Montana Law Week Subject Index – 2009
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*Appellate Procedure
Amicus brief: (denied as untimely, unnecessary) Montana Shooting Sports Association v. FWP, 9/19:4
Appealability: (regular appeal not available from not guilty by mental disease, but even if “appeal” treated as petition for writ, speedy trial claim not properly preserved) Violette, 1/31:5; (constitutionality of 46-16-410(4) not considered first time on appeal in claim of denial of right to be present during settling of instructions) State v. Makarchuk, 3/28:7; (contempt order against Canadian drugs broker not appealable) Board of Pharmacy v. Kennedy (Canadian Connection), 5/2:4; (Haddon’s disapproval of “3 cents on the dollar” settlement not sufficiently serious for interlocutory appeal since parties free to negotiate settlement more favorable to class) Touch America Holdings ERISA Litigation, 5/16:5; (appeal premature before determination of amount of sanctions against legal malpractice Plaintiff for spoliation of evidence) American Medical Response v. Moore, O’Connell & Refling, 7/11:2; (appeal of H. Brown’s denial of TRO and request for remand for preliminary injunction to stop trustee’s sale of building damaged in gas explosion mooted by subsequent transfers of property, failure to request stay pending appeal, alleged fraudulent conveyance not an issue in the appeal, appeal dismissed) Marr v. Fairview Commercial Lending, 9/26:1; (claim of erroneous admission of insurance reference not preserved for appeal of defense verdict on claim of negligence by crane operator in lifting manufactured home section that collapsed after owner had removed frame) Bender v. Wiedrick’s Crane Service, 11/7:3; (argument that part of loan used to pay preexisting debt should receive priority over construction liens not preserved for appeal) Signal Perfection v. Rocky Mountain Bank – Billings, 11/7:4
Briefing: (inadequate) Menholt v. DOR, 2/28:3
Citation format: (modified to eliminate repeated paragraph numbering) Amending Citation Standards, 2/14:3
Justice disqualification: (CJ not required to disqualify merely because name as AG appears on State’s answer brief, but will do so where he approved filing of appeal by State) Ellis, 3/7:4; (CJ not required to disqualify himself since he did not personally participate as AG in Defendant’s appeal) Schauf, 9/26:8; (motion for recusal of CJ filed day after denial of rehearing deemed denied, CJ did not participate in rehearing decision) Shively, 9/26:8
Mediation: (claim of undue influence by mediator rejected, motion to rescind stipulation and release denied) Holtz v. Luther, 9/26:2
MRAP: (amendments adopted, rejected) Matter of Rules of Appellate Procedure, 5/9:3
Oral argument: (denied in out-of-sequence ruling) Estate of Snyder, 7/11:2
Supervisory control: (denied in guardianship/conservatorship/estate case) Kasten v. Irigoin, 3/28:5; (granted under urgency rationale in re-zoning/electric plant dispute to require Phillips to resolve remaining claims and issue final judgment, after which opponents can appeal and seek stay or injunction) Plains Grains v. Phillips, 5/9:2; (summary dismissal of dental malpractice punitives claim by Larson vacated on supervisory control, stay of jury trial denied) Logerstedt v. Larson, 11/7:1; (granted reversing ruling that declaratory action as to residual diminished value of car is not moot based on equitable tolling, class-action still potentially viable) FIE v. Brown, 12/19:2; (denied as to peremptories/seatbelt rulings in tire case) Brennan (for Mizenko) v. Macek, 12/19:2
Timeliness: (appeal of judgment denying motion to compel arbitration of nursing home negligence claims untimely) Brandenburg (PR of Rowe) v. Evergreen at Bozeman, 1/31:1
Transcript: (Appellant Plaintiff properly ordered to provide entire transcript on appeal, not just juror issue part) Heidt v. Argani, 8/22:2; (MRAP 8(7)(c) motion for reconstruction of City Court transcript properly denied) Whittinghill, 10/31:4
*Arbitration
Award modification: (challenge of typo in award/judgment of $331,892 attorney fees when $221,892 claimed in affidavit untimely in both arbitration and court, judgment improperly foreclosed against non-party to arbitration, appeal fees would not be “reasonable” in light of “windfall” fee error) Anderson Const. v. Monroe Const., 12/12:2
Compel arbitration: (case not moot at time of order to compel arbitration even though school work reduction fait accompli, no damages sought, and CBA purportedly expired, since union also sought interpretation of CBA by arbitrator) Missoula Federation of Early Childhood Education v. Child Start, 11/7:5
Enforcement of agreement: (arbitration not required for Montana claims in tobacco settlement dispute) State v. Phillip Morris, 8/8:2, (rehearing denied) 9/19:4; (motor home purchase contract with binding arbitration clause was contract of adhesion, purchaser of motor home soaked with animal urine improperly barred from court remedies) Woodruff v. Bretz RV, 10/17:3
Enforcement of award: (arbitration panel had power to consider procedural issue of whether employee was given proper termination notice regardless of whether parties agreed there were no procedural issues, public policy violation exception (LPN’s alleged impairment) to enforcement of arbitration decision not applicable, union properly denied bad faith attorney fees) Teamsters Union Local 2 v. Crest Nursing Home, 4/4:3; (award allowing BN to terminate shortline interchange agreement and base future pay pursuant to Rule 11 arrangement rather than per-car as under terminated agreement confirmed) Central Montana Rail, 8/8:7
Forum determination: (forum properly decided by judge, not arbitrator) Higgins Development Partners v. Skanska USA Building, 8/29:5
Jurisdiction: (federal lab dispute properly resolved under FAR or FCDA, not by AAA) Higgins Development Partners v. Skanska USA Building, 8/29:5
Parties: (judgment improperly foreclosed against non-party to arbitration) Anderson Const. v. Monroe Const., 12/12:2
Venue: (Montanans did not, “on advice of counsel” pursuant to 27-5-323, waive right to arbitration in Montana, Plaintiff’s request to apply civil venue waiver statute rejected) Wolf’s Interstate Leasing & Sales v. Banks, 10/31:2
Wrongful discharge: ($840,078 for wrongful discharge of software Client Business Manager for refusal to accept non-performance-based demotion under circumstances violative of personnel policies, no penalty for failure to immediately pay accrued vacation, $54,337 costs of arbitration, $51,000+ other expenses) Ferrin v. Hewlett-Packard, 6/20:5; (defense, account executive failure to meet goals following loss of major client) Thompson v. Bresnan Communications, 10/17:8
*Attorney Fees, Costs
1988: (properly awarded in building permit case) Walton v. Whitefish, 10/31:1
Appeal: (appeal fees granted borrowers in loan deficiency case) First Citizens Bank v. Sullivan, 1/17:4; (MRAP 19(5) fees against Plaintiff denied) Wolf’s Interstate Leasing & Sales v. Banks, 10/31:2; (appeal fees would not be “reasonable” in light of “windfall” fee error) Anderson Const. v. Monroe Const., 12/12:2; ($231,143 fees to children injured in rental car collision with truck in which parents died due to fault of father, $79,740 fees to Defendant truck driver, based on contingency agreements in DJA pursuit of claims under $1 million rental car policy after coverage wrongly denied based on ambiguous language purporting to reduce coverage for liability to family members to minimums required for any state in which an accident occurred, truck driver entitled to fees under DJA because of being forced to participate in DJA to recover under policy) Weaver (Conservator for Nams and PR for An) v. Avis Rent A Car System, 12/19:6
“Attorney fees:” (not “costs”) MRL v. Powder River Transportation, 12/26:2
Bad faith: (union properly denied bad faith attorney fees) Teamsters Union Local 2 v. Crest Nursing Home, 4/4:3; (Plaintiff’s rejected sex\disability discrimination claims reasonable despite defense verdict, County’s request for $90,484 fees as prevailing party denied) Brenneman v. Gallatin Co., 4/11:9
Collection: (although suit against lawyers (defense judgment) in Anaconda, venue of fee collection by Plaintiff’s attorney proper in Missoula Co. where attorney’s office located, $7,000 claim in Justice Court ended when JP dismissed for lack of venue, $9,960 properly awarded on appeal to District Court) Hansell v. Waddell, 3/7:1
Common fund: (applies to recovery for failure to invest in stocks over 30 years) Trust B Under Last Will of Dunham, 3/7:4
Equitable: (fees improperly imposed for criminal contempt (not civil as Judge found), but properly awarded under Judge’s equitable powers for defending against meritless attempt to get out of stipulation) El Dorado Heights Homeowners’ Association v. Dewitt (Boles), 1/24:2; (equitable fees properly awarded siblings) Monroe v. Worley, 4/25:1
Fee Arbitration Rules: (revisions adopted) Rules on Arbitration of Fee Disputes, 5/9:3
Frivolous suit: $87,229 fees, $1,927 costs properly awarded Defendant for frivolous suit) Zier v. Lewis, 8/22:2
Multiple clients: (arbitrary hours attributed to other clients improperly deducted from HR fee award for prevailing client with interrelated claims where no evidence to support segregation, $28,063 overpayment properly offset from fee award, not barred by waiver, equitable estoppel, laches, release, post-judgment interest on $61,241 fee award, no pre-judgment interest, appeal fees/costs) Edwards v. Cascade Co., 7/11:1
Qui tam: (claim of double fee recovery in qui tam barred by absence of law or public policy precluding statutory fee and contingency fee provision in fee agreement, collateral estoppel, statutes of limitations) Schumacher v. Gallik, 11/7:1
Rejected offer: (fees/costs of $9,725 properly awarded in enforcement of $1,513.01 costs judgment in Malibu condo dispute based on rejected offer of 1¢ less than judgment) Stockwell v. Windham, 8/29:3
Vexatious litigation: (Montana vexatious litigation statute applies only to multiplication of proceedings, not pre-litigation conduct upon which suit based) Lawyer Nursery v. Van Meter Nursery, 5/9:6
*Attorney Practice
Bar dues: ($50 increase) Petition of State Bar for Dues Increase, 3/7:2
Discipline: (unfair to require filing tendered admissions in unique circumstances) Rakela v. COP, 1/3:4; (censure/suspension for excessive fees) Engel, 3/7:2; (attorney censured for failure to file tax returns) Molloy, 5/2:4; (assault with weapon, tampering, false reports warrant immediate suspension pending COP proceedings) Tadewaldt, 5/2:4; (lawyer must be transferred to disability/inactive status upon request pursuant to MRLDE 28F) Shontz, 9/12:2
Legal malpractice: (claim of double fee recovery in qui tam barred by absence of law or public policy precluding statutory fee and contingency fee provision in fee agreement, collateral estoppel, statutes of limitations) Schumacher v. Gallik, 11/7:1; (claims against college lawyer relating to alleged mis-use/dissipation of foundation funds time-barred) Chief Dull Knife College v. McDonald, 11/14:2
Withdrawal: (MPC/NWE counsel may transition out of representation over objection by work comp claimants in unique bankruptcy stipulation situation, supervisory control of Krueger granted) Browning, Kaleczyc, Berry & Hoven v. Krueger, 2/21:1
*Banking, Commercial Paper
Loan: (no undue prejudice by Judge amending counterclaim alleging mutual mistake (.13% interest in note v. 13% in agreement) to affirmative defense, but relief for lender on unpaid balance barred by 2-year statute) Johnson v. District VII Human Resource Development Council, 3/28:3
*Bench Judgments
Farm equipment dealership: ($243,847, agreement termination, high-end tractor), Tractor & Equipment v. Zerbe Bros., 1/3:1
House construction: ($10,000 plus interest for Defendant/Counterclaimant builder, $8,870 for Plaintiff owners of Big Sky spec houses for punch list) Two Vistas Holdings v. Iszler (Lone Tree Builders), 8/1:6
Indemnification: (employee van service to indemnity RR $95,668 medical expenses paid by Wellness Program to employee injured in rollover, plus $62,292 fees/costs in defense against employee’s claims but not fees/costs in establishing right to indemnification, employee settled for total of $355,668) MRL v. Powder River Transportation, 5/30:9
Waterslide injuries: ($225,000 against waterslide manufacturer that minimally participated in litigation, waterslide injuries at motel, settlement with motel and pool installer, cervical fracture) Hall v. Amusement Leisure Worldwide, 7/4:7
*Civil Procedure
Bifurcation: (of pre/post-enrollment claims in disability insurance trial denied) Germain v. AIG, 2/28:7
Class action: (co-defendant’s request for hearing on class certification improperly denied, Plaintiff’s class action allegations improperly taken as true, class certification hearing guidelines adopted) Mattson v. MPC, 8/29:3; (certified for work comp common law bad faith/fiduciary claims against MPC and reincarnations, not for fraud claims) Gonzales v. MPC, 10/10:5
Collateral estoppel: (pollution Defendant’s claims against Co-defendant barred by statute of limitations, collateral estoppel) Kuck Trucking v. Brenntag West, 10/31:3
Collateral source: (Defendant failed to contact Plaintiff as to collateral source reduction motion pursuant to LR 7.1(j), but issue resolved by stipulated $50,000 reduction prior to hearing) Messick v. Bowman, 1/3:7
Complaint verification: (no error to allow testimony after case-in-chief to verify information in complaint to which Defendant had objected as insufficient) Pinnacle Gas Resources v. Diamond Cross Properties, 1/31:2
Contempt: (order by Simonton incarcerating father for failing to provide conservatorship accounting and pay MVA settlement funds owed to son is civil, not criminal, acts to be compelled are in his power to perform, habeas denied, supervisory control of order for Sheriff/CA to conduct criminal investigation denied) Bagwell v. Ray, 10/24:5; (application for cert to review $232,022.54 sanctions imposed by Phillips for deceit in not notifying Clerk of inadvertent mailing to legal malpractice defense counsel sealed settlement agreement from underlying estate litigation stayed pending resolution of motion to increase damages award) Watkins Revocable Trust Agreement, 11/21:2
Contribution: (co-tortfeasors barred from contribution claims against settling parties, cross-claims may only be asserted against co-parties, pollution Defendant’s claims against Co-defendant barred by statute of limitations, collateral estoppel) Kuck Trucking v. Brenntag West, 10/31:3
Correction: (error correctable nunc pro tunc, not as clerical error) Funke v. Shultz, 12/5:4
Cross-claims (may only be asserted against co-parties) Kuck Trucking v. Brenntag West, 10/31:3
Counsel withdrawal: (continuance properly denied after fired counsel formally withdrew 1st day of trial in light of unique circumstances and compensation to divorce party) Marriage of Hardin, 1/3:4
Counterclaim: (no undue prejudice by Judge amending counterclaim alleging mutual mistake (.13% interest in note v. 13% in agreement) to affirmative defense, but relief for lender on unpaid balance barred by 2-year statute) Johnson v. District VII Human Resource Development Council, 3/28:3
Damages: (claims could support award of punitives) Simonsen v. Allstate Ins., 1/10:7; (child safety seat maker’s invitation to adopt Restatement for admissibility of regulations as to liability for defective design declined, compliance with FMVSS “minimal standards” irrelevant to design defect claim, prior model substantially similar to death accident model, evidence as to recall/test failures of earlier model properly admitted for compensatory/punitive damages, FMVSS rulings as to compensatory damages heightened Defendant’s burden, but within realm of strict liability law, evidence of compliance with FMVSS not relevant to compensatory damages, but relevant to punitives, Defendant should be allowed to attempt to offset misconduct with good faith effort to comply with regulations, $6,697,491 compensatory award upheld, $3.7 million punitives reversed, remanded for punitives retrial) Malcolm v. Evenflo, 9/19:1; (summary dismissal of dental malpractice punitives claim by Larson vacated on supervisory control, stay of jury trial denied) Logerstedt v. Larson, 11/7:1; (jury improperly instructed that emotional distress damages available for construction of maintenance building, objection properly preserved, insufficient evidence to support $350,000 damages for violation of covenant, remanded for retrial, when Plaintiffs may claim damages for intentional/negligent infliction despite not specifically pleading in 1st trial, implied easement of necessity across Plaintiffs’ property improperly rejected on summary judgment, $6,500 for conversion of trees cut on Plaintiffs’ property reduced to $600, the amount which the evidence will sustain, not necessary to review “home town” strategy arguments in claim of excessive verdict, sufficient evidence of malice in building maintenance building and cutting trees to warrant punitives, but $1 million punitives excessive for conversion of $600 worth of trees, Judge’s reduction to $25,000 based on erroneous verdict that trees were worth $6,500, punitives to be resubmitted to jury on remand) McKay v. Wilderness Development, 12/5:1
Deemed denied: (motion deemed denied after 60 days, Judge Hegel lacked jurisdiction for subsequent order, untimely appeal not saved by subsequent order) Kendall v. Kendall, 10/17:5
Default: (insurer would have been entitled to set aside $101,300 rear-ender default judgment under 60(b)(1) but for 60-day bar, but relief also properly granted under (b)(6) “extraordinary circumstances,” including that local agent received complaint/summons but “mystery” why insurer did not and delays by Plaintiff) Bartell v. Zabawa, 6/13:1; (attorney affidavit averring to disputed facts outside personal knowledge improperly relied on for default judgment, authority also lost after motion deemed denied for failure to issue timely order, dispute as to proper defendant not determinative) Mobley & Sons v. Weaver, 9/26:1; ($2,351,123 (including $500,000 punitives) properly awarded against pro se land sellers as sanction for prolonging litigation resulting in developers inability to sell high-end residential lots, appeal fees awarded pursuant to contract) Flathead River Ranch Estates v. Wolf, 10/3:4; (Plaintiff’s claim of $140,000 for alleged wrongful discharge not “sum certain” for default judgment by Clerk (as opposed to Judge), abuse of discretion to refuse to set aside the default under good cause standard of Rule 55(c)) Bryden v. Lakeside Ventures, 10/3:4; (dismissal/fees properly imposed as 16(f) sanctions for unreasonable delay, but $730,000 claimed by shareholder/manager of failed corporation improperly awarded) Watson v. West, 10/24:3; (reasonable minds could differ as to whether Defendant’s reasons for failing to respond were sufficient, no notice of default or hearing, $130,239 defective armored trucks default judgment should have been set aside) Grizzly Security Armored Express v. The Armored Group, 11/28:1
Discovery: (work-product protection of claims file not “triggered” by retention of lawyer or letter requesting copies of medical report/payments and inquiring why insured had not received certain payments, surveillance documents also discoverable) Germain v. AIG, 1/24:5; (engagement letter not protected by attorney/client privilege) McCullough v. Johnson, Rodenberg & Lauinger, 1/24:5; (supervisory control of McCarter granted as to railyard contamination discovery, parties ordered to attempt to resolve parameters of discovery disputes involving other railyards vis-à-vis Helena yard, blanket protective order vacated, future protective orders may be issued upon showing of good cause) Anderson v. McCarter, 5/30:2; (Defendant waived objections by not timely & properly stating objections, untimely privilege log insufficient, claimed (disputed) oral stipulation to extension not permitted by Rules, counterclaims not dismissed as sanction) Economic Research Services v. NorthWestern Corp., 8/8:7; (supervisory control of McCarter by mother of bicycle/auto decedent denied as to limiting discovery to CHIP recipients over last 6 months rather than to all insureds for whom BCBS paid health insurance benefits and received reimbursement for providers pursuant to liens asserted on PI recoveries during previous 8 years, unlimited discovery not allowed for finding other plaintiffs for a class action) Shattuck v. McCarter, 9/26:3; (protective order precluding public dissemination of PD internal affairs files involving officers who did nothing wrong, and to bulletin with confidential criminal information and “STERN WARNING” against hostile work environment, other documents disclosable with personal information redacted) Bechtold v. Billings PD, 11/14:7; (Defendant improperly prevented Oregon counsel from videotaping Texas depositions despite presence of court reporter, making Plaintiff hire professional videographer as alternative to no video or cancel depositions, Plaintiff awarded $9,438 videographer costs plus fees/costs in bringing sanctions motion, unprepared 30(b)(6) designee (president) was mere physical body (potted plant) at deposition, 37(d) sanctions of Plaintiff’s fees/costs in bringing motion, travel costs to location of Plaintiff’s choosing for retaking deposition, failure to provide knowledgeable designees to be treated as contempt with possible jail, controversy stems from lack of regard to collegiality and knowledge of Rules) Pioneer Drive v. Nissan Diesel America, 12/12:6
Dismiss: (information outside complaint about Tribal Court action relevant to motion to dismiss, should have been considered) Lozeau v. GEICO Indemnity, 4/25:3
Experts: (pathologist properly allowed to testify as to breast cancer) Harris v. Hanson, 1/24:1; (Plaintiff’s experts’ reports contain experts’ own opinions despite preparation assistance by counsel) Lawyer Nursery v. Van Meter Nursery, 8/15:7
Indemnity: (company/ESOP trustees not entitled to indemnity from ESOP arranger for $1.5 million settlement of judgment for the employees resulting from erroneous appraisal of transaction and breach of fiduciary duties) Donaldson Bros. Ready Mix v. Phenneger & Morgan, 12/12:5; (transportation operator required to indemnify RR for wage loss/medicals paid under ERISA Wellness Program, but program administrator’s failure to request IME to separate employee’s work-related claims from MVA-related claims arguably increased operator’s exposure beyond that to which it agreed to indemnify, but operator may not be discharged from indemnity obligation because it improperly relied on RR’s prepaid $95,668 to leverage lower settlement of employee’s claims (unclean hands), no basis for fees in indemnity agreement or statute, $62,292 improperly awarded to RR for its fees & costs in defense against MVA claims, but RR entitled to “costs” (“attorney fees” are not “costs”)) MRL v. Powder River Transportation, 12/26:2
Injunction: (ultimate merits of agreement dispute improperly resolved prior to analyzing requested preliminary injunction, remanded for injunction pending trial on merits) Whitefish v. Flathead Co., 1/3:2; (preliminary injunction against hospital properly granted in radiologist reappointment dispute) Cole v. St. James Healthcare, 1/10:1
Instructions: (any error in instructing on “loss of chance”/apportionment of damages harmless as jury found no negligence) Harris v. Hanson, 1/24:1
Insurance mention: (claim of erroneous admission of insurance reference not preserved for appeal of defense verdict on claim of negligence by crane operator in lifting manufactured home section that collapsed after owner had removed frame) Bender v. Siedrick’s Crane Service, 11/7:3
Interest: (improperly assessed against City on its 5% share of $618,491 deck collapse judgment because City paid within 2 years, correctable nunc pro tunc, not as clerical error, 2-year time frame of 2-9-317 controls over Rule 59 time requirements) Funke v. Shultz, 12/5:4
