Montana Law Week Subject Index – 2010

 Montana Law Week Subject Index – 2010

 

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*Appellate Procedure

AG notice: (extension to notify AG of “unclear” constitutional challenge to §27-1-703 denied in appeal of 30% reduction of $7,490,000 verdict for 18 Plaintiffs injured by CO) Hulstine v. Lennox Industries, 5/22:1

Appeal time: (cross-appeal timely under anomalous procedural background) Baston v. Baston, 10/2:1

Appealability: (protective order interlocutory, not appealable) Kulstad v. Maniaci, 1/2:5; (claims of conspiracy/double-cross as evidenced by unexplained 25 years between trial and judgment not appealable) Ayers v. Rubow, 9/11:1; (order denying substitution of probate standing master not appealable, not otherwise final or appealable) Estate of Du Lac, 10/2:2; (part of Watters’s remand to STAB is appealable) Puget Sound Energy v. DOR, 11/20:2; (premature notice of appeal can include later filed judgments) Hilten v. Bragg, 12/25:2; (order by Curtis appealable under family law ancillary order exception) Marriage of Kelleher, 12/25:4

Attorney fees: (inconsistent case law clarified that contract fee provisions include appeal fees) Boyne USA v. Lone Moose Meadows, 6/19:1

Briefs: (appeal brief sufficiently comprehensible in citing to record in fact section (although not argument section per MRAP) State v. Guill, 4/10:3; (no brief by successful Appellee) Mustang Holdings v. Zaveta, 7/3:3; (improper briefing, Defendant held to concession in opening brief that Prosecution provided race-neutral reason for striking a panelist despite contrary argument in reply brief) James, 8/14:2; (proposed amendment as to briefs) Proposed Changes to MRAP, 12/4:3

Expedited appeal: (expedited processing denied for interlocutory appeal of Krueger’s class action certification of long-standing work comp common law bad faith/fiduciary claims against MPC, NWE, adjuster) Gonzales v. MPC, 1/16:1

Mediation: (applicable to appeal of denial of attorney fees sought from insurer in action in which mother declined to serve as conservator to manage $25,000 settlement for minor daughter injured in motorcycle accident) Conservatorship of Adair, 5/29:3; (permanent order of protection in stalking case not domestic relations matter, not subject to mandatory mediation) Cozino v. Jones, 10/2:2; (amendment considered to allow 2nd opportunity to select mediator, comments invited) Proposed Changes to MRAP 7, 12/4:1

Out-of-time appeal: (out-of-time appeal granted in parental termination case despite “mere mistake, inadvertence or excusable neglect”, steps taken by Public Defender Office to assure timely appeals in future, no reference to ODC or COP) Matter of IB, 10/16:2

Plain error: (issue not already decided in prior case in which plain error review declined) Haagenson, 5/8:3

Postconviction: (no need to return facially unmeritorious petition so Defendant can supply “missing” information) Haffey, 5/8:6; (claim of actual innocence of endangerment based on undisclosed new evidence time-barred) Thomas, 7/3:5; (victim’s affidavit that Defendant not the triplet uncle who assaulted him not new evidence that would overcome time-bar since victim’s inability to discern perpetrator known at time of guilty plea) Heitkemper, 9/18:6; (challenge of felony v. misdemeanor theft of tools time-barred) LaBoucane, 11/20:4

Sanctions: (denied) Kulstad v. Maniaci, 1/2:5; (denied) Cooper v. Glaser, 3/20:1; (denied) Koeplin v. Crandall, 4/10:2; (denied) Gray v. Wilson, 7/31:3; (denied) Weiss, 8/28:3; (denied) Hilten v. Bragg, 12/25:2

Standard of review: (de novo, not abuse of discretion, proper standard as to whether amended claims arise out of same transaction as in original pleading) Citizens Awareness Network v. BER, 1/30:2; (denial of a mistrial reviewed for abuse of discretion, not clear & convincing evidence) State v. Norquay, 4/24:1 (rehearing denied) 5/29:6

Stay: (stay pending appeal of easement judgment properly granted) Steed v. Solso, 7/31:3; (stay pending appeal of order enforcing $368,240 HRC judgment for obese track laborer applicant denied) BNSF v. Cringle, 8/7:3; (stay pending appeal of Sherlock’s order enforcing $368,240 HRC judgment for obese track laborer applicant now proper upon RR posting $555,191 bond, offering to pay living expenses) BNSF v. Cringle, 9/18:1

Supervisory control: (denied as to “writ of review” procedures in appeal from Justice Court, denial of substitution of Judge) Rogers (Mike’s PC Parts) v. Baugh, 2/27:4, (Plaintiff timely moved for substitution without payment of fee under Baugh’s order that officers of court perform “all services” without demanding fees in advance, order denying supervisory control of Baugh’s denial of substitution reversed on petition for rehearing, Clerk’s notice of substitution of Gustafson reinstated); (denied as to comparative fault of Plaintiff and non-party and CPA in school lacrosse stick blinding retrial) Larchick v. Fagg, 6/12:6; (denied as to whether commercial charge agreement subject to usury law) Rio v. Macek, 6/12:6; (denied in mineral reservation/trespass rulings) Genie Land v. Day, 6/19:2; (denied as to Dayton’s refusal to preclude superseding cause in bus deer-strike rollover after finding negligence per se and that bus operator is “a” cause in fact of injuries) Penn v. Dayton, 7/3:1; (denied as to summary judgment statement that bicycle Plaintiff violated §61-8-324 (passing on right) and was cited) Lokey v. Swandal, 10/2:2

Transcripts: (proposed amendment to eliminate bond paper) Proposed Changes to MRAP, 12/4:3

Writ of review v. appeal: (supervisory control denied as to “writ of review” procedures in appeal from Justice Court, denial of substitution of Judge) Rogers (Mike’s PC Parts) v. Baugh, 2/27:4

*Arbitration

CBA: (refinery lacks employees to perform additional maintenance without incurring overtime, qualifies for exception allowing for bargaining work to be contracted out, grievance denied) Arbitration Between Montana Refining Co. and United Steel Workers Local 491, 12/18:8

Validity/enforceability: (bulk grain purchaser failed to establish as matter of law that purported referenced NGFA arbitration provision is not contract of adhesion as alleged by producers or that Oregon choice of law is valid, 12(b) motion to dismiss/compel arbitration denied (not final judgment on merits although difficult to conceive how further litigation would yield different result), Rule 11 fees denied) Cline Farms v. Columbia Grain International, 1/16:3; (Defendants asserted contractual right to arbitration in answer/jury demand within 90 days of service, separate motion not required, arbitration not waived by removal to Federal Court, conducting discovery, agreement not contract of adhesion) Carlstrom v. Title Cash of Montana, 2/6:4; (provision in assisted living facility agreement unenforceable due to ambiguities, lack of mutual intent) Riehl v. Cambridge Court GF, 2/13:1

Wrongful discharge: (no good cause for discharge of 2 veterinary receptionists based on erroneous conclusion of consultant that they were solely responsible for increasing accounts receivable, breach of covenant claim rejected, Plaintiffs entitled to lost wages for 2 years based on their expert’s prediction as to when they will become employed, less unemployment comp, net $32,689 to one, net $36,688 to one) Anderson and May v. Gallatin Veterinary Hospital, 6/19:6

*Attorney Fees, Costs

Amount/rate: (sanctions include county attorneys’ time at private attorney rates, county staff time, transcripts, experts, deposition costs, reduced 25% to account for need for revisions of floodplain regulations) Robak v. Ravalli Co., 8/7:5; (no abuse of discretion in assessing $2.467,547 fees, $137,518 costs/expenses following $2.5 million award for intellectual property rights misappropriation) Wallace v. Hayes, 8/14:2; ($491,294 judgment on collection of amount due on note, lien on the real property, foreclosure, $52,000 fees & costs to Plaintiffs (Plaintiff is Seattle attorney with Montana counsel)) Sullivan v. Ross, 12/18:6

Common fund: (comp lawyer entitled to $34,654 fees from employer’s non-comp medical insurer as 25% of $138,586 reimbursement resulting from pre-03 comp case, common fund doctrine not preempted by ERISA) Fuss v. BCBS, 4/24:4

Contract: (inconsistent case law clarified that contract fee provisions include appeal fees) Boyne USA v. Lone Moose Meadows, 6/19:1

Equitable fees: (improperly awarded non-party to note) Pruyn v. Axmen Propane, 1/2:3; (Plaintiffs denied equitable fees, but entitled to costs for property damage judgment) White v. Keown, 1/30:1; (properly denied Plaintiffs in assisted suicide litigation, rehearing denied) Baxter v. State, 3/6:1

Insurance exception: (not applicable to fees sought where mother declined to be conservator to manage settlement for daughter injured in motorcycle accident) Conservatorship of Adair, 10/9:1

Prevailing party: (customer improperly considered prevailing party where bank achieved net judgment ($5,000 damages, 77.5% negligence by bank, 22.5% by customer, offset by $8,186 charge-back = $4,311 net), $48,917 fees improperly awarded to customer, fees should be awarded to bank for enforcement of charge-back) Avanta FCU v. Shupak, 1/9:1; (declined $2,500 offer not “offer of judgment,” Defendant unsuccessfully argued “no contract” on appeal, fees properly awarded to Plaintiff as prevailing party, rehearing denied) Mountain Supply v. Forbes, 1/30:1

Private AG: $315,350 fees improperly awarded under private AG doctrine, taxpayer funding not warranted by equitable considerations) Baxter v. State, 1/9:6

Public defender: ($57,127 public defender trial costs properly imposed, open-ended appeal costs improper, remanded for specificity) Stout, 6/26:2

*Attorney Practice

Advertising: (rules amended) RPC on Advertising, 7/31:3

Attorney-at-law: Proposed Rules for REgulation of Practice of Law by Attorneys-at-Law, 5/1:1

Deceit: (claims by bankruptcy debtor against creditor’s lawyers properly rejected) Mosser v. Crowley Fleck, 7/31:3

Discipline: (ODC failed to prove that criminal defense lawyer violated MRPC by holding/not disclosing child pornography collected from apartment of client being prosecuted for sexual abuse of children, COP dismissal recommendation adopted) Olson, 1/9:4; (challenge of private admonition accepted as original jurisdiction, lawyer denied due process by order to appear for private admonition on alleged RPC 4.2 violation for letter to MMA questioning its lawyers’ representation of hospital in suit by doctor, without prior notice of specific grounds, opportunity to see or present evidence, cross-examine witnesses, appeal, COP exceeded authority in acting outside original complaint to charge violation of different rule with no opportunity to respond to new charge, disciplinary action dismissed with prejudice) Best, 3/27:1; Revising the RLDE, 11/20:2

Legal malpractice: (attorney who prepared farm/ranch trust documents for parents and later discussed with parents amendments to benefit 3 of 5 children owed no duty to non-client potential beneficiaries to see that amendments were executed (parents failed to provide legal descriptions)) Harrison v. Lovas, 6/12:1

Limited scope representation: (changes to MRCivP and MRPC proposed) Proposed Changes to MRCivP and MRPC, 10/9:2

Unauthorized practice: (unauthorized practice by non-attorneys to be dealt with by AG Consumer Protection Office, attorneys not licensed in Montana to be dealt with by State Bar, ODC, CUPL dissolved) In re Dissolving CUPL, 4/24:1

*Banking, Commercial Paper

Employees: (terminated Plaintiff’s claims that he was fraudulently recruited from previous bank not preempted by WDA, fact issues as to whether contract claims preempted by WDA, tort claims not preempted by NBA, disputed fact issues as to whether Plaintiff was “officer” subject to NBA “at pleasure” or merely “commercial lender,” whether parent company was employer) Leuthold v. First National Bancorp, 3/27:6

Financial Institution Bond: (participant banks did not present evidence that they or authorized rep had “actual physical possession” of original security documents before they extended credit, lead banks did not agree to act as authorized reps for purposes of FIB, summary judgment properly granted to insurer) Bank of Bozeman v. BancInsure, 11/27:2

Foreclosure: (tribal foreclosure, sale of inn, purchase by bank, recognized, possession turnover ordered following extended/tortuous journey through tribal courts) Citizens Savings Bank & Trust v. Wellman (War Bonnet Inn), 7/10:2

Fraudulent check: (charge-back right cannot be equitably estopped by use of provisional settlement funds or bank’s failure to exercise care in handling check, risk of loss remains with customer, application of jury’s estoppel verdict to charge-back right rejected, customer permitted to pursue claims for damages from bank’s negligent misrepresentations as to validity of auto purchase scam check, failure to inform customer of cross-collateral provisions when he paid vehicle loans not concealment, but evidence as to negligent misrepresentations as to check’s validity sufficient to establish estoppel, customer improperly considered prevailing party where bank achieved net judgment ($5,000 damages, 77.5% negligence by bank, 22.5% by customer, offset by $8,186 charge-back = $4,311 net), $48,917 fees improperly awarded to customer, fees should be awarded to bank for enforcement of charge-back) Avanta FCU v. Shupak, 1/9:1

Lending breach: (“Conditional Pre-Approval” for $1 million loan, even if considered under fraud exception to parol evidence rule, would not have supported fraud as result of ultimately obtaining only $852,000, which purportedly resulted in failure of hotel) Silver Hill Financial v. Mosser, 2/27:2

Note collection/foreclosure: ($491,294 judgment on collection of amount due on note, lien on the real property, foreclosure, $52,000 fees & costs to Plaintiffs (Plaintiff is Seattle attorney with Montana counsel)) Sullivan v. Ross, 12/18:6

*Bankruptcy

Attorney fees: (Kirscher conducted reasonableness analysis based on facts in denying $13,448 fees sought by private lawyer hired by MDOR, did not create per se rule that oversecured creditors with unchallenged claims are never entitled to fees, request for fees properly denied) MDOR v. Duncan, 12/25:6

Discharge: (Debtor knowingly/fraudulently made many false oaths on Schedules/SOFA relating to material facts in complex scheme stemming from mega-house construction agreement, fraudulent transfer of other house properly found, no support for claim of reliance on advice of counsel, no satisfactory explanation of loss of assets to meet liabilities, discharge properly denied) Retz, 6/12:7

Quiet title: (quiet title for Debtor properly made on existing record after Defendants failed to submit additional information by deadline) Selkirk Development v. Griffin, 7/24:7

*Bench Judgments

Gravel mine: ($40,282.56 net to gravel mine landowner for damages by company that extracted gravel for road, construction lien invalid as untimely, Plaintiffs entitled to lien-related fees/costs) Kipp v. Ascorp (Debco Const.), 6/19:3

House construction contract: (contract not rescinded after “buyout,” contractor still liable for pre-termination breaches, constructive fraud properly found against contractor, contractor not shielded from personal liability by LLC since his own acts/omissions damaged Plaintiffs and were actionable against him individually in contract & tort, no basis for arbitration after contract “buyout”, Plaintiff’s engineer expert properly allowed to describe requirements for PE (which Defendant claimed to be), $100,000 properly awarded for emotional distress, $62,500 for demolition of dream house turned nightmare so substandard it could not reasonably be repaired, $392,184 bench judgment affirmed) White v. Longley, 12/11:1

Insurance: (insurer wrongly refused to pay fire loss based on allegedly concealed/misrepresented facts, owner entitled to $225,775 for home that burned shortly before he was to move it, $8,839 for personal property, $66,474 interest from proof of loss) Mellum v. State Farm Fire & Casualty, 2/13:7

Subdivision road: (road built in subdivision annexed to City superior to old road but obstructed & obliterated easements, subdividers required to rebuild to accommodate vehicles of easement owners) Wilmer-Kennedy v. Prairie Dr. Subdivision HOA, 9/25:5

*Civil Procedure

Class action: (malice/punitives claims not fact intensive as to individual class members (unlike fraud claims), properly included in class action, class properly defined) Gonzales v. MPC, 5/29:3; (appeal of Sherlock’s denial of certification on grounds that individual adjudication required as to whether settlement with MVA tortfeasor “made whole” remanded to determine whether “made whole” laws apply to 3rd-party administrators of self-funded employee plans) Diaz v.BCBS, 10/16:1

Comparative negligence: (extension to notify AG of “unclear” constitutional challenge to §27-1-703 denied in appeal of 30% reduction of $7,490,000 verdict for 18 Plaintiffs injured by CO) Hulstine v. Lennox Industries, 5/22:1; ($7,490,000 CO verdict for 18 Plaintiffs against heater manufacturer improperly reduced by 30% negligence of installer since jury not asked to apportion negligence/product, but should be reduced by $2 million installer settlement under pro tanto) Hulstine v. Lennox Industries, 8/21:1

Constitutional challenge: (substantially complied with by notice to AG shortly after serving Defendant, improperly dismissed with prejudice) McKinnon v. Western Sugar Cooperative, 2/13:1

Construction lien: (subdivision road “commercial in nature,” not residential, contractor not required to give notice of right to claim lien, challenges to establishment of lien not preserved, attorney fees/interest not relevant to rejected breach of contract claims, $111,414 fees properly awarded) JTL Group v. New Outlook 1/9:2

Discovery: (bad-faith Defendant precluded from §27-1-220(3) punitives limitation as sanction for untimely production of financial statements, settled after 1st day of trial) Moe v. System Transport, 12/4:4

Dismissal: (supervisory control denied over withdrawal of notice of dismissal of collection suit intertwined with obstetrical med-mal claims) Centron Services (Credit Systems) v. Brown, 10/16:2

Experts: (supervisory control denied as to Neill’s refusal to exclude in advance of med-mal trial or hold Daubert hearing on defense expert testimony as to decedent’s alleged pre-surgery marijuana use) Estate of Kueffler v. Neill, 1/2:3; (summary judgment proper for Defendants on house defects claim based on expert’s lack of qualifications) Gregory Hall v. Don Hall (Hall Builders), 11/20:1

Foreign judgments: (challenge of enforcement of $1,091,391 NJ family court judgments barred because of failure to file briefs, no motion for reconsideration under Montana law, Rules 59/60 not applicable, res judicata) Jonas (Linda) v. Jonas (Edwin), 11/13:1

Health Care Information: (claims against MVA lawyer’s subpoena of medical records rejected) Quam v. Halverson, 7/31:2

Interest: (improperly awarded from judgment, accrues from verdict when damages known, not tolled by dispute over offset) Hulstine v. Lennox Industries, 8/21:1

IME: (attic fall Defendant entitled to “hired gun” Rule 35 exam, with measures to minimize intrusion) Malady v. Meadow Lark Country Club, 9/4:3

Issue preclusion: (claims in 2nd action in 2nd county barred by claim & issue preclusion of ruling on same claim in 1st county of exclusive right to supply electricity to pipeline) NorVal Electric Cooperative v. McCone Electric Cooperative, 1/30:3

Judgment exemptions: (“moneys” in “household checking account” not exempt “goods,” $300 stimulus properly seized along with $75 overdraft charges resulting from seizure ($154 SSD funds improperly seized, returned after Justice Court hearing)) Bank of America v. Ivey, 6/12:2

