                                           05-535

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 177



EUGENE F. HUGHES, JR., M.D.,

              Plaintiff and Appellant,

         v.

LAURA LYNCH and the STATE
OF MONTANA,

              Defendants and Respondents.


APPEAL FROM:          District Court of the Second Judicial District,
                      In and For the County of Butte/Silver Bow, Cause No. DV 2001-120
                      Honorable Wm. Nels Swandal, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      James M. Kommers; Kommers Law Firm, Bozeman, Montana

               For Respondents:

                      Timothy Willis McKeon; Attorney at Law, Anaconda, Montana



                                                    Submitted on Briefs: June 7, 2006

                                                               Decided: July 25, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     This is an appeal by Eugene F. Hughes, Jr., M.D. (“Hughes”) from the order and

judgment of the District Court for the Second Judicial District, Silver Bow County,

granting summary judgment in favor of Laura Lynch (“Lynch”).            We affirm.     The

dispositive issue on appeal is whether the District Court erred in determining that there

were no genuine issues of material fact with respect to Hughes’s malicious prosecution,

abuse of process, and tortious interference claims.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     On February 2, 1998, Lynch filed a complaint with the Montana Human Rights

Commission (“HRC”) alleging unlawful gender discrimination by St. James Community

Hospital (“St. James”) and Hughes. Lynch subsequently amended her complaint to add

an allegation that Hughes’s actions had created an extremely hostile workplace. The

HRC investigated the complaint. The final report issued by the HRC investigator stated

that “the evidence supports that Hughes is an employer within the meaning of the Human

Rights Act.” The investigator recommended a finding of cause to believe that unlawful

sexual harassment and retaliation had occurred.

¶3     Based on the investigative report, the case proceeded to a contested case hearing in

May 2000. In his final agency decision, the Hearing Examiner stated that Hughes was

neither an “employer” nor an “agent” of an employer under the Montana Human Rights

Act, and, therefore, that Hughes did not bear an employer’s liability for sexual

harassment. However, according to the examiner, Hughes’s behavior after Lynch filed

her complaint constituted illegal retaliation.


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¶4     Hughes appealed the Hearing Examiner’s decision.            On June 1, 2001, the

Chairman of the HRC issued his order sustaining Hughes’s appeal and reversing in part

the Hearing Examiner’s decision. Although the Chairman agreed that Hughes was not an

employer, he determined that Lynch had not properly alleged retaliation in her complaint

to the HRC. Lynch did not appeal from the order of the Chairman of the HRC.

¶5     On September 26, 2001, Hughes filed a complaint in the District Court against

Lynch.      He alleged as follows:   first, that Lynch did not have probable cause for

commencing and/or continuing the prosecution of her case before the HRC and that she

was actuated by malice (the malicious prosecution claim); second, that in filing her

complaint with the HRC and obtaining an initial finding of cause, Lynch used the

administrative process to accomplish a purpose for which that process was not designed

(the abuse of process claim); and third, that Lynch improperly interfered in the

contractual and business relationships between Hughes and St. James, the medical staff of

St. James, and Hughes’s current and prospective patients (the tortious interference

claim). 1


1
  Hughes also named the State of Montana (“State”) as a defendant. He alleged that the
HRC had breached a duty of care owed to Hughes through its investigation of Lynch’s
complaint. On June 30, 2003, the District Court granted the State’s motion for summary
judgment on the ground that the State was entitled to absolute quasi-judicial immunity for
its investigation of the complaint against Hughes and the compilation of its report.
Hughes does not appeal this ruling. Lynch, however, argues that this case should be
dismissed because the State is a necessary and indispensable party under M. R. Civ. P.
19. Yet, Lynch did not file a cross-appeal and, thus, this issue is not properly before this
Court. See Joseph Eve & Co. v. Allen, 284 Mont. 511, 514, 945 P.2d 897, 899 (1997)
(stating that a cross-appeal is necessary where the respondent seeks review of matters
separate and distinct from those sought to be reviewed by the appellant (citing Johnson v.
Tindall, 195 Mont. 165, 170, 635 P.2d 266, 268 (1981))); see also Motta v. Philipsburg

                                             3
¶6     On July 15, 2004, Lynch filed a motion to dismiss or, in the alternative, for

summary judgment. The District Court granted Lynch’s motion and dismissed the case

with prejudice on July 21, 2005. On July 28, the court entered judgment, stating that

Hughes shall recover nothing from Lynch and, further, that Lynch shall recover costs

from Hughes. Hughes appeals from the District Court’s order and final judgment.

                               STANDARD OF REVIEW

¶7     We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as did the district court. Redies v.

Attorneys Liability Protect. Soc., 2007 MT 9, ¶ 26, 335 Mont. 233, ¶ 26, 150 P.3d 930,

¶ 26; Montana-Dak. Util. Co. v. City of Billings, 2003 MT 332, ¶ 6, 318 Mont. 407, ¶ 6,

80 P.3d 1247, ¶ 6. Rule 56(c) provides that a motion for summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” In evaluating a motion for summary judgment, the evidence must be viewed in the

light most favorable to the nonmoving party, and all reasonable inferences that might be

drawn from the offered evidence should be drawn in favor of the party opposing

summary judgment. Redies, ¶ 26. Summary judgment is an extreme remedy that should

never be a substitute for a trial on the merits if a controversy exists over a material fact.


School Bd. Trustees, 2004 MT 256, ¶ 15, 323 Mont. 72, ¶ 15, 98 P.3d 673, ¶ 15.
Moreover, because we are affirming the District Court’s grant of summary judgment in
favor of Lynch, we would not need to reach the Rule 19 issue had Lynch properly
appealed it.

                                             4
Montana Metal Buildings, Inc. v. Shapiro, 283 Mont. 471, 474, 942 P.2d 694, 696

(1997).

¶8     The party moving for summary judgment has the initial burden of establishing the

absence of genuine issues of material fact and entitlement to judgment as a matter of law.

Hi-Tech Motors v. Bombardier Motor Corp., 2005 MT 187, ¶ 32, 328 Mont. 66, ¶ 32,

117 P.3d 159, ¶ 32 (citing Arthur v. Pierre Ltd., 2004 MT 303, ¶ 14, 323 Mont. 453, ¶ 14,

100 P.3d 987, ¶ 14). If this burden is met, then the burden shifts to the nonmoving party

to establish that a genuine issue of material fact does exist. Hi-Tech Motors, ¶ 32. If the

district court determines that no genuine issue of material fact exists, the court then

determines whether the moving party is entitled to judgment as a matter of law. Hi-Tech

Motors, ¶ 32. This determination is a conclusion of law which we review for correctness.

Hi-Tech Motors, ¶ 32.

                                     DISCUSSION

¶9     Did the District Court err in determining that there were no genuine issues of
material fact with respect to Hughes’s malicious prosecution, abuse of process, and
tortious interference claims?

¶10    In opposition to Lynch’s motion to dismiss or, in the alternative, for summary

judgment (hereinafter, “summary judgment motion”), Hughes submitted the affidavit of

Faye Ronco (“Ronco”), Lynch’s co-worker, in which Ronco states that Lynch

approached Ronco and said that “a lot of money could be made from this”—an apparent

reference to Lynch’s complaint filed with the HRC. Hughes asserted that this statement

in the Ronco affidavit demonstrated that a genuine issue of material fact existed with

regards to each of Hughes’s three claims against Lynch. Thus, he maintained that he had


                                            5
“clearly met his burden of coming forward with evidence of a material issue of fact as to

whether Laura Lynch was motivated to proceed in response to sexual harassment or in

recognition that ‘a lot of money could be made from this.’ ” Accordingly, Hughes argued

that Lynch’s motion should be denied.

¶11   On appeal, Hughes sets forth essentially the same arguments that he advanced in

the District Court. He argues that he met his burden as the nonmoving party to establish

that a genuine issue of material fact exists because the Ronco affidavit demonstrates a

factual dispute with respect to each of Hughes’s three claims against Lynch, and

therefore, that the District Court erred in granting summary judgment in favor of Lynch.

We will evaluate each claim in turn.

                           The Malicious Prosecution Claim

¶12   Malicious prosecution of a civil suit begins in malice, without probable cause to

believe that the action can succeed, and finally ends in failure. See McGuire v. Armitage,

184 Mont. 407, 410, 603 P.2d 253, 255 (1979).           In a civil action for malicious

prosecution, the plaintiff’s burden at trial is to introduce proof sufficient to allow

reasonable jurors to find each of the six following elements: (1) a judicial proceeding

was commenced and prosecuted against the plaintiff; (2) the defendant was responsible

for instigating, prosecuting or continuing such proceeding; (3) there was a lack of

probable cause for the defendant’s acts; (4) the defendant was actuated by malice; (5) the

judicial proceeding terminated favorably for the plaintiff; and (6) the plaintiff suffered

damage. Plouffe v. DPHHS, 2002 MT 64, ¶ 16, 309 Mont. 184, ¶ 16, 45 P.3d 10, ¶ 16

(citing Vehrs v. Piquette, 210 Mont. 386, 390, 684 P.2d 476, 478 (1984)). “If one of


                                            6
these elements is not proven by prima facie evidence, judgment as a matter of law may

be entered for the defendant.” Plouffe, ¶ 16.

¶13    In her summary judgment motion, Lynch maintained that there was no genuine

issue of material fact with respect to element (3). In this regard, she argued that she had

probable cause to believe that Hughes was her employer because she perceived, based on

past events in her workplace, that he had the ability and power to supervise and control

employees. She also pointed out that the HRC’s investigator had determined that Hughes

was, in fact, her employer, given his ability to control employee’s schedules and

influence St. James’s management policies. Although the HRC ultimately determined

that Hughes did not have such authority, Lynch contended that her genuine belief to the

contrary provided sufficient probable cause for her to file her complaint. Further, Lynch

noted that the first investigative report filed by the HRC stated that there was probable

cause to believe that Hughes had committed sexual harassment and retaliated against her.

Finally, Lynch contended that, contrary to Hughes’s assertion in his complaint that she

continued to prosecute her case after she had reason to believe Hughes was not her

employer, her actions before the HRC cannot constitute malicious prosecution because

she had probable cause to institute the original proceeding. Therefore, according to

Lynch, Hughes could not satisfy element (3), “a lack of probable cause for the

defendant’s acts.”

¶14    Lynch also maintained that there was no factual dispute with respect to element

(5)—whether the judicial proceeding terminated in Hughes’s favor. According to Lynch,

the HRC merely determined that Hughes was not an employer and that she had not


                                                7
properly alleged retaliation in her complaint.     Lynch contended that both of these

determinations were technical in nature and did not address the underlying merits of the

case—“i.e., whether Hughes harassed and retaliated against [Lynch].” Therefore, Lynch

argued that Hughes could not prove all of the requisite elements of a malicious

prosecution claim and that she was entitled to judgment as a matter of law.

¶15   In its order granting summary judgment in favor of Lynch, the District Court

stated that it had determined “that there was probable cause for Lynch to believe Hughes

was her employer and to pursue the HRC action against him.” Therefore, according to

the court, Hughes could not prove that there was a lack of probable cause for Lynch’s

acts (element (3)). Further, the court stated that Hughes “cannot prove that the judicial

proceeding terminated favorably for the plaintiff. This element requires a determination

on the merits of the case, and an HRC hearing cannot do that” (element (5)).

¶16   We agree with the District Court that Lynch demonstrated that she had probable

cause to file and pursue her complaint against Hughes with the HRC. Probable cause, in

the context of the tort of malicious prosecution of a civil suit, has been defined as

follows:

             One who takes an active part in the initiation, continuation or
      procurement of civil proceedings against another has probable cause for
      doing so if he reasonably believes in the existence of the facts upon which
      the claim is based, and either
             (a) correctly or reasonably believes that under those facts the claim
      may be valid under the applicable law, or
             (b) believes to this effect in reliance upon the advice of counsel,
      sought in good faith and given after full disclosure of all relevant facts
      within his knowledge and information.




                                            8
Restatement (Second) of Torts § 675 (1977). We have not yet articulated the probable

cause standard for the tort of malicious prosecution of a civil suit; however, we are

persuaded that the standard articulated in § 675 of the Restatement (Second) of Torts is

the correct standard for ascertaining whether there was a lack of probable cause for the

defendant’s acts (element (3)). We therefore adopt this standard.

¶17   In the case at hand, Lynch demonstrated that she reasonably believed, under the

facts upon which her claim was based, that her claim was valid under Title 49, Chapter 2,

MCA. In this regard, Lynch relied on the fact that the HRC’s initial investigator had

recommended a finding of cause to believe that Hughes was Lynch’s employer and that

unlawful sexual harassment and retaliation had occurred. Although the HRC ultimately

determined that Hughes was not Lynch’s employer and that Lynch had not properly

pleaded a claim of retaliation, we observe that this determination does not mean that

Lynch did not have probable cause for filing her complaint in the first place. “It is

generally agreed that the termination of the proceeding in favor of the person against

whom it is brought is no evidence that probable cause was lacking, since in a civil action

there is no preliminary determination of the sufficiency of the evidence to justify the

suit.” Prosser, The Law of Torts § 120, at 855 (4th ed., West 1971). Additionally, Lynch

pointed out that Hughes had not yet come forward with any evidence to suggest that she

lacked probable cause in filing and pursuing the HRC complaint.

¶18   Because Lynch established the absence of a genuine issue of material fact with

respect to element (3) and her entitlement to judgment as a matter of law on this claim,

the burden shifted to Hughes to establish the contrary. In this regard, Hughes directs our


                                            9
attention to Lynch’s alleged statement set forth in the Ronco affidavit that “a lot of

money could be made from this”; however, this statement has no bearing on whether

Lynch acted without probable cause throughout the course of the HRC proceedings.

Hughes also claims that there was a lack of probable cause for Lynch’s acts “because it

never has been determined before the HRC or any court that any act of sexual

discrimination or harassment took place.”         However, we note that the question of

probable cause does not depend on whether Lynch’s claims against Hughes ultimately

have merit.

¶19      Beyond this, Hughes makes entirely unsupported assertions that the elements of

malicious prosecution are met here. This approach, however, is insufficient to withstand

a motion for summary judgment. See M. R. Civ. P. 56(e) (“When a motion for summary

judgment is made and supported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse party’s pleading, but the adverse

party’s response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If the adverse party does not

so respond, summary judgment, if appropriate, shall be entered against the adverse

party.”)

¶20      Accordingly, we conclude that there were no genuine issues of material fact

regarding the alleged lack of probable cause for Lynch’s acts and, further, that Lynch was

entitled to judgment as a matter of law on this claim. We therefore affirm the District

Court’s order granting summary judgment to Lynch on Hughes’s malicious prosecution

claim.


                                             10
                              The Abuse of Process Claim

¶21    We have stated the elements of an abuse of process claim as follows: “Essential to

proof of abuse of process is (1) an ulterior purpose and (2) a willful act in the use of the

process not proper in the regular conduct of the proceeding.” Brault v. Smith, 209 Mont.

21, 28, 679 P.2d 236, 240 (1984) (citing Prosser, The Law of Torts § 121, at 857 (4th ed.,

West 1971)); Seltzer v. Morton, 2007 MT 62, ¶ 57, 336 Mont. 225, ¶ 57, 154 P.3d 561,

¶ 57. Prosser further explains these elements as follows:

       Some definite act or threat not authorized by the process, or aimed at an
       object not legitimate in the use of the process, is required; and there is no
       liability where the defendant has done nothing more than carry out the
       process to its authorized conclusion, even though with bad intentions. The
       improper purpose usually takes the form of coercion to obtain a collateral
       advantage, not properly involved in the proceeding itself, such as the
       surrender of property or the payment of money, but the use of the process
       as a threat or a club. There is, in other words, a form of extortion, and it is
       what is done in the course of negotiation, rather than the issuance or any
       formal use of the process itself, which constitutes the tort.

Prosser, The Law of Torts § 121, at 857 (footnote omitted). Thus, we explained in Brault

that “[f]or a defendant to claim abuse of process, there must be an attempt by the plaintiff

to use process to coerce the defendant to do some collateral thing which he could not be

legally and regularly compelled to do.” Brault, 209 Mont. at 29, 679 P.2d at 240.

¶22    In his complaint, Hughes alleged that Lynch used her HRC complaint for the

purpose of disrupting Hughes’s business relationships and causing irreparable harm to his

reputation. In her summary judgment motion, Lynch contended that Hughes’s claim was

“ludicrous and supported by nothing but speculation on Hughes’s part.” Lynch pointed

out that there was no evidence which suggested that her purpose was “something other



                                             11
than achieving the legal redress to which she was entitled.” Therefore, Lynch argued that

because Hughes did nothing more than speculate about Lynch’s purpose in filing her

complaint with the HRC, she was entitled to summary judgment on this issue.

¶23   Hughes claims that Ronco’s affidavit, in which Ronco states that Lynch told her

that “a lot of money could be made from this,” establishes that Lynch “had a profit

motive in bringing her claim” and that she was actuated by malice. Hughes, however,

misapprehends the meaning of “process.” In the context of the abuse of process tort,

process may refer to summons, subpoenas, attachments, garnishments, replevin or claim

and delivery writs, arrest under a warrant, injunctive orders, and other orders directly

affecting obligations of persons or rights in property. See Dobbs, The Law of Torts

§ 438, at 1235-36 (West 2001).      Some courts also take process to include all the

procedures in the litigation process. See Dobbs, The Law of Torts § 438, at 1236.

However, “merely filing a complaint in court does not institute any process.” See Dobbs,

The Law of Torts § 438, at 1235.

¶24   Moreover, even assuming, arguendo, that Lynch had a profit motive and was

actuated by malice, Ronco’s affidavit does not bear on the question of whether Lynch

actually used process to coerce Hughes to do some collateral thing which he could not be

legally and regularly compelled to do. Simply stated, nothing in the record creates a

genuine issue of material fact as to whether Lynch committed the tort of abuse of process.

We therefore affirm the District Court’s order granting summary judgment in favor of

Lynch on this claim.

                           The Tortious Interference Claim


                                           12
¶25   In order to assert a prima facie claim of tortious interference, the plaintiff must

show that the defendant’s acts were (1) intentional and willful, (2) calculated to cause

damage to the plaintiff in his business, (3) done with the unlawful purpose of causing

damage or loss, without right or justifiable cause on the part of the actor, and (4) that

actual damages and loss resulted. See Com’n on Unauthorized Practice v. O’Neil, 2006

MT 284, ¶ 47, 334 Mont. 311, ¶ 47, 147 P.3d 200, ¶ 47; Pospisil v. First Nat. Bank of

Lewistown, 2001 MT 286, ¶ 13, 307 Mont. 392, ¶ 13, 37 P.3d 704, ¶ 13; Farrington v.

Buttrey Food & Drug Stores, 272 Mont. 140, 143, 900 P.2d 277, 279 (1995).

¶26   In his complaint, Hughes claimed that Lynch tortiously interfered with his

contractual and business relationships with St. James, the medical staff of St. James, and

current and future patients. In her summary judgment motion, Lynch contended that,

based on her arguments concerning the malicious prosecution and the abuse of process

claims, Hughes could not prove the first and third elements of tortious interference. With

respect to element (2), she maintained that she had filed her complaint with the HRC “to

remedy an employment situation which had become intolerable and to be compensated

for the related damage done to her.” According to Lynch, she did not file her complaint

for “the purpose of damaging Hughes’s business relationships.”

¶27   With respect to element (4), Lynch argued that Hughes could not demonstrate that

he had been damaged by her actions. She noted that in 1997, one of Hughes’s cancer

patients filed a complaint against him with the Montana Board of Medical Examiners.

Hughes had drawn a “smiley face” on the patient’s breast, which he later explained was

an attempt to improve the patient’s morale. Hughes ultimately entered into an agreement


                                           13
with the Montana Professional Assistance Program and underwent evaluation for

medical, psychiatric, and/or chemical dependency. However, Hughes later sued the

Montana Professional Assistance Program for false imprisonment, conspiracy, and a

variety of other claims.   His suit was eventually dismissed on summary judgment.

Hughes also received a written reprimand and was placed on probation by the hospital.