Joinder: (joinder of MVA tortfeasor as non-diverse party allowed in suit against insurer, remanded) Greenough v. Safeco, 1/31:6
JML: (City’s respondeat superior argument as to planning director’s denial of RUE to build on lakeshore slope properly rejected as not raised before $300,000 verdict) Walton v. Whitefish, 10/31:1
Judgment collection: ($47,630 judgment over sale of coffee kiosk properly consolidated into $508,359 judgment that included $467,000 receivable purchased for $1,000 at sheriff’s sale, arguments as to alleged deficiencies with sale should have been raised in separate appeal) Vlahakis v. Burkhartsmeier, 11/14:2
Judicial estoppel: (theories as to ability to sue not fatally inconsistent, suit against appraiser for allegedly overvaluing RV park improperly dismissed) Olympic Coast Investment v. Seipel, 8/1:7
Jury: (prospective jurors with relationships with defense counsels’ firms properly not excused for cause) Harris v. Hanson, 1/24:1; (challenge of taxpayers on jury in trial against County rejected, venue change based on jurors’ status as taxpayers properly denied, voir dire properly restricted as to insurance, landowner concerned about source of award properly not excused for cause) Eklund v. Wheatland Co., 7/18:1; (mistrial or new trial should have been granted when juror became ill during Plaintiff’s lawyer’s “channeling” of decedent and was attended by Defendant physician) Heidt v. Argani, 8/22:2
Late amendment: (dental malpractice Plaintiff allowed to add post-deadline punitives claim based on alleged concealment of lip laceration during surgery) Logerstedt v. Taylor, 6/20:4
Mandamus: (former property owner lacks standing to compel local government officials to enforce subdivision golf net requirements, claim also time-barred) Butte Country Club v. McLeod, 5/16:3; (DNRC failed to uphold duty to process permit application within timeframes, but mandamus not available until applicant proves criteria satisfied, improperly issued) Bostwick Properties v. DNRC, 5/30:4
Offset: (Defendants failed to demonstrate that the harms (contract/tort) for which $21.4 million was awarded to MPC retirees were indivisible and subject to pro tanto offset of settlement with Defendants’ counsel, petition for rehearing denied) Ammondson v. NWE, 12/5:4
Parties: (supervisory control of Stadler denied as to dismissal of 3rd-party complaint against MVA Plaintiff’s UM insurer, preclusion of evidence of phantom motorist) Parker v. Stadler, 7/25:3
Pretrial order: (pretrial order amendment rulings in truck driver’s disability insurance case, replacement of designated corporate witness denied) Germain v. AIG, 6/6:8
Record: (challenged audio tapes provided sufficient record of Master’s trial) Marriage of Olson, 1/10:4
Relief from judgment: (post-judgment interest on $100,000 FHA judgment payable at federal rate of 3.33%, not Montana rate of 10% pursuant to State Court action to collect judgment, fees awarded in State Court judgment collection action not part of federal judgment, not required for satisfaction of federal judgment, motion for relief from judgment pursuant to satisfaction not barred by Colorado River abstention or res judicata of State Court order) Steinweden v. L&M Const., 2/14:7
Res judicata: (claim for damages for plugged oil/gas wells barred by res judicata, pre-trial order, prior trials/appeals) Somont Oil v. C-W Joint Venture, 1/17:3
Sanctions: (Rule 11, denied) Bozeman Deaconess Health Services v. Simms, 7/11:6; (patently inadmissible no-cause FIR improperly admitted as “sanction” for failure to object in limine as ordered (first impression), defense verdict reversed, remanded for new trial) Stevenson v. Felco Industries, 9/12:1
Service: (by party invalid, dismissed for failure to serve within 3 years) Gomke v. Northern Montana Hospital, 9/26:3; (deputy reasonably led to believe that kitchen manager had authority to accept service for restaurant, motion to quash properly denied) Bryden v. Lakeside Ventures, 10/3:4
Settlement rescission: (doctor, hospital, insurers seeking to rescind $1.1 million med-mal settlement for alleged faking of RSD symptoms on inquiry notice by opinions of experts, suspicions of counsel, claims time-barred, statute not tolled by fraudulent concealment, claims also barred by res judicata as Plaintiffs could have litigated faking issue in underlying case, Rule 11 sanctions against Plaintiffs denied) Bozeman Deaconess Health Services v. Simms, 7/11:6
Severance: (Plaintiffs with different I-143 claims properly not severed, venue properly changed from Blaine to L&C) Buhmann v. State, 1/10:2
Standing: (police association lacks standing to challenge City’s management of pension/disability fund, claims for future retirement payments/reimbursements fail injury-in-fact test) Dillon Police Officers’ Association v. Dillon, 6/20:5
Statute of limitations: (summary judgment for engineers in leaky dam dispute proper based on 3-year tort statute (rather than 8-year contract statute)) Tin Cup County Water/Sewer Dist. v. Garden City Plumbing, 2/28:2; (facts of jail fall not self-concealing even though extent of injury may have taken more than 3 years to fully blossom, 120-days tolling for tort claim not applicable to counties, claim time-barred) Brown v. Flathead Co., 4/11:8; (equitable tolling appropriate for suit over Reservation MVA between member and non-member filed first in Tribal Court, then filed in District Court more than 3 years after MVA out of concern for jurisdictional challenge) Lozeau v. GEICO Indemnity, 4/25:3; (supervisory control of Macek denied as to peremptories/seatbelt rulings in tire case) FIE v. Brown, 12/19:2
Venue: (venue properly changed from Blaine to L&C) Buhmann v. State, 1/10:2; (although suit against lawyers in Anaconda, venue of fee collection by Plaintiff’s attorney proper in Missoula Co. where attorney’s office located) Hansell v. Waddell, 3/7:1; (change based on publicity/marijuana bias properly denied) Dean v. Sanders Co., 3/28:1; (venue for implied warranty claim proper in Yellowstone where sale of horse occurred, venue for alleged misrepresentation of nature of horse “committed” in Yellowstone Co. where sale occurred, not Silver Bow where rider was bucked) Deichl v. Savage, 9/5:4; (because no county proper for both defendants on all claims, Defendant not entitled to change venue from county where suit filed) Farmers Union Association v. Paquin, 9/19:3; (change order by Curtis cannot be reviewed without rationale) BNSF v. DEQ, 9/26:4
Verdict: (inconsistent, because jury found no contractual obligation as to development rights, no legal basis for $2.5 million for breach of development agreement, Defendant’s failure to clarify that letter of intent did not constitute contract resulted in confused jury rendering supportable but inconsistent verdict, Supreme Court has power to review challenge to verdict but parties advised to first challenge verdict for sufficiency of evidence post-trial, $2,642,755 net verdict reversed, remanded for new trial) DR Four Beat Alliance v. Sierra Production, 10/3:1
Witness exclusion: (rebuttal witness properly allowed to remain in courtroom despite exclusion order) Walton v. Whitefish, 10/31:1
*Conservatorship
Interested person: (failure to conduct hearing to determine if beneficiary change in protected person’s best interests and whether she consented not reversible error since TOD beneficiary not “interested person” entitled to notice of removal) Anderson, 10/24:4
*Constitutional Law
Equal protection: (180-day notice for suing liquor purveyors is not special legislation, not violative of equal protection, facial challenge rejected) Rohlfs v. Stumble Inn, 12/26:1
Right to bear arms: (concealed weapon permit properly denied discharged sex offender (resulting in denial of gun ownership), certified question from Molloy) Van der hule v. US, 1/31:5
Right to know: (right to know/privacy interests in child abuse/neglect matters properly accommodated by in camera/redaction pursuant to statute) Disability Rights Montana v. State, 4/11:1; (protective order precluding public dissemination of PD internal affairs files involving officers who did nothing wrong, and to bulletin with confidential criminal information and “STERN WARNING” against hostile work environment, other documents disclosable with personal information redacted) Bechtold v. Billings PD, 11/14:7
Special legislation: (180-day notice for suing liquor purveyors is not special legislation, not violative of equal protection, facial challenge rejected) Rohlfs v. Stumble Inn, 12/26:1
Takings: (I-143 termination of fee shooting upheld over regulatory takings claims) Kafka v. FWP, 1/10:1; (Plaintiffs with different I-143 claims properly not severed, venue properly changed from Blaine to L&C, liability properly determined by Judge rather than jury, federal analysis properly applied to regulatory takings claims, categorical/regulatory takings claims properly rejected) Buhmann v. State, 1/10:2
*Construction Lien
Foreclosure: (summary judgment precluded by fact issues as to whether driller breached contract by mislocated abandoned well even though second well completed per contract) Sudan Drilling v. Anacker, 1/31:1; (argument that part of loan used to pay preexisting debt should receive priority over construction liens not preserved for appeal, liens in their entirety, including amounts incurred after bank distributed last of loan, have priority over entirety of trust indenture) Signal Perfection v. Rocky Mountain Bank – Billings, 11/7:4
*Consumer Protection
Motor home defects: (JNOV properly denied as to notice, venue, statute of limitations, express warranty issues as to Lemon Law, CPA, warranty claims as to motorhome swaying problem, doubling $84,000 damages under CPA remedial not punitive, appeal fees in addition to $53,382 fees below) Vader v. Fleetwood, 1/17:1
Statute of limitations: (certified questions from Haddon as to CPA statute of limitations accepted) Johnson v. Northland Group, 2/28:3; (certified question by Haddon as to statute of limitations improvidently accepted due to fact issues as to continuing violation principle) Johnson v. Northland Group, 9/5:4
*Contracts
Business sale: (parol evidence properly rejected in construing whether concrete business sale agreement prohibited business by seller in “non-compete area” or required seller to provide customer list, Customer Letter not executed oral agreement or separate agreement not to compete, “Non-Compete Agreement” not ambiguous prohibition against doing business in “non-compete territory,” but penalty that seller must pay buyer to do business in territory, not ambiguous as to sale of business as whole v. sale of assets as to claim that seller must provide customer list, parol evidence exceptions (including fraudulent inducement) inapplicable) Richards v. JTL Group, 5/23:4
Commercial lease: (casino that serves alcohol qualifies as prohibited “bar or tavern” under lease, no extraordinary circumstances for applying laches, summary judgment properly granted Plaintiff without hearing, attorney fees/costs on appeal in addition to fees below) Dollar Plus Stores v. R-Montana Associates, 5/23:5
Credit card: (insufficient notice in “bill stuffer” arbitration clause, amendment void) Kortum-Managhan v. Herbergers, 3/21:1
Farm equipment dealership: (Agreement subject to MFIDA per “community of interest” between tractor dealers, MFIDA 90-day notice provision not waived by agreement to 30-day termination clause, $243,847 bench judgment affirmed over $1.8 million claim by Plaintiff, “washout tree” accounting method of including trade-ins in purchase of high-end tractor properly rejected) Tractor & Equipment v. Zerbe Bros., 1/3:1
First refusal right: (in mule bill of sale enforceable, but $7,064 compensatory damages for breach reduced to $700, $5,000 punitives and $7,679 fees stricken) Rashid v. Jolly, 9/5:1
Non-compete covenant: 5 doctors who accepted reduced payments and signed separation agreements waived further payments from Clinic, doubt as to which statute applies resolved in favor of longer for claim by disassociating partner, goodwill exception to restraint of trade not applicable to forfeiture provision, summary judgment for Clinic as to forfeiture by disassociating partner who practices in proscribed area precluded by reasonableness question, fees improperly awarded pursuant to DJA when true purpose is to secure money judgment, fees not supported by the equities in contract dispute between doctors, $1,760,169 judgment for 7 doctors reversed) Mungas v. Great Falls Clinic, 12/19:1
Nursery contract: (summary judgment precluded by fact issues on claims by both parties as to allegedly sub-standard trees, whether buyer accepted boiler-plate “Terms & Conditions of Sale” on back of order acknowledgment forms, and fraud/punitives claims, declaratory ruling declined as to perfection of ag lien that must be foreclosed in Oregon, Plaintiff’s experts’ reports contain experts’ own opinions despite preparation assistance by counsel, other in limine rulings on experts and evidence) Lawyer Nursery v. Van Meter Nursery, 8/15:7
Release: (Release clauses in prior MVA PI/UTPA settlements not bar to claims against insurer based on withholding of parts of claims handling study (1st impression in Montana)) Simonsen v. Allstate Ins., 1/10:7
Software: (4-year UCC statute (not 8-year contract statute) applies per Agreement to breach of licensing agreement, claims barred by Plaintiffs’ admitted knowledge/suspicions of breach more than 4 years before suing) Education Logistics v. Laidlaw Transit, 6/6:7
*Courts
Clerk of court: (petition for writ of prohibition to void orders by 13th Judicial Dist. judges mooted by Clerk’s election loss, no longer threat of contempt) Brent v. 13th Judicial Dist. Judges, 1/3:4
Judge substitution: (supervisory control of Seeley denied in judicial substitution denial 30 days after assumption pursuant to 10-day limit under 3-1-804(1), but Court intends to rewrite judicial substitution provisions for clarity) Matthis v. Seeley, 5/2:6; (revisions proposed) Revised Rules on Substitution of District Judges, 5/30:5; (revisions adopted) 7/18:3; (weekends improperly not considered in denying motion for substitution as untimely, supervisory control of Tucker granted) Redlich, 7/25:5; (voluntary withdrawal of judge mooted untimely motion for substitution) Lake Co. First v. Polson, 10/10:2; (properly denied on remand from supervisory control order) Kulstad v. Maniaci, 12/5:5
Judicial bias: (Defendant not deprived of fair suppression hearing by Judge’s questioning or verbatim adoption of State’s proposed findings/ conclusions, judicial bias claim rejected) Lacey, 3/14:3
Judicial disqualification: (disqualified municipal judge must refer affidavit/certificate to district judges, not appoint successor) Harris v. Kalispell Municipal Court, 6/20:1
Judicial conduct: (JP removed based on misconduct as to 5 women in his Court) Hicks, 2/21:5
Jurisdiction: (personal jurisdiction waived by failure to file motion within established time frame) Smith v. Smith, 1/17:4; (personal jurisdiction properly not found over out-of-state manufacturers/sellers of kit airplane and components that crashed in Montana, no personal jurisdiction by mere placing products into stream of commerce, jurisdictional discovery properly denied) Bunch v. Lancair International, 2/7:1; (Defendant LLCs not required to explain why individual Defendant did not join in removal notice as he was not then named, timely filed answer in Federal Court through same counsel) Mitchell v. Paws Up Ranch LLC, 2/28:6; ($7,000 claim in Justice Court ended when JP dismissed for lack of venue, $9,960 properly awarded on appeal to District Court) Hansell v. Waddell, 3/7:1; (personal jurisdiction lacking over Montana suit alleging fraudulent chartering of Florida yacht via Internet) Weimar v. Barrett, 3/21:2; (Judge had post-notice-of-appeal jurisdiction to enter TPO blocking access to children’s therapy notes/videos on motion of GAL since it is not directly related to same-sex custody/property issues on appeal, but should have provided opportunity for parent to first address GAL’s motion) Maniaci v. McLean, 4/25:6; (state legislatures cannot directly affect federal jurisdiction, Montana did not attempt to do so in HR judicial review procedure, Shamrock no longer good law in supplemental jurisdiction cases, Federal Court has diversity jurisdiction over HRC obese RR conductor candidate $366,212 award) BNSF v. O’Dea, 7/18:6
Law of case: (law of case of prior appeals requires distribution of land at $160,000 1992 date-of-death value, not $5 million current value) Snyder, 9/5:1
Successor judge: (properly granted renewed summary judgment motion) Teamsters Union Local 2 v. Crest Nursing Home, 4/4:3
Summary judgment: (improperly granted to product liability Defendant without consideration of Plaintiff’s expert materials “on file” in response to separate motion to exclude witnesses) Hopkins v. SMW Systems, 2/28:1; (title insurance contract disputed fact issues improperly resolved on summary judgment) Amerimont v. Fidelity National Title Ins., 7/4:4; (Defendant entitled to summary judgment based solely on pleadings) Logterman v. Weidenaar Ranches, 8/15:6; (summary dismissal of dental malpractice punitives claim by Larson vacated on supervisory control, stay of jury trial denied) Logerstedt v. Larson, 11/7:1
Venue: (malicious prosecution suit properly in Missoula where underlying dismissed federal suit was filed, not Flathead where parties reside) Deist v. Thornton, 1/31:2
*Crime, Criminal Procedure
Accomplice: (whether girlfriend was accomplice as matter of law properly left to jury, sufficient evidence to corroborate girlfriend’s testimony that Defendant was lab operator) Dewitz, 6/20:3
Aggravated assault: (photos of victim properly admitted to show serious injury, evidence of victim’s pornography to show justifiable force properly excluded, instruction on misdemeanor assault as lesser-included properly denied) Johnson, 1/31:3; (sufficient circumstantial evidence that Defendant purposely injured infant as opposed to “accident,” dismissal properly denied) Allum, 1/31:4; (against public policy for consent of victim to be defense to aggravated assault (1st impression), Defendant’s conduct at other bars and video of post-arrest interview properly admitted under transaction rule, intoxication due process claim not preserved for appeal) Mackrill, 2/7:5; (no prejudice from instruction that attempted aggravated assault is lesser-included since jury never reached it, sufficient evidence of serious injury) Potter, 3/7:3; (aggravated assault conviction should have been dismissed where felony murder conviction was predicated on same assault) Russell, 4/11:1; (Commissioner who knew of case from conferences with former prosecutor should have been dismissed for cause, due process not violated by loss of video interview of Defendant’s father, who testified at trial, father’s prior written statement properly admitted as impeachment despite minor inconsistency with trial testimony, but improperly allowed into jury room, conviction reversed, remanded for Ariegwe analysis of speedy trial claim, if claimed denied, then for re-trial) Herman, 4/11:2; (no danger of erroneous application of “purposely” in instruction as to injury from screwdriver held by Defendant who claimed justifiable force) Nick, 6/6:3
Appearance delay: (no unnecessary delay between arrest and initial appearance of DUI Defendant) McDaniel, 9/12:5
Assault with weapon: (Lawyer/Defendant’s right to counsel, disqualification, suppression, speedy trial, expert/other crimes, 61-year sentence challenges properly rejected) Patrick, 7/18:4; (vehicular assault Defendant’s father properly allowed to read from transcript of jail conversation between Defendant and father) Haffey, 9/12:5
Attempted assault with weapon: (meth use admissible under transaction rule to explain why 3 officers had difficulty subduing smaller gun-grabber and their fear of serious injury, Daubert hearing request insufficiently preserved for appeal, instruction that intoxication is not a defense proper even though no intoxication defense asserted) McLaughlin, 7/4:4
Attempted deliberate homicide: (post-Miranda silence improperly used to imply guilt, conviction reversed on plain-error review, remanded for new trial) Wagner, 8/22:3; (any error in admitting numerous weapons/paraphernalia found in car harmless in light of Defendant’s admission that he shot into 3 moving vehicles with pistol affixed with laser and silencer) Fadness, 9/12:6; (sufficient evidence that Defendant killed one deputy and wounded another with deputy’s gun during confrontation in dark, as opposed to Defense theory that the deputies fired the shots, Prosecutor’s incorrect reference to DNA evidence insufficient for plain error review in light of numerous correct explanations of DNA by both sides and substantial evidence that Defendant fired the shots, no “Prosecutor’s Fallacy”, State did not withhold statements by deputy to counselor about being responsible for partner’s death, Defendant failed to preserve claim of unobtrusive leg brace (in addition to other restraints), request at trial to show doctor abdominal scar purportedly made by baton at time of incident 17 months earlier properly denied, rebuttal properly allowed to Defense expert’s testimony as to entry/exit of bullet, convictions affirmed) Jackson, 12/19:5
Attempted rape: (State did not breach plea agreement by noting dismissed charge of sexual abuse of children, 5th-Amendment not violated by considering acts which Defendant reported while in sex treatment as condition of youth court consent decree (classic plea bargain situation, not classic penalty situation), Defendant properly designated Level 3) Hill, 4/25:7
Attempted sexual abuse of children: (actual sex not required for attempted sexual abuse, sufficient evidence that Defendant intended to video minors in sexual activity, evidence of viewing child porn properly admitted under transaction rule, sentence including PFO designation limited to 100 years (1st impression), Defendant improperly sentenced to 135 years) Gaither, 11/28:5
Auto insurance: (Failure to carry insurance proof dispositive, agent’s alleged failure to procure irrelevant) Jordan, 10/31:7
Bad check: Dodson, 12/19:3
Bail: (indigent not entitled to recognizance, habeas denied without prejudice to seek further relief) Vasquez, 7/4:5
Child pornography: (interrogation answers properly found voluntary, not result of Tylenol III or coercion, sufficient evidence of receipt/possession of child porn downloaded by retarded man at Defendant’s direction) Heller, 3/7:7; (admissions in sex offender registration documents constituted sufficient proof that Maryland sex abuse conviction was qualifying predicate for sentencing enhancement) Strickland, 3/7:8; (suppression based on change of address and similar houses, computer equipment based on single photo believed to be from internet, properly denied, Defendant “in custody” prior to Miranda, but contrary finding harmless error, probable cause to arrest based on evidence found in search, burden not shifted by Judge’s questioning whether Defendant unaware of images on computer, convictions for both receipt and possession double jeopardy) Brobst, 5/16:7; (images of stepdaughter depict lascivious exhibition of genitals or pubic area and thus are “sexually explicit conduct”, 2251(a) & (b) separate offenses, convictions of both based on same episode of nude photos of stepdaughter not double jeopardy, creating photos separate conduct from perusing porn sites and downloading images, receipt and possession convictions not double jeopardy, 235-month sentence affirmed) Overton, 7/25:6; (homegrown porn affected interstate commerce, life sentences proper based on prior state sex assault) Gallenardo, 9/5:6
Clandestine lab: (911 dispatcher with police boyfriend properly not excused from jury for cause, detective improperly allowed to give handwriting opinion, but error harmless in light of other admissible evidence showing who occupied motel room with meth lab, Defendant opened door to hearsay by introducing affidavit/motion from girlfriend’s case, 404(b) claim waived by failing to object contemporaneously, whether girlfriend was accomplice as matter of law properly left to jury, sufficient evidence to corroborate girlfriend’s testimony that Defendant was lab operator, Prosecutor’s rebuttal closing comments not improper, conviction affirmed) Dewitz, 6/20:3