Jury: (Plaintiff deprived of fair trial by panelists’ concerns about preponderance of evidence standard, Defense counsel urging jurors not to put “black mark” on doctor, new trial should have been granted following defense verdict on knee replacement claims) Cooper v. Hanson, 5/29:1; (no prejudice from juror researching “preponderance” on Internet, new trial following defense verdict in siding case properly denied, but judges urged to instruct against Internet research) Stebner v. Associated Materials (Alside), 6/26:1; (no Batson violation by peremptory removal of Indian whose concern about why endangerment was in State Court rather than Tribal Court was “reflection of his Native American ethnicity”, improper briefing, Defendant held to concession in opening brief that Prosecution provided race-neutral reason for striking a panelist despite contrary argument in reply brief) James, 8/14:2; (persistently pro-conviction panelist should have been dismissed for cause, use of peremptory and exhaustion of peremptories requires retrial) Allen, 10/9:2

Laches: (applicable to civil action, not breach of contract, which is action at law) Floyd v. Oliverson, 7/31:6

Mistrial/sanctions: (auto sales Defendant’s motion for JMOL following mistrial of tire failure case (on motion of tire/auto manufacturers) for Plaintiff’s improper OSI evidence denied as Plaintiff had not had opportunity to be “fully heard” as required by Rule 50 under federal case law, motion for fees/costs as sanction for mistrial denied, sanction in form of precluding previously admissible OSI evidence denied, motion to withdraw pro hac admission of Plaintiff’s counsel denied due to substantial prejudice to Plaintiff) Brennan (for Mizenko) v. Bridgestone Firestone, 9/4:2

Mootness: (suit against BIA by ousted tribal president mooted by intervening election) Little Coyote v. BIA, 3/27:7; (claim of spot zoning from Agricultural to Heavy Industrial to accommodate power plant not mooted by amendment of unrelated zoning regulations, no quantifiable evidence adduced in support of argument that claim moot because power plant developer has expended “millions of dollars,” remedy exists in that favorable ruling would restore land to original Agricultural designation, zoning challenge not mooted by failure to seek stay or injunction to prevent sale or development of land, supervisory control order only advised of proper procedures for stay/injunction, challenge not mooted by sale of land, zoning designation (not property ownership) represents underlying status quo) Plains Grains v. Cascade Co. Commission, 7/24:2

Offer of judgment: (judgment must be entered on accepted offer and notice of acceptance regardless of subsequent disagreements as to preclusive effect, supervisory control of Tucker granted) Sturgeon v. East Bench Irrigation Dist., 1/2:2

Preliminary injunction: (properly entered in lease dispute, merits properly not reached, receiver properly not appointed) Sandrock (The Train Station) v. DeTienne (The Money Train), 11/13:1

Relation back: (relation-back under Rule 15(c) properly addressed before amendment of affidavit under 15(a)) Citizens Awareness Network v. BER, 1/30:2

Res judicata: (no federal jurisdiction over State’s litigation of shortline RR settlement agreement with BN, removal by BN improvident, remanded to State Court, but relief sought by State (reinstitution of per-car payments by BN to CMR and declaration that BN violated 1984 agreement) barred by res judicata per prior federal litigation adverse to State and CMR) Montana v. BNSR, 4/24:7

Right to counsel: (for claims against State, Legislature, Governor by pro se litigant properly denied in “Catch-22”) Gold v. State, 5/15:2

Rules revisions: (proposed revisions available for review, comment) Proposed Revisions to the MRCivP, 3/6:2

Sanctions: ($116,459 Rule 11 sanctions awarded County for unnecessary expenses for investigating/enforcing homebuilders’ unpermitted fill in floodplain in face of repeated denials, defending against suit challenging authority to investigate violations, overcoming misrepresentations to Court, sanctions include county attorneys’ time at private attorney rates, county staff time, transcripts, experts, deposition costs, reduced 25% to account for need for revisions of floodplain regulations) Robak v. Ravalli Co., 8/7:5; (Rule 11 sanctions against pro se Plaintiffs) Polejewski v. Hanson, 9/25:4; (Rule 11 proper for bringing subdivision association libel/slander suit for many improper purposes, Rules 26/37 discovery sanctions proper, $46,183 fees properly awarded against Plaintiffs and not against their lawyer) Hilten v. Bragg, 12/25:2

Settlement: (property settlement entered into after close of discovery properly enforced on summary judgment in pending contract action without requiring new cause) Hinderman v. Krivor, 11/6:2

Statute of limitations: (8-year statute for breach of contract) Floyd v. Oliverson, 7/31:6

Treating physician: (treating physician’s testimony not limited to his medical records, strained reading of Rule 26(a)(2)(B) and McCluskey rejected) St. Vincent v. Werner Enterprises, 4/17:8

Trial issues: (sua sponte damages for alterations & repairs to house improper where only issue was ownership) Baston v. Baston, 10/2:1

Voluntary dismissal: (shortline RR operator as assignee of State not allowed to voluntarily dismiss long-running Federal Court litigation to allow State to re-litigate in State Court claims lost in Federal Court) Central Montana Rail v. BNSF, 5/1:7

*Civil Rights

§1983: (claims arising from sexual harassment complaint filed against professor after expiration of employment rejected) Giebel v. Bonilla, 12/4:3; (false arrest claims barred by 3-year statute for general PI actions, Constitution not “written instrument” for 8-year statute purposes, 5-year residual statute not applicable, action accrued at time of prosecution of non-member in Justice Court for attempting to prevent tribal officer from effecting arrest, not when sentence terminated) Weible v. Baron, 12/25:6

*Commerce

Credit line: (contract existed, manager ratified by buying on credit and paying bills, meeting of minds as to seller-inserted $2,500 credit limit, unlimited credit not denoted by “?” in agreement, but existed by buyer charging and seller allowing in excess of $2,500, sole member of LLC liable only as to $2,500 plus interest, late fees, fees/costs, not full $56,205 awarded in bench trial) Mountain Supply v. Forbes, 1/23:1

Note: (note specified individuals, not company, lender’s claim against company rejected, no showing of misconduct/fault by company to support unjust enrichment claim) Pruyn v. Axmen Propane, 1/2:3

*Constitutional Law

Privacy: (requiring last 4 digits of SSN on conservation license application rationally related to State’s interests in federal child support enforcement funding, “conservation” license is “recreational” license under federal law) Montana Shooting Sports Association v. FWP, 1/23:4; (supervisory control of Lympus denied in challenge of order requiring MVA Plaintiff seeking lost income damages to produce her and husband’s joint income tax returns) Holyoak v. Lympus, 12/18:2

Religion: (constitutional tort claims by student who was precluded from giving valedictory speech with religious references not barred by HRA exclusivity under 2007 amendments, student wrongly barred from speaking without deletion of passing references to God and Jesus, which did not bear imprimatur of District, student entitled to §1983 relief because District violated free speech right, superintendent and principal immune, freedom of religion not violated by speech proscription, remanded for consideration of §1988 fees) Griffith v. Butte School Dist., 11/27:1

Speech: (constitutional tort claims by student who was precluded from giving valedictory speech with religious references not barred by HRA exclusivity under 2007 amendments, student wrongly barred from speaking without deletion of passing references to God and Jesus, which did not bear imprimatur of District, student entitled to §1983 relief because District violated free speech right, superintendent and principal immune, freedom of religion not violated by speech proscription, remanded for consideration of §1988 fees) Griffith v. Butte School Dist., 11/27:1

*Contracts

Car dealership: (summary judgment/attorney fees properly awarded Plaintiffs in convoluted sale/lease transactions) Barth v. Jha, 2/6:1

Commercial lease: (lessee vacated without attempt to cure default, summary judgment proper for lessors) Hullett v. Gotcha Products, 3/20:1

Home remodel: (expert properly precluded from homeowner’s case-in-chief (allowed on rebuttal), directed verdict as to subcontractor’s relationship with homeowner properly denied, jury properly instructed on contract elements, entitlement to payment, contractor/subcontractor liability, majority of fees properly denied to prevailing contractor who was entitled to fees pursuant to contract where not possible to segregate contract/negligence claims and insurer only obligated to defend negligence claim, prejudgment interest properly denied on $10,740 award to subcontractor (amount of unpaid invoices) as existence of contract not determined until verdict, verdict of $7,902.44 to homeowner for negligence by contractor, $5,361.78 to contractor for breach by homeowner, $10,740 to subcontractor for breach by homeowner affirmed) DiMarzio v. Crazy Mountain Const., 11/6:3

Ski lift operation: (agreement required owner to pay $50,000/yr “depreciation” to operator beginning 02-03 ski season, without regard to tax definition of depreciation or reason, no error in not specifying amount of judgment in ruling from the bench, Defendant knew amount owed under contract) Boyne USA v. Lone Moose Meadows, 6/19:1

Software: (summary judgment proper for alleged breaches of routing software agreement by school bus company accruing prior to 1/11/03 including promotion duty claims, improper for claims accruing after 1/11/03) Education Logistics v. Laidlaw Transit, 8/21:3

Yellow pages: (contract, although adhesive, contains enforceable provision limiting liability to 100% of amount charged, lawyer’s tort claims obviated by removal of all charges for erroneous ad, claims of emotional distress, damage to credit rating, punitives from erroneous ad and collection actions rejected, no personal liability by allegedly negligent sales rep) Schuster v. Dex, 12/11:5

*Corporations

Stock: (agreement erroneously declared to be pledge of farm shares to secure a loan, transfer to neighbor improperly invalidated for lack of consideration, 225 shares improperly canceled, punitives based on fraud not properly pled, $746 punitives improperly awarded, Judge erred in not determining value of shares as requested by both parties who wished at trial to buy each other out, $92,686 discharged in Ch. 13 improperly included in judgment for corporation, fees properly denied) Siegle v. Helmuth, 1/23:2

*Courts

Anti-Injunction Act: (bars injunction against State Court contamination action by property owners against RR vis-à-vis unresolved Federal Court CECRA consent decree between RR and State) Montana DEQ v. BNSF, 11/6:7

Contempt: (show-cause orders against Victim Advocate for criticism of JP’s handling of orders of protection vacated on supervisory control) Vietor v. Motta, 9/25:2

Ex parte contact: (more amenable for JSC or ODC) Pruyn v. Axmen Propane, 1/2:3; (Court troubled by ex parte between Judge and wife’s expert (Judge’s friend)) Steab v. Luna, 6/5:2

Judge conflict: (supervisory control denied on request to substitute Neill as postconviction judge on claim of bias against massage-rape Defendant because Defendant gave massage to his wife) Taylor v. Neill, 7/31:5

Judge substitution: (supervisory control denied) Rogers (Mike’s PC Parts) v. Baugh, 2/27:4; (proper in postconviction proceeding where sentencing judge deceased, supervisory control of Cybulski granted) Beach, 3/27:5; (Plaintiff timely moved for substitution without payment of fee under Baugh’s order that officers of court perform “all services” without demanding fees in advance, order denying supervisory control of Baugh’s denial of substitution reversed on petition for rehearing, Clerk’s notice of substitution of Gustafson reinstated) Rogers (Mike’s PC Parts) v. Baugh, 4/10:1

Judicial sale: (terms & conditions modified to permit return of $15,000 deposit after failed good-faith effort to obtain financing) US v. Burtsfield, 1/23:8

Jurisdiction: (supervisory control of Dayton and Newman denied as to their finding of jurisdiction over Kansas manufacturer of fiberglass components of bus that overturned injuring MSP employees) DAK Plastics v. Dayton, 3/6:1; (no federal jurisdiction over State’s litigation of shortline RR settlement agreement with BN, removal by BN improvident, remanded to State Court, but relief sought by State (reinstitution of per-car payments by BN to CMR and declaration that BN violated 1984 agreement) barred by res judicata per prior federal litigation adverse to State and CMR) Montana v. BNSR, 4/24:7; (cChallenge of Montana Supreme Court ruling on unauthorized practice of law barred by Rooker-Feldman) O’Neil v. State Bar of Montana, 11/6:8

Justiciability: (ruling by Sherlock as to airport authority to lease land non-justiciable after Defendant decided not to lease) Plan Helena v. Helena Regional Airport Authority, 2/13:2

Privacy rules: (comments invited on proposed amendments) Matter of Amending Rules for Privacy and Public Access to Court Records, 12/11:3

Removal: (majority rule against removal by 3rd-party defendants followed in product liability diversity case, removal also improper because 3rd-party Defendant failed to obtain consents within 30 days, more than 1 year after “commencement” of action (from initial complaint, not 3rd-party complaint, fees/costs in briefing remand motion awarded) McGuire v. Sheels All Sports, 6/5:3

Successor judges: (correctly overruled summary judgment) Pruyn v. Axmen Propane, 1/2:3

Supreme Court citation standards: (“date-last” format for pre-98 opinions encouraged) Matter of Opinion Forms & Citation Standards for the Supreme Court of Montana, 3/6:2

Summary judgment: (“exceptional circumstances” justified summary denial of subdivision application without hearing, proper summary judgment standard applied, additional time for discovery properly denied, challenged affidavit with documents index properly used only in locating documents) Richards v. Missoula Co., 1/9:3; (not appropriate in attic fall case) Malady v. Meadow Lark Country Club, 9/4:4

Venue: (Curtis’s transfer from Flathead to L&C under §25-2-201(3) not subject to interlocutory challenge) BNSF v. DEQ, 3/13:1

*Crime, Criminal Procedure

Accomplice: (jury should have been instructed on accomplice testimony as to informant) Allen, 2

Aggravated assault: (any error from reference to sexual allegation presumed cured by cautionary instruction, but rebutted, overwhelming evidence of abuse of infant, mistrial properly denied) Moree, 7/24:5

Aggravated sex abuse: (Defendant’s younger sister properly allowed to testify to abuse when Defendant 11-13, conviction of abuse of young daughter by adult Defendant affirmed) Stern, 8/21:4

Amendment: (exchanging complaints between mixed court files within 5 days of trials to correct Clerk’s “clerical error” not substantive amendment, no prejudice to Defendant, not violative of §46-11-205) Brough, 10/2:2

Assault: (standard instruction on self-defense adequate for home incident, additional instruction emphasizing home self-defense not required by recent Supreme Court decisions) Morsette, 9/25:8

Assault with weapon: (denial of instruction on misdemeanor assault as lesser-included of felony assault with weapon improperly took reasonable apprehension and serious injury out of hands of jury, remanded for new trial) Feltz, 3/20:4; (judgment of acquittal properly denied as to intentional striking with specific intent to do harm by whiskey drinking Defendant) Messerly, 5/22:4; (ineffective assistance, trial procedural challenges, rejected in charges stemming from neighbor fight) McClelland, 7/31:4

Attempted rape: (sufficient evidence of attempted penetration despite victim’s ability to thwart Defendant, some ineffective assistance claims rejected, some deferred to postconviction, no error in not instructing on non-exculpatory “missing evidence” (failure to collect sheets, panties, do full rape exam), mistrial not warranted by indication by panelist that Defendant had been in jail, no plain error review of claim that another panelist should have been removed for cause or of instructions on “purposely”/“knowingly”) Gunderson, 8/7:

Attempted tampering: (Defendant did not make unambiguous request for counsel during interrogation despite several references to “lawyer,” suppression properly denied, amendment from tampering to attempted tampering based on late-received results of crime lab test indicating DNA of both Defendant and alleged rape victim on Defendant’s fingers (which he stuck in his mouth in alleged attempt to obliterate DNA) properly allowed, attempted tampering conviction not inconsistent with rape acquittal) Scheffer, 4/17:5

Bail: (supervisory control of Herman challenging double bond for appeal of DUI conviction to District Court denied) Van Cleave v. Herman, 12/18:6

Bail jumping: (constitutional challenge of “without lawful excuse” rejected) Alvarez, 3/27:5

Bank fraud/identity theft: (restitution to 31 account holders properly calculated at $400 each) Barnes, 3/27:8

Brady: (no violation by post-trial disclosure of witnesses who were interviewed by officers after both sides rested) St. Dennis, 11/6:5

Burglary: Gunderson, 8/7:3

Child pornography: (description of what repair tech saw on computer demonstrated probable cause to seize/search computer, sufficient evidence of knowing possession, 108 months sentence not unreasonable) Patrick, 3/6:4; (sufficient indicia of control to show possession & receipt) Zarn, 3/6:5; (240 months substantively reasonable) Holden, 3/6:5; (hearing not required on whether to vacate receipt or possession, or on new sentence on remand, same sentence on remand) Brobst, 5/15:7; (97 months prison for receipt substantively reasonable, remanded for consideration of whether supervised release ban on proximity to children should allow attendance at school events with Defendant’s children, no cell phone camera reasonable even though photography played no role in offense, Internet ban usage contravenes Riley, must be amended or deleted on remand) Blinkinsop, 5/29:7

Citizen’s arrest: (questionable whether driver was “detained” by construction flagger but probable cause for citizen’s arrest based on radioed report from flagger’s daughter (also a flagger) and flagger’s own observations of DUI indicators) State v. Schubert, 12/18:3

Civil forfeiture: (dismissal on double jeopardy claim properly denied, summary judgment without notice of requirements & consequences improper) Buckles, 10/16:4

Competency: (pretrial competency determination by Haddon not a final order, collateral order doctrine not applicable, order not appealable) No Runner, 1/30:6

Confession: (of 16-year-old to sex offense was knowing, voluntary, interrogation proper, conflicting intellect opinions properly weighed) SMS, 2/27:5

Counsel: (reimbursement properly ordered paid to Clerk, although other options) Brown, 1/23:7; (substitution of 3rd counsel properly denied) Big Lake, 10/16:4; (conflict claims by OPD representing co-defendants to be analyzed case-by-case, no conflict in this case by attorneys from separate regions, extra-record attorney letters cited by Amicus disregarded) St. Dennis, 11/6:5

Critical stage: (burden of proof of prejudice where defendant has been excluded from a critical stage clarified, State must persuade that exclusion harmless, no presumption of prejudice where exclusion not structural defect, exclusion in this case harmless error) Charlie, 9/11:2

Death penalty: (conflict between execution date set by Larson and preliminary injunction granted by Sherlock pending new death chamber and protocol by DOC resolved in favor of injunction, request to limit consideration of stays to sentencing court or Supreme Court denied, supervisory authority requested by Larson denied) Application by Larson for Supervisory Authority, 12/18:6

Deliberate homicide: (exculpatory evidence not denied by test destruction of 2 hairs found on body, jury could properly infer that knife missing from kitchen was murder weapon, taping statements uttered while alone in interrogation room not impermissible, failure to object not ineffective assistance, sufficient other evidence of guilt, conviction affirmed) Meredith, 2/13:5; (expert reports properly allowed in jury room, not violative of common law rule against submitting testimonial materials for unsupervised review, evidence of wife’s complex campaign to portray husband’s ex-lover as dangerous stalker inextricably linked to charge of killing husband, properly admitted under transaction rule as evidence of charged crime (without regard to whether acts occurred “immediately prior”), detective properly allowed to opine that body was moved after shot based on blood analysis, saddlebags of motorcycle in garage properly searched even though warrant did not specifically list motorcycle, $57,127 public defender trial costs properly imposed, open-ended appeal costs improper, remanded for specificity, conviction/life sentence affirmed) Stout, 6/26:2; (conflict claims by OPD representing co-defendants to be analyzed case-by-case, no conflict in this case by attorneys from separate regions, extra-record attorney letters cited by Amicus disregarded, prejudice not established in denial of immunity to witness, no Brady violation by post-trial disclosure of witnesses who were interviewed by officers after both sides rested, conviction affirmed) St. Dennis, 11/6:5

