Montana Law Week Subject Index- 2013

Montana Law Week Subject Index – 2013

*Appellate Procedure

Amicus: (request as to railroad cumulative injuries denied) Bridgman v. UP, 4/27:4

Appealability: (order vacating prior order granting leave to amend and dismissing claims for spoliation and declaratory judgment appealable) Ensey v. Mini Mart,4/13:4

Certification: (54(b) does not contemplate unadjudicated claims, certification proper for grant of summary judgment for Defendants on wrongful discharge/political discrimination, improper for denial of summary judgment for Defendants on defamation/invasion of privacy) Baumgart v. Dept. of Commerce, 9/14:2

Non-cite opinions: (explication of) Parenting of OMC, 6/15:5

Sanctions: (appeal fees/costs assessed against pro se appellant) Jonas v. Jonas, 7/27:1

Supervisory control: (request for supervisory control of Krueger as to “deemed denied” rulings on claim of Michigan law not sufficiently supported) Comerica Bank v. Krueger, 12/21:4

Transcript: (part of officer’s testimony omitted by court reporter adequately reconstructed) State v. Caswell, 3/9:5

*Arbitration

Arbitrability: (dispute as to whether termination pursuant to “best interest” of employer nullified term contract and rendered Plaintiff at-will should be resolved by arbitrator) Marsden v. BCBSMT, 1/5:2; (clause in website payday loan agreement unconscionable contract of adhesion, falls outside consumer’s reasonable expectations, properly deemed unenforceable) Kelker v. Geneva-Roth Ventures, 3/16:1

FAA preemption: (FAA preempts Montana public policy invalidating adhesive agreements contrary to reasonable expectations… a state’s preempted public policy impermissible basis on which to reject choice of law… arbitration denial reversed) Mortensen v. Bresnan Communications, 7/27:6

Jurisdiction: (no authority to vacate emergency arbitration order or stay arbitration proceedings at bidding of non-party to contract, injunction allowing Defendant to dismantle equipment to prevent use by Plaintiff granted under arbitration rules, not NY civil procedure) Rocky Mountain Biologicals v. Irvine Scientific Sales, 11/2:6

Request for arbitration: (meritorious motion for summary judgment that bank entitled to collect from joint debtor after other debtor settled judgments for part of debt precluded by potentially enforceable arbitration clause if parties request arbitration) Wells Fargo Bank v. West, 2/9:1

Teacher dismissal: (upheld) Roberts v. Lame Deer School Dist., 12/7:1

Wrongful discharge: (employee properly fired for getting truck stuck on frozen tailings pond while off-duty in disregard for safety and liability… trial rather than requested summary judgment) Mohan v. Montana Resources, 5/18:6

*Attorney Fees, Costs

Asbestos settlement: (25% of $19,625,000 Ch. 11 asbestos settlement proceeds awarded to Libby Claimants’ attorneys under common fund doctrine, with attorneys agreeing to pay 1/5 of fee for resolution of Medicare/ Medicaid reimbursement claims for net 20% fee, plus $226,193 costs) Libby Medical Plan Qualified Settlement Fund Trust, 4/6:4

Cancer policy: ($242,050 fees, $35,046 costs awarded following morning-of-trial directed verdict for $539,717 in cancer policy case with 1st-impression notice prejudice rule and verdict of no more money owed, UTPA violation but no damage to Estate) Estate of Gleason v. Central United Life Ins., 9/28:6

Collection: (Pro ses’ motion for relief from default judgment in fee collection action properly denied as untimely under 2009 version of 60(b)(3) (60 days v. 1 year under 2011 version)… $808.80 fees incurred in pursuing default judgment for $93.99 fees, additional $2,860 for responding to motion to vacate, properly awarded) Wittich Law Firm v. O’Connell, 5/11:2

Contract: Boyne USA v. Spanish Peaks Development, 1/19:1

Covenants challenge: (subdivision developers awarded $371,513 fees & costs in successful challenge of lot owner’s attempt to amend covenants to prevent developers from developing their retained large lot after 37 other owners settled for $157,500 fees… Defendant and counsel “brought upon themselves this significant award”) Houden v. Todd, 4/20:4

Costs: (order denying costs and temporary rate decrease and remanding to PSC is final, appealable order… costs for proceedings in PSC, District Court, MSC properly denied as remand for determination of whether to allow amended complaint to cure standing did not constitute prevailing) Williamson v. PSC, 1/5:4; (parties had right to contractually provide for bill of costs but contract did not provide procedures for filing bill so statutory procedures had to be followed, bill not timely, properly denied) Total Industrial Plant Services v. Turner Industries, 2/16:3; (costs affirmed except $250 for pre-litigation survey) Jones v. Shaurette, 4/6:3; (Defendant properly allowed to cure costs verification defect by affidavit… appeal costs to Plaintiff who prevailed on 1 claim to be resolved on remand) Carestia v. Robey, 11/16:1

Insurance: $1,188,399 fees improperly awarded based on judgment and contingency in underlying case, remanded for recalculation on representation in duty to defend case) Judith Newman (PR of Karlye Newman) v. Scottsdale Ins., 5/11:1

Prevailing party: (summary judgment on single issue did not make Plaintiff prevailing party for fees when it ultimately lost on each count) Total Industrial Plant Services v. Turner Industries, 2/16:3

UDJA ($48,132 fees under UDJA not justified by equitable considerations) Horace Mann Ins. v. Hanke, 11/2:1

Wage claim: ($348,612.50 fees, $18,958.01 costs awarded as claimed for pursuit of nonsegregable wage claims following $532,439.40 verdict on wage/wrongful discharge claims) Harrell v. The Farmers Educational & Cooperative Union of America, 1/26:6

*Attorney Practice

Attorney choice: (parents who consented to GAL/conservator to act in best interests of child in MVA claims divested themselves of right to choose counsel… constitutional, RPC conflict claims rejected) Estate of CKO, 3/23:2