Concealed weapon permit: (properly denied discharged sex offender (resulting in denial of gun ownership), certified question from Molloy) Van der hule v. US, 1/31:5
Confidential informant: (ignoring body wire recording pursuant to Goetz, CI reliability not established, affidavit not corroborated, pre-Goetz information dismissed, trial vacated, but evidence/testimony of CI’s claimed marijuana buy not suppressed despite illegality of recording (1st impression)) Johnson, 3/14:6; (plain-error review denied as to applying Goetz warrantless electronic monitoring ruling, officer’s testimony that conversations he overheard between CI and Defendant were consistent with a drug deal were not present-sense impression under 803(1), but opinion under 701) Foston, 6/6:5
Criminal mischief: (claims of destruction of exculpatory evidence (school videos, officers’ notes), improper limitation on cross rejected in parking lot/road rage case, misdemeanor conviction affirmed) Opie, 3/21:9; (finding that car’s value before vandalization was “at least $1,000” insufficient to establish felony “loss in excess of $1,000”, remanded for misdemeanor disposition of youth) JDN, 5/2:8
Deceptive practices: Dodson, 12/19:3
Deliberate homicide: (due process not violated by detective’s destruction of interview notes, failure to record, dismissal properly denied based on alleged failure to provide discovery, jailhouse witnesses properly allowed month before trial, “reverse 404(b) evidence” properly excluded, no prejudice by interview video in jury room, life without parole legal) Giddings, 3/14:2; (Defendant in “custody” when interrogated despite no physical restraint, but did not effectively stop questioning by statements during Miranda, continued voluntarily conversing, not entitled to suppression of statements under Miranda-Mosley or due process/totality, speedy trial claim involving 1,168 days denied, State’s undisclosed expert testimony improper but harmless in light of no prejudice, no physical evidence, but sufficient circumstantial to convict in disappearance death of child) Morrisey, 6/13:6; (speedy trial claim properly rejected, jury properly instructed as to weight to give testimony, bi-polar witness not compelled to provide mental records, plain error review of alleged prosecutorial misconduct declined, conviction affirmed) Miller, 9/26:4; (sufficient evidence that Defendant killed one deputy and wounded another with deputy’s gun during confrontation in dark, as opposed to Defense theory that the deputies fired the shots, Prosecutor’s incorrect reference to DNA evidence insufficient for plain error review in light of numerous correct explanations of DNA by both sides and substantial evidence that Defendant fired the shots, no “Prosecutor’s Fallacy”, State did not withhold statements by deputy to counselor about being responsible for partner’s death, Defendant failed to preserve claim of unobtrusive leg brace (in addition to other restraints), request at trial to show doctor abdominal scar purportedly made by baton at time of incident 17 months earlier properly denied, rebuttal properly allowed to Defense expert’s testimony as to entry/exit of bullet, convictions affirmed) Jackson, 12/19:5
Deliberate homicide accountability: (Defendant’s statement from 4 years earlier that he would like to kill victim properly admitted) Green, 4/18:3
Dismissal: (State’s response to motion to dismiss timely filed pursuant to omnibus schedule, improperly rejected under UDCR, vehicular homicide dismissal by Phillips (later rescinded) reversed) Child, 5/9:4; (dismissal for City’s failure to file brief correctly set aside based on Court sending briefing schedule to deputy county attorney rather than deputy city attorney) Jordan, 10/31:7
Double jeopardy: (not violated by pleading guilty to suspended license vis-à-vis revocation) Johnston, 2/14:4; (Defendant not wrongly deprived of double jeopardy defense to vehicular assault charges in District Court by not being allowed to plead guilty to DUI in City Court) Milligan, 2/28:5; (federal revocation for meth possession not a “punishment” that would invoke double jeopardy as to State meth prosecution) Maki, 3/7:4; (double jeopardy raised 16 months after omnibus hearing properly rejected as untimely) Cotterell, 4/4:6; (aggravated assault conviction should have been dismissed where felony murder conviction was predicated on same assault, decided on criminal procedure code, not double jeopardy) Russell, 4/11:1; (state statutory rape improperly charged on top of federal exploitation and child pornography convictions involving same victim and conduct) Neufeld, 7/25:4; (images of stepdaughter depict lascivious exhibition of genitals or pubic area and thus are “sexually explicit conduct”, 2251(a) & (b) separate offenses, convictions of both based on same episode of nude photos of stepdaughter not double jeopardy, creating photos separate conduct from perusing porn sites and downloading images, receipt and possession convictions not double jeopardy) Overton, 7/25:6; (whether to dismiss porn receipt or possession conviction in discretion of judge, not prosecutor) Hector, 9/5:6; (no showing that Prosecutor goaded Defense into moving for DUI mistrial, dismissal of re-trial based on double jeopardy properly denied) Whittinghill, 10/31:4
Drugs: Hayden, 1/24:3; (not ineffective assistance for not requesting mistrial when officer testified that Defendant exhibited meth symptoms, sufficient evidence that Defendant knowingly possessed undetermined amount of meth residue over claim that he found vial and did not know it contained meth) Wood, 2/7:4; Jones, 2/21:6; (sufficient evidence of meth possession independent of “hearsay” tip) Russette, 2/21:7; (meth) Nickerson, 3/7:6; (new omnibus hearing not required following addition of lesser-included based on same facts, alternative charge not good cause for untimely motion to suppress, counsel not ineffective for not timely moving to suppress based on agent’s failure to Mirandize since meth would have inevitably been found in probationer’s house) Adkins, 3/28:6; (particularized suspicion for stopping vehicle based on domestic disturbance report and occupants known to not have driver’s licenses, consent to search vehicle need not be preceded by Miranda, consent to search properly requested after domestic disturbance investigation completed, scope of stop had already been expanded by driver being detained for no license/insurance and again by consent to search, Defendant had authority to consent to search of employer’s vehicle which Defendant had authority to use for extended period, Defendant’s statement to passenger to “call the attorney now” did not constitute request to officers for lawyer even if Defendant in custodial interrogation, negative drug test 6 days after arrest not relevant to possession of pills, sufficient evidence of possession by Defendant of pills for which borrower of car had prescription, Daubert hearing not required for druggist’s visual ID of pills, possession conviction affirmed) Clark, 4/11:5; (particularized suspicion to stop vehicle parked in high crime area at 2 a.m. with occupants moving around suspiciously, drugs in container would have inevitably been discovered in arrest inventory, suppression properly denied) Hilgendorf, 5/16:2; (plain-error review denied as to applying Goetz warrantless electronic monitoring ruling, officer’s testimony that conversations he overheard between CI and Defendant were consistent with a drug deal were not present-sense impression under 803(1), but opinion under 701) Foston, 6/6:5; (sufficient evidence of marijuana sale based on potential CI testimony apart from warrantless electronic surveillance) Schwartz, 7/25:5; (evidence of Defendant’s probation intervention hearing/sanctions improperly admitted without Just notice, possession conviction reversed, remanded for new trial) Campa, 8/8:3; (challenge of facts underlying dismissed Granite charge waived by failure to raise at omnibus hearing, credit card charge supported by evidence from Missoula) Dodson, 12/19:3
DUI: (breath test improperly admitted in absence of Lab certification author or notice of intent to offer report, conviction reversed, remanded for new trial) White, 2/7:2; (blood properly drawn by LPN under “supervision and direction” of off-site RN) Merry, 2/7:2; (sufficient reason to stop based on no apparent brake lights, even though officer failed to check lights after stop, prior DUI with missing record adequately validated by JP testimony) Faber, 2/28:4; (prior DUIs valid, properly used to enhance to felony) Walker, 2/28:5; (requirement that officers have certain amount of “experience” to make investigatory stop abandoned, relatively inexperienced deputy had reasonable grounds to believe driver DUI) Brown, 3/21:3; (particularized suspicion for stop and probable cause for arrest based on 50 miles on wrong side of interstate, venue proper in Custer Co. even though interstate entrances blocked in Custer, 911 transcript properly admitted, HGN video properly admitted despite officer’s lack of certification, convictions affirmed) Cybulski, 3/21:4; (particularized suspicion to investigate parking lot strike of unoccupied vehicle, failure to leave note, motion to suppress properly denied) Harper, 3/21:6; (warrantless entry into driver’s house following MVA not justified by exigent circumstances (possible destruction of BAC evidence, possible injuries)) Saale, 4/11:6; (youth’s DUI expungement unlawful, no judicial estoppel by Prosecutor’s recommendation that prior Youth Court record be expunged) Darrah, 4/11:6; (particularized suspicion to stop car in wrong lane on gravel road) Wilkins, 4/11:7; (officer approaching woman in parked car on public road without emergency lights or siren did nothing to impede her liberty, she would have felt free to leave, contact was not a seizure (1st impression), particularized suspicion not needed to justify contact, DUI investigation properly triggered by slurred speech/alcohol odor) Wilkins, 4/11:7; (sufficient particularized suspicion by odd angle of parking in bar lot, erratic driving, City officer had authority to stop outside city limits, sufficient probable cause for arrest, notice to appear & complaint in Municipal Court properly elected by officer over charge in District Court, affidavits/oath not required, fines/costs improperly based on VA benefits income) Ditton, 4/18:6; (City Judge’s records provide evidence that youth waived right to counsel in predicate DUI, counsel properly waived without parent consent since YCA not applicable to DUI, felony DUI properly not reduced to misdemeanor) Allen, 4/18:7; (running exposed plate not a search, no reason to believe driver was not owner, motion to suppress denied, felony DUI affirmed) Neil, 4/25:9; (requirement of LEA training within 1 year of appointment not applicable to deputy who made arrest within 1-year period, deputy was peace officer, not reserve officer, authorized to arrest without direct supervision, particularized suspicion supported by totality of circumstances (45 in 70 zone, touching/crossing fog line repeatedly, touching centerline)) Smith, 4/25:9; (particularized suspicion based on motorist’s continuing reports to dispatcher) Rutherford, 5/9:4; (no reason to view with distrust officer’s failure to video running of red light, officer’s testimony sufficient to establish particularized suspicion, “viewed with distrust” cases not extended to traffic stop, cases mooted by HB 534 (2009) requirement to record interrogations in felony cases) Deines, 5/30:5; (officer reasonably believed accident victim incapable of refusing to have blood drawn at hospital, officer’s paramedic expertise not necessary, not necessary for investigation report to qualify as “expert” report) Grela, 5/30:6; (mental state not required to convict of absolute liability DUI, involuntary intoxication (spiked punch) instruction properly refused) Weller, 5/30:7; (road in private subdivision correctly found as matter of law to be “way of this state open to the public”) Bryson, 7/11:4; (totality of evidence, not just video, supports particularized suspicion for stop based on slow driving, drifting) Rice, 8/8:6; (Defendant failed to suppress BAC test/video after HGN/PBT suppressed, but officer still had probable cause to arrest based on observations) Vogl, 8/22:7; (charges properly not dismissed after suppression of BAC test from blood drawn in hospital without advice of right to independent test, BAC from hospital records properly admitted, patrol car video properly admitted as evidence of intoxication, convictions affirmed) Schauf, 9/5:5; (particularized suspicion to stop vehicle stopped in road, making u-turn, notwithstanding claim that behavior due to texting) Nettleton, 9/12:4; Haffey, 9/12:5; (“DUI (3rd)” amended to “DUI (2nd)” properly counted as 3rd DUI for 4th-offense purposes, felony statute, progressive DUI penalties not violative of equal protection) Blue, 9/19:6; (compulsion defense properly rejected by driver who claimed passengers “carjacked him and forced him to drink and drive) McNeff, 9/26:6; (particularized suspicion to check on vehicle with sleeping driver in closed bar lot ripened into probable cause to arrest, reinstatement of suspended license properly denied) Doely, 9/26:76; (wardens had particularized suspicion of fish or game violation to stop driver who stopped short of game station, then failed to stop at station, and was subsequently arrested by patrolman for DUI) Clark, 10/24:7; (driver in “actual physical control” over vehicle with dead battery parked in traffic lane, doubtful that jury could have inferred that HGN was administered, but any foundational error harmless in light of other intoxication evidence, ambiguous “there we go again” statement during advisory reading properly not excluded, felony DUI affirmed) Sees the Ground, 11/14:4; (claims that Defendant fell asleep in truck in middle of road due to sleep disorder, failure to have him do field tests, photos of open beer can and box, properly rejected) Redding, 11/14:5; (Defendant improperly denied opportunity to present evidence in support of her compulsion defense to DUI — that she reasonably believed she was forced to drive 14 miles from bar while intoxicated due to imminent threat of serious injury from antagonist, remanded for new trial) Leprowse, 11/21:6
Endangerment: (instruction properly omitted additional statutory language on tree spiking, proper instruction on “knowingly,” “knowingly” element proven) Cybulski, 3/21:4; (charges properly not dismissed after suppression of BAC test from blood drawn in hospital without advice of right to independent test, cross of witness properly limited as to drug charge against witness, BAC from hospital records properly admitted, patrol car video properly admitted as evidence of intoxication, convictions affirmed) Schauf, 9/5:5; Gaither, 11/28:5
Expert disclosure: (State complied with expert disclosure requirements by listing victim advocate despite not filing report of expected testimony, constitutionality of discrepancy between prosecutor’s and defendant’s disclosure duties not reached) Norman, 2/21:7; (State’s undisclosed expert testimony improper but harmless in light of no prejudice) Morrisey, 6/13:6
Exploitation of children: (images of stepdaughter depict lascivious exhibition of genitals or pubic area and thus are “sexually explicit conduct”, 2251(a) & (b) separate offenses, convictions of both based on same episode of nude photos of stepdaughter not double jeopardy, creating photos separate conduct from perusing porn sites and downloading images, receipt and possession convictions not double jeopardy, 235-month sentence affirmed) Overton, 7/25:6
Failure to remain at scene: (statute not unconstitutionally vague facially or as applied, supervisory control granted) Steglich, 7/18:3
Felony amount: (finding that car’s value before vandalization was “at least $1,000” insufficient to establish felony “loss in excess of $1,000”, remanded for misdemeanor disposition of youth) JDN, 5/2:8
Felony murder: Matt, 2/14:3; (aggravated assault conviction should have been dismissed where felony homicide conviction was predicated on same assault, decided on criminal procedure code, not double jeopardy, ineffective assistance claim best suited for postconviction, specific unanimity instruction not necessary for felony murder were acts occurred in single night) Russell, 4/11:1
Forfeiture: (Federal Excessive Fines Clause not applicable to state forfeiture, but Court would have difficulty overturning forfeiture of meth vehicle under State restitution law) Warner, 2/7:6
Habitual traffic offender: (mail notice of habitual offender status and license revocation satisfies procedural due process) VanDyke, 9/12:4
Hunting: (sufficient evidence of hunting/possessing bear out of season, no error in adopting State’s proposed findings & conclusions) Wendler, 2/28:6; (officials’ innocent aerial observation of private property not a “search”, claim that warden trespassed on neighboring lands not raised below, not amenable to plain-error review, warrant not required to monitor (illegal) radio hunter conversations, search warrant supported by sufficient facts, warrant application improperly authorized seizure of “any other evidence of a crime,” but seizure of unspecified journals & calendars within search scope, motion to suppress properly denied, double jeopardy raised 16 months after omnibus hearing properly rejected as untimely, hunting/fishing/trapping privileges properly forfeited for 2 years for hunting convictions, convictions affirmed) Cotterell, 4/4:6
Immigration: (alien who had been deported, then illegally reentered US, then sought to enter Canada but denied entry and forced to go back to US port, not entering from Canada, thus “found in” US for purposes of 1326, “official restraint” doctrine inapplicable, conviction affirmed) Ambriz, 12/5:7
Incest: Crosley, 4/18:4; (sufficient evidence of common law marriage to support incest of “stepdaughter,” objection to undisclosed testimony untimely, waived) Bullman, 4/18:5; (Defendant’s exclusion from in-chambers voir dire structural error, conviction reversed, remanded for retrial, child abuse expert qualified, properly allowed to provide general information about “grooming”, prior sexual activity with stepdaughters properly admitted as part of incest transaction, searches/ seizure by wife not requested by officers, not subject to exclusionary rule) Berosik, 8/15:3
Indians: (Defendant with 22% Blackfeet blood fails to meet any of the 2nd-prong Bruce factors, improperly prosecuted as “Indian” for assault, although sufficiency of evidence challenge at close of Government’s case not preserved because no new challenge made following submission of all evidence, denial of motion for acquittal not only error, but plain error, conviction reversed) Cruz, 5/16:7
Ineffective assistance: (no error in not holding hearing) Rose, 1/17:4; (lawyer’s actions resulting in incarceration more appropriate for postconviction) Rovin, 2/14:3; (no ineffective assistance for not raising in revocation proceeding issues raised in this appeal) Johnston, 2/14:4; (unauthorized contact with co-defendant not per se ineffective assistance, no evidence that violation impaired ability to represent Defendant, no showing of prejudice under traditional Strickland claim, new lawyer properly denied when Defendant affirmed decision to continue with original lawyer) Nickerson, 3/7:6; (murder victim’s propensity for violence not essential element of justifiable force, counsel not ineffective for not presenting such propensity) DeSchon, 3/14:4; (no error in not objecting to questions that did not warrant objection, no prejudice in not being present at chambers discussions of jury inquiries, claim of ineffective assistance by direct appeal counsel waived by failure to raise in petition) Godfrey, 3/21:6; (counsel not ineffective for not challenging constitutionality or putting on case in chief in Municipal Court) Albert, 3/21:8; (counsel not ineffective for not timely moving to suppress based on agent’s failure to Mirandize since meth would have inevitably been found in probationer’s house) Adkins, 3/28:6; (ineffective assistance claim best suited for postconviction) Russell, 4/11:1; (claim of ineffective assistance for not requesting accomplice instruction more amenable to postconviction) Green, 4/18:3; (more amenable to postconviction) Taylor, 6/6:4; (more amenable to postconviction) Robinson, 8/29:6; (ineffective assistance claims for not objecting to Prosecutor’s comments more amenable to postconviction) Burtchett, 9/12:3; (rejected) Haffey, 9/12:5
Interrogation: (interrogation at station custodial (contrary to State/Judge), but confession voluntary, not coerced) Lacey, 3/14:3
Jury: (prospective juror predisposed against domestic violence but not against Defendant properly not dismissed for cause) Norman, 2/21:7; (Commissioner who knew of case from conferences with former prosecutor should have been dismissed for cause, father’s prior written statement properly admitted as impeachment despite minor inconsistency with trial testimony, but improperly allowed into jury room) Herman, 4/11:2; (panelist properly not excused for cause, Judge’s questioning was clarification, not improper rehabilitation) Crosley, 4/18:4; (questioned panelist did not reveal actual bias, properly not removed for cause) Lopez, 5/2:8; (plain-error review denied as to failure to sua sponte declare mistrial or change venue because of comments by panelists as to ex-Sheriff Defendant in small county, challenge for cause properly denied) Taylor, 6/6:4; (911 dispatcher with police boyfriend properly not excused from jury for cause) Dewitz, 6/20:3; (juror who expressed concern about even a little drinking but recognized law is superior to his feelings properly not excused for cause, no prejudice from video deposition of elusive witness who refused to attend trial, bailiff’s error in providing video equipment in jury room to view patrol car videos harmless in light of other evidence) Hart, 8/22:5
Justifiable force: (murder victim’s propensity for violence not essential element of justifiable force) DeSchon, 3/14:4; (Commissioner who knew of case from conferences with former prosecutor should have been dismissed for cause) Herman, 4/11:2
Kidnap/assault with weapon/assault on peace officer: Rose, 1/17:4
Kidnap: Devlin, 3/7:3
Kidnap/sexual assault: (testimony suggesting victim previously lied about being pregnant properly excluded as irrelevant and improper character attack, objection to deposition of victim moot as she testified at trial and deposition not introduced, parole restriction properly based on level 3 even though no numerical level ever imposed) Dunning, 1/3:5; (constitutional challenge of “sexual contact” definition not preserved for appeal, jury properly instructed on sexual assault, instruction on misdemeanor assault as a lesser-included of sexual assault properly refused, jury properly instructed that failure to make timely complaint raises no presumption as to victim’s credibility, mistrial properly denied following “inadvertent” testimony of Defendant’s anger and pushing victim’s mother, conviction of sexual assault of 2 boys affirmed) Gerstner, 10/24:5
Manslaughter: (jury properly instructed on involuntary manslaughter as lesser-included where Defendant claimed self-defense in stabbing death, 32 months prison not inappropriate) Crowe, 5/16:6
Media Confidentiality Act: (subpoena of reporter properly quashed as to allegedly inconsistent statement by victim as to whether handgun or shotgun used) Kolb, 1/24:4
MIP: (challenge of breath/urine testing imposed by JP meritorious but moot, postconviction petition denied) BJ, 9/26:7