Dismissal: (triple murder charges dismissed without prejudice due to death of key witness and lack of credibility of another and new evidence undermining proof that Defendant was in vicinity) Weber, 1/30:7

Double jeopardy: (assault on minor not barred by Alford plea to PFMA) Weatherell, 2/27:5; (not violated by revocations of parole and suspended sentence based on same violative acts, issue not already decided in prior case in which plain error review declined) Haagenson, 5/8:3; (State Court endangerment barred by double jeopardy vis-à-vis Tribal Court eluding) James, 8/14:2; (enhancements (felony DUI based on 3 prior DUIs, PFO based on prior assault) not double jeopardy) Brooks, 11/6:6; (Defendant properly convicted of both sexual assault and SIWC of granddaughter despite charge alleging “continuing course of conduct” over 3 years, attorney not ineffective for not objecting under §46-11-410, conviction affirmed) Goodenough, 12/4:2

Drugs: (sufficient evidence for search warrant for drugs without challenged phone recordings that preceded wired buys, not necessary to address request to extend Goetz to phone recordings) Harlow, 3/27:5; (106 months proper for meth manufacture with child crawling underfoot) Davison, 5/15:7; (“fatal variance” from meth indictment due to alleged multiple conspiracies rejected based on lack of prejudice, evidence pre-dating indictment time frame relevant, not prejudicial, sentence properly based on 1.5-5kg of meth, verdict of 500g+ only for statutory minimum sentence) Laverdure, 7/10:1; (probation search of vehicle lawful, due process argument based on Art. II §17 v. federal law as to 6-months delay in discovery of patrol car video not preserved for appeal, State provided adequate explanation for delay, burden of proof of prejudice where defendant has been excluded from a critical stage clarified, State must persuade that exclusion harmless, no presumption of prejudice where exclusion not structural defect, exclusion in this case harmless error, speedy trial claims denied, PFO designation proper) Charlie, 9/11:2; (claim of collusion to delay state prosecution as ruse to buy time until federal indictment could be obtained rejected, same prosecutor pressing state and federal charges disapproved of, since abandoned, prior acts properly admitted, judgment of acquittal properly denied, 420 months proper for meth/firearms) Boyd, 10/2:5; (testimony as to excluded exhibit of meth not connected to Defendant properly allowed, no error in failing to define “proceeds” as “profits”, recipient’s name on wire transfer properly admitted over hearsay objection, meth dealing/laundering convictions (with life sentence) affirmed) Webster, 10/9:4; (jury properly instructed to disregard State medical marijuana law) Gochis, 11/27:6

DUI: (sufficient particularized suspicion based on driving to stop marijuana smoker, beyond stated reason of snow-obscured plate) Cooper, 1/30:4; (patrolman had caretaker duty to determine if person outside car on shoulder in remote area of Interstate at dusk needed help or was in peril, observations provided particularized suspicion for field tests of passenger who admitted driving after drinking, eventually developed into probable cause for arrest, suppression properly denied) Doyle, 1/30:5; (JP waiver form made clear that 16-year-old had right to attorney and he signed below affirmation that he did not want attorney, form clarified rather than made contradictory by JP crossing out inapplicable statements that attorney would be appointed for indigent and jail “can and probably will” result from guilty plea, 4th DUI affirmed) Risk, 1/30:5; (claim of infirm prior ND DUIs rejected) Reinhard, 2/20:6; (particularized suspicion for stop) Smith, 2/27:7; (burden for license reinstatement not met, particularized suspicion, probable cause, denial of request to read consent form) Fitzgerald, 3/6:3; (sufficient evidence of “under the influence”) Heron, 3/20:4; (particularized suspicion to stop) Sotomayor, 3/20:5; (driver traveled on way of State to reach ranch driveway, no abuse of discretion in not taking judicial notice of JP disallowance of prior DUI, unsigned forms insufficient to overcome presumption of regularity, circumstantial evidence instruction proper, dismissal of trespass (which Defendant argues would preclude DUI) not preserved for appeal, new trial motion based on claims that jurors were “rushed” by foreman properly denied as untimely, felony DUI affirmed) Sirles, 5/8:2; (no right to lawyer for field tests without interrogation, DUI properly inferred from refusal to do field tests) Stanczak, 5/15:4; (reasonable grounds to stop based on erratic driving over claim of cautious driving, license reinstatement properly denied) Cockrell, 5/29:5; (sufficient suspicion to stop jerky vehicle exiting storage yard after hours) Matson, 7/31:6; (no Brady violation by negligent loss of late-disclosed casino CCTV recording not showing Defendant intoxicated immediately before accident, motion to dismiss properly denied) Seiffert, 8/14:4; (jury unclearly instructed on “actual physical control” by Defendant sleeping in bar parking lot, conviction reversed, remanded for new trial) Christiansen, 9/18:4; (particularized suspicion for stopping driver who swerved toward and onto double-yellow centerline, license reinstatement properly denied) Weer, 11/6:6; (facts surrounding car in ditch symptoms of intoxication providing probable cause for arrest despite no field tests, credit against fine for time served properly denied under 2005 statute) Hafner, 11/6:7; (Particularized suspicion to stop vehicle that screeched/revved in view of officers on another stop, particularized suspicion after stop, Miranda not required where stop within scope of DUI investigation, suspect’s conduct voluntary, consented to search, voluntarily retrieved marijuana from vehicle, deputies unqualified to opine on effects of marijuana on driving, but error harmless, not prejudicial to fair trial, rebuttable inference instruction adequate although rejected “competent corroborating evidence” instruction could be helpful, Defendant not convicted solely on basis of blood test refusal, conviction affirmed) Larson, 11/13:2; (Defendant not “seized” by officer parking behind car in bar parking area at 3:20 a.m., shining spotlight into vehicle, inquiring about welfare, motion to dismiss DUI properly denied) Rand, 12/11:5

Endangering welfare of child: (insufficient evidence that father knowingly endangered child by tying to bed by ankle to prevent harming sister, conviction reversed) Epler, 5/29:4

Endangerment: (statute not unconstitutionally vague as applied to DUI Defendant who crashed into vehicle causing injuries) G’Stohl, 1/23:7; (interview video “statements” admissible as adopted by Defendant or not hearsay, corroborating circumstantial evidence of criminal mischief conspiracy in addition to co-conspirator testimony, instruction on negligent endangerment as lesser-included of criminal endangerment for shooting BB gun at cars and pedestrian properly refused, jury properly instructed on “serious bodily injury” in context of criminal endangerment even though no actual injury, convictions of youth in vandalism spree affirmed) TJB, 5/29:5; James, 8/14:2; (new trial based on untimely disclosure of CFS releases properly denied, no error by not sua sponte instructing on lesser-included, no ineffective assistance for not offering lesser-included instruction) Parrish, 10/9:3; (assault not lesser included under §46-1-202(9)(a), (c)) Molenda, 10/23:2

Felon in possession: (hearsay as to confidential informant’s role in investigation harmless error) Moddison, 3/6:6; (§922(g)(1) not unconstitutional after Heller, burglary discharge date properly determined for base level, enhancement proper for pre-sentence escape, reduction properly denied for acceptance of responsibility) Schwindt, 5/15:7

Felony child abuse: (properly defined by state law, not unconstitutionally vague) Other Medicine, 3/6:4

Fitness: (99 days at Warm Springs for evaluation not violative of due process where lawyer initially supported 90 days and Defendant uncooperative with examiners, State’s claim of untimely objection rejected) Mullarkey, 9/18:5

Game: (charge of unlawful possession of game animals properly not dismissed, seasonal rules exempted from MAPA publication, officers’ entry onto property to post notice of sheriff’s sale not illegal trespass (except peek into freezer), sufficient basis for search warrant, conviction affirmed) Crites, 1/30:6; (although “elements” instruction for value of unlawfully possessed game (values set by statute) did not include “exceeds $1,000,” verdict form reflects that jury made “exceeds $1,000” finding which authorized sentencing for felony, no prejudice that would constitute ineffective assistance for failure to object to instruction, jury properly instructed on “same transaction” based on dates of possession rather than dates of kills, animals properly grouped to obtain felony convictions, response to jury query that Defendant must be found guilty as to only one animal in count to find him guilty of that count proper as to one count, improper as to 2 counts, but felony sentences authorized by facts reflected in verdict, no ineffective assistance for failure to object, convictions affirmed) Norman, 12/11:3

Habeas: (successive petition properly denied) Stanton, 12/4:4

Incest: (claim that imprisoned Defendant recently learned State failed to prove victim legally “stepdaughter” rejected, mandamus denied) Stubbert, 2/27:6; Guill, 4/10:3

Ineffective assistance: (taping statements uttered while alone in interrogation room not impermissible, failure to object not ineffective assistance, sufficient other evidence of guilt) Meredith, 2/13:5; (claims by incest Defendant rejected) Hamilton, 2/13:6; (attorney ineffective by not investigating double murder and client’s mental state or discussing defenses with client who insisted on pleading guilty and requesting death, but defenses unlikely to succeed and Defendant adamant on pleading guilty and never claimed innocence) Smith v. Mahoney, 3/13:5; (not shown by not polling jury as to exposure to newspaper account of trial, nor by breakdown in communication initiated by Defendant, substitution of appointed counsel properly denied, postconviction relief properly denied) Robinson, 3/20:4; (no prejudice by lawyer not advising during plea negotiations that Defendant could not be convicted of both rape and sexual assault since concurrent 30 years imposed for each, no “good cause” to withdraw Alford pleas) Williams, 3/27:3 (petition for rehearing granted on claim by Defendant of improper ineffective assistance prejudice standard (certainty v. reasonable probability of acquittal), opinion withdrawn) Robinson, 5/1:3; (rape/incest Defendant not prejudiced by counsel’s unfulfilled promise in opening to call sex offense expert, counsel met professional responsibilities in attempting to ascertain credentials of State’s expert whose PhD turned out to be from unaccredited school, ineffective assistance claims properly rejected) Worthan, 5/8:4; (no prejudice shown by appellate lawyer failing to raise Defendant’s absence from jury query meeting, outcome would not have been different, postconviction petition properly denied) Becker, 5/8:4; (Defendant failed to demonstrate counsel ineffective by not polling jurors as to newspaper account of trial, nor by breakdown in communication initiated by Defendant, substitution of counsel properly denied, postconviction relief properly denied, replacement opinion) Robinson, 5/15:3; (revocation proceeding following 72-hour hold & release not 2nd sanction/double jeopardy, lawyer not ineffective by failing to raise issues) Maynard, 5/29:4; (Defendant prevented by erroneous advice as to potential meth sentences from being able to make intelligent choice between pleading guilty and going to trial, trial strategy elicited testimony that proved Prosecution’s case, failed to elicit testimony that could have contributed to reasonable doubt, motion to vacate, set aside, or correct 324-month sentence following conviction granted, US to extend same plea offers as pre-trial and any other appropriate offer) Jaeger, 6/26:7; (counsel ineffective for not objecting to instruction on obstruction (plain error review), remanded for new trial) Johnston, 7/17:2; (claims against rape defendant’s trial counsel including failure to open up Defendant’s character, failure to reenact alleged rape, properly rejected) Heath, 7/31:4; (claims rejected) McClelland, 7/31:4; (more amenable to postconviction) Sartain, 10/16:3; (counsel not ineffective as to record-based claims, another more amenable to postconviction) Ankeny, 10/30:1; (jury improperly instructed on apprehension when Defendant only charged with injury, conviction reversed, remanded for new trial) Spotted Eagle, 10/30:2

Initial appearance: (consequence for “unnecessary delay” in initial appearance held to be dismissal — without prejudice absent showing of specific prejudice, dismissal without prejudice for convicted aggravated assault Defendant who was held incommunicado for 42 days after arrest until accidentally discovered by public defender) Strong, 7/31:3; (“initial inquiry” adequate) Happel, 9/18:6

Intoxication: (jury presented with evidence of intoxication, not precluded from considering it, merits of Art. II §§ 3 & 24 challenge not reached, challenge to admission of recording of drunken rant rejected) Belanus, 9/25:3

Joinder: (rape charges involving 3 girls properly joined for trial) Corpron, 11/20:3

Jury: (mistrial properly denied based on panelist blurting out that defense witness had raped) Schmidt, 1/16:1; (Defendant failed to demonstrate Judge abused discretion in interpreting ambiguous statute as new panel list must include drivers in “ensuing calendar year” rather than “beginning in June,” mistrial properly denied) Norquay, 4/24:1, (rehearing denied) 5/29:6; (expert reports properly allowed in jury room, not violative of common law rule against submitting testimonial materials for unsupervised review) Stout, 6/26:2

Justifiable force: (victim’s prior behavior, unknown to Defendant, offered in support of justifiable defense, properly excluded, jury properly instructed on justifiable force) Henson, 6/26:5

Legal malpractice: (malpractice claim against defense lawyer improperly sua sponte recharacterized as untimely postconviction petition) Spencer, 12/18:5

Lesser-included: (no error by not sua sponte instructing on lesser-included, no ineffective assistance for not offering lesser-included instruction) Parrish, 10/9:3

Machine gun: (sufficient circumstantial evidence that Defendant knew he possessed a machine gun) Anderson, 3/20:6; (new trial motion based on claims that jurors were “rushed” by foreman properly denied as untimely) Sirles, 5/8:2

Major Crimes Act: (defendants with Indian blood who are not members of a federally recognized tribe not amenable to prosecution under MCA, sex abuse/assault convictions reversed) Maggi, 3/27:8

Mitigated deliberate homicide: (jury correctly instructed on mitigated deliberate as lesser-included of deliberate, presumed to follow instruction despite erroneous verdict form similar to one proposed by Defendant, no Demontiney error, aggravated assault lesser-included instruction properly denied, Miranda properly explained, confession suppression properly denied, testimony of witness that victim brandished a knife earlier properly excluded, mistrial properly denied based on panelist blurting out that defense witness had raped daughter, photo of victim’s “intense eyes” properly excluded, directed verdict properly denied, jury properly instructed on weapon enhancement, restitution properly ordered for funeral despite lack of affidavit) Schmidt, 1/16:1; (victim’s prior behavior, unknown to Defendant, offered in support of justifiable defense, properly excluded, psychiatric testimony properly excluded as based on untimely report, no prejudice since jury convicted of mitigated rather than deliberate homicide, jury properly instructed on justifiable force, conviction affirmed) Henson, 6/26:5

Murder: (Defendant improperly precluded from developing theory of victim’s brother’s motive stemming from victim’s rape of brother’s girlfriend 30 years earlier resulting in divorce 2 years before murder, error not harmless, conviction reversed, remanded for new trial) War Club, 11/27:4

New trial: (persistently pro-conviction panelist should have been dismissed for cause, use of peremptory and exhaustion of peremptories requires retrial following conviction of assault with weapon, endangerment) Allen, 10/9:3; (new trial based on untimely disclosure of CFS releases properly denied) Parrish, 10/9:3

Obstruction: (Defendant and partner’s lesbian relationship improperly referenced at trial, partner properly treated as hostile witness, although better practice to establish hostility on direct rather than prior to testimony) Miller, 3/27:4; (“knowing” element requires more than defendant was aware of his conduct, counsel ineffective for not objecting to instruction (plain error review), remanded for new trial) Johnston, 7/17:2

Parole: (no abuse of discretion in repeatedly denying parole for Defendant convicted of murder in 1973, infrequent reviews) Hawkins, 2/6:4

Physician assisted suicide: (not violative of public policy exception to consent as defense to homicide, terminally ill patient’s consent to physician aid in dying constitutes statutory defense to charge of homicide against doctor when no other exceptions apply, not necessary to reach constitutional issues, $315,350 fees improperly awarded under private AG doctrine, taxpayer funding not warranted by equitable considerations) Baxter v. State, 1/9:6

PFMA: (challenges to sufficiency of waiver as to trial in absentia, denial of right to proceed pro se, not preserved for appeal) McClure, 7/17:4; James, 8/14:2; (sufficient evidence that Defendant and alleged victim were in “dating or ongoing intimate relationship” and thus “partners” despite claims of “first date”, objections to domestic violence expert preserved for appeal by motion in limine despite no objection at trial, challenges rejected on appeal, testimony that domestic violence victims commonly recant properly admitted) Ankeny, 10/30:1

Plea agreement: (Judge did not breach agreement by rejecting it after accepting guilty pleas to DUI hit & run pedestrians death/injuries based on Boot Camp rejection, PSI concerns, Judge did not improperly insert himself into negotiations so as to induce guilty plea, State not put in breach of agreement by Boot Camp rejection) Petersen, 2/20:5; (not breached by evidence outside pled charge of negligent homicide of child) Manywhitehorses, 10/30:4

Plea withdrawal: (Judge had no obligation to advise of collateral effect of pleading guilty to PFMA, including loss of gun rights, withdrawal properly denied) Twichel, 2/6:2; (no misrepresentation by Judge, Prosecutor, counsel that felony arson Defendant with prior felony was entitled to deferred sentence, no “good cause” for withdrawal of Alford plea) Ellison, 2/6:2; (plea agreement “understanding” that State would not recommend parole restriction not breached by Prosecutor’s objection to SRD as to removal of restriction) Shepard, 2/6:3; (no prejudice by lawyer not advising during plea negotiations that Defendant could not be convicted of both rape and sexual assault since concurrent 30 years imposed for each, no “good cause” to withdraw Alford pleas) Williams, 3/27:3; (properly denied over claims of no memory of plea agreement or plea, failure to advise of misdemeanor theft as lesser-included of felony theft, failure to establish value of stolen items, ineffective assistance) McKnight, 4/24:3; (properly denied to Defendant who entered Alford plea in wired sting despite Goetz (issued after plea, prior to sentencing)) Andrews, 7/17:3; (properly denied over claims of ineffective assistance/attorney fee ethical violations, learning disabilities, inconsistent arson plea/charge) Gonzales, 7/31:5; (“steep hurdle” required to meet “actual innocence” exception to 1-year bar for plea withdrawal (1st impression of 2003 amendment), Defendant failed to satisfy exception, withdrawal properly denied) Montgomery, 9/11:4; (no indication of involuntariness, withdrawal properly denied) Bradley, 11/13:4; (Goetz not applied to challenge wired drug informant where it issued after entry of plea (before sentencing but not raised at sentencing), counsel not required to be aware of issues in all cases pending on appeal or advise how they might affect client, sufficient other evidence for conviction, counsel not ineffective for failing to raise Goetz at sentencing, denial of motion to withdraw plea affirmed

Preaccusation delay: (motion to dismiss for preaccusation delay not necessarily untimely after deadlines for other pretrial motions, but no substantial prejudice by 3 years between allegations by girls and investigation of pastor) Passmore, 2/20:2

Presence at trial: (claim that due process denied by self-imposed exclusion from courtroom during order of protection violation trial rejected) Huffine, 4/3:4; (no prejudice by Judge asking jury outside Defendant’s presence if it wanted dinner and stating that it did not have to deliberate into the night) Corpron, 11/20:3

Prisoners: (jail mandated to allow private attorney-client contact visits, over policy limiting visits to no-contact area during flu season) OPD v. McMeekin, 1/2:7