Disqualification: (husband’s attorney not disqualified by wife’s calls 3 years earlier seeking divorce advice… psychological victimization claim not minimized, but RPC 1.20 requires lawyer receive “significantly harmful” “information”… no implied relationship by prospective client… lawyer did not violate duty to wife by later representing husband… lawyer properly permitted to testify, impliedly as “necessary witness”… Judge’s questioning of wife’s motive for disqualification had no impact on outcome) Marriage of Perry, 2/23:1

Legal malpractice: (pro se wife may not assert claims on behalf of husband, their lawyer represented bankruptcy estate at time claims against officers settled in bankruptcy, no standing to sue him) Lucas v. Stevenson, 2/9:1

Withdrawal: (claim that attorney allowed to withdraw without opportunity for Plaintiff to respond not preserved for appeal) Long v. DNRC, 7/20:4

Work product/attorney-client: (further analysis necessary to determine which insured-insurer documents entitled to work product or attorney-client) Draggin’ Y Cattle v. Addink, 11/2:2

*Banking, Commercial Paper

Assignments: (letter from bank president proffered in support of equitable estoppel claim properly excluded as not meeting estoppel elements, verdict that lumber wholesaler owed nothing to lender for alleged violation of assignments between mill and lender and that lender owed nothing to wholesaler under estoppel theory for allegedly inducing wholesaler to continue advancing funds to failing mill affirmed) Simpson Lumber v. Three Rivers Bank, 10/26:1

Conversion: (claim of conversion of $449.40 escrow balance properly rejected on basis that Plaintiff did not pursue funds before suing and bank then returned funds, no evidence of resulting damages) Feller v. First Interstate Bancsystem, 4/13:3

Credit reputation: (claims relating to credit reputation preempted by FCRA) Feller v. First Interstate Bancsystem, 4/13:3

Debt collection: (meritorious motion for summary judgment that bank entitled to collect from joint debtor after other debtor settled judgments for part of debt precluded by potentially enforceable arbitration clause if parties request arbitration) Wells Fargo Bank v. West, 2/9:1; (Jury’s implied allocation of interest payments between 2 notes, along with creditor’s right to allocate, restarted statute on earlier note, making creditors prevailing for attorney fees) Hughes v. Hughes, 7/6:1

Lending breach: (breach of contract/negligence claims for converting 30-year residential loan to 18-month “consumer bridge” on residential condo in commercial zone without knowledge of borrower properly rejected on summary judgment, but fraud claim improperly rejected… claims against title company for deed alteration to reflect that condo was commercial properly rejected) McCulley v. American Land Title, 4/13:1; (claims relating to rate increase on permanent house loan for failure to timely pay construction loan properly rejected on summary judgment despite other disputed facts) Bruce v. National City Mortgage,4/13:2; (claim properly rejected for lack of written agreement for commercial loan in excess of $100,000… CPA not applicable to commercial loan) Weaver v. First Bank Lincoln, 7/13:4; (failure to comply with notary law invalidated 1st attempt to accept loan modification offer, but fact issues preclude summary for bank as to 2nd & 3rd attempts… no special debtor/creditor relationship that would support tortious breach of the covenant… fact issues as to bank’s representations preclude summary judgment on fraud, deceit, intentional/negligent misrepresentation… constructive fraud not supported by legal duty… no tortious interference with contract by mortgage servicing agent… expenses for postage and improper fees deducted from payments after modification denial constitutes “ascertainable loss” for CPA claim… punitives available if jury finds fraud) Holcomb v. Bank of America, 11/23:6

Trustee’s sale: (Freddie Mac properly obtained ownership of property which Defendants, asserting fraud including robo signing, refused to vacate) FHLMC v. Petty, 6/1:1

Trust indenture: (indenture of subsequent lender who had no knowledge of prior assignment valid under bona fide purchaser/encumbrancer rules, has priority over any interest alleged by initial lender who did not record assignment) Whitefish Credit Union v. The Mortgage Source, 5/18:4

*Bankruptcy

Adversary proceeding: ($4,013,411 awarded to Ch. 7 Trustee on avoidance theories, $356,610 for violation of usury laws, involving guaranty of $13 million loan to son of insolvent Debtor Yellowstone Club co-developer Edra Blixseth) Samson v. Western Capital Partners, 4/20:7

Good faith: (BAPCPA forecloses consideration of SS or payments to secured creditors as part of the 1325(a) good faith inquiry… Trustee’s objection to “miniscule” payments while living in $400,000 home, making payments on luxury items, not committing 100% of disposable income, rejected) Welsh, 5/4:6

*Bench Judgments

Crop failure: (defense, barley grower’s claims of negligence/breach of contract by custom seeder in crop failure rejected) CNJ Distributing (Fairview Angus Ranch) v. D&F Farms, 1/12:4, (affirmed) 9/17:2

Food distributorship: (buyer properly found to have agreed to pay $130,000 for business, unjustly enriched by $81,325 by operating after paying only $10,000 down, fraud/misrepresentastion precluded by knowledge of falsity of representations as to commissions and provision of profit/loss statements… damages to seller not understated) Owen v. Skramovsky, 11/23:1

Medical malpractice: ($59,820 ($58,600 emotional distress, $200 for “last” birthday party, $1,020 for pre-need funeral agreement), VA doctor misdiagnosis of terminal brain cancer, prognosis of imminent death, when correct diagnosis was stroke) Templin v. US, 5/11:5

Property ownership: (Request to quiet title/constructive trust to 880 acres in name of drug dealer who purportedly had Defendants make payments while he was in prison rejected… Defendants paid 71.5% of purchase price, obtained financing loan and leveraged their own ranch, improved property, paid taxes, invested in equipment, maintained the land, Plaintiff would have lost the property through cancelation of deed or foreclosure… claim of conversion of $23,475 rejected)Willis v. Fertterer, 1/19:3 (claim that Montana property held for Florida drug dealer while he was in prison rather than deeded outright and that deed was forged and funds from dealer’s bank account converted properly rejected) 10/5:1

Tractor/autos: (pro se tractor driver’s challenges to $631,018 net MVA bench judgment rejected… elderly pro se ranch owner required evaluation of need for conservator, reversal also required by failure to separately serve her notice of attorney withdrawal, remanded for new trial as to her vicarious liability) Stewart v. Rice, 3/9:1