Miranda: (Defendant in “custody” when interrogated despite no physical restraint, but did not effectively stop questioning by statements during Miranda, continued voluntarily conversing, not entitled to suppression of statements under Miranda-Mosley or due process/totality) Morrisey, 6/13:6
Mistrial: (Defendant’s motion to dismiss after State raised mistrial concerns about police failure to notify youth of right to parental notification properly denied after Judge sua sponte declared mistrial with 2 mistrial motions by Defendant pending and despite Defendant’s double jeopardy concerns as to State’s intent to re-file) Cates, 4/11:3
Negligent homicide: (charges properly not dismissed after suppression of BAC test from blood drawn in hospital without advice of right to independent test, cross of witness properly limited as to drug charge against witness, BAC from hospital records properly admitted, patrol car video properly admitted as evidence of intoxication, convictions affirmed) Schauf, 9/5:5
Negligent vehicular assault: (charges properly not dismissed after suppression of BAC test from blood drawn in hospital without advice of right to independent test, cross of witness properly limited as to drug charge against witness, BAC from hospital records properly admitted, patrol car video properly admitted as evidence of intoxication, convictions affirmed) Schauf, 9/5:5; Burtchett, 9/12:3
Oath: (oath/affirmation required to testify over religious objection) Allen, 5/9:5
Obstruction: (lying about identity of naked woman in back of van sufficient for obstruction conviction) Devlin, 3/7:3; (probable cause to detain evasive runner, arrest for refusing to give name) Allen, 5/9:5
Omnibus hearing: (new hearing not required following addition of lesser-included based on same facts) Adkins, 3/28:6
Other acts: (evidence of victim’s pending charges and pretrial release conditions properly excluded) Kolb, 1/24:4; (notice of other acts of incest properly relied primarily on transaction rule and alternatively on Just as matter of caution) Crosley, 4/18:4; (evidence of viewing child porn properly admitted under transaction rule) Gaither, 11/28:5
Parole: (sex offender in prison for failure to register properly required to undergo therapeutic polygraph, properly used in denying parole) Dunsmore, 1/31:6
Plea withdrawal: (Defendant’s acknowledgment that he apparently damaged barn roof insufficient for criminal mischief, should have been allowed to withdraw plea-bargained guilty plea) Wise, 2/14:6; (girlfriend’s recanting of PFMA allegation months before guilty plea not new evidence for withdrawal) Tyler, 3/28:5; (not necessary to analyze lack of specificity as to lesser-includeds when no basis for misdemeanor assault in aggravated assault case given injuries and admissions, plea withdrawal properly denied) Swensen, 4/18:7; (Alford plea to felony robbery entered voluntarily, Defendant not allowed to withdraw it in postconviction proceeding) Locke, 4/18:8; (Defendant did not effectively withdraw nolo plea to mitigated deliberate homicide after Judge first accepted plea then rejected plea agreement, Judge did not obtain acknowledgment that Defendant understood rights and made voluntary waiver of right to stand on nolo plea, Defendant improperly tried and convicted on deliberate homicide charge which was reinstated first day of trial, remanded for sentencing on mitigated deliberate homicide) Bullplume, 5/2:6; (no objective proof that statutory rape Defendant assured at time of plea agreement of receiving low risk designation, plea withdrawal properly denied, “however slightly” standard for voluntariness of pleas (again) disapproved) Brinson, 6/20:2; (Defendant understood SIWC maximum, adequately advised that plea would be final even if agreement not accepted, claim that he should have been advised that he waived sexual assault instruction because penetration of 6-year-old absurd, debunked by colloquy, substantial evidence mentally competent to enter plea, withdrawal properly denied) Usrey, 7/11:4; (district court decision from another circuit finding SORNA violative of Commerce Clause not “fair & just” reason to allow sex registration Defendant to withdraw guilty plea) Ensminger, 8/8:6; (claim that felony DUI plea involuntary properly rejected, JSC confidentiality did not prevent challenge of irregularity of prior DUI on grounds of alleged JP conflict of interest, ineffective assistance claim underlying claim of involuntary plea more amenable to postconviction) Robinson, 8/29:6; (withdrawal of nolo plea to animal cruelty charges properly denied based on untimely motion (more than year after judgment), failure to establish actual innocence) Polejewski, 9/26:7; (properly denied) Gobble, 10/31:6; (Defendant may withdraw nolo plea to attempted incest since girl not biologically related, miscarriage of justice exception to postconviction time-bar applied) Lorenz, 11/14:6
PFMA: Hayden, 1/24:3; (State complied with expert disclosure requirements by listing victim advocate despite not filing report of expected testimony, constitutionality of discrepancy between prosecutor’s and defendant’s disclosure duties not reached, prospective juror predisposed against domestic violence but not against Defendant properly not dismissed for cause) Norman, 2/21:7; (District Court had felony jurisdiction over PFMA in convoluted series of charges, 6-month misdemeanor speedy trial motion properly denied under bizarre circumstances, legal mazes in cases of offenses that escalate in severity depending on the number of the offense can be avoided) Martz, 3/14:4; (evidence to prove victim’s motive and impeach her properly limited, “battered woman” expert properly allowed to testify generally as to dynamics of abusive relationships and why abused person might not seek help, even though no recantation, conviction affirmed) Bonamarte, 8/8:5
Photo ID: (pre-trial non-standard photo ID (mugshot and 1 other photo) by pursuing officer not violative of due process) Lally, 1/10:5
Plea agreement: (State did not breach plea agreement by noting dismissed charge of sexual abuse of children) Hill, 4/25:7; (no assent by Dep. CA to be bound by discussions of potential agreement, motion to dismiss or enforce agreement properly denied in vehicular assault case) Geer, 12/19:6
Postconviction: (State waived 46-21-105(2) postconviction bar by raising 1st time on appeal) Johnston, 2/14:4; (“arrest” in 46-23-1012(2) refers to PO arrest, not police arrest, State followed revocation procedures when it filed Report of Violation within 10 days of PO’s Warrant to Arrest & Hold, due process not denied by 21 days incarceration before revocation hearing without probable cause hearing, double jeopardy not violated by pleading guilty to suspended license vis-à-vis revocation, no ineffective assistance for not raising in revocation proceeding issues raised in this appeal) Johnston, 2/14:4; (“unique circumstances” of counsel’s suicide require evidentiary hearing on petition) Heath, 2/14:5; (published opinion of which Defendant was unaware not “newly discovered evidence” that would allow exception to 1-year statute) Ring, 5/2:8; (benefit of doubt given to whether Defendant convicted of 1979 homicide acted with sufficient alacrity in locating “newly discovered evidence” to meet procedural exception for subsequent petition, remanded for rehearing and evaluation whether evidence is actual new evidence, applying modified Clark test to determine if jury could find Defendant innocent in light of evidence) Beach, 11/28:6
Prisoners: (habeas denied in claims of retaliation for reporting employee thefts, disciplinary process/classification claims) Wood, 5/9:5
Prosecutorial conduct: (challenge of Prosecutor’s closing statements not preserved for appeal, plain error not invoked) Rose, 1/17:4; (fair trial undermined by Prosecutor’s questions to officer as to witness veracity and vouching for police and evidence, plain error review applied to prosecutorial conduct (1st impression), conviction reversed, remanded for new trial) Hayden, 1/24:3; (comments about Defense’s failure to call certain witnesses not improper in context) Kolb, 1/24:4; (Prosecutor improperly allowed to repeatedly reference drug Defendant’s irrelevant probation status, error was trial error, not harmless, conviction reversed, remanded for retrial) Derbyshire, 2/7:3; (new trial properly denied based on Prosecutor’s reference to failure to call witnesses) Makarchuk, 3/28:7; (Prosecutor’s comments on witness credibility not improper) Green, 4/18:3; (State not immune from contract/due process claims for revocation petition in breach of intervention agreement, liability for breach of contract determined by collateral estoppel, summary judgment properly denied on due process deprivation of property) McDaniel, 5/30:1; (Prosecutor’s rebuttal closing comments not improper) Dewitz, 6/20:3; (post-Miranda silence improperly used to imply guilt, conviction reversed on plain-error review, remanded for new trial) Wagner, 8/22:3; (plain-error review of prosecutorial conduct declined) Burtchett, 9/12:3; (plain error review denied) Miller, 9/26:4
Rape: (judicial notice of officers’ testimony in prior rape trial acquittal properly refused as irrelevant, late-disclosed evidence that alleged victim was drinking a week earlier not exculpatory or of impeachment value, sufficient evidence for Judge to convict) Fish, 3/7:2; Lacey, 3/14:3; (Defendant’s motion to dismiss after State raised mistrial concerns about police failure to notify youth of right to parental notification properly denied after Judge sua sponte declared mistrial with 2 mistrial motions by Defendant pending and despite Defendant’s double jeopardy concerns as to State’s intent to re-file) Cates, 4/11:3; (state statutory rape improperly charged on top of federal exploitation and child pornography convictions involving same victim and conduct) Neufeld, 7/25:4
Restitution: (properly based in part on testimony at hearing, embezzlement Defendant given adequate opportunity to respond to last-minute loss claims, “documentation” not required under 2003 law, victim’s cash-flow analysis proper, $30,000 (amount Defendant can afford) ordered out of “minimum” $102,753 loss v. $12,914 PSI recommendation) McMaster, 1/17:7; (reasonable/prudent person test adopted for criminal restitution, impracticability of renting tractor properly considered in ordering restitution for lost income from theft of tractor) Kalal, 4/11:8; (restitution of future counseling stricken for failure to specify amount) Bullman, 4/18:5; (restitution properly imposed for care of injured child) Perkins, 5/9:5; (calculation of falsified customer return receipts reasonable, insurer subrogation challenge not preserved for appeal) O’Connor, 7/11:5; ($500 properly ordered for damaged vehicle, unknown additional amount improperly ordered) Gaffield, 7/11:6; (victim report containing list of medicals insufficient to serve as victim affidavit, remanded for reconsideration of restitution after affidavit requirements have been met) Hunt, 8/15:5; (testimony satisfied restitution “affidavit” requirement, restitution for travel expenses for friends to lend moral support at trial improper, restitution for counseling, home repairs, lost wages proper, but insufficient support for $1.4 million amount, remanded for redetermination) Coluccio, 8/22:4; (reimbursement of funeral expenses paid by VOCAP properly ordered reimbursed by Defendant convicted of tampering with evidence to hide running over primary victim) Ness, 9/19:5; (restitution for counseling for children of criminal mischief/stalking victims properly imposed, restitution for travel to counseling, blood testing (searching for cause of nausea), camera memory cards, properly imposed) Essig, 10/31:4
Revocation: (sufficient evidence that “personality disordered” Defendant did not suffer mental disease, properly revoked, properly sentenced to MSP rather than alternative) Price, 2/7:5; (plain error review of challenge to incarceration of revoked sex offender despite mental illness denied) Rovin, 2/14:3; (revocation proper for failure to pay restitution to DOC for disbursement to credit cards or check that they had been paid, untimely challenge of restitution condition of original sentence, jail time improperly imposed because original suspended sentence revoked rather than continued, 2001 statute in effect at time of offenses applicable, addition of jail time under revoked suspended sentence pursuant to 2003 statute ex post facto, 2003 statute improperly designated retroactive) Striplin, 3/28:7; (equal protection/due process claims as to asserted insufficient sex treatment for women insufficiently supported for plain error review, failure to attend treatment sufficient for revocation despite abandonment of “denial” of original sexual assault charge) Teeter, 7/18:5; (double jeopardy claim based on revocation of parole and suspended sentence for same conduct rejected on abbreviated plain error review, suspended sentence properly revoked before Defendant started serving it) LeDeau, 8/29:6; (PSI restriction on contact with youths properly incorporated by reference into sentence of statutory rape defendant, contact also restricted in divorce decree, Defendant properly revoked for contact with son) Paddock, 9/26:5; (challenge to jurisdiction to revoke following alleged illegal arrest in Georgia waived by not raising below, but in any event remedy for unlawful arrest is not dismissal, Georgia convictions for sending obscene images to minors violated express probation condition, Defendant properly revoked) Watson, 9/26:6; (request to withdraw admissions and vacate State sentences based on Defendant’s claim that he should have been sent to federal prison first because he was not getting federal credit for time at MSP moot since he has discharged State sentences and no guarantee he would receive federal credit for time at MSP) Reynolds, 11/7:5
Right to counsel: (federal “offense specific” application of 6th Amendment — not “factually related” test under Montana Constitution — properly applied to Arizona interrogation on fugitive charge outside of presence of counsel appointed for that charge which resulted in Montana murder charge) Schneider, 3/14:5; (Defendant not denied conflict-free counsel based on his lawyer’s representation of jailhouse informants) Glick, 4/11:4; (Missoula robbery convictions vacated, information dismissed, due to failure of Butte JP to inform Defendant of right to counsel, dismissal without prejudice because Defendant not prejudiced while in jail on Butte charges during delay in Missoula prosecution) Gatlin, 10/31:5
Right to be present: (waiver of right to be present at chambers conference improperly made by lawyer rather than Defendant, State failed to demonstrate error harmless) Matt, 2/14:3; (constitutionality of 46-16-410(4) not considered first time on appeal in claim of denial of right to be present during settling of instructions) Makarchuk, 3/28:7; (rape Defendant not prejudiced by absence from 11 chambers conferences) Price, 4/25:8; (Defendant’s exclusion from in-chambers voir dire structural error, incest conviction reversed, remanded for retrial) Berosik, 8/15:3
Right to plead guilty: (any error by City Court denying Defendant statutory right to plead guilty to DUI harmless, Defendant not wrongly deprived of double jeopardy defense to vehicular assault charges in District Court) Milligan, 2/28:5
Robbery: Kolb, 1/24:4
Salvage storage: (City junk ordinance not unconstitutionally vague as applied, counsel not ineffective for not challenging constitutionality or putting on case in chief in Municipal Court, sufficient evidence that items in yard had not moved for more than 5 days) Albert, 3/21:8
Search & seizure: (protective sweep of hotel room following arrest of person being sought reasonable to ensure safety at scene, marijuana/pipe in plain view, subsequent admission of meth possession by girlfriend of suspect did not stem from evidence obtained by unreasonable search/seizure, applicability of MRE to leading questions at suppression hearing not resolved in light of responses to non-leading questions) Whisler, 1/17:6; (warrant to look for child pornography/slander letters supported by citizen informants, corroboration that suspect was registered sex offender and that one informant had helped distribute a slander letter, no abuse of discretion in no suppression hearing since application challenged on 4-corners and no showing of false statement, counsel not ineffective for not requesting hearing) Tucker, 1/31:4; (Defendant failed to establish error in not suppressing recorded phone conversation with informant) Jones, 2/21:6; (girlfriend properly consented to search of Defendant’s items in garage of house he shared which was rented only in her name, child pornography including images of sex with girlfriend’s daughter found on computer by federal warrant would inevitably have been found based on items in garage regardless of girlfriend’s consent to seize computer) Lacey, 3/14:3; (alternative charge not good cause for untimely motion to suppress, counsel not ineffective for not timely moving to suppress based on agent’s failure to Mirandize since meth would have inevitably been found in probationer’s house) Adkins, 3/28:6; (officials’ innocent aerial observation of private property not a “search”, claim that warden trespassed on neighboring lands not raised below, not amenable to plain-error review, warrant not required to monitor (illegal) radio hunter conversations, search warrant supported by sufficient facts, warrant application improperly authorized seizure of “any other evidence of a crime,” but seizure of unspecified journals & calendars within search scope, motion to suppress properly denied) Cotterell, 4/4:6; (Schwarz rule that children under 16 lack authority to consent to warrantless searches did not make exception for child victims, pajamas, bedding seized from minor’s room properly suppressed, underwear she was wearing at time of alleged assault properly not suppressed, inevitable discovery not applicable during illegal search, no exigent circumstances) Ellis, 6/13:4; (no prejudice from search of vehicle which yielded nothing, Defendant waived right to object to search of vehicle registered in wife’s name, Defendant properly Mirandized prior to any custodial interrogation, freely consented to search of belongings in vehicle, motion to suppress properly denied) Hulbert, 7/11:3; (probable cause and exigent circumstances justified warrantless entry into home while attempting to locate minor reported to be traveling with Defendant to purchase alcohol, not necessary to address community caretaker) Kenfield, 8/1:4; (searches/ seizure by wife not requested by officers, not subject to exclusionary rule) Berosik, 8/15:3; (sufficient evidence that Defendant was residing at Washington residence at time of probation search) Dodson, 12/19:3
Sentencing: (credit properly allowed only for time served beginning when arrest warrant issued for violation of Montana probation, not time in Oregon related to Oregon crimes) Allison, 1/10:6; (no authority to add new conditions to new suspended sentence in 1997 under 1993 law, therefore no authority to reimpose unauthorized conditions in 2007, unauthorized conditions ordered stricken, remainder of sentence retained) White, 1/10:6; (therapeutic polygraphing properly imposed on rape defendant, alcohol condition improper) Smart, 1/10:6; (alcohol conditions improperly imposed on sexual assault defendant) Krueger, 1/17:6; (no alcohol condition nexus, stricken, unobjected conditions not appealable, Task Force a “victim” for restitution since Defendant agreed to pay) Jones, 2/21:6; (unobjected probation conditions waived for appeal, prosecution/victim’s fees improper) Russette, 2/21:7; (no authority to impose parole conditions, $28,850 fine exceeds $10,000 maximum for felony DUI) Dennison, 2/21:7; (PFO statute correctly applied to forgery/embezzlement defendant) Anderson, 2/28:4; (sufficient nexus between embezzlement and gambling restriction, but not alcohol/mental evaluation conditions) Simpson, 2/28:4; (gambling sentence restriction waived by failure to object) Faber, 2/28:4; (time served in Idaho on Montana bench warrant should be credited) Milligan, 2/28:5; (no error in not giving new PFO notice with amended informations) Potter, 3/7:3; (admissions in sex offender registration documents constituted sufficient proof that Maryland sex abuse conviction was qualifying predicate for child pornography sentencing enhancement) Strickland, 3/7:8; (life without parole legal) Giddings, 3/14:2; (credit union robber failed to establish mental disease/defect, properly sentenced to prison rather than DPHHS) Gallmeier, 3/21:7; (compelling interest (increased sentencing flexibility) for DOC exemption for serious youth offenders, not facially unconstitutional (legality considered 1st time on appeal), as-applied challenge by imprisoned youth waived for failure to raise below) Strong, 3/21:7; (parole conditions illegal, properly challenged first time on appeal, no credit for pretrial house arrest time) Makarchuk, 3/28:7; (untimely challenge of restitution condition of original sentence in revocation proceeding) Striplin, 3/28:7; (hunting/fishing/trapping privileges properly forfeited for 2 years for hunting convictions, convictions affirmed) Cotterell, 4/4:6; (nexus between prescription drug MVA negligent homicide and alcohol condition not reviewed in revocation re-sentencing for failure to object below) Park, 4/11:8; (Defendant not sentenced on materially inaccurate information following corrected PSI as to number of felonies) Hirt, 4/18:4; (4 incest life sentences improperly imposed under statute not in effect at time of offenses) Crosley, 4/18:4; (no parole until sex treatment within sentencing authority, limited contact with victim and her family reasonable probation condition, challenge to other conditions waived by failure to object, prison not imposed for refusal to admit guilt, restitution of future counseling stricken for failure to specify amount) Bullman, 4/18:5; (fines/costs improperly based on VA benefits income) Ditton, 4/18:6; (felony assault sentence illegally enhanced for use of weapon, legal part expired prior to revocation, Defendant improperly revoked, habeas granted, ordered discharged) Borgen, 5/2:8; (restitution properly imposed for care of injured child, registration as violent offender improperly imposed for criminal endangerment) Perkins, 5/9:5; (abuse of trust excessive factor in 15 months for theft from school district, contrary to directions on remand from 16-months sentence, remanded for resentencing by different judge) Paul, 5/16:6, (sua sponte call for en banc rehearing denied) 10/17:6; (mortgage broker who based applications on fabricated financial statements properly sentenced to 3 times top of uppermost Guidelines range despite only “potential” losses by lenders) Hilgers, 5/16:6; (Judge properly deferred to US’ refusal to file 5K1.1 motion based on no arrests or indictments from Defendant’s information, Defendant failed to show grounds for evidentiary hearing to establish substantial assistance) Flores, 5/23:9; (parties’ pre-hearing submissions sufficient notice of possibility that Judge might consider consecutive sentence, not necessary for Judge to give notice, remanded for resentencing) Hahn, 5/23:9; (supervised contact with daughter, restrictions on TV/movies/cell phone approved for statutory rape defendant) Brinson, 6/20:2; (Defendant convicted of assault of babysitting child properly precluded from unapproved contact with his own child, criminal/negligent endangerment not “violent offenses” that require registration) Rowe, 7/11:5; (61-year sentence challenge properly rejected) Patrick, 7/18:5; (claim that District Judge improperly considered JP DUI sentence rejected) Clark, 7/18:5; (the more specific ASA gives discretion to sentence PFO to treatment if prison not appropriate, prison for prescription drug Defendant appropriate in this case) Brendal, 8/1:5; (“physical restraint” enhancement properly applied to assault convictions, weapons enhancement properly applied to defendant who never held knife wielded by other defendant) Old Chief, 8/8:6; (sex offender registration properly imposed on burglary defendant who agreed to it in plea bargain subject to right to object, internet restriction limited to probationary period despite Judge’s statement that he would “never” have access) Grana, 8/22:6; (requirement that sentence be pronounced, judgment rendered within reasonable time ignored) Robinson, 8/29:6; (jury costs improperly imposed, counsel’s lack of objection to other costs not active acquiescence, costs of prosecution, officer overtime, public defender improperly imposed) Beskoon, 8/29:7; (crack cocaine defendant who received full benefit of departure from mandatory minimum ineligible for resentencing under Guidelines amendment) Jackson, 9/5:7; (retroactive application of SORNA juvenile registration/reporting requirement via AG rule violates ex post facto (first impression in Circuits), registration requirement vacated) SE, 9/19:6; (2003 amendment as to prison and supervised release that can be imposed following revocation of supervised release construed on first impression in 9th Circuit, 24 months imprisonment properly imposed upon 3rd revocation of firearms defendant’s supervised release, additional term of supervised release precluded, but remanded for resentencing that could include both prison and supervised release) Knight, 9/19:6; (restitution including counseling for children of criminal mischief/stalking victims proper, gun restriction reasonable for protection of society, plain error review of alcohol restriction declined, 5 consecutive 1-year deferred sentences proper) Essig, 10/31:4; (standard DOC probation condition of permission for financial transactions authorized by statute/rule, properly adopted and imposed on sexual assault on child defendant) Hernandez, 10/31:5, rehearing denied, 11/28:7; (sentence including PFO designation limited to 100 years (1st impression), Defendant improperly sentenced to 135 years) Gaither, 11/28:5; (Defendant had ample time to object to PFO despite untimely filing) Dodson, 12/19:3; (24 months for bankruptcy, FCA, student loan, food stamp violations “substantively reasonable”) Carpenter, 12/26:7
Sex offender level: (parole restriction properly based on level 3 even though no numerical level ever imposed) Dunning, 1/3:5; Hirt, 4/18:4; (Butte District Judge erred in ordering Butte sentence to be concurrent with Missoula sentence not yet imposed) Gatlin, 10/31:5
Sexual assault: Lacey, 3/14:3; (insufficient evidence of recantation by child, no error in not objecting to questions that did not warrant objection, no prejudice in not being present at chambers discussions of jury inquiries, claim of ineffective assistance by direct appeal counsel waived by failure to raise in petition) Godfrey, 3/21:6; (Defendant not denied conflict-free counsel based on his lawyer’s representation of jailhouse informants, informant’s PSI properly withheld following in camera review, conviction affirmed) Glick, 4/11:4; Hirt, 4/18:4; (Schwarz rule that children under 16 lack authority to consent to warrantless searches did not make exception for child victims, pajamas, bedding seized from minor’s room properly suppressed, underwear she was wearing at time of alleged assault properly not suppressed, inevitable discovery not applicable during illegal search, no exigent circumstances) Ellis, 6/13:4
Sex treatment: (Defendant not entitled to benefit of SB 547 because of kidnap conviction, DOC residential program not yet established, DOC discretion, habeas denied) Johnson, 8/29:7
Sexual exploitation: (homegrown porn affected interstate commerce, life sentences proper based on prior state sex assault) Gallenardo, 9/5:6
Silence: (post-Miranda silence improperly used to imply guilt, conviction reversed on plain-error review, remanded for new trial) Wagner, 8/22:3
Speedy trial: (speedy trial claim properly denied (308 of 507 days attributed to Defendant’s continuances, analysis despite waiver since trial not held as re-set)) Rose, 1/17:4; (6-month misdemeanor speedy trial motion properly denied under bizarre circumstances) Lacey, 3/14:4; (motion failed to state grounds with particularity) Cybulski, 3/21:4; (222 days during 1st filing period before homicide charge dismissed with prejudice counted toward 415 days aggregate as Defendant was “an accused” during 1st period, time from dismissal to reinstatement of charge not counted as she was not “an accused” then, 133 days attributed to State as sanction for producing 600 pages of Crime Lab material 3 days before trial resulting in Defendant seeking continuance and forced waiver of speedy trial, no “particularly compelling justification” for delay or “highly persuasive showing” that it did not prejudice Defendant, deliberate homicide charge dismissed with prejudice) Wilson, 4/4:8; (remanded for Ariegwe analysis) Herman, 4/11:2; (claim involving 1,168 days denied) Morrisey, 6/13:6; (most of 432 days from arrest properly attributed to State, dismissal properly granted despite incomplete Ariegwe analysis, calculation errors) Hardaway, 8/8:4; (defendant may not argue for first time on appeal for length of delay different from that relied on when motion to dismiss decided, unless judge’s determination was clearly erroneous, Judge’s determination as to length of delay was 98 days short, but additional days would not change outcome, motion to dismiss properly denied) Hendershot, 9/5:5; (claim rejected) Miller, 9/26:4; (IADA speedy trial triggered by receipt of request in Montana, not delivery to warden in Texas) Dodson, 12/19:3
Theft: Lally, 1/10:5; Taylor, 6/6:4; (State not required to prove that pawner knew welder was stolen pursuant to 45-6-301(1)) Shively, 8/8:3; Dodson, 12/19:3
Traffic: (statute of limitations for misdemeanors stemming from diabetic MVA death expired, no authority to order AG to pursue negligent homicide, 1-year statute for careless/reckless driving subsequently extended to 3 years by Legislature) Tucker, 5/30:7
Traffic stop: (inferences of wrongdoing justified drug questioning following speeding ticket, no prejudice from search of vehicle which yielded nothing, Defendant waived right to object to search of vehicle registered in wife’s name, Defendant properly Mirandized prior to any custodial interrogation, freely consented to search of belongings in vehicle, motion to suppress properly denied) Hulbert, 7/11:3; (justified based on citizen informant’s information, officer’s corroboration, suppression properly denied, DUI/drug convictions affirmed) Clawson, 7/11:3
Vehicular assault: Milligan, 2/28:5
Vehicular homicide under influence: (jury properly instructed that Defendant must be both under the influence and criminally negligent, sufficient evidence beyond mere failure to yield to motorcycle in left turn) Coluccio, 8/22:4; (juror who expressed concern about even a little drinking but recognized law is superior to his feelings properly not excused for cause, no prejudice from video deposition of elusive witness who refused to attend trial, bailiff’s error in providing video equipment in jury room to view patrol car videos harmless in light of other evidence, conviction affirmed) Hart, 8/22:5
Venue: (“inflammatory” publicity clarified, Defendant failed to meet standard, change of venue properly denied) Devlin, 2/7:2; (change of venue based on publicity properly denied) Devlin, 3/7:3
Video testimony: (testimony via Vision Net properly allowed) Dodson, 12/19:3
Youth: (Defendant’s motion to dismiss after State raised mistrial concerns about police failure to notify youth of right to parental notification properly denied after Judge sua sponte declared mistrial with 2 mistrial motions by Defendant pending and despite Defendant’s double jeopardy concerns as to State’s intent to re-file) Cates, 4/11:3; (youth’s DUI expungement unlawful, no judicial estoppel by Prosecutor’s recommendation that prior Youth Court record be expunged) Darrah, 4/11:6; (counsel properly waived without parent consent since YCA not applicable to DUI) Allen, 4/18:7; (youth sex offender properly required to register, ex post facto/vagueness challenges to registration inadequately raised below, no filing fee required in YCA proceedings, motion to substitute judge improperly denied for failing to timely pay civil filing fee, new judge to preside in future) CDH, 5/2:7; (no authority to condition release from Pine Hills on sex treatment, no authority to classify as sex offender youth who was not adjudicated of sex offense, Judge may have erroneously based disposition on admissions as to dismissed sex charges, not clear whether youth waived rights as to psychosexual evaluation, judge may order sex treatment to age 21, but not that youth complete treatment by 21, remanded for new disposition hearing) EG, 12/26:5; (Legislative intent to apply 46-18-201(3)(d)(ii) “transferred to district court under 41-5-206” to any youth who appears in district court pursuant to 41-5-206, applies to youth charged directly in District Court, 15 years DOC commitment with none suspended proper, sex treatment improperly imposed on non-prison sentence) Quesnel, 12/26:5
*Debt Collection
Collector law firm: (violated FDCPA by requesting fees to which it was not entitled, firm’s collection activities within scope of UTPA/CPA, fact issues preclude summary judgment for firm as to malicious prosecution, abuse of process claims, requests for admission violated FDCPA, summary judgment that firm violated FDCPA and rejecting bona fide error defense to filing/maintaining time-barred suit) McCollough v. Johnson, Rodenberg & Lauinger, 1/24:5
*Developmentally Disabled
Commitment: (pre-hearing behavior properly considered in assessing “imminent” threat, unavailability of community facilities properly considered, recommitment following group home placement and emergency commitment affirmed) LS, 3/21:2; (insufficient evidence of imminent risk requiring recommitment) TP, 3/21:2; (clear & convincing standard retained rather than mental commitment standards, evidence of general conditions/practices at MDC properly excluded, actual rather than potential availability of community services properly considered, issue of overlapping recommitments and reversals of prior commitments settled by stipulation, evaluator properly limited to 8 hours of public pay) GM, 3/28:4
*Discrimination
Age: (claim by RR “extra board” clerk trainee rejected) Johns v. MRL, 7/18:8; (constitutionality of firefighter entry age statute to be determined by judge, not jury, defense verdict vacated but no new trial or reinstatement of claims, age 34 for new firefighters unconstitutionally arbitrary, violative of equal protection, no damages since County relied in good faith on statute, Plaintiff may re-apply, County’s request for fees/costs denied) Jaksha v. BSB Co., 8/15:3; (no direct evidence of discrimination against fired salesman, “motivating factor” instruction properly rejected, patently inadmissible no-cause FIR improperly admitted as “sanction” for failure to object in limine as ordered (first impression), defense verdict reversed, remanded for new trial) Stevenson v. Felco Industries, 9/12:1
Disability: (reasonable cause to support charge of perceived disability discrimination of injured truck driver, FIR) Knels v. Transystems, 5/9:8; (9-month delay in opening elevator to lawyer’s disabled clients did not constitute failure to accommodate by condo owners association, property manager not liable to charging party as agent of association) Angel v. Baxter Homeowners’ Association, 6/6:9; (obese RR conductor applicant who was rejected without individual risk assessment entitled to daily wages until RR opted not to hire him and to instead pay mandated amounts (RR waived challenge by not raising in District Court), Spear/Sherlock affirmed, remanded for clarification of interest on 4 annual $50,000 front pay installments) Bilbruck v. BNSF, 7/4:1; (request for nonskid floor coverings so service dog would not slip within scope of duty under MHRA, remanded for analysis of whether requested accommodation “reasonable,” whether delay constituted constructive denial, whether HO/HRC damage award reasonable) McDonald v. DEQ, 7/4:2; ($368,240 ($148,472 plus employment/offer or additional $241,128) for rejection of RR track laborer applicant for perceived disability (obesity) without IIA) Cringle v. BNSF, 9/19:7; ($36,405, oil rig operator with learning disability, failure to follow through with accommodation of helping with paperwork) Trumble v. Glacier Well Service, 12/26:8
Race: (no prima facie disparate treatment of terminated Hispanic teacher) Vasquez v. Columbia Falls School Dist., 5/16:2; (Hispanic nursing home employee failed to prove she was denied CNA training due to race, but improperly terminated without adequate investigation/corrective action for opining that nursing home is racist, subsequently settled) Gonzales v. Evergreen Laurel Health & Rehab Center, 6/20:7
Settlement enforcement: (employer bound by $14,000 sex discrimination settlement agreement, affirmative relief between HRB and employer is not agreement-breaking modification) Shamblen v. Grizzly Security Armored Express, 1/3:8
Sex: (mutual bantering between female bookkeeper and male manager, no prima facie sexual harassment, no proof of retaliation for filing complaint) Blair v. Silver Star Steak Co., 2/28:7
*Elections
Disclosure/reporting: (Montana’s disclosure/reporting requirements unconstitutionally vague/violative of free speech as applied to Church’s de minimis CI-96 marriage amendment activities) Canyon Ferry Road Baptist Church v. Montana Commissioner of Political Practices, 3/7:5
*Employees
ERISA: (employees lack standing to bring derivative or double derivative action against Washington-based grocery under Washington law, state law claims against top officers following $575,000 policy-limits ESOP settlement preempted by ERISA, newly constituted company not permitted to be designated plaintiff) Nagrone v. Davis, 1/31:7; (Plaintiffs’ failure to plead/establish ambiguity of Plan under federal law bars equitable estoppel claim (purported assurance that non-emergency surgery was covered despite 3-month waiting period) in state breach of contract action) ABC Collectors v. Birnel, 5/9:6; (Haddon’s disapproval of “3 cents on the dollar” settlement not sufficiently serious for interlocutory appeal since parties free to negotiate settlement more favorable to class) Touch America Holdings ERISA Litigation, 5/16:5; (Insurance Commissioner’s disapproval of discretionary clauses not preempted) Standard Ins. v. Morrison, 11/14:6
FLSA: (City, Mayor, Police Chief not entitled to 11th Amendment immunity, 9th Circuit would likely hold Mayor and Chief subject to individual liability as “employers” under FLSA, Mayor, Chief not immune under Montana law, 9th Circuit would likely hold that punitives are available for FLSA retaliation) Wisniewski v. Columbus, 11/28:7
Medical marijuana: (employment termination claims preempted by federal law or failure to state claim) Johnson v. CFAC, 4/4:2
Retirement benefits: (new claim that retirees’ claims preempted by bankruptcy law rejected, advice-of-counsel as affirmative defense properly disallowed as not pled, but Defendants still allowed to argue good faith reliance as defense to malicious prosecution, JML properly denied as to malicious prosecution, insufficiency of evidence of special relationship for bad faith breach of contract not preserved for appeal, parasitic emotional distress claims properly submitted to jury under MPJI, award of $17.5 million compensatory to 15 Plaintiffs in separate verdict forms for each Plaintiff with no indication of apportionment among claims supported by evidence, company officers properly retained as defendants, $21.4 million verdict affirmed) Ammondson v. NWE, 10/17:1, (Defendants failed to demonstrate that the harms (contract/tort) for which $21.4 million was awarded to MPC retirees were indivisible and subject to pro tanto offset of settlement with Defendants’ counsel, petition for rehearing denied) 12/5:4
Wage claim: (DLI clothed with authority to order reimbursement of stage “rental” fees (impermissible “kickbacks,” unreasonable withholdings/deductions from income), imposed on strippers found to be employees, not independent contractors, DLI authorized to obtain qualified assignment of claims, order payment directly to claimants, DLI properly gave collateral estoppel effect to WCC’s affirmation of ICCU employee ruling, amounts due dancers miscalculated) Wage Claims of Laberdee et al, 5/23:5; (fees properly denied under FLSA because claim brought in DLI rather than court, 2-year recovery period rather than 3 because conduct not willful/intentional, HO Scrimm properly awarded $8,680 overtime wages, $8,680 liquidated damages, increased award from $3,035 found by Compliance Specialist despite no appeal by either party) Kenney v. PrintingForLess.com, 6/6:6; (re-classified employee’s overtime claim untimely, unauthenticated email not proper evidence of when he became aware of reclassification and no legal effect on when wage claim accrued) Jensen v. MDT, 8/1:4
*Environment
Coal bed methane: (appropriate standard of review of CBM water rules assembled from multiplicity of Acts raised in challenge, scientific basis for classifying pollutant parameters as harmful in 2006 when not so classified in 2003, new rules not more stringent than federal law, written findings not required) Pennaco Energy v. BER, 2/21:5
Kootenai timber sale: (properly approved) WildWest Institute v. FS, 5/16:6
Sanitation harvest: (small sanitation harvest of beetle infested trees allowed to proceed, categorical exclusion of EA/EIS properly applied) Alliance for the Wild Rockies v. FS, 7/11:7
Wilderness travel plan: (FS enjoined from continued implementation of Travel Plan in Hyalite Wilderness Study Area, FS to seek advice from congressional delegation as which part of Study Area is wilderness) Montana Wilderness Association v. FS, 10/10:7
*Evidence, Criminal
Exculpatory: (due process not violated by loss of video interview of Defendant’s father, who testified at trial, father’s prior written statement properly admitted as impeachment despite minor inconsistency with trial testimony, but improperly allowed into jury room) Herman, 4/11:2
Experts: (detective improperly allowed to give handwriting opinion, but error harmless in light of other admissible evidence showing who occupied motel room with meth lab) Dewitz, 6/20:3
Hearsay: (officer’s testimony that conversations he overheard between CI and Defendant were consistent with a drug deal were not present-sense impression under 803(1), but opinion under 701) Foston, 6/6:5; (Defendant opened door to hearsay by introducing affidavit/motion from girlfriend’s case) Dewitz, 6/20:3; (criminal mischief Defendant did not adopt friend’s hearsay statement to officer as to intoxicated Defendant’s role in setting dumpster fire, conviction reversed, remanded for new trial) McCollom, 8/15:5
PSI: (informant’s PSI properly withheld following in camera review) Glick, 4/11:4
*Family Law
Adoption: (stepmother had standing to petition to terminate noncustodial parent’s rights, mother properly found to be unfit, child available for adoption by stepmother) KPM, 2/14:2; (grandparents/guardians’ petition to terminate putative father’s rights properly denied) RAJ, 2/14:2
Attorney fees: (fee award affirmed due to lack of transcript) Cameron, 9/19:4
Common law marriage: (informal vows in Washington, which does not recognize common law marriages, ripened into common law marriage in Montana, cases holding that common law marriage must come into being instantly overruled) Renner, 6/6:2; (common-law marriage properly dated from 2/05 rather than 7/88, although date not significant since husband’s contributions prior to 2/05 considered) Kelly, 11/21:5
Custody: (mother’s Mexican status not considered in adoption of parenting plan, despite single statement by GAL, husband properly made primary parent) Olson, 1/10:4; (wife properly allowed custody in NC during school year rather than Bozeman as sought by husband) Davis, 1/31:3; (lack of findings & conclusions requires remand of parenting plan modification) Banka, 2/28:3; (primary custody properly awarded to wife in Oklahoma) Graham, 5/2:5; (insufficient changed circumstances to modify parenting plan 6 years later, fees properly awarded wife per parenting plan) D’Alton, 6/6:3; (federal right to interstate travel includes right to travel within Montana, custody improperly changed based on wife’s relocation) Plaisted-Harman, 6/13:4; (parenting plan issues mooted by child turning 18) Cook, 6/13:4; (sole custody to father, supervised visitation by mother, proper in light of mother’s overzealous pursuit of Lyme disease treatment for children, refusal to work with those who disagree with her medical assessments) Wilson, 6/20:2
Default: (sanctions proper for failure to comply with scheduling and compel orders, but resulting default property distribution inequitable on its face, remanded for reconsideration of sanctions and equitable distribution) Lundstrom, 12/26:3
Indian child: (supervisory control of McNeil granted to prevent transfer to ND tribal court pending further consideration in light of AP) DD, 1/3:5
Judicial substitution: (supervisory control of Seeley denied in judicial substitution denial 30 days after assumption pursuant to 10-day limit under 3-1-804(1), but Court intends to rewrite judicial substitution provisions for clarity) Matthis v. Seeley, 5/2:6
Maintenance: ($500/mo maintenance for 36 months not punishment for working with horses rather than welding) Graham, 5/2:5; (maintenance properly terminated due to changed circumstances) Crilly, 7/11:2; (properly reduced due to changed circumstances) Webster, 7/11:2; (property equalization cash, property that was readily convertible to cash, not income-producing for maintenance purposes) Cameron, 9/19:4; (no precedent provided in support of claimed SS offset to maintenance, more detailed findings required to support lifetime maintenance) McShea, 11/14:4
Parental interest: (Judge had post-notice-of-appeal jurisdiction to enter TPO blocking access to children’s therapy notes/videos on motion of GAL since it is not directly related to same-sex custody/property issues on appeal, but should have provided opportunity for parent to first address GAL’s motion, supervisory control of McLean granted in part) Maniaci v. McLean, 4/25:6; (statutes do not impermissibly infringe adoptive parent’s right to parent her adopted children, parental interest properly awarded to former same-sex partner) Kulstad v. Maniaci, 10/10:4
Parental termination: (stepmother had standing to petition to terminate noncustodial parent’s rights) KPM, 2/14:2; (grandparents/guardians’ petition to terminate putative father’s rights properly denied) RAJ, 2/14:2
Property: (wife’s retirement properly valued at time of separation, tax implications of early withdrawal from wife’s retirement account for equitable distribution overlooked, remanded, post-decree interest not improper but may be re-visited on remand) Davis, 1/31:3; (some of husband’s inheritance properly included in estate, wife’s separation condo properly excluded, each properly awarded own businesses, reopen for redirect/rebuttal properly denied) Howard, 4/18:2; ($1,200/mo rental of rural marital home properly approved, equitable to refuse to enforce decree providing that husband would forfeit interest in house if he failed to make mortgage payments given dramatic change in nature of case) Stoneman and Drollinger, 5/2:5; (house properly awarded husband in short marriage) Markegard, 5/9:4; (wife’s contribution to increased value of ranch not properly evaluated) Renner, 6/6:2; (husband’s home equity interest position properly rejected) D’Alton, 6/6:3; (estate properly equitably divided) Wilson, 6/20:2; (husband’s business properly included in estate as equitable apportionment and as award in lieu of maintenance, wife’s retirement fund proceeds improperly double-counted against downpayment on house purchased with retirement funds, husband’s interest in corporation improperly discounted to reflect alleged lack of control) Williams, 8/29:5; (development property properly found to be all marital asset rather than partly partnership asset between husband and father) Cameron, 9/19:4; ($101,824 and car properly awarded to former partner in dissolution of same sex relationship) Kulstad v. Maniaci, 10/10:4; (time rule for dividing future military pensions properly utilized rather than DFAS recommendations, no abuse of discretion in not adopting wife’s agreement to reimburse husband for SBP, property properly divided despite not honoring purported agreements between parties) David, 12/19:3