Prosecutorial misconduct: (no prosecutorial misconduct/conflict by CA filing charges after suing accuser to recover rent deposit (actual prosecution by Asst. AG), charges allegedly filed in response to urging by attorney in suit against Defendant (settled for undisclosed amount)) Passmore, 2/20:2; (no misconduct in cross-examining Defendant as to attorney-client communications first raised by Defendant, reference to communications during exploration of inconsistent versions of incident did not constitute disclosure of communications, questions/arguments about prior inconsistent statements were not about prior silence, Doyle not implicated, assault with weapon, tampering, false report convictions affirmed) Tadewaldt, 9/11:5

Public defender: (OAD not required to pay for appeal transcripts on behalf of private lawyer retained by indigent who was represented at trial by OSPD, mandamus petition by OAD seeking to compel private attorney to file notice of appeal denied for lack of standing, cross-mandamus petition by private attorney directed to OAD denied on merits) OAD v. Engel, 8/7:5

Rape: (evidence that Defendant plied other young men with intoxicants and made sexual advances to them improperly admitted under transaction rule, State failed to show error harmless, conviction reversed, remanded for new trial) Lacey, 1/23:5; (claims of prosecutorial misconduct, ineffective assistance, insufficient evidence, testimony of victim’s boyfriend, public defender fee, rejected, conviction of 3 counts of rape of intoxicated woman affirmed) Gauss, 1/23:6; (motion to dismiss for preaccusation delay not necessarily untimely after deadlines for other pretrial motions, but no substantial prejudice by 3 years between allegations by girls and investigation of pastor, no prosecutorial misconduct/conflict by CA filing charges after suing accuser to recover rent deposit (actual prosecution by Asst. AG), charges allegedly filed in response to urging by attorney in suit against Defendant (settled for undisclosed amount), contradiction evidence to be governed by Rules 401 & 403 and other evidence rules, contradiction evidence that accuser told friend she had fantasy of being bound with tape and tickled with a feather while naked unfairly prejudicial, limited probative value, no per se rule as to admissibility of sex offender profile testimony, probative value of testimony that Defendant lacked sex offender traits outweighed by danger of confusing issues, misleading jury, convictions affirmed) Passmore, 2/20:2; (sexual assault is lesser-included of rape under §46-11-410(2)(a) (1st impression), Defendant improperly charged with both rape and sexual assault where charges arose from same alleged attack, sexual assault conviction vacated, rape conviction retained, statutory double jeopardy claim raised first time on appeal reviewed in context of ineffective assistance claim, no prejudice by lawyer not advising during plea negotiations that Defendant could not be convicted of both rape and sexual assault since concurrent 30 years imposed for each, no “good cause” to withdraw Alford pleas, restitution for “reasonable” medical/counseling vacated for failure to specify amount) Williams, 3/27:3; Guill, 4/10:3; (Deputy’s comment that accuser’s story “seemed credible” not impermissible vouching warranting plain-error review, Prosecutor’s “vouching” must be viewed in light of conflicting testimony, cautionary instruction requested by Defendant, victim’s age (15) settled “without consent” element of SIWC even though charges/evidence alleged force, “other acts” “blow job” testimony waived by failure to object, participation in questioning) Thorp, 5/1:2; (failure to do rape exam of massage client who claimed digital penetration not amenable to plain-error review, claim of ineffective assistance for not moving to dismiss or reduce charges based on lack of exam more suited for postconviction, mistrial not warranted by brief appearance of group in black & blue uniforms, severance of charges properly denied, conviction affirmed) Taylor, 5/8:5; (evidence of drug use improperly allowed in support of rape charge, not harmless error, photos of naked women and Defendant improperly allowed under transaction rule, not harmless error, transaction rule scope/application clarified, conviction reversed, remanded for new trial) Sage, 7/24:3; (jury presented with evidence of intoxication, not precluded from considering it, merits of Art. II §§ 3 & 24 challenge not reached, challenge to admission of recording of drunken rant rejected) Belanus, 9/25:3; (charges involving 3 girls properly joined for trial, no prejudice by Judge asking jury outside Defendant’s presence if it wanted dinner and stating that it did not have to deliberate into the night, convictions affirmed) Corpron, 11/20:3

RCRA: (officer liable along with corporation, conviction affirmed) Reis, 3/6:4

Restitution: (properly ordered for funeral despite lack of affidavit) Schmidt, 1/16:1; (restitution for “reasonable” medical/counseling vacated for failure to specify amount) Williams, 3/27:3; (restitution to 31 account holders for bank fraud/identity theft properly calculated at $400 each) Barnes, 3/27:8; (forgery accountability defendant properly ordered to pay $739,312 embezzled from State by his mother and passed to him for gambling, even though he purportedly believed it came from his step-father’s business, full restitution without consideration of ability to pay proper under 2003 law, claim of unfairness in State’s late-filed restitution memorandum rejected for declining offer of continuance) Brownback, 5/8:5; (civil judgment 6 years after original order properly limited to unpaid restitution with no accrued interest) Bucher v. Hughes, 7/24:5; (order by Stadler improperly open-ended with undetermined amount, remanded for specified amount rather than striking) Newberry, 9/18:6; (restitution for damage to van properly ordered against participant although he was not driving at time of crash) SF, 11/20:4

Revocation: (Defendant forewarned of prison, not denied due process by proceeding directly to disposition without continuance for psychological assessment) Palagi, 2/20:6; (revocation proceeding following 72-hour hold & release not 2nd sanction/double jeopardy, lawyer not ineffective by failing to raise issues) Maynard, 5/29:4; (sentence imposed on animal shelter operator upon 1st revocation may have been objectionable as greater than original, but was never appealed, sentence imposed upon 2nd revocation not greater than original sentence) Polejewski, 8/14:4; (release properly revoked despite reliance on hearsay) Connelly, 10/2:6; (revocation following substantial bail reduction in separate case affirmed) Lamere, 10/30:1

Robbery: (confrontation, mistrial, bolstering claims properly rejected) Fitzgerald, 10/2:3

Seized property: (hearing must be held as to interest in deer antlers and mounts introduced at trial, ownership not established by affirmation of sentence) Torgerson, 1/2:6

Sentencing: (Defendant waived objection to proceeding with sentencing based on alleged erroneous PSI) Morrison, 1/2:5; (discretionary curfew proper for adult drug dealer) Deese, 1/30:6; (restitution proper for bankruptcy fraud/false statement to bank despite prior bankruptcy settlement with creditors, 5 years probation, $102,696 restitution substantively reasonable) Edwards, 2/20:7; (“clearly inadequate or excessive” standard valid (over Petitioners’ argument for equitable review), but supervisory control granted to correct SRD’s position on cruel & unusual punishment) Driver v. SRD, 3/13:2; (removal of pet cats & dog proper condition of conviction for maintaining public nuisance in order to reduce likelihood of feeding feral cats which constituted the nuisance) State v. Zimmerman, 3/13:3; (attorney ineffective by not investigating double murder and client’s mental state or discussing defenses with client who insisted on pleading guilty and requesting death, but defenses unlikely to succeed and Defendant adamant on pleading guilty and never claimed innocence, disproportionality is not mitigation, claim of bias by Judge Larson insufficiently developed, 8th-Amendment claim that 25 years on death row satisfied retribution/deterrence rejected, clemency province of Executive, habeas correctly denied) Smith v. Mahoney, 3/13:5, (opinion affirming denial of habeas for death row convict amended by striking 2 sentences, no further petitions for panel or en banc rehearing allowed) 7/17:6; (habeas Petitioner failed to show “actual innocence” of deliberate homicide, new evidence not significantly different from what jury considered, not necessary to decide if “actual innocence” can overcome 1-year AEDPA statute) Weaver, 3/20:6; (sufficient evidence of intent to warrant 4-level enhancement for assault resulting in serious bodily injury, 48 months substantively reasonable) Guardipee, 3/20:7; (sufficient evidence of intent to warrant 4-level enhancement for assault resulting in serious injury, 5-level enhancement for serious injury, 48 months substantively reasonable) Blackman, 3/20:7; (no prejudice from amended PSR 5 days before hearing, with hearing continued 1 week, no error in failure to resolve ability-to-pay disputes since temporal term not affected, reasons for sentence adequately explained, no error in not appointing psychologist) Stoltz, 3/20:7; (mandatory minimum for aggravated sex abuse of minor not violative of equal protection as applied to Indian, not cruel & unusual) Lyons, 3/20:7; (98 months for possession of stolen guns substantively reasonable) McKnight, 3/20:8; (Defendant properly qualified as career offender) Dewey, 4/3:5; (Commission commentary amendment to resolve circuit conflict precludes enhancement for influencing minor to prohibited sex when “minor” is undercover officer, applied retroactively to Defendant, remanded for resentencing) Christensen, 4/3:5; (293 months for aggravated sex abuse affirmed) Whiteman, 4/3:6; (168 months for 2nd-degree murder vacated, remanded for explanation as to claimed mitigating circumstances) Melbourne, 4/3:6; (210 months for receipt of child pornography affirmed) Ruddle, 4/3:6; (32 months for credit card fraud/identity theft affirmed) Heater, 4/3:6; (300 months for conspiracy to distribute meth affirmed) Book, 4/3:6; (sentence of 180 months for conspiracy to distribute meth remanded to Shanstrom for further proceedings in light of Ameline) Florez, 4/3:7; (6 months imposed upon revocation affirmed) Tendoy, 4/3:7; (Justice Court costs improperly imposed in District Court suspended sentence conditions, remanded for resentencing) Bustle, 4/10:4; (no abuse of discretion in refusing to seal Defendant’s psychosexual report, 405 months for aggravated sexual assault not unreasonable) Big Leggins, 4/17:7; (Defendant entitled to credit against new drug sentence of 224 days in jail from arrest to sentencing without regard to Parole Board decision that entire time on parole would be counted toward prior assault sentence) Hornstein, 4/24:2; (Maryland docket sheet entries sufficient proof that Maryland “child abuse” conviction involved sexual conduct predicate for child pornography sentencing enhancement (no analysis of appropriateness of also relying on sex offender registrations), Lovell affirmed en banc following panel affirmance) Strickland, 4/24:6; (life without parole for rape Defendant previously convicted of rape within statute, not cruel/unusual) Thorp, 5/1:2; (parole conditions illegal, may be restated as recommendations, $225,149 restitution of past medicals proper, unspecified amount of future medicals improper, consistent approach adopted for partly illegal sentences: remand to correct illegal part or strike if cannot be corrected) Heafner, 5/1:3; (54 months for re-entry of alien affirmed) Alvarado-Isordia, 5/1:5; (presentence incarceration attributable to prior convictions for which bail not available properly not credited to subsequent “concurrent” sentence) Pavey, 5/8:7; (hearing not required on whether to vacate child pornography receipt or possession, or on new sentence on remand, same sentence on remand) Brobst, 5/15:7; (106 months proper for meth manufacture with child crawling underfoot) Davison, 5/15:7; (§922(g)(1) not unconstitutional after Heller, burglary discharge date properly determined for base level, enhancement proper for pre-sentence escape, reduction properly denied for acceptance of responsibility) Schwindt, 5/15:7; (15 years to DOC with no time suspended proper upon finding violation of original suspended sentence for felony DUI, marijuana use not improperly considered in revocation) Roberts, 5/22:2; (prisoner should be credited with 193 days street time, ordered released, habeas granted) Thomas, 5/22:3; (97 months prison for receipt of child pornography substantively reasonable, remanded for consideration of whether supervised release ban on proximity to children should allow attendance at school events with Defendant’s children, no cell phone camera reasonable even though photography played no role in offense, Internet ban usage contravenes Riley, must be amended or deleted on remand) Blinkinsop, 5/29:7; (safety valve relief properly denied in meth case for failure to provide all information/evidence) Laverdure, 7/3:8; (sentence properly based on 1.5-5kg of meth, verdict of 500g+ only for statutory minimum sentence) Laverdure, 7/10:1; (27 months for perjury/false declarations consecutive to uncharged revocation/escape sentences proper) Phillips, 7/10:2; (lifetime supervised release for aggravated sex abuse based on misreading of Guidelines, remanded for resentencing) Reed, 7/10:2; (160 months above-Guidelines for manslaughter substantively reasonable in light of convictions for violent conduct, 1983 murder) Dupree, 7/24:7; (leader/organizer enhancement for theft from tribal organization proper, but remanded for reconsideration of “abuse of trust” enhancement in light of subsequent Contreras) Good Rider, 7/24:7; (240 months for child pornography affirmed) Williams, 7/24:7; (calculation of $2,626,050 mail fraud/laundering loss reasonable under preponderance or clear & convincing standard, 121 months, $1,211,300 restitution affirmed) Marlin, 7/31:7; (175 months for meth conspiracy affirmed) Konshuk, 7/31:7; (57 months for serious injury assault affirmed) Runningwolf, 7/31:7; (sentences based on PFO replace sentence for underlying felony, PFO may be sentenced to maximum on each charge, Gaither overruled, Defendant properly sentenced to both life for attempted rape and 100 years as PFO for burglary, “parole” conditions improperly imposed on lifer)) Gunderson, 8/7:3; (3 years supervised release following 16 months not improper for SS fraud, theft of federal money) Hendershot, 8/14:6; (40 years, no parole for 20 years for mitigated deliberate homicide vacated pursuant to stipulation following dispute over parole restriction and whether plea agreement breached, remanded for new sentencing with new judge in place of Lympus) Weimer, 8/28:4; (supervisory control of Larson over no medical marijuana sentencing condition denied) Opsahl, 8/28:4; (J. Brown improperly instructed on “knowingly,” conviction reversed by stipulation, remanded for new trial) Albright, 8/28:4; (statement that range was 41-52 months for cocaine charge when correct range was 41-51 months constitutes procedural error requiring resentencing, mitigating arguments should be addressed on remand) Yellow Owl, 8/28:7; (121 months for abusive sexual contact substantively reasonable) Mullenberg, 9/4:7; (PFO designation proper) Charlie, 9/11:2; (intended meth dealer properly sentenced to MSP, not treatment, no ineffective assistance in not seeking reconsideration) Weisweaver, 9/18:4; (motion to remove sex treatment requirement on grounds of inability to admit guilt properly denied as untimely, although more properly postconviction petition) Parrish, 9/18:5; (bail jumping sentence properly modified following dismissal of revocation petition to correct “typographical error” to extend sex treatment to probation) Noel, 9/18:5; (en banc rehearing of Panel decision affirming Molloy’s sentence of no prison for bankruptcy fraud/false statement to bank denied) Edwards, 9/25:6; (credit union robber properly found to have “otherwise used” a BB-gun rather than merely “brandished” it, sentence correctly enhanced by 4 rather than 3, properly enhanced by 2 for “sustained focus” of gun on employee, 105 months prison properly ordered consecutive to prior robbery sentence) Albritton, 9/25:7; (5-year maximum for bank/credit card fraud reasonable although longer than Guidelines range) Connelly, 10/2:6; (98 months for receipt of child pornography substantively reasonable, but remanded for reconsideration of lifetime supervision, special conditions affirmed except no proximity to places used primarily by children) Carlson, 10/2:7; (maximum 210 months for child pornography receipt affirmed, $3,000 restitution to child proper) Baxter, 10/2:7; (imposition of sentence for felon in possession of firearm consecutive to state sentence obviated requirement of credit for time in state custody, resentencing on remand) Hahn, 10/2:8; (disputed facts not relied on at drug sentencing) Blodgett, 10/2:8; (Adjustment for role as meth manager/supervisor proper) Ard, 10/9:6; (reduction of minimum properly denied) Nanoff, 10/9:6; (188 months for intent to sell meth affirmed) Pena, 10/9:6; (10 months upon revocation affirmed) Bushyhead, 10/9:6; (400 months for aggravated sexual abuse of minor substantively reasonable) Big Lake, 10/16:4; (no error in refusing to consider state sentence for same burglary offense, mid-Guidelines 30 months reasonable) Eder, 10/16:5; (360 months for meth affirmed) Cota-Becerra, 10/16:5; (counsel asserting no grounds for appeal of 110 months meth sentence allowed to withdraw, appeal dismissed) Encinas, 10/16:5; (63 months for serious injury assault affirmed) Knife, 10/16:5; (262 months for intent to distribute meth affirmed) Parke, 10/30:5; (prior criminal mischief vandalizing house under Montana law similar to disorderly conduct in 4A1.2(c), not “similar to” federal cyberstalking, improperly used to enhance sentence) Grob, 11/13:4; (18 months for drug user in possession of firearm affirmed) Dehart, 11/13:5; (16 months for burglary delinquency affirmed) STB, 11/13:5; (14 months for abetting burglary delinquency affirmed) BVJ, 11/13:5; (no ineffective assistance as to career offender designation, 262 months for heroin conspiracy affirmed) US v. David Peters, 11/13:5; (Judge may not sentence below mandatory statutory minimum, 120 months for heroin conspiracy affirmed) US v. Michael Peters, 11/13:5; (70 months for heroin conspiracy, no credit for state time) US v. Steven Peters, 11/13:6; (72 months for bank fraud & laundering affirmed) Becker, 11/20:5; (10 months upon revocation of supervised release affirmed) Farrell, 11/20:5; (burglarized cabin in prior conviction properly considered “dwelling” based on Information/sentencing order, justifying base level 20 for felon in possession) Von Kinder, 11/20:5; (prison beating death Defendant had fair notice that aiding & abetting deliberate homicide would subject him to death penalty in Montana despite no specific statutory sentence for accountability, habeas properly denied) Gollehon, 11/27:5; (mandatory 60 months proper for non-cooperating co-defendant compared to 13 months for cooperating co-defendant, convictions, sentence in grow operation affirmed) Gochis, 11/27:6; (Defendant on parole hold from attempted deliberate homicide conviction entitled to additional 513 days for time served awaiting sentencing for drugs/child endangerment pursuant to Hornstein) Redmond, 12/4:2; (objection to 8 months following revocation of probation based on claim of alcohol abuse caused by stressors rejected, supervised release condition limiting dancer’s entrance into bars not unreasonable) Clark, 12/4:4

Sex abuse: (adequate evidence of penetration based on victim’s testimony despite no finding by doctor, 200 months affirmed) Adams, 11/20:5

Sex offender registration: (certified question from US Supreme Court) Juvenile Male, 7/3:5

Sexual assault: (motion to dismiss for preaccusation delay not necessarily untimely after deadlines for other pretrial motions, but no substantial prejudice by 3 years between allegations by girls and investigation of pastor, no prosecutorial misconduct/conflict by CA filing charges after suing accuser to recover rent deposit (actual prosecution by Asst. AG), charges allegedly filed in response to urging by attorney in suit against Defendant (settled for undisclosed amount), contradiction evidence to be governed by Rules 401 & 403 and other evidence rules, contradiction evidence that accuser told friend she had fantasy of being bound with tape and tickled with a feather while naked unfairly prejudicial, limited probative value, no per se rule as to admissibility of sex offender profile testimony, probative value of testimony that Defendant lacked sex offender traits outweighed by danger of confusing issues, misleading jury, convictions affirmed) Passmore, 2/20:2; (sexual assault is lesser-included of rape under §46-11-410(2)(a) (1st impression), Defendant improperly charged with both rape and sexual assault where charges arose from same alleged attack, sexual assault conviction vacated, rape conviction retained) Williams, 3/27:3; Guill, 4/10:3; (jail terms for accountability to prostitution and obstruction not eligible for SRD review or for “uniformity,” reviewed for legality and abuse of discretion, claim that sentences were wrongly imposed because of status as former mayor and commissioner rejected, sentences not based on misinformation, reasons clearly stated including harm/ripple effect to community, damage to dancers, nolo plea indicated high probability of conviction, no showing that sentence improperly based on lack of remorse or responsibility, 1 year jail not cruel/unusual) Morris, 12/18:4

