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Burnett v. PPL Montana, LLC

Supreme Court of Montana

December 3, 2013

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.

Submitted on Briefs: October 23, 2013.

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.

For Appellants: Brad L. Arndorfer; Arndorfer Law Firm, P.C.; Billings, Montana

For Appellees: Richard S. Mandelson; Baker & Hostetler, LLC; Denver, Colorado (for PPL Montana, Inc.) Laurence R. Martin; Felt, Martin, Frazier & Weldon, P.C.; Billings, Montana (for Rosebud Operating Systems, Inc.) Jason S. Ritchie, Michael Manning; Holland & Hart; Billings, Montana (for Western Energy Company and Westmoreland Resources, Inc.)

OPINION

PATRICIA COTTER, Judge.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum 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. He 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-employees 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 Westmoreland entered into a conspiracy whereby these companies refused to employ 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 requested compensatory and punitive damages, injunctive relief, declaratory relief and attorney fees and costs.

¶6 On March 19, 2012, the District Court dismissed all claims against Western Energy, Westmoreland, and Rosebud with prejudice. The court also dismissed all claims against PPL with the exception of the blacklisting allegation. PPL moved 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. A district 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 a 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 requires a wrongful act on their parts and they committed no wrongful acts. "The elements of a civil conspiracy are (1) two or more 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 unlawful 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 employ 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 employment with a particular employer. Westmoreland and Western Energy argue that they had no duty to hire the Burnetts ...


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