No. 90-228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, BOARD OF DENTISTRY, 

Plaintiff, Respondent 

and Cross-Appellant, 

VS. 

R. BRENT KANDARIAN, 

Defendant 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, Murphy, Robinson, 

Heckathorn & Phillips, Kalispell, Montana 

John H. Maynard, Department of Administration, 

Helena, Montana 

Filed: 

Submitted: March 7, 1991 

Decided: June 4, 1991 
Justice William E. Hunt, Sr. delivered the opinion of the 

Court. 

The Eleventh Judicial ~istrict Court, Flathead County, granted 

the State of Montana, Board of Dentistry's, motion for summary 

judgment on the issue of immunity, and denied its motion to vacate 

a previous order granting summary judgment against it on the issue 

of injunctive relief. Both parties appeal. 

We reverse on the issue of immunity and affirm on the issue 

of injunctive relief. 

We will address two issues on appeal: 

1. Is the State of Montana, Board of Dentistry, immune from 

suit because it is a quasi-judicial body? 

2. Did the District Court err in granting summary judgment 

to the defendant Kandarian on the issue of injunctive relief? 

TMJ, or temporomandibular joint dysfunction, is a medical/ 

dental problem. R. Brent Kandarian, a denturist and head of the 

State Board of Denturitry, advertised in a local paper that he 

would perform "TMJ evaluations," On August 26, 1986, a dentist 

wrote to the Board of Dentistry (Board) requesting an investigation 

into the alleged illegal practice of dentistry by Kandarian. He 

stated in his letter 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. 
The Board wrote to Kandarian on September 22, 1986, informing 

him of the complaint. On the same day, the Board of Denturitry was 

informed of the complaint against Kandarian. Kandarian responded 

that the Board had no power to regulate his denturitry practice. 

The Board met on November 12, 1986, and without investigation, 

decided to ask Flathead County to file criminal charges against 

Kandarian. While Flathead County was deciding that issue, the 

Board's counsel released the contents of the complaint against 

Kandarian to the press. Flathead County refused to prosecute, and 

on 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 not to do a TMJ evaluation while fitting for "partials1' 

or Itfulls. 

Kandarian counterclaimed and moved for summary judgment. The 

Board asked for Itfollow up discoveryI1 and represented that it had 

witnesses who would be contacted and who would produce, by way of 

affidavit, 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. 

On February 25, 1988, the Board filed an amended response to 

Kandarianls counterclaim, claiming immunity for damages on the 

basis of its quasi-judicial status. In a January 1989 order 

denying immunity for the Board, the court found that lack of 

substantial investigation into the allegations against Kandarian 

raised questions of material fact as to whether the Board was 

performing its official duties. On March 13, 1989, Kandarian filed 

an amended answer and counterclaim, alleging breach of 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 court issued a two-part order: 

first, the order denied the Board's motion to vacate the previous 

order granting summary judgment to Kandarian. Second, it vacated 

the January 1989 order and found immunity for the Board on the 

grounds that in the absence of rules for investigations, the 

statute provided that the Board could seek injunction under 5 37- 

4-328(3), MCA. The court denied Kandarianls motion for attorney 

fees on March 15, 1990. 

Judgment was filed on March 15, 1990, and Kandarian and the 

Board appealed. 
Is the Board immune from suit because it is a quasi-judicial 

body? 

The District Court's finding that the Board is immune from 

suit on the basis of quasi-judicial immunity is erroneous. We 

extended quasi-judicial immunity to administrative boards in Koppen 

v. Board of Medical Examiners, 233 Mont. 214, 759 P.2d 173 (1988). 

In that case, we stated that the discretion vested in the Board of 

Medical Examiners to determine whether or not to adjudicate an 

alleged violation by a licensee rendered it a quasi-judicial body. 

We referred to the notice and hearing requirements of the Montana 

Administrative Procedures Act (MAPA), and the fact that the 

decision is subject to judicial review, to support our holding that 

the Board of Medical Examiners is quasi-judicial and absolutely 

immune in the exercise of that authority. Koppen, 233 Mont. at 

219, 759 P.2d at 176. In Koppen we cite Butz v. Economou, 438 U.S. 

We think that adjudication within a federal administrative agency shares enough of the characteristics of 

the judicial process that those who participate in such 

adjudication should also be immune from suits for 

damages. 

