were perfectly free to reject their job applications for any non
- discriminatory reason.”6

¶10 Richard also appeals the District Court’s ruling on his “tortious interference with a business” claim. H e argues that the defendants , in concert, intentionally boycotted his businesses
. H e maintains that the boycotts were calculated to cause damage to his businesses, were done with unlawful purposes and resulted in damages. Maloney v. H ome Inv

. Ctr

. , Inc ., 2000 MT 3 4 , ¶ 41, 298 Mont. 21 3 , 994 P.2d 1124
. The defendants counter that even if representatives of the various defendant companie s chose to stop patronizing establishments owned by Richard , such was not unlawful activity and cannot form the basis of a cause of action

— whether entitled boycotting, tortious interference with a business , or unlawful restraint of trade. ¶11 As noted in Maloney , “the focus of the legal inquiry is on the intentional acts of the ‘ malicious interloper ’ in disrupting a business relationship. . . . Under this theory, ‘ a person who is involved in an economic relationship with another, or who is pursuing reasonable and legitimate prospects of entering such a relationship, is protected from a third person ’ s wrongful conduct which is intended to disrupt the relationship. ’ ” Maloney , ¶ 42 (citations omitted)
. Richard failed to present any evidence that any employees of the defendants were involved in an economic relationship with him or w ere pursuing prospects of entering into such a relationship. As a result, Richard has failed to establish the necessary elements of his claim for tortious interference with a business. ¶12 Richard also appeals the court’s dismissal of his claim that defendants committed
a prima facie tort. Richard argues that the defendants “show[ed] an intentional malicious act to harm [him] for simply exercising [his] rights to use the courts and make complaints7

to governmental agencies.” Acknowledging that this Court has not recognized a sep arate
cause of action for prima facie tort, he urges us to conclude that his case “is the perfect
case for such a claim
. ” Again, as defendants point out, Richard ’s claim requires that defendants committed some intentional wrongful act . While Richard has made numerous conclusory statements , he has presented no evidence of a wrongful act that could support his claim. ¶13 As did the District Court, we conclude that Richard failed to establish that the defendants committed any unlawful or wrongful acts ; therefore , his conspiracy claims pertaining to employment, interference with his businesses , and prima facie tort must fail. ¶14 Lastly, Richard appeals the District Court’s grant of summary judgment in favor of PPL on his blacklisting claim
. H owever, Richard presented no evidence, other than his own deposition, that PPL blacklisted him within the three
-year statute of limitations set forth in § 27
- 2
- 204, MCA, or at any other time. The District Court determined that without the presentation of evidence that PP L engaged in blacklisting, Richard failed to establish that a genuine issue of material fact vis
- à
- vis this issue existed. Without a genuine issue of material fact, summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mo vin g party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c). ¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The8

issue s in this case are legal and are controlled by settled Montana law which the District Court correctly interpreted. We therefore affirm the District Court
. /S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE