¶1DISSENTING OPINION OF
¶2The majority of this court reverses an order of the trial court which granted summary judgment to the defendant. The majority reasons that the factual record is insufficient to support summary judgment, and the amended complaint is sufficient to state a claim for an intentional harm to plaintiffs’ property interest, so far as they allege an intentional and improper refusal, by defendant, to return their $1,000.00 earnest money deposit. The defendant has admitted all of the material allegations of the amended complaint for the purpose of the motion. (Record at 145; 159.)
¶3I dissent from the foregoing holding of the majority. My views are stated hereinbelow.
¶4I am of the opinion that all of the material facts, which are stated in the majority opinion, together with such reasonable inferences as may be drawn therefrom in the light most favorable to the plaintiffs, are sufficient for a proper resolution of the question of liability, in favor of the defendant.
¶5The majority holds the plaintiffs’ claims actionable under § 871 of the Restatement, Second, Torts (1979). That section is but a particularized application of the general principle for intentional tort, as set forth in § 870, and the comments of the reporters of the Restatement thereunder are applicable to § 871.
¶6Section 870 reads as follows:
§ 870. Liability for Intended Consequences — General Principle
One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed al*388though the actor’s conduct does not come within a traditional category of tort liability.
¶7But, as the reporters comment, it is obvious that not every intentionally caused harm deserves a remedy in tort, and the determination of which ones should be the subject of tort liability is made by resorting to an evaluative process in balancing the conflicting interests of the litigants, in light of the social and economic interests of society in general. Id. at 281.
¶8The balancing process, therefore, necessarily involves the court in an evaluative process, hereunder discussed, and in a determination of the actor’s conduct as being both “culpable” and “unjustifiable”, in the sense that it must be improper and wrongful; “it must be blameworthy, not in accord with community standards of right conduct” and “it must also be not excusable or justifiable; a privilege should not be applicable”. Id. at 282. They further comment:
It is the plaintiff’s responsibility to satisfy the appropriate agency that the [standards have] been breached . . .
¶9Id. at 280.
¶10These two terms, not “excusable or justifiable”, describe the evaluative process in balancing the societal interests before liability may be imposed. It must take the court into an analysis of a set of four factors, which are stated by the reporters, as follows:
This evaluative process therefore involves utilization of all three of the blackletter terms. When analyzed, it breaks down into a set of four factors. These include: (1) the nature and seriousness of the harm to the injured party, (2) the nature and significance of the interests promoted by the actor’s conduct, (3) the character of the means used by the actor and (4) the actor’s motive. The first factor is of primary concern in applying the black-letter term, injury, and the second factor is of primary concern in applying the blackletter term, not justifiable; the first, third and fourth factors are of substantially equal significance in applying the blackletter term, culpable. The balancing process, however, necessarily involves *389one single determination, and it cannot be neatly divided into several separate, mutually exclusive determinations.
For one intentional tort — nuisance, when it involves intentional invasion of another’s interest in the use and enjoyment of land — the single word “unreasonable” is used to describe the balancing process. (See §§ 826-829A). For the tort of interference with contractual relations, the word “improper” is used. (See § 767). A single term, like “wrongful,” might have been used here. But the traditional dichotomy in intentional torts of prima facie tort and privilege suggests the desirability of using more than one term.
¶11Id. at 282-283.
¶12All of this puts the imposition of liability under Restater ment, § 871, in its proper perspective, to wit: That the determination of initial liability depends upon an interplay of several factors and a finding of privileges depends upon a consideration of much the same factors. But the majority holds the amended complaint legally sufficient and it recognizes a “presently undefined area of privilege where an attorney’s actions will be deemed justifiable under the circumstances and he or she shall not be held liable for his or her actions [at section II of majority]”, without indicating how the bases of such undefined privileges may be related to the plaintiffs’ legally protected interests.
¶13I do not understand the majority as having undertaken a determination of initial liability in this case by the evaluative process, suggested by the reporters of the Restatement, under either §§ 870 or 871. For the same freedom of action of an attorney under CPR, canon 7, that the majority mentions in its opinion, does form the basis of an established privilege, under the facts and circumstances of this case, and. to my way of thinking, renders defined that which the majority regards as undefined.
¶14As hereinbefore mentioned, § 871 is but a particularized application of § 870. The latter section is described, by the reporters, as stating a principle sometimes called “an innominate form of the action of trespass on the case. . . . [Id. at 280]” which is to say that the law, in this area, has not *390fully congealed but is still in a developing stage. And in “some cases in which the claim may be entirely novel”, they comment, “the court may decide to limit liability to the situation in which the defendant acted for the purpose of producing the harm involved.”Id. at 280.
¶15I so view this case, and do not find, under the admitted and uncontroverted facts any “generally culpable and not justifiable” conduct of the defendant, which might subject him to liability under the circumstances. As the defendant explains it, he refused, or advised refusing the return of the $1,000.00 to plaintiffs because he deemed plaintiffs to have breached their DROA contract and (albeit, later held erroneous by our supreme court), under the terms and conditions thereof, felt Dang legally entitled thereto. Based upon the admitted and uncontroverted facts, and the reasonable inferences drawn therefrom, I am of the opinion that the defendant had not acted “for the purpose of producing the harm involved”.
¶16Therefore, utilizing the evaluative process in balancing the conflicting interests of the litigants and the societal interests, in the manner suggested by the reporters of the Restatement, I am of the conclusion that the defendant is entitled to judgment as a matter of law, upon the factual record of this case, and the reasonable inferences to be drawn therefrom in the light most favorable to the plaintiffs.
¶17I, therefore, dissent.