In this case, the Board was proceeding against a nonlicensee 

under 37-4-328(3), MCA. That section does not require an 

administrative hearing before the Board under MAPA, but allows the 

attorney general, county attorney, or board to seek injunctive 

relief. 
When the Board sought an injunction in the ~istrict Court, it 

put itself in the role of litigant or advocate, not adjudicator. 

Once it invoked the jurisdiction of the court under 5 37-4-328, 

MCA, it acted as a litigant and was not immune from suit. 

The Board also claims immunity similar to that enjoyed by 

prosecutors. While it is true that Koppen, citing Butz, states 

that "agency officials performing certain functions analogous to 

those of a prosecutor should be able to claim absolute immunity 

with respect to such actsl1l it does not say that all board actions 

are immune. Koppen, 233 Mont. at 219, 759 P.2d at 176. In State 

ex. rel. Dept. of Justice v. District Court, 172 Mont. 88, 92, 560 

P.2d 1328, 1330, we affirmed prosecutorial immunity for the State 

of Montana and the Department of Justice, noting that: 

When a prosecutor acts within the scope of his duties by 

filing and maintaining criminal charges he is absolutely 

immune from civil liability, regardless of negligence, 

or lack of probable cause. 

In Dept. of Justice, we explain that concern over harassment by 

unfounded litigation could cause a prosecutor to shade decisions 

and affect the independence of judgment necessary to the 

administration of the criminal justice system. 

The prosecutorls independence is checked by procedural safeguards inherent in the system, such as probable cause investigation, swearing under oath, etc. However, here we are not presented 

with a similar situation. The Board proceeded against Kandarian 

without any investigation of the allegations against him. It did 
not interview Kandarian himself. It released sensitive material 

to the press about a possible criminal action without notice to 

Kandarian. The Board was not bound by and did not adhere to a 

process that provided any safeguards for Kandarian. It therefore 

does not enjoy the immunity afforded the prosecutor. 

We reached the issue of state liability in Lima School 

District No. 12 v. Simonsen, 210 Mont. 100, 683 P.2d 471 (1984). 

In Lima, the school district claimed sovereign immunity on a 

counterclaim for damages arising from a suit it instigated. We 

denied immunity, stating: 

The School District itself initiated this lawsuit. It 

would be especially inequitable to allow the state to 

bring an action for payment by mistake and vest them with 

immunity from suit in related matters. The better rule 

is to recognize that whenever the state brinqs an 

equitable action it waives any applicable sovereiqnty and 

opens the door to a defense or counterclaim qermane to 

the matter in controversv. 

Lima, 210 Mont. at 772, 683 P.2d at 477 (emphasis added). Here 

the action for injunction was an equitable action, and we adhere 

to the "better rule" that the state does not enjoy immunity for its 

actions when it seeks injunctive relief in district court. 

Did the District Court err in granting summary judgment to the 

defendant Kandarian on the issue of injunctive relief? 

The District Court granted summary judgment to Kandarian when 

the Board sought to enjoin his practice. The only fact before the 

District Court was the expert's testimony that TMJ evaluations were 

indeed a part of the practice of denturitry. We thus find no abuse 
of discretion by the ~istrict Court in the grant of summary 

judgment in favor of Kandarian. 

Reversed in part and affirmed in part. 

/ 

We Concur: 

Chief Justice 

Justices 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part : 

I concur in part, and dissent in part, from the opinion of the 

majority. 

I concur with that part of the majority's opinion which holds 

that the Board of Dentistry did not have immunity from suit under 

the circumstances in this case. I also concur with that part of 

the maj orityl s opinion which affirmed the District Court s award 

of summary judgment on the issue of injunctive relief. 

However, I dissent from the majority's failure to award 

attorney fees to Kandarian pursuant to Rule 11, M.R.Civ.P. That 

rule was designed to discourage the filing of claims which have no 

merit and to compensate people like Kandarian who have to expend 

substantial sums to defend against nonmeritorious claims. The key 

to invocation of the rule is whether an adequate investigation has 

been done by the complaining party before putting his opponent to 

the expense of litigation. The rule provides: 

The signature of an attorney or party constitutes a 

certificate by him that he has read the pleading, motion, 

or other papers; that to the best of his knowledge, 

information, and belief formed after reasonable inquiry 

it is well grounded in fact and is warranted by existing 

law or a good faith argument for the extension, 

modification, or reversal of existing law, and that it 

is not interposed for any improper purpose, such as to 

harass or to cause unnecessary delay or needless increase 

in the cost of litigation. 

If a pleading, motion, or other paper is signed in 

violation of this rule, the court, upon motion or upon 
its own initiative, shall impose upon the person who 

signed it, a represented party, or both, an appropriate 

sanction, which may include an order to pay to the other 

party or parties the amount of the reasonable expenses 

incurred because of the filing of the pleading, motion, 

or other paper, including a reasonable attorney's fee. 

(Emphasis added. ) 

In this case, the Board of Dentistry made no reasonable 

inquiry prior to filing its claim for injunctive relief and 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 Kandarianls 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. 

Dr. Stobie testified that he was the only prosthodontist in 

Montana. A prosthodontist has three years of specialized training 

after dental school. That training is related to the treatment of 

patients who have prosthetic devices. He testified that in the 

course fitting patient for dentures not only 

permissible, but mandatory for a denturist to perform a TMJ 
evaluation and that, in fact, Kandarian would have been negligent 

if he had failed to do so. 

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. 

After all of these court proceedings, and expense to the 

defendant, summary judgment was entered for the defendant 

dismissing the Board's complaint for injunctive relief. 

Under these circumstances no "reasonable inquiry1' was 

conducted prior to the commencement of this lawsuit, and the 

defendant is entitled to an award of reasonable attorney fees and 

costs to compensate him for having to unnecessarily participate in 

and defend against this action. 
Justice Fred J. Weber dissents as follows: 

The key facts upon which the majority concluded that the Board 

of Dentistry, does not enjoy quasi-judicial immunity as described 

in Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 759 

P.2d 173, are stated as follows: 

The prosecutorls independence is checked by 

procedural safeguards inherent in the system, such as 

probable cause investigation, swearing under oath, etc. 

However, here we are not presented with a similar 

situation. The Board proceeded against Kandarian without 

any investigation of the allegations against him. It did 

not interview Kandarian himself. It released sensitive 

material to the press about a possible criminal action 

without notice to Kandarian. The Board was not bound by 

and did not adhere to a process that provided any 

safeguards for Kandarian. It therefore does not enjoy 

the immunity afforded the prosecutor. 

The essence of the foregoing holding appears to be that 

because the Board did not adhere to a process which provided 

safeguards for Kandarian, it had forfeited any immunity afforded 

a prosecutor, which apparently would also include the quasijudicial immunity described in 

We do not have a controversy here which required a Board 

hearing in order to determine the contentions of the parties. Here 

a Kalispell dentist forwarded his letter to the Board of Dentistry 

complaining that Mr. Kandarian was engaged in the illegal practice 

of dentistry as appeared from the enclosed copy of an ad which 

showed Mr. Kandarian was advertising for dentures, partials, 

realigns, fast repairs, and "TMJ evaluation^.^^ That Kalispell 

dentist stated he had personal knowledge of Mr. Kandarianls offer 

to treat patients for TMJ disorders. By letter dated September 22, 

1986, the Board of Dentistry furnished Mr. Kandarian a copy of the 
complaint as filed. The Board requested a response and asked that 

if facts had been misstated Mr. Kandarian should so state and refer 

to documents or witnesses. By letter dated October 31, 1986, the 

attorney for the Board of Dentistry again wrote to Mr. Kandarian 

with regard to the same complaint. In that letter the attorney 

pointed out that the complaint alleged unlicensed practice of 

dentistry and referred to the civil and criminal sanctions. It 

again asked Mr. Kandarian to advise if the fact allegations were 

incorrect. If he felt there was legal justification he should 

provide such information. It also invited Mr. Kandarian to stop 

the advertising and the attorney would then recommend the closing 

of the files. By letter dated November 6, 1986 addressed to the 

Board of Dentistry attorney, Mr. Kandarian clearly indicated his 

position and stated: 

In regards to your letter of October 31, 1986, I must 

confess to you that I didn't think it necessary to answer 

a complaint of the dental board, when in fact it has 

nothing to do with me - nor me with it. If I have 

committed a crime, I will answer to the board of 

denturitry. 