Speedy trial: (3,137 days between warrant and arrest not violative of speedy trial given Defendant’s apparent avoidance of apprehension, although State could have done more knowing he was crossing Mexican border multiple times) Lacey, 1/23:5; (difficult pregnancy of eyewitness to alleged reckless driving good cause for delaying misdemeanor trial past 6 months even though she ultimately was not called) Roan, 2/20:5; (Defendant who pled guilty and waived speedy trial in acknowledgment/waiver in 1st plea change and during colloquy in 2nd plea change failed to preserve issue for appeal) Pavey, 5/8:7; (claim involving 519 days between sex offense accusation and initial trial date including 118 days during which Defendant absconded properly rejected even though State failed to make highly persuasive showing of no prejudice) Houghton, 7/3:4; (dismissal without prejudice proper for speedy trial violation) Stewart, 8/21:5; (claims denied) Charlie, 9/11:2; (speedy trial not violated by 924 days to homicide trial, multiple continuances and counsel changes, Judge’s plea bargain policy, State’s loss of critical documents and lack of diligence with filings, disjointed defense preparations, failure of all involved to set and hold firm deadlines, firm trial must be set at arraignment, maintained to trial) Couture, 9/25:2; (claims involving 356 days at MSP pending burglary trial while incarcerated on prior conviction rejected) Sartain, 10/16:3

SORNA: (Defendant registered in Michigan failed to update registration while employed in Montana, conviction affirmed) Vardaro, 8/21:5

Stalking: (watching girlfriend’s son at football practice and homecoming bonfire contrary to no-contact letter from girlfriend’s ex constituted intimidation or harassment causing substantial emotional distress, conviction affirmed) Yuhas, 10/30:3

Suspended license: (general objection insufficient to preserve confrontation right challenge as to DMV documents) Walker, 10/30:4

SVORA: (amendment from “street address” to “residence” 1st day of trial insufficient to reverse failure to register conviction) Bahr, 1/2:7; (declaratory judgment to resolve purported equal protection inconsistency between District Court retroactivity rulings denied) Dunsmore, 4/3:4; (Defendant had notice of retroactive registration requirement based in part on call from officer, vagueness challenge not addressed on appeal) Maples, 9/11:6; (Registration not required for deviate sexual conduct) Belanger, 9/11:6

Theft: (sufficient evidence of felony theft by participant in van joyride, restitution for damage to van properly ordered against participant although he was not driving at time of crash) SF, 11/20:4

Traffic stop: (not unreasonably prolonged, motion to suppress ecstasy properly denied) Morneau, 10/2:6

Venue: (change to Oregon properly denied in child pornography case) Bitner, 3/20:8

Vindictive prosecution: (Threat of 4-fold increase in punishment by charging assault with weapon following mistrial on assault on minor with no new evidence has appearance of vindictiveness, raises likelihood that State was attempting to deter from 2nd trial, assault with weapon (belt discipline) conviction reversed, remanded for new trial on assault on minor) Knowles, 9/18:2

Vouching: (Deputy’s comment that accuser’s story “seemed credible” not impermissible vouching warranting plain-error review, Prosecutor’s “vouching” must be viewed in light of conflicting testimony, cautionary instruction requested by Defendant) Thorp, 5/1:3

Youth: (equal protection not implicated by youth incompetency based on immaturity vis-à-vis adult mental disease, substantial evidence that 9-year-old house fire starter competent for trial, youth in need of intervention to accountability to negligent arson affirmed) GTM, 1/2:6; (constitutional challenge of notice to not trespass on public housing property not preserved for appeal (although housing authority may exclude persons), probable cause to present fact question to jury as to whether youth knowingly entered housing authority property when he could be arrested) KJ, 3/6:2; (prior juvenile adjudication for sexual assault properly admitted in trial for sexual assault) Caplette, 3/6:6; (youth may be committed to Pine Hills if he commits 4 misdemeanors within “12 months”, waived challenge to RN as proper evaluator, substantial evidence of danger to public, specific calculation of placement properly left to DOC) KMG, 4/24:2

*Discrimination

Age: (DOR did not illegally discriminate by denying older tax auditor full credit for prior experience due to pay plan IBP “capping”) Duncan v. DOR, 4/10:8; (finding of legitimate reason for termination affirmed) Reinhardt v. BNSF, 6/5:6; (claims against chemical dependency entity based on assertion that director wanted to hire younger women rejected) Koepke v. Gateway Community Services, 10/30:6

Disability: (finding of legitimate reason for termination affirmed) Reinhardt v. BNSF, 6/5:6; (Spear’s award of $36,405 to oil rig operator with learning disability for failure to help with paperwork remanded for damages for severe emotional distress for loss of livelihood, future earnings, lost wages for period reasonably designed to make whole (6-month cap improper), hostile environment created by supervisor’s verbal abuse, insistence on impossible task of completing paperwork) Trumble v. Glacier Well Service, 6/19:7; (claim based on failure to enlarge handicap parking in front of house properly dismissed) Kitts v. Livingston, 6/19:8; (disability discrimination claim for not rehiring apiary laborer following leg amputations rejected as inconsistent with SSD representations of inability to do former tasks (claimant estopped from arguing that he is qualified individual with disability), punitives not available in Title 42 Ch. 2 proceeding) Emly v. Steve Park Apiaries, 7/24:8; ($494,641.23 value of career opportunity lost to 30-year-old obese conductor trainee applicant, RR’s request to resume screening rejected as futile in light of history of excluding obese applicants, RR enjoined against similar discrimination, required to provide policy and training) Feit v. BNSF, 8/14:7; (original award of $36,405 to oil rig operator with learning disability for failure to help with paperwork increased on remand from HRC to $178,546.33 including damages for severe emotional distress for loss of livelihood, future earnings, lost wages for period reasonably designed to make whole (no 6-month cap), hostile environment created by supervisor’s verbal abuse, insistence on impossible task of completing paperwork) Trumble v. Glacier Well Service, 9/11:8; (hotel tenants’ association failed to prove that lawyer’s request for elevator access to disabled clients on business floor would have fundamentally altered nature of the public accommodation, lawyer awarded $6,000 paid as member of association to defend suit that resulted from the discrimination plus $815 interest, not entitled to $150,000 claimed for loss of future business due to elevator being locked during business hours, $15,173 costs of moving to new office, or $6,000 for emotional distress, decision on remand from HRC) Angel v. Baxter Homeowners’ Association, 10/23:6; ($1,500/$750, refusal to use accessible voting machines for blind voters) Maffit v. Helena, 11/20:6

Education: (constitutional tort claims by student who was precluded from giving valedictory speech with religious references not barred by HRA exclusivity under 2007 amendments, student wrongly barred from speaking without deletion of passing references to God and Jesus, which did not bear imprimatur of District, student entitled to §1983 relief because District violated free speech right, superintendent and principal immune, freedom of religion not violated by speech proscription, remanded for consideration of §1988 fees) Griffith v. Butte School Dist., 11/27:1

FSA loan applicant: (claims rejected) Shiplet v. USDA, 6/19:4

Marital: (marital/retaliation claims by casino employee rejected) Hansen v. Lucky Me Casino, 4/10:8

National origin: (DLI improperly dismissed claim of Turkish-origin speaker limited to 3 minutes at City Council meeting) Kalinyaprak v. Polson, 6/5:6

Political: (political discrimination/wage claims of 6 deputies who supported losing sheriff candidate upheld, rejected) Edwards v. Cascade Co. Sheriff’s Dept., 1/9:5

Procedure: (54(b) certification granted for 1 of 2 police interrogation charging parties with similar claims but significantly different disabilities) Meuli v. Billings PD, 6/19:8

Race (employment): (construction company discriminated against African-American by allowing racial epithets, but no retaliation for firing for repeated accidents, $30,000 for emotional distress from epithets, 0 for discharge) Wazoua v. Ames Const., 6/5:5, (construction company discriminated against African-American by allowing racial epithets (vicarious liability defense rejected), but no retaliation for firing for safety reasons, $30,000 for emotional distress from epithets, 0 for discharge affirmed, Gregory Hanchett affirmed)

Race/religion/government services: (claims relating to prisoner sweat lodge ceremonies rejected) Knows His Gun v. DOC, 4/10:8

Retaliation: (claim by teacher rejected) Tatsey v. Browning Public Schools, 6/19:8; ($145,739 wage loss/medicals/emotional distress due to handling of Council agenda item focusing on Town Clerk’s prior HR complaint and Councilman’s retaliatory comments, following Supreme Court remand) Denke v. Thompson Falls, 7/10:5

Sex: ($108,003 for inappropriate contact with employee, including ripping top off, during “business” trip, discharging her in retaliation for complaining, Respondent failed to appear at hearing) Smith v. Synergy Advertising, 4/10:7; ($66,166 for discrimination against employee and retaliation for reporting alleged harassment of employee of another employer, no discrimination against employee of other employer, HRC has authority to award damages, Hanchett affirmed, reversed) Bolves v. Holiday Village Mall, 10/23:8

*Elections

Initiatives: (I-624 to cap interest by payday, title, retail installment lenders modified by adding “consumer loan licensees” to statements of purpose and implication, other minor additions and style changes, no referral to district court) Montana Consumer Finance Association v. State, 8/21:2

Nominations: (independent candidate for Senate and potential voter lacked standing at time of complaint (when decision to run had not been made) to challenge Montana nominating scheme) Kelly v. McCulloch, 2/6:7

*Employees

Contractor/employee: (4 of 5 transmission mechanics were independent contractors during audit period (1 was employee as part of voc-rehab training), ICCU erred in finding all employees) Hallquist (P&M Transmission) v. ICCU, 6/19:6

ERISA: (employees’ failure to make pre-suit demand for action on ESOP or officers of Washington-based grocery should be analyzed as to whether demand would have been futile (per new Washington ruling), ERISA does not preempt state law claim (following $575,000 ESOP settlement) that officers violated corporate duties) Nagrone v. Davis, 3/6:3; (State group health insurance premium law duplicative of ERISA, claim of violation preempted, remand to State Court denied) Fossen v. BCBS of Montana, 8/21:5; (group health premium calculation which considers health status factors when rating employer plans separately permissible under ERISA provision which is identical to and preempts Montana provision prohibiting requiring an individual to pay premium greater than premiums of similarly situated individuals based on that individual’s health status) Fossen v. BCBS of Montana, 10/16:5

FLSA: (fact issues as to overtime status precluded summary judgment/directed verdict, liquidated damages proper despite jury finding no willfulness, $95,738/$90,675 fees properly awarded without contemporaneous billing records, but counsel urged to provide time records in fee-shifting cases, FLSA costs provision controls over Montana statute, $267,330 judgment on $35,220 verdict affirmed) Tacke v. Energy West, 2/27:1

*Environment

Aerial fire retardant: (additional analysis ordered on effects of aerial fire retardant on endangered/threatened species, use in emergencies, final decision ordered by 12/31/11 or possible contempt) FS Employees for Environmental Ethics v. FS, 8/7:7

Air quality permit: (untimely motion to amend affidavit challenging air quality permit related back to original affidavit, amendment wrongly denied) Citizens Awareness Network v. BER, 1/30:2

ARA: (challenges of ARA regulations nonjusticiable, dismissed based on intervening case law) Wilderness Society v. FS, 10/2:4

CECRA: (RR properly not required to comply with ROD abatement plan until approved by Court (ROD challenge was pending in another court at time of abatement order), whether apportionment a defense under CECRA not justiciable since DEQ prevailed on joint & several liability, insufficient evidence of public nuisance, challenge of expert rejected, RR properly found to be “arranger” under CECRA, but on independent state grounds, not on CERCLA law which requires intent, consent decrees with other defendants properly approved without reduction of RR’s liability) DEQ v. BNSF, 12/25:3

CWA: (CWA’s pre-discharge treatment standards apply to Montana, CBM permits improperly granted without pre-discharge standards) Northern Cheyenne Tribe v. Fidelity Exploration & Production, 5/22:2

Fire/insect/disease/habitat project: Hapner v. FS, 10/2:5

Fire salvage: (“serious questions” version of sliding scale test remains viable following Winter, preliminary injunction merited by serious questions as to validity of emergency fire salvage project) Alliance for the Wild Rockies v. FS, 7/31:7, (amendment) 10/2:5

FS travel plan: (Travel Plan for L&C Forest violative of NEPA and MWSA, which mandates no change in 1977 wilderness character) Russell Country Sportsmen v. FS, 3/13:7

Grazing impact: (FS erred in using nonexistent sage grouse to assess grazing impact) Native Ecosystems Council v. FS, 3/20:6

Rock Creek Mine project: (approval vacated) Rock Creek Alliance v . FS, 5/15:8

Salvage harvest: (Cow Fly Salvage Harvest project properly approved) Alliance for the Wild Rockies v. FS, 3/27:7

Sanitation harvest: (Big Timber Canyon sanitation beetle-kill harvest challenges rejected, Plaintiff member’s declaration of plans to visit area and that project will impair ability to enjoy area and observe wildlife sufficient for standing) Alliance for the Wild Rockies v. FS, 7/3:7

Smelter cleanup trust: (request to terminate 2007 East Helena ASARCO smelter cleanup trust and return remaining $1.2 million in light of 2009 bankruptcy custodial trust denied) US v. Montana Environmental Trust Group, 8/28:8

*Evidence, Civil

Sanctions: (“reckless” spoliation of arrest video warrants designation (default judgment) that officers used unreasonable force) Peschel v. Missoula, 1/16:4

*Evidence, Criminal

CFSD file: (no error in denying access to CFSD file) Knowles, 9/18:2

Child witness: (“face to face” challenge of audio-video testimony improvidently considered, poorly briefed, inadequately supported by record) Knowles, 2/6:3

Co-conspirator testimony: (corroborating circumstantial evidence of criminal mischief conspiracy in addition to co-conspirator testimony) TJB, 5/29:5

Contradiction evidence: (to be governed by Rules 401 & 403 and other evidence rules, contradiction evidence that accuser told friend she had fantasy of being bound with tape and tickled with a feather while naked unfairly prejudicial, limited probative value) Passmore, 2/20:2

Electronic recording: (taping statements uttered while alone in interrogation room not impermissible) Meredith, 2/13:5

Exculpatory: (exculpatory evidence not denied by test destruction of 2 hairs found on body) Meredith, 2/13:5; (new trial based on failure to disclose booking photo of PFMA victim showing no injury properly denied) James, 8/14:2; (no Brady violation by negligent loss of late-disclosed casino CCTV recording not showing Defendant intoxicated immediately before accident, motion to dismiss properly denied) Seiffert, 8/14:4; (due process argument based on Art. II §17 v. federal law as to 6-months delay in discovery of patrol car video not preserved for appeal, State provided adequate explanation for delay) Charlie, 9/11:2

Expert: (detective properly allowed to opine that body was moved after shot based on blood analysis) Stout, 6/26:2; (supervisory control to allow false confession expert in murder case denied) Ross, 11/20:3

Hearsay: (interview video “statements” admissible as adopted by Defendant or not hearsay) TJB, 5/29:5

Other acts: (wife’s slapping children improperly admitted as “other acts” in support of case against husband) Knowles, 9/18:2; (no useful purpose for Just/Matt notice, often inimical to prosecutions, replaced with disclosure requirements with other acts evidence challengeable by defendant, supervisory control reversing Salvagni’s suppression of other acts in homicide case) State v. Salvagni, 12/18:2

Postconviction DNA: (hit & run driver identity was significant issue, but DNA testing of bloody envelope found on passenger side would not establish whether Defendant was the driver, (first impression, de novo review standard), no need to return facially unmeritorious petition so Defendant can supply “missing” information) Haffey, 5/8:6

Retroactivity: (to be “similarly situated” for purposes of retroactivity defendant merely has to show that his case is pending on direct review or not yet final) Reichmand, 11/6:4

Search & seizure: (officers’ entry onto property to post notice of sheriff’s sale not illegal trespass (except peek into freezer), sufficient basis for search warrant, conviction affirmed) Crites, 1/30:6; (sufficient evidence for search warrant for drugs without challenged phone recordings that preceded wired buys, not necessary to address request to extend Goetz to phone recordings) Harlow, 3/27:5; (saddlebags of motorcycle in garage properly searched even though warrant did not specifically list motorcycle) Stout, 6/26:2; (probation search of vehicle lawful) Charile, 9/11:2; (warrantless recording of cell phone conversation between Defendant and police informant unreasonable, improperly admitted) Allen, 10/9:2; (Goetz applied retroactively to warrantless wire recordings, error prejudicial as reasonable possibility they may have contributed to drug conviction, conviction reversed, remanded for new trial, to be “similarly situated” for purposes of retroactivity defendant merely has to show that his case is pending on direct review or not yet final) Reichmand, 11/6:4; (seizure of gun in possession of felon proper under collective knowledge doctrine, warrant exceptions applicable because suspect brandishing gun known to be felon, gun would have inevitably been discovered after officers obtained warrant to search vehicle for drugs, vehicle also properly stopped for speeding) Brinkerhoff, 12/4:4

Transaction rule: (evidence that Defendant plied other young men with intoxicants and made sexual advances to them improperly admitted under transaction rule, State failed to show error harmless, conviction reversed, remanded for new trial) Lacey, 1/23:5; (uncharged misconduct properly admitted as “inextricably linked” to charges of sex with daughter over extended period in environment of religious control and violence by father, both as to acts of which daughter was aware and acts of which she was not aware (door opened for one incident, one incident not preserved for appeal)) Guill, 4/10:3; (evidence of wife’s complex campaign to portray husband’s ex-lover as dangerous stalker inextricably linked to charge of killing husband, properly admitted under transaction rule as evidence of charged crime (without regard to whether acts occurred “immediately prior”)) Stout, 6/26:2; (evidence of drug use improperly allowed in support of rape charge, not harmless error, photos of naked women and Defendant improperly allowed under transaction rule, not harmless error, transaction rule scope/application clarified) Sage, 7/24:3

*Family Law

Adoption: (service by publication on potential fathers ordered where mother who had sex while intoxicated consents to adoption of infant and cannot or will not identify the fathers, Putative Father Registry constitutionality not resolved, order for mother to disclose father or face contempt set aside on supervisory control) MBJ v. Deschamps, 10/9:1

