                            NO.    94-480
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


JEFFREY FARRINGTON,
          Plaintiff and Appellant,
     v.
BUTTREY FOOD AND DRUG STORES
COMPANY, a Delaware corporation,
          Defendant and Respondent.




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Charles S. Lucero, Attorney at Law, Great Falls,
               Montana
               Michael J. Best; Best Law Offices, Great Falls,
               Montana

          For Respondent:
                Neil E. Ugrin, Gary M. Zadick; Ugrin, Alexander,
                Zadick & Higgins, Great Falls, Montana



                                  Submitted on Briefs:   June 16, 1995
                                              Decided:   July 25, 1995
 Filed:
,


Justice W. William Leaphart delivered the Opinion of the Court.

         Jeffrey Farrington (Farrington) appeals from the August 22,
1994, order of the Eighth Judicial District Court, Cascade County,
granting Buttrey Food and Drug Stores Company's (Buttrey) motion
    for summary judgment.       We reverse.
         Farrington was        a deliveryman for Pennington's,                  Inc., a
    wholesale distribution company.              Pennington's serviced, among other
    customers,    Buttrey stores in Great               Falls.   Once   a    Pennington's
    delivery person checked goods into Buttrey, the goods became
    Buttrey    property.     If a product became out of date or damaged,
    Pennington's replaced the         item   without charge or issued a credit to
    Buttrey.
         On March 15, 1991, Farrington was observed allegedly throwing
    a box containing approximately twelve bags of potato chips into the
    trash compactor at Buttrey's west Great Falls store.                         Buttrey
    alleges that the box contained three bags of good potato chips (not
    damaged or expired) and that Farrington failed to properly credit
    Buttrey.      Farrington acknowledged in signed handwritten and typed
    statements and in deposition that he had destroyed property of
    Buttrey without giving Buttrey credit.                       As a result of the
    incident,     Buttrey   revoked       Farrington's     privilege    to   service   its
    stores but allowed Farrington to continue to shop as a customer.
    Pennington's, in turn, fired Farrington.
          After    his    discharge       from   Pennington's,     Farrington    obtained
    employment     with    Mancini    &    Groesbeck,     a food brokerage company.
    Farrington's job for Mancini & Groesbeck was to check retail stores
                                                 2
(including     Buttrey)   to ensure that food products supplied by
Mancini & Groesbeck were properly stocked and displayed.        His job
required that he remain in the public area of the store and,
although it involved handling of product it was different from his
previous job in that it did not involve product stocking, removing
stock,    or crediting.
      Approximately one year after Buttrey revoked Farrington's
privilege of servicing its stores, Buttrey banned Farrington from
entering Buttrey stores in any capacity -- even as a customer. As
a result of this ban,        Farrington could no longer perform the
required tasks for Mancini & Groesbeck and he was terminated from
that job.
         On May 18, 1993, Farrington filed a complaint against Buttrey
for tortious interference with his employment with Pennington's and
Mancini & Groesbeck.       Buttrey requested,   and the District Court
granted,      summary judgment on Farrington's     claim.    Farrington
appeals from this order.
         The only issue on appeal is whether the District Court erred
in granting Buttrey's motion for summary judgment.
         We review summary judgment orders de novo.         Spain-Morrow
Ranch, Inc. v. West (19941, 264 Mont. 441, 444, 872 P.2d 330, 331-
32.
         Summary judgment is proper only when no genuine issue of
         material fact exists and the moving party is entitled to
         a judgment as a matter of law.      Rule 56(c), M.R.Civ.P.
         The initial burden is on the moving party to establish
         that there is no genuine issue of material fact; and once
         m e t , the burden shifts to the party opposing the motion
         to establish otherwise.     [Citation omitted.1

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Spain-Morrow Ranch, 812 P.2d at 331-32.
     The District Court concluded there was no question of fact as
to whether Buttrey acted without right or justifiable cause when it
barred Farrington from servicing its stores.               We disagree.
     In support of its conclusion that Buttrey was justified to ban
Farrington from its stores,         the       District   Court   considered     that
Farrington acknowledged that he improperly disposed of Buttrey's
potato     chips;    that   Farrington        admitted    that    there   was    no
justification for his throwing Buttrey's goods into the trash; that
Farrington acknowledged that Buttrey was entitled to determine who
may or may not deliver to its premises; and that Farrington made no
showing that Buttrey's banning a person who acknowledged destroying
its property is in any way without right or justifiable cause.
Additionally,       the District Court found that Pennington's fired
Farrington because Farrington had a prior history of similar
misconduct with other customers.
     In Bolz v. Myers (1982), 200 Mont. 286, 651 P.2d 606, the
seller of a business breached the sales contract in such a way as
to interfere with the purchaser's business relationships with third
parties.     In Eolz we adopted the test from the Restatement (Second)
of Torts s      767 (1977),       to establish what factors are to be
considered    in    determining    whether      interference     with   contractual
rights is     "improper."      Bolz,      651 P.2d at 610.          Bolz further
considered the requirements to establish a prima facia case of
interference with contractual or business relations, more recently
set out in Richland National Bank & Trust v. Swenson (1991), 249