*Civil Procedure

Abuse of process: (fact issues as to whether buyer had valid claim to specific performance preclude summary judgment as to wife’s claim for abuse of process)Montana Capital Funding v. Kelleher, 7/6:7

Child support judgment: (corporation found to be alter ego to avoid divorce judgment, veil pierced… Rule 11 sanctions denied… $160,655 judgment against corporation for past-due child support) Ellis v. Mountain Pacific General Inc., 2/2:6, (child support funds held in divorce proceedings properly applied toward judgment against corporation in separate alter ego proceeding… Rule 11 fees properly denied) 12/14:3; (only CSED may enforce its support lien, not transferable to 3rd party) LeCount v. Davis, 6/22:4

Choice of law: (request for supervisory control of Krueger as to “deemed denied” rulings on claim of Michigan law not sufficiently supported) Comerica Bank v. Krueger, 12/21:4

Class action: (all criteria satisfied for certification of property owners claiming shore damage from Kerr Dam operation) Mattson v. MPC, 1/5:3; (Plaintiff’s class definition including both filing and non-filing insureds properly adopted over insurer’s claim that identifying members who never submitted claims not sufficiently precise, and in agreement with Plaintiff’s contention that billing procedures & practice which encourage preferred providers to bill tortfeasor would prevent numerous insureds from filing claims) Rolan v. New West Health Services, 8/10:3; (class involving complaint that the State violated group health insureds’ made-whole rights by subrogating without made-whole analyses properly defined as only insureds who had timely filed claims for benefits) Diaz v. State, 8/10:4; (properly certified as to Allstate’s CCPR program following remand, but class-wide punitives inappropriate, remanded for class trial to determine if application of CCPR to class violated UTPA, if so to determine if Allstate should be required to notify members of right to re-open/re-adjust, whether CCPR involved actual fraud/malice for punitives following finding of actual damages in ensuing individual cases… if no fraud/malice, class members entitled to only compensatories they can prove in individual cases, availability of common fund fees/costs to be determined following class trial… class certification proceedings do not require “trial admissible” evidence… 23(b)(2) certification affirmed as modified) Jacobsen v. Allstate Ins., 9/7:1; (class of all State employee benefits plan participants/beneficiaries who were denied benefits based on “experimental for research” exclusion properly certified, but whether State breached its contract fails 23(b)(3) predominance because individual assessments needed… remanded for determination of whether there might be another issue for which individual questions would not predominate) Sangwin v. State, 12/21:3

Complaint: (failure to name protestors cured by allowing early intervention) Williams v. Missoula Co. Commissioners, 8/31:1

Construction lien: (subdivision owners liable to School District for disputed $43,716 in addition to $240,325 paid for shared road/sidewalk, plus $25,106 interest, $18,228 fees) Hellgate School Dist. v. Siren, 2/9:4; (lien untimely 91 days after Plaintiff furnished services under subcontract despite continuing to perform for owner… general contractor properly ordered to return subcontractor’s retainage despite substitution bond, subcontractor entitled to interest on withheld retainage) Total Industrial Plant Services v. Turner Industries, 2/16:3; (challenge rendered moot by sale of property to 3rd parties

Contempt: (claim for fees properly supported by reconstructed time records… fees properly allocated among 3 contemnors, but $6,637.50 fees for fees improperly awarded, leaving $72,044.72 fees/costs) Overfield v. Great Falls, 3/16:1

Corporate veil: (corporation found to be alter ego to avoid divorce judgment, veil pierced… Rule 11 sanctions denied… $160,655 judgment against corporation for past-due child support) Ellis v. Mountain Pacific General Inc., 2/2:6

Default judgment: ($75,000, §1983, deprivations by private prisoner transporter) Avery v. Extradition Transport, 2/16:7; (improperly set aside because motion was deemed denied after 60 days due to mandatory time limit (not because jurisdiction lost)… deemed denial not slight abuse of discretion) Green v. Stockton Oil, 2/23:3; (default judgment against Arizona owner of Montana vacation home who failed to pay HOA fees/dues correctly not set aside, no indication of attempt to conceal lien foreclosure) Ptarmigan Owners Association v. Alton, 3/23:3; (abuse of discretion in not setting aside default judgment of $30,065.52 for repair of non-owned truck, $835 fees/costs) Northwest Truck Repair v. McAllister, 6/1:1

Discovery: (fees/costs/expenses against bank in $22 million lender liability case for discovery abuses including attempting to usurp Court’s authority as to what is relevant, default on liability too severe) Butte Local Develop Corp v. Masters Group International; Masters Group International v. Comerica Bank,7/20:5; (supervisory control denied) Knox LLC v. Krueger, 10/5:3; ($155,990.39 sanctions for discovery abuse… not necessary to compare opposing counsel’s fees… default too severe as no bad faith in responding to discovery following sanctions order) Masters Group International v. Comerica Bank,12/7:4

Estoppel: (letter from bank president proffered in support of equitable estoppel claim properly excluded as not meeting estoppel elements) Simpson Lumber v. Three Rivers Bank, 10/26:2

Experts: (Plaintiffs’ expert’s report does not adequately explain “basis & reasons,” but Defendants failed to give opportunity to cure before moving to exclude per LR… motion to exclude denied, Plaintiffs may renew motion if they comply with LR) Templin v. US, 1/19:8

Indemnity/contribution: (airplane insurers who settled Montana crash death claims to which US was not a party do not have right to contribution against US (traffic controllers)… certified questions answered for Utah Federal Court) Metro Aviation v. US, 7/20:1

Injunction: (preliminary injunction improperly imposed against scoria mining in breach of lease action where pecuniary compensation would afford adequate relief)Caldwell v. Sabo, 8/31:3; (TRO/preliminary injunction denied in challenge of Disadvantaged Business Enterprise requirement for highway contract) Weeden Const. v. MDT, 9/14:6; (preliminary injunction granted against internet service provider’s minority owner suspected of misuse of corporate funds) Glacier Electric Cooperative v. Johnson, 12/7:4; (Defendant who seems more interested in advancing litigation position than maximizing return to Internet provider denied TRO/preliminary injunction delaying bidding for court-ordered sale) Glacier Electric Cooperative v. Johnson, 12/28:3