Support: (income for support properly projected for self-employed welder with sharp increase in wages without averaging 3 years) Graham, 5/2:5; (decree improperly modified to require support absent motion for modification) Cook, 6/13:4; (insufficient evidence for imputing $52,000 income to wife with 2-year nursing degree who had not worked for decade) Wilson, 6/20:2; (income for support should be based on tax returns and close corporation’s financial statements, not just fact that corporation paid little in dividends) Williams, 8/29:5; (father afforded procedural due process as to supplemental financial information in support modification proceeding, sufficient evidence to support findings adopted verbatim from mother’s proposed findings, support properly raised from $225 to $837/mo, fees below, not on appeal) Vessie, 9/12:3
*Guardianship
Permanent full v. limited: (permanent full guardian appropriate (not limited)) Ellingston, 4/25:4
*Health Care Providers
Hospital privileges: (of radiation oncologist who drew smiley face on breast not wrongfully revoked) Hughes v. St. James Community Hospital, 6/13:3
Hospital/radiologist contract: (preliminary injunction against hospital properly granted in reappointment dispute) Cole v. St. James Healthcare, 1/10:1
*Homeowners Association
Covenants: (un-named owner consented to jurisdiction in covenants dispute by physical appearance in court and lawyer’s motions, Association did not coerce owner into stipulation under guise of changing covenants to accommodate metal roof, did not interfere with attempts to bring amendments to vote, covenants prohibited metal roofs, owner properly held in contempt for failing to remove roof within 90 days but improperly fined $300/day until roof removed, remitted to $500 max, fees improperly imposed for criminal contempt (not civil as Judge found), but properly awarded under Judge’s equitable powers for defending against meritless attempt to get out of stipulation) El Dorado Heights Homeowners’ Association v. Dewitt (Boles), 1/24:2
*Hospitals
Physician/hospital: (injunction properly granted against reporting suspension of doctor pending resolution of merits of claim of breach of contract for suspending for alleged ethical violations, federal preemption claim rejected) John Doe MD v. Community Medical Center, 11/28:2
*Immigration
“Found in” US: (alien who had been deported, then illegally reentered US, then sought to enter Canada but denied entry and forced to go back to US port, not entering from Canada, thus “found in” US for purposes of 1326, “official restraint” doctrine inapplicable, conviction affirmed) Ambriz, 12/5:7
*Indians
Indian child: (supervisory control of McNeil granted to prevent transfer to ND tribal court pending further consideration in light of AP) DD, 1/3:5
*Insurance
Advance-pay: (since liability not reasonably clear, Plaintiff not entitled to declaration that operator’s insurer responsible to advance medicals/wages, insurer entitled to summary judgment as to advance-pay based solely on pleadings) Logterman v. Weidenaar Ranches, 8/15:6
Attorney fees: (insureds entitled to fees for litigation over coverage for replacement prosthetic sockets in face of insurer’s continued denial of coverage, also entitled to fees/expenses in relation to requests for admission, $132,362.29 awarded at $250/hr) Lorang v. Fortis Ins., 5/23:7; ($231,143 fees to children injured in rental car collision with truck in which parents died due to fault of father, $79,740 fees to Defendant truck driver, based on contingency agreements in DJA pursuit of claims under $1 million rental car policy after coverage wrongly denied based on ambiguous language purporting to reduce coverage for liability to family members to minimums required for any state in which an accident occurred, truck driver entitled to fees under DJA because of being forced to participate in DJA to recover under policy) Weaver (Conservator for Nams and PR for An) v. Avis Rent A Car System, 12/19:6; (fee claim properly raised by motion, insured who obtained full benefit of policy on eve of trial entitled to attorney fees pursuant to Brewer, $25,900 contingency fees proper based on $74,000 settlement entered shortly before trial, $4,859 hourly fees proper based on $45,413 paid shortly after suit filed, $25,900 contingency fees proper based on $74,000 settlement eve of trial, request to certify whether insurance exception applies where dispute is over value of claim denied) Riordan v. State Farm Mutual Auto Ins., 12/26:6
Bad faith: (fees/costs incurred in settling claim not allowable as 3rd-party common law bad faith damages, $66,666.67 fees verdict reversed, voiding basis for $350,000 punitives, Claimant properly allowed to introduce testimony on industry practices as to advancing wages, insurer’s proposed instruction as to liability for refusing to advance wages properly rejected, malice/punitives claim properly submitted to jury, misrepresentation of “claims” properly included in instruction based on statutory misrepresentation of “coverages”, evidence of legal effect of rescinded release properly excluded, insurer properly not allowed to rely on legal effect of release prior to rescission, discovery improperly denied into documents underlying policy as to unrepresented claimants, post-deadline requests within initial discovery requests, “serious or severe” Sacco standard applies only to independent claims of infliction of emotional distress, not parasitic emotional distress, remanded for new trial on emotional distress, which could serve as predicate for punitives) Jacobsen v. Allstate Ins., 8/1:1; (supervisory control of Salvagni denied as to allowing bad faith claim to proceed while $2,505,000 MVA verdict on appeal to 9th Circuit) Progressive Casualty Ins. v. Salvagni, 12/5:1
Bad faith/contract reformation: (Alabama law applied to pre-enrollment tort/contract reformation claims in truck driver’s suit for continuing disability benefits which policy excludes for failure to qualify for SSD, fact issues as to whether trucking company office manager was apparent agent for insurer, fact issues as to claims for fraud, negligent misrepresentation, estoppel, fact issues as to fraud preclude policy reformation, acceptance of benefits did not constitute ratification, breach of contract claim may be viable if policy reformed to eliminate SSD provision, breach of implied covenant barred by 242(3), UTPA claim should have been brought under Alabama rather than Montana law, dismissed on summary judgment, fact issues preclude summary judgment as to good faith attempt to settle which arose each time insured submitted claim, expert not required to establish UTPA violation, but insurer’s 30(b)(6) witness can provide opinion testimony on claims handling) Germain v. AIG, 3/28:8
Claims file: (work-product protection of claims file not “triggered” by retention of lawyer or letter requesting copies of medical report/payments and inquiring why insured had not received certain payments, surveillance documents also discoverable) Germain v. AIG, 1/24:5
Coverage: (jockeys are “participants,” not “exhibitors,” excluded from liability policy, exclusions not violative of law, ambiguous, reasonable expectations, no negligent procurement by agent) Giacomelli v. Scottsdale Ins., 1/3:6; (claims in underlying suit by well driller against Town all grounded in contract, duty to defend/indemnify precluded on contract exclusion) Geraldine v. MMIA, 3/14:1; (insurer may not ignore facts that may give rise to coverage simply because complaint fails to recite, insurer required to defend, and, under subcontractor exception to exclusion for “covered work,” indemnify against subcontractor-caused damage in environmental toilet suit) Revelation Industries v. St. Paul Fire & Marine Ins., 4/18:1; (daughter’s wrongful death/survivorship claims derivative from father’s auto death, limited by his “each person” limit regardless of whether she sustained her own bodily injury, claims for mental impairment resulting from loss of father must be separately supported in underlying case) State Farm Mutual Auto Ins. v. Freyer, 7/4:6; (mother’s mental injuries with physical manifestations resulting from daughter’s MVA death covered under “bodily injury,” directed verdict for insurer properly denied, Idaho law properly applied to Idaho policy issued to Idaho residents despite collateral estoppel claim, resulting in $328,939 prejudgment interest, $281,646 fees, insurer properly denied offset to $516,000 UIM wrongful death verdict against umbrella insurer by failure to present positive proof that prior $298,433 “collateral source” settlement proceeds from primary policies did not constitute survivorship damages) Tucker v. Farmers Ins. Exchange, 7/25:1; (“corporation by estoppel” properly not applied to avoid comp exclusivity as to injured garage door employee, CGL policy and endorsement do not provide coverage to company contracting with door company, whether agent received contract and knew it specified a particular policy does not bear on interpretation of policy actually issued, no duty to defend/indemnify contracting company, door company protected by comp exclusivity, (injured door employee settled for $350,000 and $2,050,000 judgment against contracting company with covenant not to execute, assignment of claims against insurer)) Plum Creek Marketing v. American Economy Ins., 8/15:1; (subcontractor’s insurer had duty to defend general contractor as additional insured for subcontractor’s employee’s scissors lift fall, nondelegable duty under Scaffold Act not improperly delegated, indemnity provision not specific in intent to indemnify general contractor for liability for its own negligence, but subcontractor’s policy intended to cover general contractor for this type of incident, subcontractor’s insurer had duty to defend, breached duty, general contractor’s insurer’s suit against subcontractor’s insurer properly characterized as UDJA rather than subrogation (for reimbursement of $140,000 settlement with worker), but no equitable basis for attorney fees for defense of PI case or declaratory action) United National Ins. v. St. Paul Fire & Marine Ins., 8/22:1; (insurer not estopped from asserting property exclusion for denying coverage even though adjuster omitted it in denial, since insurer never assumed defense and had no duty to defend, property damage exclusion applies, not necessary to determine pollution exclusion, provision for indemnification of pollution cleanup costs does not contradict property exclusion, because no coverage existed, insurer had reasonable basis to deny claim, UTPA claim fails, no duty-to-defend claim to assign to building owner who settled with tenant for $1.8 million and covenant not to execute) JB Productions v. USF&G, 9/5:7; (“financial gain” exclusion precluded duty to defend based on claim for interest on withheld police pension payments, as well as for conversion of the principal, $415,731 judgment against insurer reversed) Dillon v. MMIA, 11/21:4; (property damage allegedly from negligent foundation/framing by subcontractors covered by standard form ISO/CGL policy) Farmers Mutual Ins. v. Nelson (American Homes), 12/5:5; (injured jockeys were “participants” in the exhibition of horse racing, not “exhibitors,” excluded from CGL policy, exclusions not violative of statute, ambiguous, reasonable expectations, authority split over interpretation of policy is nonconclusive factor in determining whether ambiguity exists) Giacomelli v. Scottsdale Ins., 12/12:2
Defense costs: (defense costs properly apportioned 95% to liquor liability insurer, 5% to premises liability insurer, following settlement by assaulted bar patron) Essex Ins. v. Acceptance Indemnity Ins., 11/21:4
Disability: (bifurcation of pre/post-enrollment claims in disability insurance trial denied, evidence of amount of benefits paid allowed) Germain v. AIG, 2/28:6
Exclusions: (Commissioner had authority to withdraw informal approval of policy exclusions, exclusions properly rejected as improper attempts to subrogate before insured made whole) BCBS v. Insurance Commissioner, 10/10:3
Medicaid lien: (DPHHS not entitled to Medicaid lien against $100,000 UIM payment for MVA injuries under 53-2-612(1) because UIM insurer not “third party” under 612(6)(c), payment not “settlement” of suit or legal dispute, but contractually due benefits) Guardianship of SML, %5
Parties: (supervisory control of Stadler denied as to dismissal of 3rd-party complaint against MVA Plaintiff’s UM insurer, preclusion of evidence of phantom motorist) Parker v. Stadler, 7/25:3
Release: (Release clauses in prior MVA PI/UTPA settlements not bar to claims against insurer based on withholding of parts of claims handling study (1st impression in Montana), “special circumstances” support constructive fraud claim, pecuniary interest supports negligent misrepresentation claim, actual fraud sufficiently pled by assertion that Plaintiffs relied on representation that insurer produced entire report, failure to disclose entire report can amount to abuse of process, claims could support award of punitives, civil contempt claim not recognized in Montana) Simonsen v. Allstate Ins., 1/10:7; (release upon payment of UIM on 1 of 3 vehicles invalid due to stipulated damages in excess of available liability and stacked coverages, new consideration required under Montana law for release of insurance claims (insurer/insured not “debtor/creditor” under 28-1-1601), Hardy properly applied to claims that were never validly “settled” because of lack of consideration, $66,667.67 attorney fees properly awarded under 1st-party insurance exception, prejudgment interest properly awarded from stipulation that damages exceeded $300,000 stacked UIM) Hoffman v. GEICO Ins., 10/3:7
Unauthorized insurer: (petroleum release subrogation suits based on contracts while insurer was authorized subject to service on Commissioner, now suspended insurer not required to have COA or post bond) Petroleum Tank Release Compensation Board v. Northwestern National Casualty, 2/7:1
*Local Government
BID: (owners properly apprised of proposed area, City Attorney properly received & evaluated petitions and reported to Council, proposed boundary not improperly changed during petitioning, no requirement for proposed assessment until after BID created, no basis for setting aside BID) Bud-Kal v. Kalispell, 4/4:4
Building permit: (house failed to meet size/setback requirements of site zoning permits, which were stipulated to control over ordinances, house properly ordered removed, counterclaims properly disposed of by summary judgment rather than jury) Virginia City v. Olsen, 1/10:4; (City’s respondeat superior argument as to planning director’s denial of RUE to build on lakeshore slope properly rejected as not raised before $300,000 verdict, $99,945 1988 fees properly awarded) Walton v. Whitefish, 10/31:1
Condominiums: (not exempt from subdivision review) Thornton v. Flathead Co., 11/14:1
Interlocal agreement: (ultimate merits of agreement dispute improperly resolved prior to analyzing requested preliminary injunction, remanded for injunction pending trial on merits) Whitefish v. Flathead Co., 1/3:2
Judgment: (interest improperly assessed against City on its 5% share of $618,491 deck collapse judgment because City paid within 2 years, correctable nunc pro tunc, not as clerical error, 2-year time frame of 2-9-317 controls over Rule 59 time requirements) Funke v. Shultz, 12/5:4
Library: (library board has exclusive authority to determine employee pay) BSB Public Library v. BSB Co., 12/19:3
Mandamus: (former property owner lacks standing to compel local government officials to enforce subdivision golf net requirements, claim also time-barred) Butte Country Club v. McLeod, 5/16:3
Subdivision: (Commissioners’ approval of preliminary plat unlawful for failure to comply with statutory requirements) Citizens for Responsible Development v. Sanders Co. Commissioners, 5/30:5; (City Council’s premature intervention in applications for boundary revisions and lot aggregations harmless error as applications would have been denied anyway as attempts to evade subdivision review) Roe v. Missoula, 12/12:4
Zoning: (denial of mini-stores application analyzed for abuse of discretion, not substantive due process, equal protection, Commission did not abuse discretion in reclaiming application from planning office and denying application) Town & Country Foods v. Bozeman, 3/14:1; (mandamus inappropriate for “undoing” gravel pit CUP transfer denial, judicial review adequate remedy despite lack of findings or filing of decision by Board) Beasley v. Flathead Co. Board of Adjustment, 5/2:3; (1983 claims precluded by lack of protected property interest in discretionary CUP transfer, state tort claims barred by res judicata) Beasley v. Flathead Co. Board of Adjustment, 5/2:4; (Planning Board had jurisdiction to require casino in “donut” to apply for CUP, abuse of discretion properly applied to decision, CUP was required based on change from primarily store to casino, signage reviewable for conformity with surrounding property, denial of lighted artificial palm trees consistent with Growth Policy’s western theme, LCD signs next to freeway a potential traffic hazard) Powell Co. v. Happy Endings Casino, 9/5:3; (non-retroactive, non-regulatory new growth policy properly not relied on in supermarket zoning decision, Council followed statutory/regulatory procedure, had sufficient evidence, amendment substantially complied with master plan including central business district impact, city development code compliance relates to CUPs, not zoning amendment, properly challenged before Board of Adjustment, zoning change not spot zoning) Lake Co. First v. Polson, 10/10:2; (regulations void for failure to publish notice for 2 weeks, 1 week and 13 newspaper articles not substantial compliance) Fasbender v. L&C Co. Commissioners, 10/10:3; (City not immune from 1983 claims as to rezoning denial, but denial does not violate due process or equal protection) Sunday Creek Land v. Billings, 12/5:7; (concerns as to lack of DEQ/MDT review of proposed gravel/asphalt operation justified interim zoning ordinance, notice adequate despite any defects, interim zoning not reverse spot zoning) Liberty Cove v. Missoula Co., 12/12:5
*Mental Commitment
Causation: (no evidence that cognitive disorder (as opposed to alcoholism or antisocial behavior) caused injury or posed threat, commitment reversed following release) DMS, 2/28:3
Findings: (sufficiently detailed) ORB, 2/14:1
Friend: (commitment reversed for failure to appoint a friend, plain error review invoked first time in commitment proceeding) JDL, 1/3:3; (reversed for failure to appoint friend, plain error review) ASF, 1/3:3; (no error not to appoint “friend” where no one willing to serve) ORB, 2/14:1
In absentia video conference: (person properly removed from video-conferencing area after becoming disruptive, counsel not ineffective for allowing removal, commitment affirmed) LK, 3/21:3; (hearing improperly proceeded after detainee left video hearing in protest against proceeding) LK, 11/14:3
Ineffective assistance: (presumption of ineffective assistance by waiving right of uncooperative client to adjudicatory hearing, stipulating to commitment, rebutted by facts/circumstances of entire case) CRC, 4/25:5
Involuntary medication: (supported by implied findings) LK, 3/21:3
Probable cause: (no statutory or due process right to probable cause hearing at initial appearance, right to immediate detention hearing sufficient to challenge probable cause) ET, 2/14:1
Professional report: (omission of recommendations in professional report harmless error) ORB, 2/14:1
*Oil/Gas
Development rights: (because jury found no contractual obligation as to development rights, no legal basis for $2.5 million for breach of development agreement, Defendant’s failure to clarify that letter of intent did not constitute contract resulted in confused jury rendering supportable but inconsistent verdict, Supreme Court has power to review challenge to verdict but parties advised to first challenge verdict for sufficiency of evidence post-trial, $2,642,755 net verdict reversed, remanded for new trial, challenge to personal jurisdiction over settled Defendant waived by failure to contest and by seeking affirmative relief) DR Four Beat Alliance v. Sierra Production, 10/3:1
Production claims: (sufficient evidence of concealment to send statute of limitations in oil/gas production claims to jury, Defendants had sufficient notice of non-party as potential beneficiary of constructive trust, non-party properly awarded 12.5% interest in claims, evidence of Plaintiffs’ costs in developing claims improperly excluded, Defendants’ claim of 75% of revenues brings corresponding obligation to pay 75% of development, punitives properly submitted to jury (which found malice/fraud but awarded no punitives) over claim that it permitted Defendants to introduce inadmissible illegal acts, all ORR claims over 21 years covered by PSCs wrongly found barred by res judicata of prior resolution of ORRs on leases obtained after last PSC ended, untimely claim for $70,000 interest on $302,284 in court registry properly denied, sanctions properly denied for alleged false statements by Defense counsel, hearing not required to determine conduct does not warrant sanctions, successor Judge improperly assessed Foy fees against Plaintiffs without a hearing based on proceedings before trial Judge, claim of double-counting, inflating interest by Defendants to be considered on remand, Rule 37(d) misapplied by first Judge in imposing sanctions against Plaintiffs, $2,260,835 verdict judgment for Defendants) Textana v. Klabzuba Oil & Gas, 11/28:3
Right of entry: (common law right of entry not abrogated by statutory notice requirement (notice sent to wrong address), forfeiture of lease not available absent breach of lease) Pinnacle Gas Resources v. Diamond Cross Properties, 1/31:2
*Partnerships
Disassociation: 5 doctors who accepted reduced payments and signed separation agreements waived further payments from Clinic, doubt as to which statute applies resolved in favor of longer for claim by disassociating partner, goodwill exception to restraint of trade not applicable to forfeiture provision, summary judgment for Clinic as to forfeiture by disassociating partner who practices in proscribed area precluded by reasonableness question, fees improperly awarded pursuant to DJA when true purpose is to secure money judgment, fees not supported by the equities in contract dispute between doctors, $1,760,169 judgment for 7 doctors reversed) Mungas v. Great Falls Clinic, 12/19:1
*Probate
Attorney fees/costs ($31,614 fees/costs properly awarded niece against other heirs for multiplying proceedings, restitution for fraud, submission of document for improper purpose, appeal fees/costs awarded, further discovery waived) Stukey, 5/23:6
Financial interest in lieu of life estate in house: (ex-wife/PR failed to timely appeal order granting girlfriend $129,679 as financial interest in lieu of life estate in house) Burton, 8/29:3
PR appointment: (claim that girlfriend was improperly appointed successor PR over family members named in will rejected) Burton, 8/29:3
Will: (no testamentary capacity for holographic will (or for competing will), undue influence in transfer of state lease and oil/gas payments) Lightfield, 8/1:3; (law of case of prior appeals requires distribution of land at $160,000 1992 date-of-death value, not $5 million current value) Snyder, 9/5:1
*Property