I am not now, nor have I ever practiced dentistry! I am 

licensed as a denturist and practice as such. T.M. J. 

evaluations certainly fall within my scope of practice, 

resardless of what the board of dentistry thinks, and I 

will continue to practice accordinsly. 

If the board of dentistry would tend to itst own 

complaints instead of going on witch-hunts, it would 

probably accomplish a whole lot more for the protection 

of the people of the state of Montana. (Emphasis 

supplied) . 

At its November 12, 1986 meeting the Board of Dentistry, which 

consists of licensed dentists practicing in Montana, considered the 

complaint against Mr. Kandarian. The Board of Dentistry concluded 
that it would request the filing of a complaint against Mr. 

Kandarian and if the county attorney did not so act, an injunction 

should be sought for the unlicensed practice of dentistry. 

Such a request was made to the county attorney of Flathead 

County. By his letter dated December 30, 1986, the county attorney 

demonstrated that he understood the issues and chose not to act, 

stating: 

I now have had the opportunity to review these materials 

together with what I perceive to be applicable Montana 

law. It appears to me that the relevant issue is not 

whether Mr. Kandarian is engaging in a particular 

activity (TMJ evaluations) , but rather whether that 

activity (which he does not deny) is prohibited to a 

denturist by Section 37-29-402 (3) and, if so, what the 

proper remedy would be. 

Although I may question whether such conduct is in fact 

a violation of that statute, I have little doubt that, 

regardless, a criminal prosecution is not the proper 

forum in which to seek a resolution. I therefore 

respectfully decline to prosecute the complaint. If 

either the Board of Dentistry or the Board of Denturity 

feels that Mr. Kandarianfs conduct is actionable, it 

seems to me that the proper remedy would be an injunctive 

action brought by the Board pursuant to either Section 

37-4-328 or Section [37-29-4111, M.C.A., respectively. 

The county attorney therefore recommended that if the Board of 

Dentistry felt that Mr. Kandarianfs conduct was actionable, the 

proper remedy would be an injunctive action, which was the 

procedure followed by the Board. 

The holding of the majority indicates that because of the 

failure to make an investigation and a failure to follow a process 

which provided safeguards for Mr. Kandarian, there had been a 

forfeiture of immunity. I do not understand that conclusion. 

The issues as between the parties are quite clear - the Board 
of Dentistry believes that the actions taken by Mr. Kandarian 

constitute the unlawful practice of dentistry - and Mr. Kandarian, 

incidentally the Chairman of the Board of Denturity, believes that 

it is not the unlawful practice of dentistry, but the lawful 

practice of denturity. A hearing would not have more clearly 

established the opposing positions of the two parties. Under those 

circumstances, was it improper for the Board of Dentistry to seek 

an injunction without a due process hearing? 

The specific statutes covering the Board of Dentistry indicate 

that their procedure was provided under 5 37-4-328, MCA, which in 

pertinent part states as follows: 

(3) If a person, firm, or corporation engages in 

the practice of dentistry without possessing a valid 

license or violates this chapter, the attorney general, 

a county attorney, or the board may maintain an action 

in the name of this state to enioin the person, firm or 

corporation from engaging in the practice of dentistry 

Clearly the Board is given both the responsibility to enforce the 

statutes with regard to the profession of dentistry and where it 

deems advisable, to secure an injunction. This is directly 

comparable to the statutory authority of the Board of Medical 

Examiners which was involved in the Koppen case. Section 37-3- 

326, MCA, states in part as follows: 

Notwithstanding any other provision in this chapter, 

the board [Board of Medical Examiners] may maintain an 

action to enjoin a person from engaging in the practice 

of medicine until a license to practice medicine is 

procured. 