Intervention: (supervisory control of Sandefur’s order allowing doctors to intervene as defendants in malpractice suit against clinic denied) Fleming v. Sandefur,9/14:3

Judicial admission: (Plaintiffs’ trial brief statement that State made “reasonable and necessary” decision in direction of backfire was in context of inverse condemnation, not judicial admission of fact as to negligence, promptly “corrected”) Weaver v. State, 9/7:2

Jury waiver: (Defendant failed to overcome presumption against waiver, failed to prove knowing waiver by buried unilateral provision, motion to strike jury demand denied) Impact Mechanical v. Walsh Const., 8/24:4

Law of case: (bars challenge of charging order, appointment of receiver, in NJ divorce judgment where husband failed to avail of opportunities to challenge on grounds he now raises) Jonas v. Jonas, 7/27:1

Order of protection: (TOP Respondent wrongly allowed to subject Petitioner to discovery, which is not provided for in stalking statutes… TOP action properly dismissed without prejudice over contention for with prejudice as sanction for not attending deposition) Lear v. Jamgrowicz, 6/15:1; (order issued in Missoula not precluded by res judicata of dismissed Ravalli order) Sampson v. Sampson, 6/22:4; (motion to vacate permanent order properly denied… appeal 13 years late over claim that continuing order can be reviewed anytime) Marriage of Lockhead, 12/14:3

Public duty doctrine: (specific action exception not applicable where officers’ acts in responding to report of drunk driver not directed to driver killed in subsequent MVA, but custody exception applies where officers directed person not to drive but to be driven home… public duty doctrine not violative of constitutional or statutory law) Trewhella v. Billings PD, 3/16:7

Punitives review: ($300,000 punitives for farm cooperative education director following $232,439.40 compensatory damages verdict on wage/wrongful discharge claims affirmed… Defendant waived opportunity to present net worth evidence in favor of 3% cap by not presenting it at trial) Harrell v. The Farmers Educational & Cooperative Union of America, 1/26:5

Res judicata: (attempt to amend to add wrongful termination under FLSA for reporting unpaid wages barred by jury rejection of FLSA wage claim (jury awarded $68,456 under WDA)… 11(b)(2) sanctions against attorney) Joseph v. Linehaul Logistics, 5/18:5; (wage claim challenge in 1st Judicial Dist. barred by resolution of same challenge in 6th Judicial Dist. as untimely) O’Connell v. Gray, 8/10:5

Sanctions: (attempt to amend to add wrongful termination under FLSA for reporting unpaid wages barred by jury rejection of FLSA wage claim (jury awarded $68,456 under WDA)… 11(b)(2) sanctions against attorney) Joseph v. Linehaul Logistics, 5/18:5; ($4,000 11(b)(2) sanctions against Plaintiff’s attorney, reduced from $14,498 requested by time not related to relevant motion and because of ease of resolution of res judicata issues) Joseph v. LineHaul Logistics,6/1:7; ($35,841 attorney fees, $32,909 fine as if Court were law firm, properly imposed on attorney under Rule 11 for improper filings and attacks on insurer and counsel) Matter of Morin (West v. State Farm Mutual Auto Ins.), 6/8:1; (Commissioners’ fees/costs properly imposed as sanction except fees for fees) Motta v. Granite Co. Commissioners, 7/20:4

Settled party defense: (supervisory control denied as to Pinski’s denial of constitutional challenge to 27-1-703) Steichen v. Pinski, 8/31:1

Settlement enforcement: (emailed MOU is written, electronically signed, settlement reached at mediation of Colstrip pollution claims, attempt by one ranch to repudiate following tax advice properly rejected… MOU not improperly “re-written” to change purchase option to first refusal… mediator’s report and other confidential information from mediation improperly admitted, but harmless in light of admissible evidence supporting enforceable agreement) Kluver and McRae v. PPL Montana, 2/2:2

Service: (not effected by personal service (insurance agent not authorized to accept) or via SOS (“unclaimed” not same as “refused”), statutory presumption for estoppel not applicable as Defendant did not intentionally mislead as to location and availability, but Defendant equitably estopped from dismissal by vague/evasive responses to service attempts, apparently with support of agent who advised that policy covered the MVA) Trotter v. Tredick, 12/21:7

Stipulations: (parties not participating in good faith in proposed stipulations, given one more chance to avoid sanctions) Graham v. BNSF, 1/12:7

Vexatious litigant: (Plaintiff properly held to be vexatious litigant, precluded from pro se filings against governments without permission) Motta v. Granite Co. Commissioners, 7/20:4

Wrongful occupation: (MCA 27-1-318 does not prevent pursuit of other claims, but Plaintiffs may not double-recover loss-of-use damages from alleged pollution under wrongful occupation and some other theory such as trespass or nuisance) Graham v. BNSF, 2/2:7

*Commerce

Auto purchase: (verdict properly directed for seller following buyer’s case-in-chief on claim of defective “as is” vehicle, nonconformities not established to support revocation of acceptance… refund not raised below, but MSC, sitting in equity, orders seller to return car to buyer) Castro v. Ernie’s Auto, 3/30:1; (contract provisions advising that implied warranty rights may be available if service contract purchased negated “as is” disclaimer, but buyer failed to support engine failure claim with breach/causation evidence) Payne v. Berry’s Auto, 4/20:2

*Constitutional Law

§1983: (prison officials who simply enforce facially valid orders enjoy absolute immunity from §1983 liability for conduct prescribed by orders (1st impression in 9th Circuit)… dismissal of claim that Plaintiff was subjected to liberty restrictions based on facially valid order which was later invalidated by MSC affirmed… Plaintiffs have standing to assert 1983 claims despite no actual injury) Engebretson v. Mahoney, 6/8:5

Establishment: (renewal of FS permit for Big Mountain Jesus on federal land leased to ski resort not violative of Establishment Clause) Freedom From Religion Foundation v. FS, 6/29:7