                                          4
Mont. 410, 419,    816   P.2d 1045, 1051:
        In order to establish a prima facie case of tortious
        interference with business relations, the pleader must
        show that the acts (1) were intentional and willful; (2)
        were calculated to cause damage to the pleader in his or
        her business; (3) were 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. [Citation omitted.] Thus, in
        order to establish a cause of action, it must be shown
        that the actor intentionally committed a wrongful act
        without justification or excuse.    [Citation omitted. 1
        The Restatement (Second) of Torts, § 767 (1977), provides
that:
        In    determining    whether an    actor's    conduct in
        intentionally     interfering  with a     contract or a
        prospective contractual relation of another is improper
        or not, consideration is given to the following factors:
         (a) the nature of the actor's conduct,
         (b) the actor's motive,
         (c) the interests of the other with which the actor's
              conduct interferes,
         (d)  the interests sought to be advanced by the actor,
         (e) the social interests in protecting the freedom of
              action of the actor and the contractual interests
              of the other,
         (f) the proximity or remoteness of the actor's conduct
               to the interference and
         (ST)  the relations between the parties.
Comment b of the Restatement (Second) of Torts § 767, page 28,
advises that:
          [tlhis Section is expressed in terms of whether the
         interference is improper or not, rather than in terms of
         whether there was a specific privilege to act in the
         manner specified. The issue in each case is whether the
         interference is improper or not under the circumstances;
         whether, upon consideration of the relative significance
         of the factors involved, the conduct should be permitted
        .without liability, despite its effect of harm to another.
         The decision therefore depends upon a judgment and choice
         of values in each situation.     This Section states the
         important factors to be weighed against each other and
         balanced in arriving at a judgment; but it does not
         exhaust the list of possible factors.

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In Phillips v. Montana Education Association (1980), 187 Mont. 419,
423,   610 P.2d 154, 157, we recognized that the law, independently

of a contract, imposes upon strangers to a contract a duty not to
interfere with the contract's performance.
       In State Medical Oxygen v. American Medical Oxygen (1994), 267
Mont. 340, 344, 883 P.2d 1241, 1243, we held that:
            If a defendant establishes the absence of a genuine
       issue of material fact as to one of the elements
       constituting the cause of action, and the plaintiff fails
       to come forward with proof showing the existence of a
       genuine issue as to that element, summary judgment in the
       defendant's favor is proper.         [Citation omitted.]
       Disputed facts are material, therefore, if they involve
       elements of the cause of action or defense at issue to an
       extent that necessitates resolution of the issue by a
       trier of fact. [Citation omitted.] Any inferences to be
       drawn from the factual record must be resolved in favor
       of the party opposing summary judgment.          [Citation
       omitted.]
In Phillip R. Morrow v. FBS Insurance (1989), 236 Mont. 394, 402,
770 P.2d 859, 864,        we considered whether a directed verdict was
appropriate where a jury could consider facts to be weak evidence
supporting or opposing the existence of justification on the part
of the parties.     We held that "a showing that the defendant acted
without right or justification is part of the plaintiff's prima
facie case in an action for intentional                  interference   with
prospective    business    advantage."       Phillip R. Morrow, 770 P.2d at

 864 (citation omitted).      We further held that "the jury could find

 from the evidence introduced at trial that FBS's alleged actions
 were motivated without right or justification."         Phillip R. Morrow,

 770 P.2d at 864.    In the instant case, a jury could conclude that
 Buttrey was not justified in banning Farrington from its stores,

                                         6
thus presenting an issue of material fact.
       While the District Court focuses        on the seriousness of
Farrington's disposing of Buttrey's       property, it ignores, among
other facts which a jury may consider important, that the potato
chip    incident   occurred over     one year before Buttrey banned
Farrington entirely from its stores.       Additionally,   while   working
for Mancini & Groesbeck,        Farrington was merely to check the
customer area of retail stores to ensure that food products
supplied by Mancini &         Groesbeck were properly stocked and
displayed.      Farrington's work for Mancini & Groesbeck did not
involve removing products or crediting Buttrey for old or expired
products.       Whether,    a year   after the potato chip incident,
Buttrey's banning of Farrington from even the customer area of its
stores was "improper" is a question of fact which precludes summary
judgment.
       Applying the analysis from Bolz,    the four-part test expressed
in Richland, and the Restatement (Second) of Torts § 767 (1977) to
the instant case, we hold that Buttrey did not meet its burden of
proving that there are no genuine issues of material fact.             See
Spain-Morrow Ranch, 872 P.2d at 331-32.       Reversed.




We concur.


            Chief Justice
        ,
i
    !
I




            Justices




                       8
Chief Justice J. A. Turnage respectfully dissents.
       Buttrey undisputedly had the right to exclude Farrington, an
admitted    thief,   from its stores.       By its interpretation of one

element of Farrington's cause of action, the majority has kept this
action alive in spite of that clear fact.
       The majority interprets the third element of a cause of action
for tortious interference with business relations as requiring
proof that the acts were done without either right or justifiable
cause on the part of the actor.                 I believe that element is

correctly interpreted as requiring proof that the acts were done
with neither right nor justifiable cause; i.e., where the acts were
done either by right or with justifiable cause, the tort does not
lie.
       I   would rule that because Buttrey undisputedly had the right
to exclude Farrington from its stores, there was a failure of proof
by Farrington on that element.              I   would therefore rule that

summmary judgment was proper.




Justice Fred J. Weber and Justice Karla M. Gray:
       We join in the dissent of Chief Justice Turnage.




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