Common law marriage: (correctly found) Estate of Bothamley, 9/11:2

Custody: (supervisory control of Larson, Deschamps, GAL, CFS, psychologists, Board of Psychology denied in civil and criminal custody cases in which girls confessed to falsely accusing father of sexual abuse at urging of mother, and mother convicted of custodial interference by absconding with girls, 16 file boxes of documents & copies unprecedented tsunami of information, Court refuses to mine for meritorious arguments) LM v. Larson, 3/13:1; (no jurisdiction by Montana Court to modify Idaho parenting plan) Koeplin v. Crandall, 4/10:2; (Louisiana more appropriate for PKPA custody dispute now, even if Montana was more appropriate in 2004) Fontenot, 5/1:2; (wife on remand again wrongly penalized in amended parenting plan for decision to move) Plaisted-Harman, 5/8:2; (due process denied by modification of parenting plan without proper notice that husband sought primary custody, Court troubled by ex parte between Judge and wife’s expert (Judge’s friend), clarification that parental modifications involving lack of notice implicate due process, not jurisdiction, modification reversed) Steab, 6/5:2; (father’s disability, move to Arizona, prima facie change of circumstances for hearing on proposed change in parenting plan, petition improperly summarily rejected) Sian, 8/21:3; (sole custody proper to non-adoptive same-sex partner after adoptive partner moved, right to travel, insufficient pleadings not preserved for appeal, no need to address constitutionality of §40-4-225 right of parents to children’s therapy notes) Kulstad v. Maniaci, 12/4:1

Default: (default against wife properly not set aside over claim that she was incapacitated by depression and hospitalization) Gollnick, 7/17:2

Grandparent custody/contact: (paternal grandmother abandoned claim for custody, properly awarded contact with children conditioned on respect for mother’s wishes, Rule 11 fees properly not awarded to mother) JDB, 2/27:4; (stipulation not “contract” that mother “breached” by moving to terminate, Judge must make fitness determination, allow evidence that modification/termination in best interests of children or that prior ordered contact unduly interfering with mother’s role) Snyder v. Spaulding, 7/17:1

International child abduction: (no showing of “grave risk of harm” under Hague Convention that would preclude return of child abducted by Montana father to her mother in Panama, Panama living conditions, legal system, health issues, attachment to US and father, who is best suited for custody, improper grounds to defeat return, prompt return to mother ordered) Cuellar v. Joyce, 2/27:7, (pro bono attorneys who succeeded in return of child abducted by Montana father to Panama mother entitled to fees/costs, appellate commissioner to determine amount) 5/15:5

Maintenance: (husband from 1st marriage properly denied intervention of right in wife’s remarriage annulment action to contest continued maintenance obligation, may contest it in original divorce court) Loftis, 3/20:2

Parental rights: (young unmarried father did not willfully abandon son, made significant efforts to meet support obligations, being in arrears does not necessitate termination, regardless of whether CSED order is “court order,” failure to comply does not mean rights must be terminated, regardless of whether grandfather’s contributions are support on behalf of father, father made significant payments on his own, termination/stepparent adoption petition properly denied) BWZ, 1/23:4; (mother unlikely to change within reasonable time, father’s ineffective assistance claims unsupportable) AJW, 3/20:3

Property: (pre-nup encompassed only property at time of marriage, substantial improvements by wife over 27 years equitably distributed, pension properly divided) Deschamps, 1/23:4; (rulings by Stadler following first appeal of decree dividing farms affirmed) Snell, 1/30:3; (half of antiques business inventory improperly awarded to new husband rather than ex-husband in distribution in convoluted remarriage/common law marriage/partnership, all of house which wife received in 1st divorce improperly awarded to wife in 2nd divorce when former husband contributed to mortgage payments) Arnold, 2/13:4; (husband forfeited right to use ex-wife’s property for auto dealership by transferring free rent right to buyer of dealership, properly required to pay $2,500/mo rent after partial transfer of dealership, $68,476 fees at $175/hr properly awarded pursuant to settlement agreement) Szafryk, 5/1:1; (separation date improperly adopted as 5/01 as contended at hearing by husband rather than 5/06 per pleadings, wife’s Fen-Phen settlement improperly included in estate, value of wife’s leased trust land improperly included in estate) Baker, 6/5:3; (surgeon’s income determined partly correctly, partly incorrectly, estate properly valued from when parties no longer in same household) Tipton, 7/3:4; (wife’s contributions to business were loan and gift, wife not entitled to share in husband’s interest, ambiguous pre-nup drafted by wife’s attorney construed against her, despite pre-nup provision against such construction, loan which did not expressly provide for interest not interest-free, wife entitled to statutory 10%, wife’s appeal not frivolous, husband not entitled to appeal fees/costs) Weiss, 8/28:3

Support: (wife not equitably estopped from seeking past-due support) Stromberg v. Grove, 7/3:4; (no jurisdiction in divorce proceeding over claim that inheritance from wife’s father belongs to son) Boecher v. Vorce, 8/28:4

*FOIA

Search: (adequacy) Lovaas v. BLM, 10/2:4

*Indians

Foreclosure: (tribal foreclosure, sale of inn, purchase by bank, recognized, possession turnover ordered following extended/tortuous journey through tribal courts) Citizens Savings Bank & Trust v. Wellman (War Bonnet Inn), 7/10:2

Jurisdiction: (non-member widow of member had right to sue in State Court for med-mal allegedly occurring on CSK Reservation) Morigeau v. Gorman, 2/27:2; (CFSD had jurisdiction for child abuse/neglect substantiation proceedings against tribal member for alleged acts on Reservation against Indian child) Fair Hearing of Hanna, 2/27:3; (no Tribal Court jurisdiction over member’s toxic exposure claims against nonmember gas station) Town Pump v. LaPlante, 9/18:7

Tribal names: (Supreme Court to utilize original tribe names, Sélish & Ktunaxa here) Marriage of Baker, 6/5:3

*Insurance

Accidental death: (death caused by overdose of Fentanyl prescribed for back pain and pancreatitis was sudden, unforeseeable external event which caused injury, not contributed to by disease, sickness, infirmity, accidental death policy exclusions inapplicable, widower entitled to $50,000 policy limits, first impression) Joyce v. The Legionnaire Insurance Trust Program, 7/24:6

Agency: “Independent soliciting agent” not agent as to alleged negligent procurement before policy at issue selected, but was agent as to alleged negligence in failure to procure higher limits after insurer selected) Monroe v. Cogswell Agency, 6/12:4

Bad faith: (UTPA claim accrued when insurer denied request for policy limits and advance medicals, not on later actions asserted by Plaintiff, statute did not begin anew each time insurer confirmed prior position, claim barred by 2-year statute, breach of contract claims related to claims handling precluded by accord & satisfaction of release following acceptance of $90,000 new money after demanding $200,000 UIM limits) Greenwald v. Safeco Ins., 7/31:7; (objective, reasonable person standard adopted for determining whether liability “reasonably clear” in underlying case, jury should have been instructed to determine whether one would have found for good reason that MVA defendant 50% or more negligent, bad faith defense verdict remanded for new trial, offer of judgment in underlying federal suit not admission of “reasonably clear liability”, lack of citations, point of impact, Plaintiff’s middle-of-road driving habit properly admitted, no error in refusing Plaintiff’s instructions on careful driving or that lack of citations not lack of negligence, but should be reconsidered on remand in light of objective standard for insurer’s reasonableness, no error in refusing to instruct that insured’s lawyer was insurer’s agent in claims denial, lawyer properly allowed to testify about claims handling practices, reconstructionist’s testimony properly excluded as irrelevant or cumulative) Peterson v. St. Paul Fire & Marine Ins., 8/28:1

Consent judgment: (UIM insurer had opportunity to participate in settlement negotiations, notice of proposed consent judgment, documentary evidence to support amount, attempt to void death judgment and demand jury trial on damages rejected, all claims including UTPA subsequently settled) Modroo v. Nationwide Mutual Fire Ins., 4/10:4

Coverage: (snow-collapsed carport not covered in apartment complex policy despite insured’s claim that he requested and was told he was purchasing coverage of all structures) Park Place Apartments v. Farmers Union Mutual Ins., 4/17:7; (unattached carport covered in commercial policy insuring apartment complex premises based on ambiguousness but also most reasonable interpretation, snow collapse covered) Park Place Apartments v. Farmers Union Mutual Ins., 12/25:1; (ambiguous CGL endorsements construed against insurer so that general contractor is additional insured with blanket coverage under policy obtained by supplier, “intended use” exclusion not applicable where clips had not been installed to secure newly installed grating from which employee fell, insurer breached duty to defend, liable for defense costs) Ames Const. v. Intermountain Industrial, 5/1:6; (“Each Person” limit covers direct damages for daughter’s physical injury and derivative damages for loss of father in MVA up to $50,000 under policy language, $100,000 “Each Accident” limit available, derivative jurisprudence not implicated due to policy language) State Farm Mutual Auto Ins. v. Freyer, 9/4:1; (“resulting from” construed such that only complications caused by non-covered treatment of obesity are excluded (1st impression), lap band which would be excluded not source of subsequent infection, but receptacle of bacteria from separate source, procedures addressing infected liver & spleen covered, summary judgment for Plaintiff on coverage) Terry v. Butte-Silver Bow, 12/25:5

Duty to defend: (satisfied by attendance of adjuster rather than attorney at pre-litigation mediation) Farmers Ins. Exchange v. Johnson, 1/2:1

Duty to procure: agent had no duty to procure coverage for carport absent specific request and promise) Park Place Apartments v. Farmers Union Mutual Ins., 4/17:7

“Made whole” laws: (appeal of Sherlock’s denial of certification on grounds that individual adjudication required as to whether settlement with MVA tortfeasor “made whole” remanded to determine whether “made whole” laws apply to 3rd-party administrators of self-funded employee plans) Diaz v.BCBS, 10/16:1

Nonclaim statute: (“To the limits of the insurance protection only” exception to nonclaim statute allows claim against estate to continue for determination of dollar damages, insurer that paid MVA decedent’s policy limits may still be liable for excess judgment, first impression) Goettel v. Estate of Ballard, 7/3:1

Reformation: (Policy properly reformed to reflect mutual intent to delete accident vehicle (subject of $400,000 consent judgment)) Johnson v. American Ins., 5/1:5

Rescission: (insurer correctly invoked policy’s APL provisions, 1995 NY class settlement binding on Montana insured, precludes claims that POP procedure excused payment of further premiums after payment of first 8 in cash, no breach of contract to support rescission of policy, also barred by 8-year contract statute, ½ of Plaintiff’s fees awarded as discovery sanction, considering that information not particularly relevant in light of rescission ruling and because insurer largely complied, documents created following “rather threatening” letter from Plaintiff properly classified as work product in anticipation of suit, claim of discrimination on the basis of sex in fixing premiums dismissed) Sheehy v. New York Life Ins., 10/23:4

Proceeds: (dispute between former cohabitants over insurance proceeds for stolen items properly resolved by Small Claims Court, District Court) Carsen v. Horton, 2/13:4

Sex discrimination: (claim of discrimination on the basis of sex in fixing premiums dismissed) Sheehy v. New York Life Ins., 10/23:4

Surety: (proper notices not given to contractor as to provision of equipment under construction equipment leases, surety not liable for defaults) RDO Equipment v. Chief Construction Specialties, 4/3:7

UIM: (vehicle owned by husband & wife in which wife injured while husband driving within “insured auto” exception to “underinsured auto,” wife’s UIM claim following release of husband for $300,000 liability limits rejected, insurer not “agent” in on-line policy sale, no breach of contract, failure to provide/procure insurance, §33-15-302 (policy must contain entire contract) does not preclude claim for fraud in sale of policy, regardless of whether policy misrepresentation claim is at common law or pursuant to UTPA, insurer did not misrepresent UIM policy terms in coverage description, form, option form, website) Kaufmann v. Geico General Ins., 2/6:6, affirmed on appeal, 10/30:4; (parents injured in their vehicle driven by daughter properly precluded from UIM from parents’ and daughters’ policies, exclusion not illusory because, while UIM unavailable for single-car crashes involving only insured’s vehicle, it is available in all other accidents involving a vehicle not owned by the insured, parents (one died) sought UIM over $480,000 liability/med-pay from coverage of their 6 vehicles and daughter’s 2 vehicles, agency properly granted summary judgment on claims that it negligently failed to advise of inadequate coverage, but absence of testimony from agent (only one who could shed light on what coverage was requested) precluded summary judgment for agency as to whether insureds requested higher liability limits), “independent soliciting agent” not agent as to alleged negligent procurement before policy at issue selected, but was agent as to alleged negligence in failure to procure higher limits after insurer selected) Monroe v. Cogswell Agency, 6/12:4; (supervisory control of ruling by Lympus bifurcating claims against alleged tortfeasor and Plaintiff’s UIM insurers denied) Lundin v. Lympus, 9/18:1; (exclusion of UIM on family vehicle valid under Monroe, Monroe not in conflict with Bennett/Hardy coverage for which insurer received consideration, certification denied

*Landlord/Tenant

Residential: (future rent wrongfully deducted from security deposit when tenants terminated, accelerated rent provision unconscionable adhesion, improperly let landlord collect 8 months rent while offering apartment for rent, disincentive for mitigation, requiring tenant to pay landlord’s attorney fees violative of Act, severing illegal provisions insufficient to protect tenants’ rights, entire lease unenforceable, $9,442.36 to landlord reversed, remanded for fees/damages to tenants) Summers v. Crestview Apartments, 7/31:1

*Legislature

Immunity: (legislators immune as to statements made in legislative function regardless of content, defamation claims against legislator barred, first impression, no appeal sanctions) Cooper v. Glaser, 3/20:1

*Local Government

Airport: (fact issues preclude summary judgment as to whether City wrongfully restricted access to airplane business with security fence) Talmage (Montana Diamond Aire) v. Kalispell, 1/2:5

Deputy termination: (extra-statutory ulterior reasons for termination not precluded, judicial misconduct claim not supported, $95,998 verdict for deputy fired for allegedly spreading rumor as to jailers’ romantic entanglement, refusal to tell source, affirmed) Blatter v. Park Co. Sheriff’s Office, 2/20:1

Floodplain: ($116,459 Rule 11 sanctions awarded County for unnecessary expenses for investigating/enforcing homebuilders’ unpermitted fill in floodplain in face of repeated denials, defending against suit challenging authority to investigate violations, overcoming misrepresentations to Court, sanctions include county attorneys’ time at private attorney rates, county staff time, transcripts, experts, deposition costs, reduced 25% to account for need for revisions of floodplain regulations) Robak v. Ravalli Co., 8/7:5

Sanitary regulations: (2007 regulations only contemplated physical enlargements/additions to structure of residence, no notice that outbuildings moved to property would be considered “increased use” or “bedrooms”, 2007 definitions of “bedroom” and “increased use” unconstitutionally vague as applied in this case, not so vague as to be void on their face, 2009 regulations not retroactive, incinerating toilet not “wastewater treatment and disposal system,” did not require septic permit) Headapohl v. Missoula City-County Board of Health, 7/17:4

Subdivision: (post-trial intervention by developer proper after City Commission declined to appeal, contiguous owner had standing to challenge subdivision, standing by one landowner sufficient, preliminary plat approval properly overturned based on Commission’s failure to give EA “hard look”) Aspen Trails Ranch v. Simmons, 4/17:3; (application for major subdivision properly denied due to impacts on ranch, schools, public health/safety, County properly awarded $30,197 for experts/attorney hired to process application, objection to lack of compulsory counterclaim waived for failure to raise in pretrial order, claim properly pursued in main action in any event, insufficient rationale for denying costs to County) Hansen v. Granite Co., 5/15:1

Zoning: (actions to preserve setback variance for modular home rejected) Cooley v. Missoula, 1/30:2; (claim of spot zoning from Agricultural to Heavy Industrial to accommodate power plant not mooted by amendment of unrelated zoning regulations, no quantifiable evidence adduced in support of argument that claim moot because power plant developer has expended “millions of dollars,” remedy exists in that favorable ruling would restore land to original Agricultural designation, zoning challenge not mooted by failure to seek stay or injunction to prevent sale or development of land, supervisory control order only advised of proper procedures for stay/injunction, challenge not mooted by sale of land, zoning designation (not property ownership) represents underlying status quo, rezoning of 668 acres from Agricultural to Heavy Industrial constituted impermissible spot zoning under Little) Plains Grains v. Cascade Co. Commission, 7/24:2

*Mental Commitment

Commitment: (properly ordered for man with dementia) MCD, 2/13:3; (sufficient recent overt acts, Judge’s comment on refusal to talk to professional was “advice,” not improper comment on silence, commitment affirmed) JWL, 2/13:3; (properly ordered) VR, 2/13:4; (paranoia, grandiose thoughts, extreme religious ideation, suspicion of helpers supported finding of bipolar for commitment, foreseeability that illness would deteriorate sufficient for finding that Defendant could not provide basic needs) LR, 4/17:5; (commitment of person who made threatening/abusive calls to Governor’s Office affirmed) TM, 5/15:2

Forced medication: (forced medication prior to hearing proper in emergency detention (conflicting statutes reconciled)) LR, 4/17:5

*Oil/Gas

Gas: (claims of conspiracy/double-cross as evidenced by unexplained 25 years between trial and judgment not appealable) Ayers v. Rubow, 9/11:1

Negligence: (fracture stimulation company whose employee was injured while attempting to bleed pressure following unsuccessful frac attempts failed to establish that well owner had duty to “flow back” well, claim dismissed for lack of expert, lack of causation, lack of agreement as to “flow back” operations) Sanjel v. Kykuit Resources, 9/11:6

Ownership interest: (12.5% ownership interest in lease properly awarded non-party, rehearing denied) Textana v. Klabzuba Oil & Gas, 1/23:4

*Partnerships

Receivership: (receiver properly appointed to operate resort, Plaintiffs properly ordered to vacate premises) Blakley v. Rehurek, 5/22:1

*Probate

§72-2-814(2)(a)(i): (automatically revoked ex-wife’s pour-over living trust that had named former husband’s children as devisees, declaratory judgment proper without requiring wife to file pleading and name husband’s children as parties) Marchwick, 6/12:6

Nonclaim statute: (“To the limits of the insurance protection only” exception to nonclaim statute allows claim against estate to continue for determination of dollar damages, insurer that paid MVA decedent’s policy limits may still be liable for excess judgment, first impression) Goettel v. Estate of Ballard, 7/3:1

Service: (service by publication proper in Missoula proceeding to determine “then-living” heirs entitled to estate remainder, no need to re-serve after venue changed to Cascade Co. and consolidated with re-opened estate proceeding, due diligence in attempting to locate heirs, claims by surfaced heirs properly barred by default, laches, no basis for escheating any part of trust remainder for their benefit) Bovey, 10/23:2

Will/trust contest: (disinherited son required to post $75,000 bond to cover heir’s potential fees/costs in challenge of mother’s trust disposition under either §25-10-601 (foreign plaintiff, “additional amounts” clause) or §72-2-111 (intestacy limitation by will), supervisory control denied, case dismissed for failure to post bond, settled with Plaintiff inheriting nothing but avoiding fees) David Hill v. Susan Hill, 12/4:3

*Property

Adverse possession: (adverse possession, gift, estoppel must be established by clear & convincing proof, sua sponte damages for alterations & repairs to house improper where only issue was ownership) Baston v. Baston, 10/2:1

Boundary: ($27,103.50 to purchasers of lot encroached by adjacent owners due to unrecorded boundary change equitable, as opposed to removing house for $400,000, damages to be paid by seller who failed to record change, Plaintiffs denied equitable fees, but entitled to costs for property damage judgment) White v. Keown, 1/30:1; (prescriptive easement but no adverse possession over part of claimed boundary land) Fehrs v. Schmidt, 11/20:2