Excessive force: (claims properly rejected per qualified immunity) Rivera, 6/15:7; (fact issues preclude summary judgment for officers as to whether tasering intoxicated naked man in welfare check was reasonable, whether he was unlawfully restrained… bankruptcy trustee substituted as Plaintiff) Segal v. Bozeman,12/7:7

Medical marijuana raids: (constitutional challenges properly rejected) Montana Caregivers Association, 6/1:6

Open meetings: (neighborhood planning committee improperly held private meetings before being advised of violation, but residents thereafter had sufficient involvement, revised plan properly not voided… no evidence of quorum in email group, but email meetings could be subject to open meeting challenges) Allen v. Lakeside Neighborhood Planning Committee, 8/24:3; (RFD Board’s proper meeting remedied any violation at prior meeting when it hired board member as interim chief, incompatible offices not raised until after interim position eliminated, no indication that Board would again hire an employee in violation of incompatible offices… Board responded to document requests reasonably timely) Zunski v. Frenchtown RFD, 9/14:2

Right to know: (City employees had expectation of privacy that public willing to find reasonable as to their identities in investigation/discipline for use of computers to access pornography, privacy of low-level employees not outweighed by right to know in light of confidentiality required by discipline procedures) Billings Gazette v. Billings, 11/16:6

*Contracts

Bus software contract: ($28,409,512 verdict reduced by $9,439,756 consequential damages as precluded by contract and $70,000 lost perpetual license fees duplicative of award for lost license fees… no reduction or new trial on account of expert’s possibly weak analysis based on assumption that a rational customer would have purchased Plaintiff’s software absent Defendant’s unauthorized look-up access or had it used best efforts to sell the software) Education Logistics v. Laidlaw Transit, 4/6:5

Construction contract: (quantum meruit/unjust enrichment precluded by express contract… inefficiencies/additional labor responsibility of subcontractor under fixed-price invoicing, oral modification not established) Total Industrial Plant Services v. Turner Industries, 2/16:3 ; (contractor’s estate properly awarded $76,278 rather than claimed $3.3 million related to condo project… developers entitled to fees for litigation of lien) Mountain West Bank v. Hale, 4/20:1, (rehearing denied) 6/15:5

Gym financing: (breach of agreement properly rejected on summary judgment) Schmidt v. Corbin, 8/3:4

Lease: (lessees of land on which take-out sat were holdovers after expiration of lease, option to purchase the land was not a term of the tenancy, did not extend through holdover tenancy, suit to enforce purchase option accrued upon termination of lease, not upon repudiation of option, barred by 8-year statute… no equitable estoppel) Situ v. Smole/Murphy, 2/23:4; ($112,397 damages, $19,600 fees/costs for breach of lease including failure to repair water-damaged radio station studio properly granted on substantive liability issues and also as sanction for litigation abuses) Evans v. Dow, 4/6:2; (arbitrator’s award upheld for breach of pasture lease, future calves lost due to early sale of cows) Hughes v. Hughes, 7/6:1; (lease-option rulings in favor of Defendant upheld by implied findings that contract not procured by fraud) Minks v. Gerttula, 7/6:3; (shopping center properly exercised express right to terminate lease to tenant when turnover did not occur on schedule) PTH (Golden Nails) v. West Park Shopping Center, 9/28:7

Parties: (3 Defendants not party to contract, not liable for breach) Lence Family Trust v. Christensen, 8/24:5

Quarry contract: (properly terminated by lessor after valuable dinosaur footprints found, requirement for “written agreement of the parties” properly rejected as inconsistent) Ellison v. Larson, 6/22:3

Release: (release not obtained by undue influence, release of all claims and payment is valid accord & satisfaction discharging contractual obligations, obviating breach of contract claim) Lence Family Trust v. Christensen, 8/24:5

Seeding: (breach of barley seeding contract following crop failure in rocky field properly rejected) CNJ Distributing (Fairview Angus Ranch) v. D&F Farms,9/17:2

Vehicle dealership: (Limitation of Remedies not procedurally or substantively unconscionable under Texas law, prohibits dealer from asserting claim for lost profits due to breach of contract involving trucks with non-compliant air brakes… fraud claim subject to Montana law, barred by 2-year statute that ran from time Japanese employee deposition revealed that compliance certificates were false… punitives, pled as separate cause, are not stand-alone cause, claim fails because substantive claims fail… repurchase claim subject to Montana law, barred by 2-year statute for claims arising out of statutory liability… constructive fraud claim not ripe for decision, but also subject to 2-year fraud statute) Montana Trucks v. UD Trucks North America, 8/17:4

*Corporations/LLCs

Dissolution: (request by minority shareholder of internet provider for receiver pending dissolution denied… destruction of relevant documents during forced move not shown, but tort of spoliation may not be pled against parties to litigation and no basis for discovery sanction or quashing preliminary injunction which enjoins Defendant, not Plaintiffs… board ordered to proceed with sale of assets as “going concern,” dissolution order to follow Court-approved sale) Glacier Electric Cooperative v. Johnson, 12/14:4

LLC: (individual liability for truck repairs improperly imposed on member) Weaver v. Tri-County Implements, 11/2:3

Shareholder agreements: (expired after 10 years by operation of 35-1-820(2)(c), invalidity not precluded by prior preliminary injunction stating the Defendant must remain a director as the issue was not considered at that time) Glacier Electric Cooperative v. Johnson, 12/21:4

*Courts

Abstention: (insurer’s dec action retained in Federal Court rather than returning to State Court where case stayed by stipulation and insurer only intervenor)Atlantic Casualty Ins. v. GTL, 1/19:6; (abstention from coverage declaratory request in deference to state court church sex abuse proceedings… request to add claim arising from discovery of 1994 settlement agreement similarly denied) Travelers Casualty & Surety v. Roman Catholic Bishop of Helena, 3/30:7

Declaratory action: (as to whether MSP medical director is state employee or contractor vis-à-vis tort action alleging refusal to authorize medical care properly dismissed as matter of discretion) Grimes v. Rantz, 6/22:3