Access: (buyers entitled to legal access under contract for deed, sellers obligated to defend prescriptive easement attempt or provide appropriate easement across adjoining lands, did neither, buyers entitled to damages including attorney fees for easement action, negligent misrepresentation of easement, no proof of actual malice by sellers) Zito v. Huston, 5/9:2
Boundary: (disputed boundary properly determined based on new survey on remand) Karlson v. Rosich, 5/2:2; (correctly established as fence, not by deeds and survey) Eisinger Properties v. Filler, 11/14:3
Covenants: (“Period” properly construed as “periods,” covenants automatically renewed for “successive periods” of 10 years, still in effect, original tracts have 1 vote each, subtracts have 1/2 vote, amendment failed to get 2/3 of tracts) Brewer v. Hawkinson, 10/31:1; (Plaintiffs not barred by waiver/laches from suing to enforce restrictive covenant against neighboring golf course maintenance building, evidence that Plaintiffs did not object in advance of construction excluded as confusing, prejudicial, only marginally relevant, jury improperly instructed that emotional distress damages available for construction of maintenance building, objection properly preserved, insufficient evidence to support $350,000 damages for violation of covenant, remanded for retrial, when Plaintiffs may claim damages for intentional/negligent infliction despite not specifically pleading in 1st trial, implied easement of necessity across Plaintiffs’ property improperly rejected on summary judgment, $6,500 for conversion of trees cut on Plaintiffs’ property reduced to $600, the amount which the evidence will sustain, not necessary to review “home town” strategy arguments in claim of excessive verdict, sufficient evidence of malice in building maintenance building and cutting trees to warrant punitives, but $1 million punitives excessive for conversion of $600 worth of trees, Judge’s reduction to $25,000 based on erroneous verdict that trees were worth $6,500, punitives to be resubmitted to jury on remand, injunctions to require removal of building and prevent further division of a lot properly denied) McKay v. Wilderness Development, 12/5:1
Deed reformation: (parol evidence properly admitted to prove that by mutual mistake deed did not contain agreed restrictions, deed properly reformed) Thibodeau v. Bechtold, 1/3:3; (reformation of quit-claims of mineral interests on grounds of unilateral mistake properly denied) Nelson v. McLaughlin, 5/2:1
Condemnation: (attorney fees improperly determined based on since abandoned Forrester factors, $250/hr reduced to Flathead Co. customary $150, only $30,000 relating to original complaint offset from fee award pursuant to ambiguous stipulation, not $176,786 for all fees up to date of stipulation as claimed by MDT, lender Defendants improperly held jointly/severally liable for overage judgment (1st impression), final judgment improperly calculated) MDT v. Skyline Broadcasters, 6/13:2
Easement: (implied easement by pre-existing use via FS road, easement which originally involved logging now permits harvesting rock, conclusion that rock harvesting not a nuisance not supported by findings, remanded for findings) Waters v. Blagg, 1/10:3; (purported easement on lots to access parking/boat docking too vague to be enforced against assigns, not necessary to consider laches, statute of limitations as to 33 years between Declaration and formation of homeowners association) Holter Lakeshores Homeowners Association, 5/2:1; (dam flood easements not necessarily barrier to lakeshore owners’ damage claims, owners’ “contour line” theory properly rejected, “erosion,” “unreasonable damage” theories improperly rejected on summary judgment) Mattson v. MPC, 8/29:3; (road easement correctly found as to lake lot for year-round residential/recreation, incorrectly found as to adjacent lots for year-round residential) Schmid v. Pastor, 9/5:3; (“extrinsic facts” properly considered as background, not improperly relied on in construing easement agreement, agreement satisfies formal requirements for express granting of easement, easement-by-reference claims rejected) Broadwater Development v. Nelson, 10/3:5; (prescriptive easement established during lessee’s term is appurtenant, not in gross, not extinguished by termination of lease, prior suit limited use, not duration, fees properly denied over claim for American Rule exception, canal/ditch easement statute) Slauson v. Marozzo Plumbing & Heating, 10/24:2; (public/private prescriptive established for residential access, multiple uses) Schillo v. Lampert, 12/19:2
Estate dissipation: (daughter/husband exercised undue influence over aged mother to “plunder” what should have been half-million-dollar estate, constructive trust properly imposed on property, daughter/husband converted real property, equitable fees properly awarded siblings) Monroe v. Worley, 4/25:1
\ Foreclosure: ($230,433.77 judgment on trust indenture, $83,528 attorney fees, based on verdict for lender on counterclaim and rejecting homeowners’ breach of forbearance claims) Wilber v. GMAC Mortgage Corp., 5/16:1
Forged deed: (curative statute protects BFPs only as to fraudulent conveyances, not forged deeds, all 3 deeds void ab initio, transferred no rights, ratification of forged deed may be considered in equity (1st impression), warranty deeds of non-forgers constituted authority for forger to convey property, statute of frauds not violated, ratification elements satisfied by conduct despite lack of knowledge of forgery, edged-out buyer could have discovered prior interest by title search, only remedy against defrauder) Erler v. Creative Finance, 2/21:3
Fraudulent transfer: (homestead not “asset” under UFTA, not necessary to file declaration to be exempt from UFTA, residence properly established, qualified as homestead) McCone Co. FCU, 8/29:4
House defects: (purchaser of termite-ridden house who failed to get inspection failed to show misrepresentation or intentional failure to disclose, only raised suspicions, summary judgment for sellers) Huotari v. George, 4/11:9
Mineral reservation: (sandstone not a “mineral” per reservation) Hart v. Craig, 9/5:3
Partition: (man gifted property to woman during unmarried relationship) 5/2:2; (equitable doctrines properly applied to divide residential property of cohabitants, parties correctly found to have equitable rights and ½ interest, not constructive trust to entirety by man or gift to entirety by woman) LeFeber v. Johnson, 6/6:1
Real estate commission: (broker who introduced buyer to seller not entitled to commission based on unwritten “contract” for commission “if ranch sold for $10 million” when it sold for $6.5 million, Christopher affirmed as to dismissal of contract claims, remanded for clarification of dismissal of tort claims) Andersen v. Schenk, 11/28:1
Real estate sale: contract to sell ranch not established by emails between buyer and seller’s agent, no mutual consent, unsettled elements, no written words of consent/authority by agent, no partial performance by sale of tax-free exchange property, no grounds for equitable enforcement, specific performance properly denied, $87,229 fees, $1,927 costs properly awarded Defendant for frivolous suit) Zier v. Lewis, 8/22:2
Tax deed: (notice of tax deed required for both “interested party” and “current occupant” under 15-18-212(4) even when purchaser is other than county (Gentry affirmed), failure to notify occupant fatal to tax deed) Certain v. Chavez, 10/24:2
*Railroads
Crossings: (previously defective RR exhibits as to crossbucks at death crossing properly authenticated on remand from Supreme Court, state law tort claims preempted by federal funding of crossbucks) Smith v. BNSF, 2/7:7
ICCTA preemption: (tortious interference/misrepresentation/punitives claims by short-line operator over location of shuttle/elevator/spur preempted) Central Montana Rail v. BNSF, 3/21:9
*Securities
Fraud: (claims are derivative, require pre-suit demand under Montana or Delaware law, demand a substantive right under Delaware law, complaint dismissed without prejudice to refiling that meets futility requirement or after pre-suit demand, CPA claim preempted by Montana Securities Act, Securities Act claims fail to meet statutory requirements, dismissed without prejudice, common law fraud claim not pled with particularity, dismissed without prejudice) Falkenborg v. Lang, 5/30:9
Procedure: (90 days for final decision added to 2-4-623(1)(a) in 2005 not applicable to case concluded prior to 5/2/05, due process not violated by lack of notice of immunity agreement with former employer) Knowles v. Securities Commissioner, 12/12:3
Salesman: (90 days for final decision added to 2-4-623(1)(a) in 2005 not applicable to case concluded prior to 5/2/05, due process not violated by lack of notice of immunity agreement with former employer, Commissioner properly found salesman in violation of Securities Act, improperly overruled by Judge) Knowles v. Securities Commissioner, 12/12:3
*Settlements
Insurance: (UM/UIM/med-pay class action against Nationwide Companies, 100% of stacked benefits, 10% interest, attorney fees) Greeno v. Allied Property & Casualty Ins., 7/25:8
*Social Security
Disability: (no evidence that Crohn’s disease not “severe,” no good reasons for rejecting treating physician’s opinions, denial reversed, remanded for steps 3-5) Kent, 6/6:7
*State Government
Alcohol/gambling licenses: (common ownership of gambling machine and alcohol entities gave alcohol entity impermissible indirect financial interest in retailers, improperly made loans to retailers despite approval by DOJ, properly sanctioned by DOR) Shelby Distributors v. DOR, 3/21:1
Highway contract: ($68,122 liquidated damages for 176 workdays over schedule ($387/day) by striping contractor not unconscionable) Highway Specialties v. MDT, 8/8:2
Highway Patrol: (patrolman’s WDA claim barred by claim preclusion per rulings affirming termination for misconduct) Tuttle v. MHP, 5/16:1
Petroleum release: (all but 1 leak reimbursement claim barred by 8-year statute) MPTRCB v. Fireman’s Fund Ins., 5/30:9
*Taxes
Corporate: (15-31-302(1) contains both transactional and functional test for determining business income) Gannett Satellite Information Network v. DOR, 1/17:3
Property: (appeal to STAB properly dismissed for failure to respond to discovery); (notice of appeal from STAB complies with specific STAB statute) PacifiCorp v. DOR, 5/2:4
*Torts
1983: (City not immune from 1983 claims as to rezoning denial, but denial does not violate due process or equal protection) Sunday Creek Land v. Billings, 12/5:7
Abuse of process: (failure to disclose entire report can amount to abuse of process) Simonsen v. Allstate Ins., 1/10:7; (land buyer with valid contract lacked standing to challenge competing contract, properly ordered to pay unsuccessful buyer $32,250 for abuse of process) Thorson v. Reynolds, 11/14:1
Breach of fiduciary duty: (claims against college officers relating to alleged mis-use/dissipation of foundation funds time-barred) Chief Dull Knife College v. McDonald, 11/14:2
Civil contempt: (not recognized in Montana) Simonsen v. Allstate Ins., 1/10:7
CPA: (federal “substantially injurious to consumers” definition of CPA unfair act adopted, verdict denying recovery under CPA and apportioning negligence 10% to developer, 45% to settled City, 45% to Plaintiffs reversed, remanded for retrial) Rohrer v. Knudson, 2/21:2
Consortium: (extraordinarily close/interdependent relationship warrants consortium claims by parents of deceased adult in FTCA med-mal case, Montana Supreme Court unlikely to allow sibling consortium, sibling claims denied) Adams v. US, 11/21:7
Dam repairs: (summary judgment for engineers proper based on 3-year tort statute (rather than 8-year contract statute), summary judgment for repair company proper based on lack of causation between alleged grouting failure and leak, experts properly precluded for untimely disclosure) Tin Cup County Water/Sewer Dist. v. Garden City Plumbing, 2/28:2
Dram shop: (180-day notice for suing liquor purveyors is not special legislation, not violative of equal protection, facial challenge rejected) Rohlfs v. Stumble Inn, 12/26:1
False arrest/imprisonment/wrongful discharge: (venue change based on publicity/marijuana bias properly denied, actions in hiring drug agent not relevant to false arrest claim, post-arrest evidence relevant to discharge claim, jury instructed not to use it to determine false arrest, sufficient probable cause for drug sting arrest of Commission assistant, evidence of marijuana use and association with dealer while on duty relevant to termination good cause, verdict form properly skipped negligence if probable cause/exigent circumstances for arrest found, defense verdict affirmed) Dean v. Sanders Co., 3/28:1; (victim’s brief detention in handcuffs on ground until identity confirmed justified) Gonzales v. Bozeman, 8/29:1
Fraud: (“special circumstances” support constructive fraud claim, pecuniary interest supports negligent misrepresentation claim, actual fraud sufficiently pled by assertion that Plaintiffs relied on representation that insurer produced entire report) Simonsen v. Allstate Ins., 1/10:7
Immunity: (DOJ agent immune from suit alleging invalid search warrant, violation of privacy, under statutory immunity, quasi-judicial immunity, immunity constitutionality not preserved for appeal) Nickel v. Faycosh, 10/17:4
Infliction of emotional distress: (“serious or severe” Sacco standard applies only to independent claims of infliction of emotional distress, not parasitic emotional distress) Jacobsen v. Allstate Ins., 8/1:1
Libel: (complaints against appraiser privileged communications made in official proceeding authorized by law and to proper authorities, immune from libel claim, summary judgment rather than jury determination proper) McLeod v. MDOT, 4/25:1
Malicious prosecution: (properly dismissed based on probable cause for dismissed complaint) McLeod v. MDOT, 4/25:1; (probable cause to proceed against fish pond water permit based on less water returned to stream than taken, not necessary to address prosecutorial/quasi-judicial immunity) Blacktail Mountain Ranch v. DNRC, 10/31:2; (claims stemming from dismissed disturbing peace citation for loud TV in apartment rejected) Caddell v. Helena Elderhousing, 10/31:7
Medical malpractice: (prospective jurors with relationships with defense counsels’ firms properly not excused for cause, pathologist properly allowed to testify as to breast cancer, any error in instructing on “loss of chance”/apportionment of damages harmless as jury found no negligence by radiologists in claim of failure to diagnose cancer) Harris v. Hanson, 1/24:1; (statute of limitations, claim untimely regardless of tolling by incomplete MMLP claim, out-of-state absence of doctor) Cobb v. Saltiel, 5/23:1; (at least one anesthesiologist “immediately available” during emergency c-section that resulted in brain-damaged twin, claim of failure to deliver timely anesthesia properly rejected on summary judgment for failure to produce expert testimony of breach of standard, no need to determine whether 27-1-703 properly applied as to settling OB/GYN and hospital) J v. Shultz, 7/25:3; (liability as sanction properly denied as to alleged violation of pretrial rulings, proposed instruction barring mother’s conduct in relation to pediatrician’s failure to timely address lack of daughter’s development properly denied, new trial properly denied following defense verdict) White v. Johnson, 8/8:1; (ophthalmologist not qualified to testify as to standard for performance of surgery by neurosurgeon or for obtaining consent, expertise as to standard for recommending treatment (weight loss/medication) before surgery inapplicable as no such claim pled, request to supplement response brief (as opposed to affidavits) denied, summary judgment for doctor) Griffin v. Moseley, 11/7:6
Negligence: (new trial denied following $2,505,000 high-speed left-turn MVA verdict with 2 deaths, 1 PI (weight of evidence as to Plaintiff’s negligence, rebuttal as to line of sight, closing arguments as to Judge finding Defendant negligent), motion for new trial need not be preceded by motion prior to submission to jury, Defendant failed to contact Plaintiff as to collateral source reduction motion pursuant to LR 7.1(j), but issue resolved by stipulated $50,000 reduction prior to hearing) Messick v. Bowman, 1/3:7; (evidence of settling of other houses in subdivision improperly precluded, particularly after Defendant opened door by suggesting Plaintiffs’ situation unique, federal “substantially injurious to consumers” definition of CPA unfair act adopted, verdict denying recovery under CPA and apportioning negligence 10% to developer, 45% to settled City, 45% to Plaintiffs reversed, remanded for retrial) Rohrer v. Knudson, 2/21:2; (testimony/instructions as to City’s negligence in bar deck collapse in $683,962.51 verdict (5% negligence by City) affirmed) Funke v. Polson, 3/7:1; (new trial following defense verdict on gym student blinding warranted by new evidence as to teacher’s whereabouts, hearsay attorney affidavit admissible as trustworthy statement of court officer, fees/costs properly denied for defense counsel’s alleged multiplication, bad faith affidavits, student’s striking with lacrosse stick, whether intentional or reactive, foreseeable, not intervening cause sufficient to break chain, evidence that other student at fault properly excluded, summary judgment for Plaintiff on comparative fault properly granted) Larchick v. Diocese of Great Falls-Billings (Billings Catholic Schools), 5/23:1; (not foreseeable to school that student who wrote “black humor” paper would deliberately run over jogger 17 months later intending necrophilia, not necessary to address custody/control relationship vis-à-vis misfeasance) Emanuel v. Great Falls School Dist., 5/30:1; (challenge of taxpayers on jury in trial against County rejected, venue change based on jurors’ status as taxpayers properly denied, voir dire properly restricted as to insurance, landowner concerned about source of award properly not excused for cause, JNOV/new trial properly denied in verdict for County in connection with runaway who stole vehicle and injured bystander in high-speed pursuit) Eklund v. Wheatland Co., 7/18:1; (Defendants who investigated and removed child from home based on unsubstantiated allegations of sexual abuse by father entitled to statutory immunity) RMS v. DPHHS, 7/18:2; (no substantive evidence that driver who struck horse was not proceeding prudently, summary judgment for Defendant) Hernandez v. Dooley, 7/18:6; (fact issue as to whether conveyor operator breached duty of reasonable care when he brushed snow off and caught hand, no need to address causation and rescue doctrine as to ice fall by Plaintiff rescuer) Logterman v. Weidenaar Ranches, 8/15:6; (clerk’s claims that officers negligently responded to robbery, allowing robber to rape her, barred by public duty doctrine, exceptions, particularly custody/control, not applicable) Gonzales v. Bozeman, 8/29:1; (long-distance prisoner transport inherently dangerous activity, County may be vicariously liable for acts/omissions of transport contractor which allegedly resulted in van rollover, injury to prisoner, State may be liable for tortious acts/omissions of its agents undertaking transport, summary judgment for Defendants reversed) Paull v. Park Co., 10/10:1; (Plaintiff’s preexisting conditions properly introduced on cross to challenge causation of MVA injuries, JML properly denied, but new trial following defense verdict should have been granted based on unfair surprise by references to preexisting injuries in violation of unclear order that was not clarified until start of trial (Plaintiff questioning her own experts as to preexisting injuries was “last-ditch” change in strategy in response to the surprise), defense verdict, reversed, remanded for new trial) Clark v. Bell, 11/21:1; (summary judgment denied as to State v. County duty for maintenance of sidewalk on which woman fell resulting in death, State’s statutory responsibility for maintenance not negated by federal-aid contracts requiring County to maintain sidewalks, fact issues as to causation, State’s common law indemnity claim precluded by breach of statutory duty of care, ($552,313.85 net verdict)) State v. BSB Co., 12/12:1; (new trial properly denied following $2,505,000 high-speed left-turn MVA verdict for 2 deaths, 1 PI) Messick v. Patrol Helicopters, 12/26:6
Podiatry malpractice: (surprise reference to Plaintiff’s expert’s undisclosed textbook denied Plaintiff fair trial, defense verdict reversed, remanded for new trial) Willing v. Quebedeaux, 4/4:1
Product liability: (“upstream” retailer of chair components not entitled to bring indemnity claim against “downstream” MSP assembler of chair that collapsed, no right of contribution in product liability case) Klotzer v. Town Pump, 2/14:6; (child safety seat maker’s invitation to adopt Restatement for admissibility of regulations as to liability for defective design declined, compliance with FMVSS “minimal standards” irrelevant to design defect claim, prior model substantially similar to death accident model, evidence as to recall/test failures of earlier model properly admitted for compensatory/punitive damages, FMVSS rulings as to compensatory damages heightened Defendant’s burden, but within realm of strict liability law, evidence of compliance with FMVSS not relevant to compensatory damages, but relevant to punitives, Defendant should be allowed to attempt to offset misconduct with good faith effort to comply with regulations, $6,697,491 compensatory award upheld, $3.7 million punitives reversed, remanded for punitives retrial) Malcolm v. Evenflo, 9/19:1
State immunity: (properly applied to Warm Springs in murder by discharged patient) Gudmundsen v. Montana State Hospital Warm Springs, 3/28:2
Wrongful discharge: (jury properly instructed on legitimate business reasons for discharge, $252,428+ verdict affirmed) Power v. PAR Electrical Contractors, 4/4:3; (individual commissioners immune from state law/1983 claims, fact issues preclude summary judgment as to Financial Director’s due process claims against County, settled for reinstatement and $50,000) Hartung v. Park Co., 5/9:7; (patrolman’s WDA claim barred by claim preclusion per rulings affirming termination for misconduct) Tuttle v. MHP, 5/16:1; ($240,000 judgment for sales rep whose territory expanded to “not doable” size affirmed) Johannsen v. Nike, 6/6:6; (DEQ Director/Judge did not err by substituting their judgment for HE’s as to weight of evidence in termination of staff attorney, DEQ not required to review service record or progressively discipline before terminating for falsification of time records) Christie v. DEQ, 11/7:2
Tort vis-à-vis contract: (broker who introduced buyer to seller not entitled to commission based on unwritten “contract” for commission “if ranch sold for $10 million” when it sold for $6.5 million, Christopher affirmed as to dismissal of contract claims, remanded for clarification of dismissal of tort claims) Andersen v. Schenk, 11/28:1
*Trusts
Breach: (common fund applies to recovery for failure to invest in stocks over 30 years, pre-judgment interest to accrue on stipulated $14,611,000 loss at 10%) Trust B Under Last Will of Dunham, 3/7:4
Constructive trust: (instruction on grantor-support agreement between son and mother properly denied, verdict of constructive trust in ranch in favor of son affirmed) Morrison v. Morrison, 5/9:1
Trustee removal: (no reason to remove Trustee for failure to file accountings where Trust had no income, but should file to protect rights of parties) Baird Trust, 4/4:5
*Verdicts
Aluminum bat: ($850,000, failure to warn of dangers of aluminum bat, bat not defective, death of pitcher) Patch v. Hillerich & Bradsby (Louisville Slugger), 11/7:7
