dissenting.
I dissent from that part of the majority opinion which rejects the tort of wrongful civil litigation, as applied to the facts in this case. In an age when a few frivolous lawsuits threaten to undermine the civil justice system and preclude claims which do have merit, it is especially important to deter and sanction lawsuits like the one filed by the Board of Dentistry. The elements of wrongful civil litigation, as set forth in Restatement (Second) of Torts § 674 (1977) are as follows:
One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if
(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
We have, as far back as 70 years ago, recognized a tort known as “malicious prosecution” in Montana (Stephens v. Conley (1914), 48 Mont. 352, 138 R 189), based on the important public policy that *419everyone has a right to be free from unjustifiable litigation. The right to be free from unjustifiable civil litigation, as described in § 674, is simply a more specific approach from a broad range of rights to be free from unjustifiable litigation and the attendant invasion of a person’s privacy and exhaustion of an individual’s financial resources.
I disagree with the majority’s conclusion that “Kandarian urges this Court to recognize the tort, but offers no compelling argument in favor of our doing so.” The very facts set forth in this Court’s previous decision, State Board of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d 409 (Kandarian I), establish a compelling argument in favor of doing so. In that case we noted:
[O]n 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 “partíais” or “fulls.”
Kandarian counterclaimed and moved for summary judgment. The Board asked for “follow up discovery” 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.
Kandarian I, 813 P.2d at 411 (emphasis added).
As I noted in my concurring and dissenting opinion to our prior decision:
[T]he Board ofDentistry made no reasonable inquiry prior to filing its claim for injunctive relief in 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 Kandarian’s patients were interviewed; no investigation was done; and no experts were consulted prior to the filing of suit.
*420After 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.
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 testim ony 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.
Kandarian I, 813 P.2d at 413.
Kandarian presented evidence that, at the time the Board of Dentistry frivolously sought its injunction, its purpose was to discredit him as chairman of the Board of Denturitry before the Montana Legislature. Therefore, I conclude that the facts in this case alone are sufficient to provide a compelling reason for adopting and applying, in this case, a cause of action for wrongful civil litigation.
However, I am also confused by the inference in the majority opinion that the tort of wrongful civil litigation is somehow radically different than the common law which already exists pursuant to the present tort of malicious prosecution. It is not. It is simply a more specific variation of the same tort.
For these reasons, I dissent from the majority opinion. I would adopt the tort of wrongful civil litigation in Montana. I conclude that the plaintiff has proven sufficient facts in this case to support a cause of action based on that tort. Therefore, I would reverse the District Court’s order awarding summary judgment to the defendant.