Injunction: (improperly granted against transport of migrating YNP bison to tribes) Citizens for Balanced Use v. FWP, 6/22:4

Judge substitution: (unnamed class members, although successful in appeal of settlement approval, not “adverse party” for purposes of substitution on remand)Pallister v. BCBSMT, 6/8:3; (interests of property sellers and attorney sufficiently adverse for separate substitution motions despite substitution in separate suit by competing buyer) Klinker v. Pearson, 6/29:1; (motion filed during informal probate premature and thus untimely, not because it was not filed within 30 days of Notice) Estate of Greene, 7/6:3; (30 days to substitute began when informal probate was converted to formal, once deadline passes for original parties to substitute, subsequently joined parties may not do so) Estate of Quirin, 8/31:2

Judicial immunity: (bars claims against Tucker, limitations placed on future filings) Hartsoe v. Tucker, 9/14:4

Jurisdiction: (claims against dealer who sold gun to former mental patient which was used to kill former girlfriend are all state law claims not preempted by PLCAA… fees/costs assessed against Defendant for unreasonable removal) Woods v. Steadman’s Hardware, 3/2:7; (jurisdiction not lost over Rule 60 motion upon expiration of 60-day deadline, but whether Judge should have considered the motion mooted by consideration of issue in appeal) Marriage of Bossler,10/12:2

Justice Court to District Court: (claim of error in allowing amendment in District Court to add claim in residential lease dispute that had not been pled in not-of-record Justice Court not preserved… references to not-of-record Justice Court testimony not precluded in trial de novo, do not suggest that Judge was influenced by JP’s decision, Defendant not denied trial de novo) McDunn v. Arnold, 6/1:2

Substitution:

Summary judgment (standards explicted) Moline v. Saint-Denis, 4; (improperly based on unsworn documents) Alfson v. Allstate Property & Casualty, 11/9:1

Trial administration: (bench trial properly managed over claim by Defendant of inadequate time to present evidence for rejected claim for monies paid toward voided quitclaim) Fink v. Williams, 1/5:2

Venue: (properly changed from Cascade to Glacier (Defendant’s residence) where MVA occurred in Teton but vehicle came to rest in Cascade… venue waiver based on order of docketing multiple simultaneous pleadings denied) Yeager v. Morris, 3/2:1; (venue challenge waived by acquiescence in jury selection)Weaver v. State, 9/7:2

*Crime, Criminal Procedure

Abscondence: (Defendant not entitled to probation credit during time on run… no plain error review or remand for hearing into circumstances of 8-year abscondence) Sullivant, 7/27:3

Aggravated animal cruelty: (sufficient evidence to convict of mistreating hundreds of cats “without justification” over claim of circumstances beyond control… “inflammatory” prosecutorial comments not prejudicial in context of entire trial) Criswell, 7/6:6

Aggravated assault: (sufficient evidence of aggravated assault in domestic dispute, elements not improperly combined to accumulate proof, jury properly considered wife’s recanted testimony in light of corroborated prior statements) Torres, 4/20:3; (dismissal/new trial not warranted by Medical Examiner’s disclosure to State of communications with Defense as to concerns about State’s proposed child abuse expert, alleged cumulative witnesses as to injury extent/cause, victim impact testimony, Prosecutor’s “channeling” infant, claimed ineffective assistance… conviction affirmed) Ugalde, 10/26:3

Alibi: (cross as to failure to disclose alibi to officers not violative of Doyle, mistrial properly denied) Morsette, 9/28:4

Animal at large: (lack of facts as to what dog and owner were doing precludes resolution of argument that “at heel” satisfies leash ordinance… ordinance not unconstitutionally vague… justiciability explicated… convictions affirmed) Magraw, 6/15:6

Arson: ($1,000 threshold for property crimes not applicable to vehicles, arson properly charged in burning of $500 car… counsel not ineffective in not challenging value, not retaining surveillance video expert, not raising video issue on appeal) Ellison, 12/28:1

Assault on officer: McDonald, 4/13:6; Torres, 4/20:3

Attempted deliberate homicide: (prior ruling that unavailability of hearing transcript not violative of due process is law of case… claim of negligent destruction of evidence by officers allowing victim’s father to remove items from vehicle at shooting scene properly rejected… cross of jail informant properly allowed and limited… conviction on retrial affirmed) Wagner, 3/9:6; (juror misconduct claim properly rejected for lack of showing of prejudice… claims of ineffective assistance by standby, collusion with Prosecution, properly denied… adequate precautions that Defendant waived counsel voluntarily & knowingly… 314-days speedy trial claim properly rejected… evidence of prior assault on wife properly admitted to rebut character evidence… incorrect instruction on mitigated attempted not reviewable for plain error as mitigation not established… conditions that govern behavior on parole may be viewed as recommendations to Parole Board) MacGregor, 10/19:6; (demeaning comments, cycles of violence insufficient foundation for BWS/PTSD testimony… reliability of fireman’s testimony that husband said “this is the 3rd time she has tried to kill me” not considered first time on appeal) Lotter, 11/30:3

Attorney waiver: (adequate precautions that Defendant waived counsel voluntarily & knowingly) MacGregor, 10/19:6

Burglary: (sufficient evidence that Defendant restrained wife after breaking down door of friend’s house and removing her to support burglary) Torres, 4/20:3; (jury properly instructed on accountability even though accountability not charged, Tower reaffirmed… no ineffective assistance in offering result-based instruction as Defendant could have been convicted under either result or conduct standard… Defendant improperly convicted of theft which was charged as predicate for burglary, counsel ineffective for not objecting… burglary affirmed, theft reversed) Tellegen, 11/30:4

Charging error: (charging document errors de minimis) Fehringer, 2/16:4; (erroneous statutory citation in charging documents does not require dismissal of dog at large) EMR, 2/16:5

Child pornography: (2251(a) does not require knowledge of interstate nature of materials used to produce sexually explicit images (1st impression)… 1998 child pornography conviction properly admitted… jury could have found that videos on girls’ recorders depicted sexually explicit conduct to support exploitation charge) Sheldon, 9/28:7