Easement: (State-owned river bed between Plaintiff’s parcel and parcels on public road defeats claim of easement by necessity because there was never unity of ownership between lands separated by river) Frame v. Huber, 4/10:1; (easement by necessity properly established from public road to parcel that was landlocked at time of County severance, old road properly established as public way, easement scope not unlimited as Plaintiffs sought, more expansive than Defendants urged, although elements of easement arose in 30s, interference not possible before it was established by order) Ashby v. Maechling-Alcosser, 4/17:4; (negative, referenced plat’s “Building restriction line” bars garage on side of line with label, garage properly ordered removed) Conway v. Miller, 5/8:1; (prescriptive easement not abandoned by predecessors’ nonuse or Defendant’s construction of alternative access) Leisz v. Avista, 5/15:2; (deeds/covenants not ambiguous, because Plaintiffs’ tract within 30 of centerline of road “as built” they have access to their tract over it across Defendants’ tracts, even though they also have access by another road, gate properly ordered removed from non-termination tract) Clark & Smith v. Pennock, 9/4:2; (use began as permissive, became hostile, but hostile use did not last 5 years, prescriptive right correctly denied) Badley v. Morris, 9/11:1; (prescriptive easement but no adverse possession over part of claimed boundary land) Fehrs v. Schmidt, 11/20:2

Old county road: (public access established to corner of State land via right-of-way to overgrown but not abandoned road) Only A Mile LLP v. State, 5/8:1; (width properly based on historical use, “estimate” in feet dictum, properly used for subdivision access) Gray v. Wilson, 7/31:3

Partition: (partition/sale proper resolution of dispute as to property conveyed by deed from father to 5 children contrary to divorce agreement to divide among children, son who lived on property not 3rd-party beneficiary to agreement, adverse possession barred by failure to pay taxes) McDowell v. McDowell, 2/20:2; (house and construction entity properly divided) Wedge v. Millard, 4/3:4

Real estate: (fraud claims properly dismissed based on Plaintiff’s acknowledgment that Defendants had pre-qualified for conventional financing for condo even though financing failed when lender changed terms, buy-sell terminated when buyers could not obtain specified financing, earnest money must be returned, default properly set aside to correct oversight that Defendant had responded to discovery requests) Mill Creek LP v. Lodge, 4/3:3; (alleged oral agreements/statements outside buy-sell as to claims for negligent misrepresentation/breach of implied covenant as to trailer court water system barred as parol evidence, not within fraud in inducement exception, fraud claims also time-barred, no error in refusing to grant purchase money mortgagee/ seller a deficiency, defense verdict as to failure to disclose water system defects to buyer) Deschamps v. Treasure State Trailer Court, 4/17:1; (tortious interference with contract properly found in Californian’s attempt to induce Montana ranch seller to repudiate exchange agreement with Montanan and sell to Californian, claim that Californian merely induced seller to exercise right to redress in bringing declaratory action not preserved for appeal, $150,000 damages against Californian, no punitives, $35,506 fees plus appellate fees against seller) Emmerson v. Walker, 8/7:1; (indenture trustee’s duty to notify all lienholders extends to potential purchasers, $1.5 million liens discovered after sale for $735,705, breach of express warranty under §71-1-318 rejected, breach of implied warranty under §70-20-304 survives, negligence per se adequately pled, but comparative negligence available, but Plaintiffs failed to establish negligence per se, claim denied without prejudice, expert’s letter not relied on in summary judgment, but expert may not testify as to legal conclusions or apply law to facts, foreclosure firm owed duty to purchasers to disclose all junior lienholders in Trustee Sale Guarantee, Plaintiffs’ attorney’s affidavit timely under MRCivP despite 10-day limit in UDCR 2, purchasers not intended 3rd-party beneficiaries to TSG, no fact issues as to contract, no promissory estoppel, no breach of implied covenant, sufficient evidence of breach of trustee’s deed’s representation of no interest by junior lienholders to defeat summary judgment for trustee on breach of contract, caveat emptor not available to preclude breach of implied covenant based on notice defects in trustee’s sale, insufficient distress for infliction claims) Pomranky & Valla v. Peterson, 8/28:5; (property settlement entered into after close of discovery properly enforced on summary judgment in pending contract action without requiring new cause, misrepresentation of status of title claim precluded by actual/constructive notice of encumbrances, Rule 56(f) motion for additional discovery properly denied) Hinderman v. Krivor, 11/6:2; (summary judgment proper for Defendants on house defects claim based on expert’s lack of qualifications) Gregory Hall v. Don Hall (Hall Builders), 11/20:1

*Railroads

FELA: (RR met burden for mitigation instructions as to injured laborer who refused modified position, Plaintiff failed to object to adequacy of pattern instructions, new trial denied following $184,856 admitted liability verdict for elbow condition) Vincent v. BNSF, 3/27:1; (injured welder raised triable fact issue as to whether subsidiary car company was employer under “subservant” of RR theory) Schmidt v. BNSF, 5/22:3; (evidence of previous verdicts in which repetitive motion claims were rejected (without informing jury 1 million+ awarded on other claims) resulted in unfair trial, new trial properly granted following defense verdict on repetitive motion claim) Bircher v. BNSF, 6/5:1; ($300,000 RR slip & fall release properly set aside for mutual mistake as to undisclosed pre-existing spinal condition, medical records reference to weightlifting properly excluded at trial (for lack of foundation, not to show injury divisible since RR did not seek to apportion liability), contributory negligence properly submitted to jury (15% found), offset against $1,360,000 verdict properly granted for $300,000 invalidated settlement, offset of interest on $300,000 properly denied under FELA) Cheff v. BNSF, 11/6:1

Shortline RR: (Shortline operator (CMR) as assignee of State not allowed to voluntarily dismiss long-running Federal Court litigation to allow State to re-litigate in State Court claims lost in Federal Court, claims for $9.8-$56.6 million for lost shipments due to BN’s alleged breach of contract by allegedly sabotaging grain negotiations rejected and summary judgment granted to BN because CMR is not 3rd-party beneficiary of 1984 State-BN agreement, claims for $1.6-$2 million on behalf of State for increased highway damage rejected, case dismissed, final judgment entered) Central Montana Rail v. BNSF, 5/1:7

*Settlements

Bankruptcy: (complex 4-party deal including $2,091,000 payment by resort buyer, alleged fraudulent transfers, resort development divorce dispute, $697,000 fees to Ch. 7 Trustee’s counsel) Crum v. Blixseth, 9/4:7

Excessive force arrest: ($365,000) Peschel v. Missoula, 1/16:4

Radiologist/hospital: ($4 million) Cole v. St. James Healthcare, 11/13:4

Teacher termination: ($240,000, teacher fired for turning contract in a day late, settled mid-trial following 2 unfavorable District Court rulings, 2 favorable 9th Circuit rulings, amount obtained under FOIA) Weber v. Twin Bridges School Dist., 8/21:6

*Social Security

Disability: (ALJ Hartford failed to explain why he discounted VA’s 100% disability rating as required by McCartey, sentence 4 remand) Clark, 1/16:7; (ALJ Prothro erred in not specifically discussing evidence, explaining why Claimant’s impairment did not meet or equal a listing) Campbell, 1/16:7; (mental claims properly rejected) Wikoff, 7/31:6; (ALJ failed to make specific findings warranting rejecting claim of debilitating headaches, failed to credit mental limitations per physician’s opinion, remanded for benefits, Kilroy/Haddon reversed) Edler, 9/4:6; (improperly denied, remanded for award of benefits) Schmasow, 11/20:5; (daily activities did not mirror demands of full-time job, insufficient to undermine claim of inability to work, remanded for award of benefits) Meier, 11/27:3

Overpayment repayment: (waiver properly denied) Gossens, 5/1:5

*State Government

Bridge repair: (MDT entitled to $27,380 “indirect costs” — 12.25% of contractor’s charge for repairing interstate overpass damaged by oversized truck, first impression) MDT v. Hanser Wrecker, 1/16:4

Conservation license: (requiring last 4 digits of SSN on conservation license application rationally related to State’s interests in federal child support enforcement funding, “conservation” license is “recreational” license under federal law) Montana Shooting Sports Association v. FWP, 1/23:4

Pharmacy Act: (prescription assistance business violative of Pharmacy Act, injunction properly issued on summary judgment) Board of Pharmacy v. Kennedy (Canadian Connection), 10/30:1

Riverbeds: (are public trust lands, not school lands, $40,956,180 judgment against PPL for use of riverbeds at Missouri, Madison, Clark Fork hydro sites 2000-07 affirmed) PPL Montana v. State, 4/3:2

Securities/insurance: (substantial evidence of violations in dealings with elderly, hearsay objections not preserved, not necessary to address whether failure to file exceptions failure to exhaust) Matter of Bower, 2/27:3

*Taxes

Tax deed: (summary judgment by McKinnon improperly based on failure to comply with notice requirements where address unknown and for tax lien sales rather than assignment, remanded for reconsideration under proper statutes) Showell v. Schmart, 11/20:1

TIFD: (DOR has authority to adopt increment financing rules) Fallon Co. v. DOR, 1/23:3

*Torts

Copyright infringement: (injunction for return of aircraft maintenance/production platform drawings except drawings as to $61 million Air Force bid award for platforms to be returned upon resolution of bid protest) Flexible Lifeline Systems v. Precision Lift, 10/30:5

Defamation: (claims by nuisance animal refuge operators rejected, Rule 11 sanctions against pro se Plaintiffs) Polejewski v. Hanson, 9/25:4

Dram shop: (rehearing denied on upholding 180-day notice for suing bars) Rohlfs v. Stumble Inn, 3/27:3

Excessive force/negligent arrest: (no special duty under domestic abuse statutes protecting victim from officers’ negligence/excessive force negating Public Duty Doctrine, but special relationship exists during period of custody, but not time before custody) Bonogofsky v. Big Horn Sheriff’s Dept., 1/9:8, (no negligence per se, §1983 violation); (“reckless” spoliation of arrest video warrants designation (default judgment) that officers used unreasonable force, reserving for jury causation, injury, damages, whether taser used, whether officers acted with malice, absence of bad faith precludes award of fees, reconsideration denied based on claim that more than “recklessness” required and officers’ due process claims, unlawful arrest claim previously rejected, settled for $365,000) Peschel v. Missoula, 1/16:4

Immunity: (qualified immunity properly granted to officer who arrested drug suspect in bar parking lot whose arrest was overturned by Montana Supreme Court for lack of probable cause, County Defendants not collaterally estopped from relitigating probable cause, review of dismissal of other County Defendants and State waived by failure to brief) Ellington v. Cashell, 3/27:6

Lost industrial park opportunity: (claim for lost profits in City’s takeover of property not subject to $750,000 cap, discovery sanction that City liable to developer precluded evidence of cause of injury, jury properly instructed to award some amount for lost profits in light of unrefuted evidence that there would be some profit when the land was developed, expert testimony as to lost profits not mere speculation, $3 million verdict affirmed) Delaney v. Bozeman, 1/2:1

Medical malpractice: (med-mal claim dismissed for failure to exhaust Panel, Hill-Burton claim dismissed for failing to allege discrimination by clinic) Jones v. Deaconess Billings Clinic, 3/6:3; (Plaintiff deprived of fair trial by panelists’ concerns about preponderance of evidence standard, Defense counsel urging jurors not to put “black mark” on doctor, new trial should have been granted following defense verdict on knee replacement claims) Cooper v. Hanson, 5/29:1; (Defendant’s summary judgment motion improperly addressed (and granted) before Plaintiffs’ motion to amend to add claim for lack of informed consent as to alternatives to surgery for PTC based on neurosurgeon’s deposition 2 days after summary judgment hearing (due to scheduling conflict), motion to amend improperly denied as futile in light of summary judgment, remanded for evaluation on its own merits, neuro-ophthalmologist competent to opine on standard for informed consent as to alternatives to PTC surgery by neurosurgeon, allegations as to failure to exhaust alternatives encompassed within surgery negligence allegations under liberal notice pleading, claim improperly rejected on summary judgment) Griffin v. Moseley, 6/12:1; (no fact issue as to whether pain & anxiety medications caused cancer patient to have shorter life, not necessary to address breach of standard of care, claims dismissed on summary judgment, Plaintiffs failed to show spoliation of Narcotic Count Record) Willson v. Addison, 10/23:3

Negligence: (former girls’ school inmate knew or should have known of relationship between smoking and her illness because she was advised throughout the 90s, admitted knowing smoking caused disease as early as 80s, claim that lung disease caused by smoking induced by State keepers time-barred) Chriske v. State, 7/24:1; ($7,490,000 CO verdict for 18 Plaintiffs against heater manufacturer improperly reduced by 30% negligence of installer since jury not asked to apportion negligence/product, but should be reduced by $2 million installer settlement under pro tanto, interest improperly awarded from judgment, accrues from verdict when damages known, not tolled by dispute over offset) Hulstine v. Lennox Industries, 8/21:1; (truck driver who stopped and waved oncoming pickup to turn left in front of him assumed duty of acting with reasonable care, up to jury whether he breached duty or caused injury to bicyclist riding alongside truck who collided with pickup, summary judgment improper for truck driver, not clear whether passing-on-right statute should be applied to bicyclist, significance and legal effect of each participant’s conduct can be determined at trial) Lokey v. Breuner, 10/23:1; (Plaintiff’s drinking relevant to left-turn MVA Defendant’s claim of comparative negligence, hospital BAC test admissible, DUI citation excluded because DUI dismissed, trooper’s report admissible, motion to exclude evidence of beer bottles in Plaintiff’s vehicle denied subject to renewal at trial, reasonable jury could not conclude that Plaintiff’s drinking was principal cause of accident, summary judgment for Plaintiff on Defendant’s liability, jury to determine extent to which Plaintiff’s reaction time contributed to injuries, treating physician’s testimony as to shoulder condition/surgeries limited to information acquired during his treatment, fact issue as to whether Defendant’s negligence which aggravated Plaintiff’s shoulder necessitated 7/07 surgery, undisputed facts show 12/07 surgery and current condition not related to MVA, brain claim precluded by lack of expert testimony) Wise v. Rust, 12/4:5

Nuisance/trespass: (Challenge to shooting range not precluded by specific exemptions, neighbors may further develop civil public nuisance claim, private nuisance analysis should focus on noise injuries alleged by specific plaintiffs rather than group, intangible invasion trespass recognized, Plaintiffs improperly denied opportunity to establish damage, Plaintiffs improperly denied opportunity to develop threat of irreparable injury under attractive nuisance theory, claims under constitutional environment, public education provisions properly dismissed, not necessary to determine whether §76-9-105 safety hazard provides for private action, individual who bought land and transferred it to LLC improperly dismissed (shotgun blasts while he owned the property), Plaintiffs able to pursue LLC based on its continued operation of shooting range) Tally Bissell Neighbors v. Eyrie Shotgun Ranch, 4/3:1

Privacy: (no common law or constitutional cause for violation of privacy by video of comp claimant exercising in health club) Miller v. Great Falls Athletic Club (The Peak Health & Wellness Center), 8/14:1

Product liability: ($7,490,000 CO verdict for 18 Plaintiffs against heater manufacturer improperly reduced by 30% negligence of installer since jury not asked to apportion negligence/product, but should be reduced by $2 million installer settlement under pro tanto, interest improperly awarded from judgment, accrues from verdict when damages known, not tolled by dispute over offset) Hulstine v. Lennox Industries, 8/21:1

Recreational use: (no liability for injuries by “500” player who inadvertently crossed onto neighbor’s property while running to catch ball and struck hidden wellhead) Kapphan v. Vincent, 2/6:1

Securities: (claim as to phantom auto contracts not timely under 2-year statute which does not allow for discovery, properly dismissed following $70,000 verdict based on jury finding as to date when agent was “offerer”, jury correctly found that broker was not “control person” in independent sales of securities, defense judgment affirmed, $3,162,103 default judgment against Ponzi operator) Mosley v. Ameriprise Financial, 4/17:2

Slander/open meeting: (claims by irrigation district manager against Board and members correctly rejected) Jensen v. Absarokee Water & Sewer Dist., 9/18:2

Tortious interference with contract: (properly found in Californian’s attempt to induce Montana ranch seller to repudiate exchange agreement with Montanan and sell to Californian) Emmerson v. Walker, 8/7:1

Wrongful death: (birthday party shooting death claims against landlord and his company rejected, contribution preemption not basis for forcing defense of claims with no supportable theory of liability) Abrahamsen v. Hafen, 10/2:3

Wrongful discharge: (§39-2-915 challenge not preserved for appeal, failure to make findings/conclusions as to fees not reversible as Plath factors addressed at hearing, finding that Plaintiff refused arbitration implicit in fact that arbitration never occurred, matter proceeded to trial, no motion to strike fees prayer, Plaintiff not prejudiced by lawyer’s post-verdict withdrawal, Defendant’s failure to give UDCR 10 notice, as no “further proceedings” after fees hearing, $33,920 fees/costs following defense verdict) Prescott v. Innovative Resource Group (APS Healthcare Midwest), 2/20:1; (County employee caught using county equipment at home, and whose termination was later set aside, received sufficient pre-termination due process) Bonney v. VanDaveer, 3/6:4; (terminated Plaintiff’s claims that he was fraudulently recruited from previous bank not preempted by WDA, fact issues as to whether contract claims preempted by WDA, tort claims not preempted by NBA, disputed fact issues as to whether Plaintiff was “officer” subject to NBA “at pleasure” or merely “commercial lender,” whether parent company was employer) Leuthold v. First National Bancorp, 3/27:6; (HR Manager’s probation began on date she was “owed compensation” pursuant to §40-5-901(1), not from when she may have provided uncompensated advice before she began working for hospital, terminated within 6 months while still on probation, request to carve exception to “for any reason or for no reason ” for probationary employees terminated for refusing to violate public policy declined) Blehm v. St. John’s Lutheran Hospital, 4/24:3; (hospital HR Manager’s probation began when she began work, not when she accepted employment offers, terminated within 6 months while still on probation, common law exception to WDA “any reason or no reason ” for refusing to violate public policy rejected) Blehm v. St. John’s Lutheran Hospital, 12/18:1

*Utilities

Territorial integrity: (claims in 2nd action in 2nd county barred by claim & issue preclusion of ruling on same claim in 1st county of exclusive right to supply electricity to pipeline) NorVal Electric Cooperative v. McCone Electric Cooperative, 1/30:3

Windpower wholesale rate: (properly remanded to PSC for redetermination) Whitehall Wind v. PSC, 1/9:7

*Verdicts

Attic fall: (defense (20/80), attic floor fall, neck/back) Malady v. Meadow Lark Country Club, 9/4:4

Auto: ($26,000, intersection auto, thoracic disk, emotional, admitted liability, 0 consortium for husband) Johnson v. Chambers, 5/15:4; (defense, intersection, L5-S1 fusion) Styren v. Roos, 12/18:7

Auto/bicycle: ($41,250 net (45/55), bicycle/auto, elbow/hip/knee contusions/L4-5 herniation) Kelley v. Godak, 7/10:1

Auto/pedestrian: (defense (95/5), pedestrian/auto, head/neck/ribs/pelvis, $52,000 settlement from State and City) Maestas v. Leto, 6/19:3