(These events are described in greater detail in our decisions in Hughes v. Pullman, 2001

MT 216, 306 Mont. 420, 36 P.3d 339 (“Hughes I”), and Hughes v. Montana Bd. of

Medical Examiners, 2003 MT 305, 318 Mont. 181, 80 P.3d 415 (“Hughes II”).) Given

these facts, Lynch essentially argued that any damage suffered by Hughes was the result

of his own actions. Therefore, Lynch maintained that she was entitled to summary

judgment on Hughes’s claim of tortious interference.

¶28   According to the District Court, no facts in the record supported Hughes’s

contention that Lynch acted intentionally and willfully to cause damage to Hughes. The

court also noted that prior to the time that Lynch filed her complaint with the HRC, a

complaint had already been filed against Hughes concerning the smiley-face incident.

Further, Hughes was already on probation at St. James and he had already agreed to

undergo evaluation and treatment for medical, psychiatric, and/or chemical dependency.

Therefore, the court opined that “[a]ny damage done to Hughes [sic] reputation, business

relationships or business was done by himself prior to Lynch’s complaint. Lynch’s

complaint was simply more evidence of the same type of conduct.”

¶29   We agree with the District Court that there is no evidence in the record to suggest

that Lynch’s acts were calculated to cause damage to Hughes. In this regard, Hughes


                                           14
again directs our attention to the Ronco affidavit; however, whether or not Lynch

believed that “a lot of money could be made from this,” she still was entitled to seek both

redress of and damages for the alleged discrimination. See § 49-2-506(b), MCA (stating

that the HRC may “require any reasonable measure to correct the discriminatory practice

and to rectify any harm, pecuniary or otherwise, to the person discriminated against”).

Furthermore, Lynch demonstrated in her summary judgment motion that her filing a

complaint against Hughes with the HRC was not done without right or justifiable cause

on her part. Lastly, Hughes has failed to counter Lynch’s evidence that any damage

suffered by Hughes was the result of his own action of drawing a smiley face on the

breast of a cancer patient and everything which ensued from that event, as described in

Hughes I and Hughes II.       We therefore affirm the District Court’s order granting

summary judgment to Lynch on Hughes’s malicious prosecution claim.

                        Hughes’s Ability to Exonerate Himself

¶30   Hughes asserts that the record is “absent of any finding by any agency or court

that sexual harassment was a proven fact in the relationship between Lynch and Hughes.”

He maintains that, without a trial, “Lynch will never be able to prove her sexual

harassment allegations; nor will Hughes be able to exonerate himself.” It is unclear

whether Hughes intends this as an alternative basis for resisting Lynch’s motion for

summary judgment. Regardless, the merits of Lynch’s sexual harassment claim are not at

issue in this case. Hughes’s claims are based on malicious prosecution, abuse of process,

and tortious interference. There is no need, in the context of these claims, for Lynch to

prove that Hughes is liable to her for sexual harassment or for Hughes to attempt to


                                            15
exonerate himself from a finding of sexual harassment. It appears, therefore, that Hughes

simply has misapprehended the nature of his suit against Lynch or would like to use a

trial in this case to litigate issues that are outside the purview of his complaint. Either

way, this is not a valid basis for withstanding Lynch’s motion for summary judgment.

                                    CONCLUSION

¶31   The appellant bears the burden of establishing that the district court erred. In re

Marriage of McMahon, 2002 MT 198, ¶ 7, 311 Mont. 175, ¶ 7, 53 P.3d 1266, ¶ 7 (citing

Matter of M.J.W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18). Hughes

has not met this burden in this case. Lynch, as the party moving for summary judgment,

demonstrated the absence of genuine issues of material fact and her entitlement to

judgment as a matter of law with respect to all three of Hughes’s claims. Hughes failed

to meet his burden as the nonmoving party to establish the contrary. The Ronco affidavit

simply does not demonstrate that a genuine issue of material fact exists with respect to

any of the three claims against Lynch.

¶32   We therefore conclude that the District Court correctly determined that no genuine

issue of material fact exists and that Lynch was entitled to judgment as a matter of law.

Accordingly, we affirm the District Court’s July 21, 2005 order granting Lynch’s motion

for summary judgment and the court’s July 28, 2005 judgment in favor of Lynch.

¶33   Affirmed.

                                                 /S/ JAMES C. NELSON




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We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE




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