Child sex abuse: (statute not overbroad or violative of Commerce Clause, collateral internet chat logs properly introduced to show motive, intent, absence of mistake as to age of purported 14-year-old with whom Defendant had cybersex over claim he believed she was adult and they had been “role playing”… conviction affirmed) Hantz, 11/2:4

Community caretaker: (properly applied to allow check on out-of-gas motorist to escalate to claimed acceptance of offer of ride and ID check that disclosed outstanding warrant and drugs over Defendant’s claim that ride offer was declined… mushroom conviction affirmed) Pierce, 5/4:4; (caretaker properly applied, properly ripened into DUI investigation, license seizure) Newlin, 5/11:5; (community caretaker (possible hydrant collision) not appropriate reason to deny suppression, application to citizen in peril or need of help underscored, should not typically require seizure

Confession: (habeas properly summarily denied) Parangeau, 6/15:7

Continuance: (request for continuance 8 days before trial to substitute appointed counsel with retained properly denied) Holm, 3/16:5; (no prejudice shown by refusal to grant continuance on eve of trial for late-appointed lawyer to better prepare compulsion defense to driving with revoked license) Hitshew, 6/22:6; (motion for continuance to retain investigator not well-grounded in fact or law, appears to be only for delay, denied… procedure for filing motion ex parte not followed, motion & brief will remain in public record) McChesney, 7/13:7

Default: (Defendant not entitled to default for State’s late brief) Stone, 5/4:5

Deliberate homicide: (assault on minor is forcible felony for felony-murder… video reenactment of pushing child into wall properly admitted… conviction affirmed)Hicks, 3/9:7

Dismissal: (pro se appeal to District Court properly dismissed for failure to follow briefing schedule, claim of outrageous conduct by officers attempting to retrieve vehicle from junkyard rejected) Weaver, 3/23:3; (justifiable force in defense of another not applicable to only 2 people (to prevent suicide)… claimed error in rejecting “reverse 404(b)” mental/attempted suicide evidence not preserved for appeal… conviction affirmed) King, 6/1:4; (manufacturer improperly dismissed on Plaintiffs’ motion without opportunity for builder to respond) Johnston v. Centennial Log Homes, 7/13:1; (dismissal of WDA/FMLA case with prejudice with fees/costs proper for failure to attend Plaintiff’s deposition) Long v. DNRC, 7/20:4

Double jeopardy: (aggravated assault and criminal endangerment with different victims not double jeopardy) Torres, 4/20:3; (not implicated in appeal to district court for trial de novo following conviction in justice court that is not of record) Chowdhury, 4/27:6; (not violated by State prosecution of non-firearm thefts after federal conviction of firearm thefts from same store) Cline, 7/27:2

Drugs: (stop of speeder suspected of transporting marijuana properly progressed from warning ticket for speeding to drug investigation) Roy, 3/9:7; (“hashish” facts sufficient to state a crime… claim of entrapment by agent with fake ID properly rejected… MMA affirmative defenses by Defendant with only caregiver registration properly rejected) Weaver, 3/23:3; (dentist’s challenges to cocaine convictions based on insufficient notice, statute of limitations, multiplicity rejected… constructive amendment/duplicity claims rejected as to 3 counts, charge of single continuing offense of distribution over 7-year period improperly duplicitous, conviction on this count vacated… instruction that use of residence for drugs must be a “significant purpose” of residence reviewed for plain error in light of intervening Shetler “principal use” decision, Shetler test extended to dental office, not clear that distribution at residence or office would pass Shetler test, remanded for new trial on those counts… cocaine quantity calculation affirmed… minor role adjustment properly denied… failure to follow 2009 jury notice procedure as to forfeiture harmless error, denial of forfeiture of $160,524 equity from home reversed) Mancuso, 5/25:6; (meth) Case, 7/27:4; (officers’ claim that they knocked on Defendant’s door to inquire about address they were seeking to serve arrest warrant properly accepted over Defendant’s claim his house and mailbox numbers were clearly visible, motion to suppress marijuana seized in excess of medical provider limit properly denied… $800 defender fee improperly imposed ($500 in effect at time of offense)) Phillips, 11/23:3; (testimony of alleged user and medical marijuana card of defendant insufficient to convict of distribution of marijuana where “green with orange hairs” substance was never observed by law enforcement) Burwell, 11/30:2

DUI: (soundless-video of PAST followed immediately by arrest prompted inference that Defendant failed test, improperly used as substantive evidence without expert foundation… conviction reversed) Lozon, 1/5:5; (claim of failure to advise of attorney in prior DUI based on silent record, self-serving statements properly rejected… 4th DUI affirmed) Nixon, 2/2:5; (temporary permit obstructed by snow/hitch proper basis for stop even if could be read upon approaching vehicle, lawyer not ineffective in not pursuing whether officer could read permit once he approached vehicle… suspended sentence improperly increased due to indigency (to allow more time to pay fines)) Haldane, 3/9:5; (sufficient direct and circumstantial evidence that person found asleep or passed out in vehicle on side of road was in “actual physical control” although key nowhere in sight) Moore, 3/16:4; (arrest lawful based on probable cause regardless of whether officer met technical requirements of arrest statute, not saying “you are under arrest” when he placed person in patrol car to take to jail for field tests because of inclement weather, post-arrest evidence improperly suppressed… incriminating statements about drinking made prior to Miranda properly suppressed… HGN, field tests, Intoxilyzer test, other non-testimonial evidence gathered at jail prior to Miranda improperly suppressed… officer had duty to turn off truck lights before taking person to jail for tests, lawfully in truck when he saw beer bottle and cup with suspicious liquid, those items improperly suppressed… Defendant who prevailed on appeal as to incriminating statements must be allowed to withdraw guilty plea) Kelm, 5/25:2; (particularized suspicion to stop based on officer’s testimony of erratic driving despite lack of video) Wagner, 6/22:5; (1991 Alaska conviction properly used to enhance DUI to felony over request for lenity based on ambiguity as to whether it was DUI or BAC) Matheson, 6/29:3; (driving slow, crossing centerline of curve, sufficient particularized suspicion for stop, after-the-fact explanation irrelevant) Howson, 8/10:7; (suppression properly denied for particularized suspicion based on erratic driving… community caretaker (possible hydrant collision) not appropriate reason to deny suppression, application to citizen in peril or need of help underscored, should not typically require seizure… investigatory stop properly escalated into DUI investigation/ arrest) Marcial, 9/7:5; (officer’s testimony that he saw illegal turn sufficient for stop despite erasure of video tape by switching between Stage 1 and Stage 2 lights that would purportedly have shown good driving and despite any alleged judicial admission as to location of patrol car at time officer saw the turn) Girard, 9/17:5; (arrest following “welfare check” of person slumped over in parked car with engine running & lights on affirmed)Detienne, 9/17:5; (no affirmative evidence of infirmity of prior in absentia DUIs) Simpson, 11/9:4; (Nevada’s .1 BAC “within two hours after driving” sufficiently similar to Montana’s DUI statutes to support felony enhancement) Calvert, 12/28:2