Bundle of pipe fell onto truck driver: ($1,044,494, bundle of pipe fell onto long-haul driver while construction company forklift operator was unloading a bundle on the other side of trailer, fractured legs/crushed foot) Holdren v. Falls Const., 7/3:6

Contribution: (defense, no contribution from MDT, construction company, engineering company, signage company in $1,046,189 settlement by truck owner with pregnant woman rear-ended in construction zone) United Tool Rental v. Riverside Contracting, 9/4:5

Discrimination: ($945,000, 3 Hispanic deputy sheriffs, no discrimination but adverse employment actions by County, Sheriff, deputies, retaliation, 1st-amendment, punitives) Romero v. Yellowstone Co., 8/14:6

Employee indemnification: (defense, trial employment toward financing for purchase of bowling lanes) Tompt v. Havre Operations, 11/20:4

FLSA: (fact issues as to overtime status precluded summary judgment/directed verdict, liquidated damages proper despite jury finding no willfulness, $95,738/$90,675 fees properly awarded without contemporaneous billing records, but counsel urged to provide time records in fee-shifting cases, FLSA costs provision controls over Montana statute, $267,330 judgment on $35,220 verdict affirmed) Tacke v. Energy West, 2/27:1

Furniture fall from icy truck lift gate: ($1,057,000, furniture fall from icy truck lift gate onto store owner, torn rotator cuffs/RSD) Troxler v. Mergenthaler Transfer & Storage, 10/9:4

Hay dust: (defense, hay dust trespass/negligence from hay grinding operation) Dreeszen v. Swartz, 9/4:5

House remodel contract: ($15,264.04, breach of contract/lien foreclosure) Loken Builders v. Boyce, 3/13:4; (expert properly precluded from homeowner’s case-in-chief (allowed on rebuttal), directed verdict as to subcontractor’s relationship with homeowner properly denied, jury properly instructed on contract elements, entitlement to payment, contractor/subcontractor liability, majority of fees properly denied to prevailing contractor who was entitled to fees pursuant to contract where not possible to segregate contract/negligence claims and insurer only obligated to defend negligence claim, prejudgment interest properly denied on $10,740 award to subcontractor (amount of unpaid invoices) as existence of contract not determined until verdict, verdict of $7,902.44 to homeowner for negligence by contractor, $5,361.78 to contractor for breach by homeowner, $10,740 to subcontractor for breach by homeowner affirmed) DiMarzio v. Crazy Mountain Const., 11/6:3

House waterline freeze/flood: (defense) Burleson v. Ranger Plumbing & Heating, 6/26:7

Insurance: (burned apartment building owners’ claim of breach of insurance contract rejected over insurer’s claim of fraudulent application, insurer entitled to $119,726.84 on counterclaim for payments to lender and monies advanced to insured) Schindler v. USAA, 7/3:6

Land exchange: ($600,000, abuse of process/deceit/unclean hands, $1 punitives, prescriptive easement, misrepresentation in mountain top ski land exchange, bifurcation of equitable issues to the bench, legal issues to a jury denied, one trial of all issues, perhaps utilizing advisory jury) Boyne USA v. Spanish Peaks Development, 12/11:5

Lost industrial park opportunity: (claim for lost profits in City’s takeover of property not subject to $750,000 cap, discovery sanction that City liable to developer precluded evidence of cause of injury, jury properly instructed to award some amount for lost profits in light of unrefuted evidence that there would be some profit when the land was developed, expert testimony as to lost profits not mere speculation, $3 million verdict affirmed) Delaney v. Bozeman, 1/2:1

Malicious prosecution, abuse of process: (defense, claims arising from action to enforce deed restriction) Steiner v. Danforth, 10/16:4

Medical malpractice: ($501,007.68 net (51/49), naturopath malpractice, failure to refer patient with chest pain to cardiac specialist, negligence by patient in failing to continue chelation, heart attack death) Sisson v. Schlechten, 2/13:8; (Plaintiff deprived of fair trial by panelists’ concerns about preponderance of evidence standard, Defense counsel urging jurors not to put “black mark” on doctor, new trial should have been granted following defense verdict on knee replacement claims) Cooper v. Hanson, 5/29:1; (defense, medical malpractice, neonatal hypoglycemic brain, alleged failure to maintain proper glucose levels) Norris v. Fritz, 8/14:5; (bipolar medications) Snodgrass v. Gordon, 11/27:2

Meth lab notice: ($563,592 to house purchasers, negligence by County in not notifying DEQ that it had been a meth house, defense verdict/no liability by Realtors, $5 settlement by seller) Slack v. The Landmark Co., Grover, and L&C Co., 10/2:4

Motorcycle/van: ($27,151.95 net (50/50) to motorcyclist Plaintiff for foot crush fractures, $800 (50/50) net to Defendant for van damage) Beggins v. Kaiser, 5/29:6

Outbuildings fire: (defense, fire that destroyed outbuildings after neighbor’s barn roof blew off and cut power line) Goles v. Neumann, 7/3:7

Product liability: ($7,490,000 CO verdict for 18 Plaintiffs against heater manufacturer improperly reduced by 30% negligence of installer since jury not asked to apportion negligence/product, but should be reduced by $2 million installer settlement under pro tanto, interest improperly awarded from judgment, accrues from verdict when damages known, not tolled by dispute over offset) Hulstine v. Lennox Industries, 8/21:1

Railroads: (RR met burden for mitigation instructions as to injured laborer who refused modified position, Plaintiff failed to object to adequacy of pattern instructions, new trial denied following $184,856 admitted liability verdict for elbow condition) Vincent v. BNSF, 3/27:1; (defense, RR tunnel CO exposure, engineer) Weber v. BNSF, 5/15:5; (evidence of previous verdicts in which repetitive motion claims were rejected (without informing jury 1 million+ awarded on other claims) resulted in unfair trial, new trial properly granted following defense verdict on repetitive motion claim) Bircher v. BNSF, 6/5:1; ($300,000 RR slip & fall release properly set aside for mutual mistake as to undisclosed pre-existing spinal condition, medical records reference to weightlifting properly excluded at trial (for lack of foundation, not to show injury divisible since RR did not seek to apportion liability), contributory negligence properly submitted to jury (15% found), offset against $1,360,000 verdict properly granted for $300,000 invalidated settlement, offset of interest on $300,000 properly denied under FELA) Cheff v. BNSF, 11/6:1

Semis crush: ($867,000, claimed crush between semis, lumbar/ribs fractures) Soanes v. Heidecker, 3/20:5

Sexual molestation/assault: (defense, failure to control child in alleged “Dare-Dare,” $100,000 to mother and son Defendants on infliction of emotional distress counterclaim) TAS v. MF, 4/24:5

Siding warranty: (no prejudice from juror researching “preponderance” on Internet, new trial following defense verdict in siding case properly denied, but judges urged to instruct against Internet research) Stebner v. Associated Materials (Alside), 6/26:1

Suicide v. homicide: (defense, Coroner correctly ruled death was suicide) Jorgensen v. Gallatin Co., 3/13:5

Trade secrets: ($8.1 million, misappropriation of oil field device trade secrets/fraud, Texas Court, Montana Plaintiff’s lawyers) Bohnsack v. Varco LP, 9/11:7

Wildland fire: ($250,000, burned trees) Lampi v. Speed, 3/13:4

Wrongful discharge: (defense, wrongful discharge, sporting goods employee, slander, punitives claims directed out) Jones v. Sheels All Sports, 2/6:5; (§39-2-915 challenge not preserved for appeal, failure to make findings/conclusions as to fees not reversible as Plath factors addressed at hearing, finding that Plaintiff refused arbitration implicit in fact that arbitration never occurred, matter proceeded to trial, no motion to strike fees prayer, Plaintiff not prejudiced by lawyer’s post-verdict withdrawal, Defendant’s failure to give UDCR 10 notice, as no “further proceedings” after fees hearing, $33,920 fees/costs following defense verdict) Prescott v. Innovative Resource Group (APS Healthcare Midwest), 2/20:1; (defense, wrongful discharge, lodge activity director) Lokteva-Quenzer v. Great Montana Adventure Co., 6/26:7; (defense, newspaper sales rep, refusal to use mileage accounting GPS unit) Nye v. Lee Enterprises (Ravalli Republic), 9/4:6

*Water

Dissatisfied user complaint: (properly rejected based on finding that pond non-consumptive, water quality, other issues, not within jurisdiction of informal proceeding) Kelly, 2/13:2

Ditch easement: (prescriptive easement not extinguished by termination of water rights for failure to pay processing fees, Water Court had authority to reopen/reinstate claims, adjacent developer not notified of reinstatement proceeding, but on inquiry/constructive notice of continued use of ditch, properly ordered to rebuild ditch which it had bulldozed, $37,500 properly awarded for loss of use) Mustang Holdings v. Zaveta, 7/3:3

Instream flow change: (denial of instream flow change based on incomplete return flow analysis abuse of discretion, but DNRC still has discretion to determine historically diverted amount, “amount historically consumed,” or lesser amount, balancing fish against existing right holders, remanded for reconsideration by independent HE following denial by DNRC and reversal of denial on judicial review) Hohenlohe v. DNRC, 9/25:1

*Workers’ Compensation

Accident occurrence: (claimed fall, loss of consciousness by disappeared trucker rejected, fired for performance reasons, not job injuries) Sherwood v. Watkins & Shepard, 7/3:8; (exaggerating Petitioner suffered compensable injury, but not severe as claimed, not related to employment termination, entitled to medicals but no wage-loss or penalty) Chapman v. Twin City Fire Ins., 11/13:6

Aggravation: (PE teacher suffered permanent aggravation of preexisting condition when knocked down by student, insurer liable for further benefits, Arizona IME doctor’s unsolicited opinion inconsistent with deposition, denial based on IME opinion following initial acceptance not unreasonable because insurer attempted to obtain Arizona treating physicians’ opinions as to IME report) Fleming v. MSGIA, 6/19:4

Appeal bond: (3rd-party Respondent’s request for stay denied pending appeal bond, proffered security inadequate) Hopkins v. UEF, 11/13:6

Attorney fees/costs: (Claimant not entitled to fees merely because he cannot afford to pay out of any award, no claim of unreasonableness that would warrant fees or penalty, unspecified “additional relief” denied) Wright v. ACE American Ins., 5/29:7; (challenges to common fund claims rejected) Flynn v. MSF, 7/10:3; (contingent fee in to be based on net common fund benefit after SSD offset) Schmill v. Liberty Northwest Ins., 7/10:4; (Petitioner not entitled to flat fee for postage/phone, costs for deposition/trial incurred returning to Montana from doctor-recommended relocation to Arizona) Fleming v. MSGIA, 7/10:5

Bad faith: (malice/punitives claims not fact intensive as to individual class members (unlike fraud claims), properly included in class action, class properly defined) Gonzales v. MPC, 5/29:3; (bad faith claims may proceed following stipulated judgment as to liability while claim for future medicals is ongoing, possibly for life, Plaintiff entitled to original claim files to prove bad faith case (subject to specific objection), supervisory control of McLean granted, indefinite stay of bad faith case reversed) Lamb v. McLean, 6/26:1

Casual employment: (use of purported vacation home for tax purposes part of usual course of business, Claimant’s carpentry work not “casual employment,” not exempt from comp) Weidow v. UEF, 1/30:8

Constructive discharge: (Claimant voluntarily resigned, not constructively discharged, failed to prove total loss of wages as result of injury after resignation, not entitled to TTD for post-resignation cubital tunnel surgery allegedly resulting from pre-resignation injury) Pugh v. Charter Oak Fire Ins., 1/16:8

Disability: (Petitioner likely to improve with additional treatment, not at MMI, not entitled to TTD) Wright v. ACE American Ins., 5/29:7; (claimed fall, loss of consciousness by disappeared trucker rejected, fired for performance reasons, not job injuries, prior employer liable for undisputed injuries, not at MMI, therefore no PTD, TTD as of 9/09) Sherwood v. Watkins & Shepard Trucking, 7/3:8

Discovery: (insurer’s retaliatory discovery denied in penalty case as to whether it was unreasonable in “un-accepting” and later re-accepting claim, Claimant’s discovery as to IME doctor limited to Fjelstad parameters) Connors v. USF&G, 4/3:7; (dismissal appropriate for failure to provide tax returns) Peterman v. Herbalife, 7/3:3; (supervisory control denied in doctor’s claim of denial of opportunity to conduct discovery and requirement to pay half of discovery master, but Harkin urged to expedite discovery) Barstad v. Harkin, 9/18:2; (½ of Plaintiff’s fees awarded as discovery sanction, considering that information not particularly relevant in light of rescission ruling and because insurer largely complied, documents created following “rather threatening” letter from Plaintiff properly classified as work product in anticipation of suit) Sheehy v. New York Life Ins., 10/23:4; (Rule 56(f) motion for additional discovery properly denied) Hinderman v. Krivor, 11/6:2

Drug use: (use of marijuana ill-advised or mind-bogglingly stupid but not “major contributing cause” of attack) Hopkins v. UEF, 5/8:7

Employee/volunteer: (Claimant injured while feeding grizzly was employee of bear park, not volunteer) Hopkins v. UEF, 5/8:7

Employment termination: (Petitioner terminated due to RIF/restructure, not injury, chose not to apply for other positions for which she was qualified, not entitled to TTD, additional PPD, fees/costs/penalty) Carey v. American Home Assurance, 2/6:8

Exclusivity: (exclusivity claim improperly dismissed under 12(b)(6) without opportunity for discovery to establish intentional conduct, 39-71-413 constitutional challenge substantially complied with by notice to AG shortly after serving Defendant, improperly dismissed with prejudice) McKinnon v. Western Sugar Cooperative, 2/13:1; (forklift death claims against employer barred by exclusivity, constitutional challenge rejected) Walters v. Flathead Concrete Products, 3/13:4; (deliberate & intentional conduct may be inferred from allegations that employer knew employee was being harmed, failed to warn, intentionally continued to expose (“actual knowledge” of certainty of injury also required), summary judgment properly granted as to 1st employee exposed to CO from stove, improperly granted as to 2nd, §39-71-413 challenges rejected) Alexander v. Bozeman Motors, 6/12:3; (no exception for employee who lost hand while extracting boards from inside running notcher) Morgan v. Fox Lumber, 6/19:2; (no exception for employee who lost ear & scalp from hair being pulled into crack of gear guard on fingerjointer, pre-Alexander challenge to 39-71-413 denied (1 day after Alexander), no grounds for piercing corporate veil) Banks v. Fox Lumber, 6/19:2

Heart attack: (Work activities not primary cause of myocardial infarction, greater weight to treating cardiologist) Petritz v. MSF, 6/19:5

Indemnity: (Claimant failed to establish entitlement to indemnity at this time) Weidow v. UEF, 1/30:8

Jurisdiction: (although potential liability is with insurer, Court may exercise jurisdiction over TPA, but no reason to do so here) Ivie v. MUS Self Funded Workers’ Compensation Program, 6/19:6

Lump sum: (approved for purchase of feed lot by head-injured Claimant who was successful feed lot manager) Murphy v. State Fund, 3/13:7

Mediation: (lawyer’s letter constituted rejection of mediator’s recommendation, insurer’s motion to dismiss for failure to meet mediation requirements denied) Charlson v. MSF, 7/10:4

Medicals: (drug-seeking Claimant not entitled to retroactive TTD, entitled to 4 months retroactive TPD, failed to prove unauthorized medical bills were for undisputedly necessary treatment, costs but no fees) Hart v. Hartford Ins. of the Midwest, 4/10:6

MMI: (Petitioner not at MMI, not PPD) Hale v. Liberty Mutual, 9/18:8; (Petitioner reached MMI as to both physical and psychological conditions, PTD because no reasonable prospect of regular employment, objective medical findings support entitlement to PTD) Wilson v. UEF, 12/25:7

Modified position: (Petitioner failed to accept modified position, moved out of area thereby resigning position, did not requalify for TTD within time at issue) Poindexter v. MSF, 12/4:8

OD: (insurer liable for OD from hairstyling repetitive trauma, Claimant entitled to TTD retroactive to when employer ceased modified position, less waiting period) Brown v. Hartford Ins., 1/2:7; (OD caused by non-ergonomic workspace, based on treating chiropractor’s opinion) Mullaney v. MSF, 9/4:8

Penalty: (awarded) Brown v. Hartford Ins., 1/2:7; (benefits not unreasonably terminated, no fees/costs/penalty) Poindexter v. MSF, 12/4:8; (penalty/fees against UEF denied) Wilson v. UEF, 12/25:7

Procedure: (petition barred by failure to file within 2 years of denial of liability for shoulder condition as unrelated to accident based on early medical reports, Claimant not prevented from filing until unequivocal causation opinion, “mistake” statute inapplicable in face of specific comp statute, claim not saved by discovery rule in any event) Boyd v. Zurich American Ins., 3/20:2; (identical issue element of collateral estoppel not met in petition for continued payment for pain patch vis-à-vis prior impairment rating denial judgment, summary judgment precluded by doctor’s affidavit opining relationship between injury and pain, jurisdiction challenge based on equity rejected) Stewart v. Liberty Northwest Ins., 6/19:5; (claim that has been “paid in full” is claim in which all benefits to which a claimant is entitled are paid prior to judicial decision, if any benefits are paid after the decision the claim is no longer “paid in full” and is subject to retroactive application of the decision) Flynn v. MSF, 7/10:3; (Flynn Petitioners allowed to amend to assert claims for fees/penalties against Common Fund Insurers) Flynn v. MSF, 7/17:6

Rehab: (§39-71-710 rehab age limit unconstitutional) Caldwell v. MWCT, 7/10:3

Reopen: (denied, no mutual mistake of fact) Stokes v. Liberty Mutual, 1/2:8; (no mutual mistake as to medical condition at time of settlements, re-open denied) Keller v. Liberty Northwest Ins., 2/20:8

Settlement enforcement: (no meeting of minds as to whether essential term of reservation of death benefits included in email settlement, motion to enforce settlement denied, motion for trial granted) Drury v. International Paper, 12/11:7

Treating physician: (former Montana orthopedist now practicing in Wyoming, although not “treating physician” per WCA, given more weight as to likely causes and potential treatment of shoulder than pain management specialist, orthopedist’s further diagnosis of cervical condition not accepted without further consultation, but insurer not liable for doctor shopping) Wright v. ACE American Ins., 5/29:7

UEF: (UEF liable for medicals, with indemnification from uninsured employer) Weidow v. UEF, 1/30:8; (facts which occurred prior to UEF’s 3rd-party petition may be considered in summary judgment, putative employer failed to appeal liability decision to mediation within 90 days, present claim untimely) Wilson v. UEF, 3/13:8; (3rd-party respondent not entitled to fees) MSF v. UEF, 5/15:8

Wage loss: (Claimant failed to prove total loss of wages as result of injury after resignation, not entitled to TTD for post-resignation cubital tunnel surgery allegedly resulting from pre-resignation injury) Pugh v. Charter Oak Fire Ins., 1/16:8

Wages: (weekly wage properly calculated using regular-time rather than overtime rate, ambiguous §39-71-123(1)(a) construed in light of rejection of amendment) Wombold v. MSF, 1/2:7

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