Auto: (defense, failure-to-yield auto, admitted liability, claimed traumatic brain injury sustained by psychologist) Suda v. Harmon, 4/4:7; ($75,000, rear-end auto, admitted liability, neck/shoulder) Jourdonais v. Martin, 5/9:6; (Plaintiff’s preexisting conditions properly introduced on cross to challenge causation of MVA injuries, JML properly denied, but new trial following defense verdict should have been granted based on unfair surprise by references to preexisting injuries in violation of unclear order that was not clarified until start of trial (Plaintiff questioning her own experts as to preexisting injuries was “last-ditch” change in strategy in response to the surprise), defense verdict, reversed, remanded for new trial) Clark v. Bell, 11/21:1; (new trial properly denied following $2,505,000 high-speed left-turn MVA verdict for 2 deaths, 1 PI) Messick v. Patrol Helicopters, 12/26:6
Auto/motorcycle: (Defense, disputed turn, shattered ankle) Harding v. Landt, 10/24:8
Building permit: ($300,000 verdict, $99,945 1988 fees affirmed) Walton v. Whitefish, 10/31:1
CO exposure: ($7,490,000, 18 Plaintiffs, brain, defective heating system, 70% negligence by manufacturer, 30% negligence by settled installer) Hulstine v. Lennox Industries, 4/18:8
Constructive trust: (in ranch in favor of son affirmed) Morrison v. Morrison, 5/9:1
Debt collection: ($311,000 against debt collector law firm including maximum $60,000 punitives, treble damages/fees claims yet to be decided) McCollough v. Johnson, Rodenburg & Lauinger, 5/16:4
Discrimination: (defense, sex/disability discrimination/retaliation, extension service employee) Brenneman v. Gallatin Co., 3/14:5, (Plaintiff’s rejected sex\disability discrimination claims reasonable despite defense verdict, County’s request for $90,484 fees as prevailing party denied) 4/11:9; (defense, sex discrimination/equal pay, university professor) Vinogradov v. MSU-Bozeman, 4/18:9; (defense, employment protected activity retaliation, Homeland Security lawyer transfer/non-selection as chief counsel) Tanke v. Homeland Security, 11/14:7
Drug label/information: ($3.2 million, negligence in label/information about cancer patient’s bone drug Zometa, resulting in ONJ following tooth extraction) Stevens v. Novartis Pharmaceuticals, 10/24:7
Excessive force booking: (defense, excessive force booking, skull fracture during struggle, subsequent seizure & drowning) Lutey (PR of Phelps) v. Missoula, 4/11:10
False arrest/imprisonment/wrongful discharge: (venue change based on publicity/marijuana bias properly denied, actions in hiring drug agent not relevant to false arrest claim, post-arrest evidence relevant to discharge claim, jury instructed not to use it to determine false arrest, sufficient probable cause for drug sting arrest of Commission assistant, evidence of marijuana use and association with dealer while on duty relevant to termination good cause, verdict form properly skipped negligence if probable cause/exigent circumstances for arrest found, defense verdict affirmed) Dean v. Sanders Co., 3/28:1
FELA: ($11,000 net (90/10), FELA, slip & fall, rotator cuff) Reed v. MRL, 8/29:8; ($793,500 gross ($499,905 net, 63% causation), FELA, engineer, train/semi, private crossing, neck/back/shoulder) Kordopatis v. Union Pacific, 10/10:6; ($1,360,000 net (85/15), locker room slip & fall by conductor, L3-4 herniation, FELA, offset claimed for $300,000 rescinded settlement) Cheff v. BNSF, 11/7:7
Foreclosure: ($230,433.77 judgment on trust indenture, $83,528 attorney fees, based on verdict for lender on counterclaim and rejecting homeowners’ breach of forbearance claims) Wilber v. GMAC Mortgage Corp., 5/16:1
Horse fall: (defense, concussion/fractured ribs/dissected vertebral artery) Porter v. E Bar L Ranch, 5/2:9
House construction: ($146,670, house contractor/vendor and settled subdivision developer negligent as matter of law as to water entering crawl space, excavator found negligent by jury, contractor 53%, excavator 24%, developer 23%, defense verdict for contractor and excavator on contract, warranties, implied warranty of habitability, CPA, $30,000 settlement by developer) Leonard v. Minster (Minster Const.), 4/25:10
Home rain water flooding: (allegedly failed sump pump) Hedrick v. Q&R Plumbing & Heating, 4/4:8; (defense, water infiltration into new home) Lee v. Lowe Const., 11/14:6
Insurance: (defense, $25,000 total damages from rear-end auto found in UIM claim after $100,000 liability limits and $5,000 med-pay, claim of minor neck strain by UIM insurer, claim of torn rotator cuff by insured) Chays v. State Farm Mutual Auto Ins., 2/7:7; ($25,000, malice, UTPA, medicals claims handling, punitives amount to be determined in later trial following discovery into statutory bases for punitives) Moe v. J. Walling & Associates, 5/30:10; (mother’s mental injuries with physical manifestations resulting from daughter’s MVA death covered under “bodily injury,” directed verdict for insurer properly denied, Idaho law properly applied to Idaho policy issued to Idaho residents despite collateral estoppel claim, resulting in $328,939 prejudgment interest, $281,646 fees, insurer properly denied offset to $516,000 UIM wrongful death verdict against umbrella insurer by failure to present positive proof that prior $298,433 “collateral source” settlement proceeds from primary policies did not constitute survivorship damages) Tucker v. Farmers Ins. Exchange, 7/25:1; (defense, insurance bad faith claim following $850,000 settlement of disputed liability MVA) Peterson v. St. Paul Fire & Marine Ins., 10/17:6
Legal malpractice: (defense, legal malpractice, alleged negligence by ambulance company’s local lawyer (since deceased) in failing to get better result for company in suit by MVA victim’s family which settled start of trial for $1.75 million in negotiations taken over by company’s Denver rep and California counsel, Plaintiff negligent in not preserving files of deceased California counsel) American Medical Response v. Moore, O’Connell & Refling, 5/23:8; (attorney who prepared original trust documents for parents and discussed with parents amendments to benefit 3 of 5 children owed no duty to non-client potential beneficiaries (the 3 children) to see that amendments were executed, claim also time-barred) Harrison v. Lovas, 9/12:7
Manufactured home collapse: (claim of erroneous admission of insurance reference not preserved for appeal of defense verdict on claim of negligence by crane operator in lifting manufactured home section that collapsed after owner had removed frame) Bender v. Wiedrick’s Crane Service, 11/7:3
Medical malpractice: (prospective jurors with relationships with defense counsels’ firms properly not excused for cause, pathologist properly allowed to testify as to breast cancer, any error in instructing on “loss of chance”/apportionment of damages harmless as jury found no negligence by radiologists in claim of failure to diagnose cancer) Harris v. Hanson, 1/24:1; (defense, medical malpractice, knee replacement complication) Cooper v. Hanson, 5/16:4; ($250,000 verdict for CPA violations by cosmetic surgery business for delayed diagnosis of skin cancer, $84,833 fees, defense verdict as to negligence by surgeon and assistants, verdict affirmed) Code v. Big Sky Cosmetic Surgery, 7/4:1; (liability as sanction properly denied as to alleged violation of pretrial rulings, proposed instruction barring mother’s conduct in relation to pediatrician’s failure to timely address lack of daughter’s development properly denied, new trial properly denied following defense verdict) White v. Johnson, 8/8:1; (mistrial or new trial should have been granted when juror became ill during Plaintiff’s lawyer’s “channeling” of decedent and was attended by Defendant physician) Heidt v. Argani, 8/22:2
Motor home defects: (JNOV properly denied as to notice, venue, statute of limitations, express warranty issues as to Lemon Law, CPA, warranty claims as to motorhome swaying problem, doubling $84,000 damages under CPA remedial not punitive, appeal fees in addition to $53,382 fees below) Vader v. Fleetwood, 1/17:1
Oil/gas development rights: (because jury found no contractual obligation as to development rights, no legal basis for $2.5 million for breach of development agreement, Defendant’s failure to clarify that letter of intent did not constitute contract resulted in confused jury rendering supportable but inconsistent verdict, Supreme Court has power to review challenge to verdict but parties advised to first challenge verdict for sufficiency of evidence post-trial, $2,642,755 net verdict reversed, remanded for new trial, challenge to personal jurisdiction over settled Defendant waived by failure to contest and by seeking affirmative relief) DR Four Beat Alliance v. Sierra Production, 10/3:1
Podiatry malpractice: (surprise reference to Plaintiff’s expert’s undisclosed textbook denied Plaintiff fair trial, defense verdict reversed, remanded for new trial) Willing v. Quebedeaux, 4/4:1
Prison suicide: (defense) Palmerton v. State, 4/4:1
Product liability: (child safety seat maker’s invitation to adopt Restatement for admissibility of regulations as to liability for defective design declined, compliance with FMVSS “minimal standards” irrelevant to design defect claim, prior model substantially similar to death accident model, evidence as to recall/test failures of earlier model properly admitted for compensatory/punitive damages, FMVSS rulings as to compensatory damages heightened Defendant’s burden, but within realm of strict liability law, evidence of compliance with FMVSS not relevant to compensatory damages, but relevant to punitives, Defendant should be allowed to attempt to offset misconduct with good faith effort to comply with regulations, $6,697,491 compensatory award upheld, $3.7 million punitives reversed, remanded for punitives retrial) Malcolm v. Evenflo, 9/19:1
Pursuit: (JNOV/new trial properly denied in verdict for County in connection with runaway who stole vehicle and injured bystander in high-speed pursuit) Eklund v. Wheatland Co., 7/18:1
Rape: (not guilty of rape, guilty of tampering) State v. Orduno, 5/16:5
Real estate commission: ($80,000 real estate commission on oral revocation of listing agreement, $31,495 fees/costs, $27,773 interest) Clearwater River Realty v. Dixon, 7/18:6
Real estate sale: ($482,499, property sale, gravel pit filled with undisclosed waste, fraud/malice but no punitives) Centennial Contracting & Development v. Salminen, 10/17:5
Retirement benefits: (new claim that retirees’ claims preempted by bankruptcy law rejected, advice-of-counsel as affirmative defense properly disallowed as not pled, but Defendants still allowed to argue good faith reliance as defense to malicious prosecution, JML properly denied as to malicious prosecution, insufficiency of evidence of special relationship for bad faith breach of contract not preserved for appeal, parasitic emotional distress claims properly submitted to jury under MPJI, award of $17.5 million compensatory to 15 Plaintiffs in separate verdict forms for each Plaintiff with no indication of apportionment among claims supported by evidence, company officers properly retained as defendants, $21.4 million verdict affirmed) Ammondson v. NWE, 10/17:1
Runaway who stole vehicle and injured bystander: (challenge of taxpayers on jury in trial against County rejected, venue change based on jurors’ status as taxpayers properly denied, voir dire properly restricted as to insurance, landowner concerned about source of award properly not excused for cause, JNOV/new trial properly denied in verdict for County in connection with runaway who stole vehicle and injured bystander in high-speed pursuit) Eklund v. Wheatland Co., 7/18:1
RR crossing collision: (defense, death/emotional distress) Julius v. MRL, 7/4:7
School blinding: (new trial following defense verdict on gym student blinding warranted by new evidence as to teacher’s whereabouts, hearsay attorney affidavit admissible as trustworthy statement of court officer, fees/costs properly denied for defense counsel’s alleged multiplication, bad faith affidavits, student’s striking with lacrosse stick, whether intentional or reactive, foreseeable, not intervening cause sufficient to break chain, evidence that other student at fault properly excluded, summary judgment for Plaintiff on comparative fault properly granted) Larchick v. Diocese of Great Falls-Billings (Billings Catholic Schools), 5/23:1
Slip/trip & fall: ($21,562.20 net (40/60 negligence, 10% preexisting condition), icy parking lot slip & fall, knee/ankle/tailbone) Cratty v. Pamaida Discount Store 296, 1/10:7; ($80,755.12 net (60/40), rental trip & fall, cheek fracture/nerve damage, frozen shoulder) Martens v. McDonald, 7/4:7; (summary judgment denied as to State v. County duty for maintenance of sidewalk on which woman fell resulting in death, State’s statutory responsibility for maintenance not negated by federal-aid contracts requiring County to maintain sidewalks, fact issues as to causation, State’s common law indemnity claim precluded by breach of statutory duty of care, ($552,313.85 net verdict)) State v. BSB Co., 12/12:1
Spite fence: (instruction that fence not nuisance merely because unsightly or obstructs view improperly limited nuisance under Montana law, declaratory judgment that fence was spite fence properly denied, fact issues properly tried, code violations properly excluded, jury view properly denied, defense verdict as to spite fence reversed) Tarlton v. Kaufman, 1/17:2
Steel siding: (manufacturer’s warranty) Stebner Real Estate v. Associated Materials (Alside), 10/10:6
Wheat fire: (defense, fire allegedly caused by failed trailer bearing) Taft v. Moug, 5/16:5
Wrongful discharge: (jury properly instructed on legitimate business reasons for discharge, $252,428+ verdict affirmed) Power v. PAR Electrical Contractors, 4/4:3; ($240,000 judgment for sales rep whose territory expanded to “not doable” size affirmed) Johannsen v. Nike, 6/6:6; ($48,783, Medicare call center employee) Taylor v. Noridian Administrative Services, 12/5:6
*Water
Irrigation district: (“susceptible of irrigation” means land physically (as opposed to legally) capable of receiving water, land may be included in expanded irrigation district but legal right to water must be decided by Water Court) East Bench Irrigation Dist., 5/2:3
Permit application: (DNRC failed to uphold duty to process permit application within timeframes, but mandamus not available until applicant proves criteria satisfied, improperly issued) Bostwick Properties v. DNRC, 5/30:4; (DNRC Proposal for Decision, Final Order failed to clearly inform applicant of need to file exceptions prior to judicial review, properly remanded for opportunity to file exceptions) T Lazy T Ranch v. DNRC, 9/26:4
*Workers’ Compensation
Alcohol use: (insurer liable for DUI per “employer knowledge” of alcohol use) Heth v. MSF, 5/9:1
Attorney fees: (WCC has jurisdiction to determine Lockhart fees, correctly determined that work of Claimant’s attorney led to payment of benefits) Dildine v. Liberty Northwest Ins., 3/28:4; (mother’s former attorney not entitled to fee on children’s death benefits after seeking benefits for mother as sole beneficiary and mother stipulated benefits to children) Briese v. MACWCT, 8/8:2; (original Schmill Claimant had standing to pursue common fund benefits, enforce common fund fees lien) Schmill v. Liberty Northwest, 12/26:2
Causation: (Claimant established hip replacement directly caused by injury which aggravated degenerative condition, no need to determine liability on medicals-reserved settlement terms) Narum v. Liberty Northwest Ins., 4/25:3; (CTS not causally related to employment with insured) Dewey v. MCCF, 5/23:9; (Claimant’s expert as to cognitive effects of truck CO properly relied on, Daubert challenge waived by failure to request hearing, remanded for determination of indemnity time period) Russell v. Watkins & Shepard Trucking, 7/4:3; (asbestosis caused by exposure at mill 1993-01, last injurious exposure insurer liable, 25% impairment) Johnson v. Liberty Northwest Ins., 7/11:8; (cardiovascular condition not accelerated by use of Vioxx for CTS) Vandervalk v. MSF, 11/14:8
Claimed injury: (claimed knee injury events not credible) Slavin v. MSF, 11/21:8
Costs: (objections sustained as to professional fees incurred after trial for valuing judgment and appellate mediation fee) Heth v. MSF, 7/25:8; (objections to costs by CO claimant who prevailed only as to cognitive impairments mostly sustained) Russell v. Watkins & Shepard, 8/22:7; (objections denied as to nurse exhibits, sustained as to attorney trial travel and trial transcripts where there will be no appeal) Johnson v. Liberty Northwest Ins., 9/5:8
Credibility: (finding that Claimant not credible reached independent of IME doctor’s use of medical records to gratuitously malign Claimant) Dewey v. MCCF, 5/23:9
Disability: (adjuster’s computer notes authorizing TTD after returning to alternative employment constitutes “written” consent, Roche does not disallow both wages and TTD if worker has written consent of insurer) Long v. New Hampshire Ins., 4/18:9; (Claimant who had no wage loss not “disabled” under 2005 WCA, qualified for 601(2)(a) time-limit waiver since he lacked knowledge of disability until he sought treatment in 7/07), Tinker v. MSF, 7/4:3; (Claimant terminated from employment for disciplinary reasons, not injury) Bagley v. MSF, 8/22:7; (geographical limitations must be considered in determining appropriate labor market for terminating TTD, original permanent residence of millwright in Washington is appropriate labor market, not Idaho where he moved, Petitioner failed to prove PTD) Short v. JH Kelly Holdings, 10/10:8
Domiciliary care: (.5-1/hr/day domiciliary care by wife at $9.84/hr (local prevailing wage) for paraplegic, no compensation for services within Claimant’s capabilities, beyond normal household duties, home maintenance) Skiff v. MSF, 3/14:7; (Claimant entitled to domiciliary benefits from doctor’s 2/07 letter, not from 1984 brain injury, severity insufficient to put insurer on constructive notice of need for domiciliary) Quick v. MSF, 5/23:3
Employee/contractor: (carpenter not independent contractor, but fact issues as to home owner’s profit motive preclude summary judgment as to casual employment on residence) Weidow v. UEF, 2/21:8; (equipment/right to fire factors dictate employee status of bed salesman) Emergency Preparedness v. Scobie, 8/22:8
Filing time: (no “implied tolling” while claimant obtains medical evidence, claim denied as untimely) Boyd v. Zurick American, 8/15:8
IME: (claimant not entitled to insurer-paid IME) Vandervalk v. MSF, 5/9:7
Impairment award: ($1,247,600 paid in MPC class action in impairment awards, penalties, attorney fees, costs, additional PPD) Gonzales v. MPC, 5/2:9
Indemnification: (Claimant’s back condition not caused by 1993 injury or 2006 OD, neither insurer entitled to indemnification from the other, since Claimant not a party to this action, although participating, Court cannot order her to reimburse either insurer) State Fund v. Zurick American Ins., 1/31:8
Injury report: (failure to timely report) Fournier v. MSGIA, 10/31:8
Labor market: (geographical limitations must be considered in determining appropriate labor market for terminating TTD, original permanent residence of millwright in Washington is appropriate labor market, not Idaho where he moved, Petitioner failed to prove PTD) Short v. JH Kelly Holdings, 10/10:8
Mediation: (dismissal without prejudice for Petitioner’s failure to complete mediation by notifying mediator whether recommendation accepted before filing petition, even though mediator notified 2 months later) Burke v. Roseburg Forest Products, 9/19:7
Nunc pro tunc: (reference to claim against doctor stricken in light of doctor’s assertion that no claim was filed and Claimant’s ambiguous testimony) Pinnow v. Halverson, 10/17:7
OD: (plumber’s work significantly aggravated or contributed to hand/wrist condition, not significantly affected by motorcycle accident, 51% standard properly rejected) Kratovil v. Liberty Northwest Ins., 1/3:2
Penalty: (penalty may be imposed for failure to pay Lockhart lien) Briese v. Ace American Ins., 3/7:8; (denied) Skiff v. MSF, 3/14:7; (successor adjuster unreasonable in attempting to conceal note, threatening legal action if Claimant failed to return benefits, failing to properly maintain claims file, Claimant entitled to back/ongoing TTD, fees, costs, penalty) Long v. New Hampshire Ins., 4/18:9; (fees/costs/penalty properly awarded) Narum v. Liberty Northwest Ins., 4/25:3
Procedure: (sanctions against Claimant denied) Briese v. Ace American Ins., 3/7:8; (pro se settlement reopen pled adequately to withstand motion to dismiss for failure to state claim) Stokes v. Liberty Mutual, 8/1:7; (mediator’s report not admissible to support claim of breach of agreement to permit treatment, untimely claim rejected on summary judgment) Schreckendgust v. MSGIA, 8/1:7
PTD age limit: (PTD SSR age limit constitutional) Satterlee v. Lumberman’s Mutual, 11/7:1
Schmill claimants: (have automatic right to past due benefits, “non-party” insurers’ due process rights not violated, original Schmill Claimant had standing to pursue common fund benefits, enforce common fund fees lien) Schmill v. Liberty Northwest, 12/26:2
Settlement agreement: (agreement encompassing claims which may be unknown frowned upon) Twoteeth v. American Home Assurance, 3/21:10
Settlement reopen: (denied) Distad v. MSF, 3/28:10; (pro se settlement reopen pled adequately to withstand motion to dismiss for failure to state claim) Stokes v. Liberty Mutual, 8/1:7; (reopen of settlements denied, financial duress not “duress” basis for reopening) Vandervalk v. MSF, 11/14:8
Subsequent insurer: (“potentially causal” standard adopted for initial OD diagnoses and subsequent insurers, although subsequent work not major contributing cause of OD, it was of same type which led to development and eventual diagnosis of OD, “contributed “to some degree,” subsequent insurer liable) Liberty Northwest Ins. v. MSF (In re Mitchell), 11/21:3
Travel: (no reimbursement for medical travel) Vandervalk v. MSF, 11/14:8
TTD: (insurer not liable for TTD during period of medical instability due to Claimant’s failure to show total wage loss as result of 2005 condition (1994 original OD onset)) Aldrich v. MSF, 2/28:1
UEF: (39-71-520(2) unconstitutionally vague as to time limits for UEF petition, motion to dismiss denied) Weidow v. UEF, 1/17:8; (UEF not entitled to reimbursement from non-primary contractor, nor under “equitable” theory) H&D Investments v. UEF, 1/24:8; (claimant may pursue 3rd-party MVA and UEF remedies concurrently) Hilbig v. UEF, 2/28:7; (UEF’s request to file 3rd-party petition for indemnity against allegedly uninsured employers granted in light of HB 119 and employers’ due process rights) Benton v. UEF, 6/13:8; (uninsured employer may not be joined as party ostensibly liable to Claimant, but UEF may file 3rd-party petition against uninsured employer pursuant to HB 119) Wilson v. UEF, 8/1:8 (Petitioner working on 2nd-home cabin for uninsured employer for 10 months engaged in “casual employment,” UEF not liable) Raymond v. UEF, 9/12:8; (39-71-520(2) 60-day requirement for filing UEF claim not violative of equal protection vis-à-vis insured/uninsured workers, not unconstitutionally vague as applied here, untimely claim dismissed) Benton v. UEF, 12/5:8
Uninsured employer: (barred from contribution/indemnity from 3rd party after settling with injured employee, reformulated certified question from Cebull) State Farm Fire & Casualty v. Bush Hog, 10/24:1
Voc-rehab: (insurer offered reasonable voc plan, cannot be found unreasonable for Claimant’s failure to engage in its development, properly converted TTD) Skiff v. MSF, 3/14:7
Wages: (vacation pay accrued pre-injury but paid post-injury, employer 401(k) contributions, not “wages” under 123, 123 constitutional challenge rejected) Briese v. Ace American Ins., 3/7:8
Working while receiving TTD: (late-filed challenge of constitutionality of 39-71-701(7) properly denied, Claimant received wages from sole proprietorship, properly ordered to repay $45,273 TTD) MMIA v. Roche, 6/20:1
*Youths
Child abuse/neglect: (right to know/privacy interests properly accommodated by in camera/redaction pursuant to statute) Disability Rights Montana v. State, 4/11:1