The statutory provisions are directly comparable. There is a 

statutory procedure for the Board of Dentistry to conduct hearings 
after various notice and due process rights are considered. Again, 

these are directly comparable to the provisions for the Board of 

~edical Examiners. I conclude that for our purposes, the statutory 

provisions and purposes of the Board of Dentistry and the Board of 

Medical Examiners are directly comparable. That leads me to review 

Koppen. In Komen we stated the following: 

The action or inaction by the Board under attack in 

this case is its decision not to strip Dr. Kauffman of 

his license when faced with complaints concerning his 

professional conduct. The Board's decision whether to 

initiate administrative proceedings against a doctor is 

analogous to a prosecutor's decision whether to initiate 

court proceedings against an alleged criminal. We concur 

with the reasoning in Butz that the Board's discretion 

might be distorted if it is not immune from suit for 

damages arising from such a decision. We hold, 

therefore, that in the exercise of its quasi-judicial 

authority, the Board is entitled to the absolute immunity 

afforded executive officials under the rule in the Butz 

decision. . . . 

Koppen, 233 Mont. at 219-20, 759 P.2d at 176. 

In Koppen this Court concluded that the inaction of the Board 

of Medical Examiners in any claimed failure to investigate the 

activities of a medical doctor were subject to the protection of 

quasi-judicial immunity. In the present case, the majority has 

concluded that the action of the Board of Dentistry in commencing 

an injunction proceeding, one of the options expressly given to 

that Board by the statutes controlling the Board, somehow causes 

the Board to lose its immunity. I fail to understand the 

rationale. I believe the holding in Kop~en is directly on point. 

In fact we have a much stronger case for quasi-judicial immunity 

here because the Board in fact was attempting to exercise its 

obligation to protect the practice of dentistry, whereas the Board 
in Koppen had failed to do anything with regard to protecting the 

public fromthe alleged unprofessional actions of a medical doctor. 

The majority further concludes that under Lima School Dist. 

No. 12 v. Simonsen (1984), 210 Mont. 100, 683 P.2d 471, when the 

Board sought an injunction, the state does not enjoy immunity. A 

more complete analysis is required of the Lima case. The Lima 

School District had filed suit against the defendants to recover 

money paid under a transportation contract for the transportation 

of school children. The defendants counterclaimed, alleging 

damages and were awarded $5,000 on their counterclaim. With regard 

to the issue of sovereisn immunity, the Court stated as follows: 

The School District argues before this Court that 

the counterclaim is barred by the doctrine of sovereign 

immunity. This issue was not raised in the pleadings or 

otherwise at trial. It need not be considered by the 

Supreme Court. The School District itself initiated this 

lawsuit. It would be especially inequitable to allow the 

state to bring an action for payment by mistake and vest 

them with immunity from suit in related matters. The 

better rule is to recognize that whenever the state 

brings an equitable action it waives any applicable 

sovereignty and opens the door to a defense or 

counterclaim germane to the matter in controversy. 

(Citations omitted.) 

Lima, 210 Mont. at 112, 683 P.2d at 477. 

The case concludes that the issue of sovereisn immunity need 

not be addressed because it was not raised in the lower court. It 

is true the issue went on to discuss the aspect of inequitability. 

I would only point out that this was a proceeding brought for the 

recovery of monies paid on a contract theory, to which the 

defendants had counterclaimed. Under that fact situation, it seems 

entirely appropriate to hold that when the state commenced the 
action, it could not defend by stating it was immune. I don't 

believe that affords any proper authority for the present decision. 

While this presently is an action for an injunction, it is 

certainly not comparable to the Lima action. 

As a result, I disagree with the conclusion of the majority 

that when the Board sought an injunction, it put itself in the role 

of the litigant or advocate rather than adjudicator. The Board 

only acted in the role assigned to it by the statutes, that being 

the attempted prohibition of a non-dentist practicing dentistry. 

I fail to see how such conduct could be classed as a giving up of 

any quasi-judicial immunity. 

I further emphasize that the conclusion in the present case 

contradicts our holding in Kowwen. There we concluded that the 

Board's decision whether to initiate administrative proceedings is 

analogous to a prosecutor's decision. I find no distinction 

between that and the Board's decision in the present case to 

initiate proceedings requesting an injunction. 

In addition, there is the inference that coming to court for 

injunctive purposes may have denied due process in some manner. 

I fail to understand such a theory. The purpose of coming to court 

is to allow the Board of Dentistry and Mr. Kandarian to set forth 

their opposing views in court with due process protections under 

court rules. 

Based on Koppen, I conclude that the Board of Dentistry should 

have been granted immunity in this proceeding. 

\ 
I concur in the dissent of Justice Fred J. Weber.