Endangerment: (sufficient evidence that disabled vehicle in interstate on dark night created substantial risk of death or serious injury resulting in death rear-ender… Defendant not denied right to be present at hearing… attorney not ineffective in suggesting to Judge that Defendant should accept plea offer which was “absolute bonus” and “just doesn’t give a rip”… conclusion that Defendant lacked remorse properly considered in sentencing… cognitive restructuring improperly imposed on DOC commitment, may be restated as recommendation) Bekemans, 2/23:5; (plea withdrawal properly denied… endangerment elements satisfied… ineffective assistance claim of failure to advise of sex treatment recommendation properly rejected… State did not violate plea agreement by opposing parole) Clugston,11/9:5

Expert: (child sex abuse expert properly allowed to testify to victimization generalities… incest/rape/sexual assault convictions affirmed) Robins, 3/23:6

Goetz: (habeas properly summarily denied) Paranteau, 6/15:7

Firearms: (although 921(a)(33)(B)(i)(I) includes 6th Amendment minimum in all state and federal proceedings and a more expansive right to counsel in many states, a misdemeanor conviction in tribal court may qualify as predicate to 922(g)(9) firearm prosecution if defendant was provided whatever right to counsel existed in underlying misdemeanor) First, 12/28:8

Hunting: (suspended sentence for hunting without landowner permission properly revoked based on coyote calling/shooting on Navajo Reservation) Butler,3/23:4

IAD: (not applicable to probation violations, even assuming appeal timely as continuation of criminal case rather than civil) Herman, 5/11:5

Incest: (recordings of pretext calls between daughter and father violated Allen, but harmless error… explicit photos admissible under 401 & 402, not excluded by 404(b) or 403, not necessary to analyze under transaction rule… conviction affirmed) Stewart, 2/2:3

Ineffective assistance: (attorney not ineffective in suggesting to Judge that Defendant should accept plea offer which was “absolute bonus” and “just doesn’t give a rip”) Bekemans, 2/23:5; (not established by failure to subpoena witnesses when State had already subpoenaed all fact witnesses and counsel made strategic decision not to call expert; (no reasonable probability that DUI conviction would have been different had counsel found a way to impeach witness that counsel had previously interviewed… 4th DUI affirmed) Horton, 3/16:6; (not established by failure to request exception to minimum parole restriction for rape of boy)Gauna, 3/16:6; (claim of ineffective assistance at ineffective assistance hearing properly rejected) Minett, 5/18:3; (habeas properly denied without hearing)Scott, 6/15:8; (MSC’s rejection of claim not unreasonable application of Strickland, habeas properly denied) Worthan, 6/15:8; (claims against trial counsel for not informing of illegal plea offer and alleged restriction of access to counsel during trial recess, and claims against appellate counsel for failing to raise this issue, rejected) Rose, 6/22:5; (claim properly rejected for failure to establish prejudice by no objection to use of statements to officers… felony DUI affirmed)DeRosier, 6/29:4; (ineffective assistance by trial lawyer not shown by not bringing forward dispatch entries that allegedly would have demonstrated community caretaker pretext for DUI investigation… no prejudice shown by appellate lawyer failing to raise alleged breach of plea agreement by recommendation of fine in addition to prison term for felony DUI/PFO) Burns, 8/10:6; (claim of ineffective assistance for failure to object to hearsay testimony that bolstered accuser’s credibility not record-based, not reviewable on direct appeal) Aker, 9/7:3; (lawyer reasonably allowed evidence of conduct toward others to advance theory of inappropriate but not illegal behavior) Morsette, 9/28:4; (claim more amenable for postconviction) Parks, 10/5:5; (claims of ineffective assistance by standby, collusion with Prosecution, properly denied) MacGregor, 10/19:6; (claims as to child sexual assault hearsay more amenable to postconviction) Mederos,11/23:4; (Alford pleas stemming from kidnap/assault standoff properly not allowed withdrawn based on alleged ineffective assistance) Peterson, 11/23:4; ($1,000 threshold for property crimes not applicable to vehicles, arson properly charged in burning of $500 car… counsel not ineffective in not challenging value, not retaining surveillance video expert, not raising video issue on appeal) Ellison, 12/28:1

Information: (contention that 19 days between initial appearance and leave to file information was unreasonable waived by raising it after trial & conviction)Haller, 7/27:5; (challenge of failure to conduct Finley hearing waived by failure to object) Lundberg, 10/12:3; (denied on direct appeal) Ugalde, 10/26:3

Jury: (substantial compliance with jury selection law in short-notice assembly) Fehringer, 2/16:4; (instructing deadlocked jury on purposes of YCA prejudicial error, requires reversal of animal cruelty) EMR, 2/16:5; (claim properly denied for insufficient factual foundation) Kelly, 3/2:6; (panelist who expressed concerns about drinking & driving properly not excused for cause… seizure expert properly excluded for lack of connection to Defendant’s driving) Jay, 3/30:3; (prospective juror who initially indicated uncertainty as to impartiality in incest trial properly not excused for cause) McDonald, 5/25:4; (failure to object to continued participation of juror who knew Prosecutor resulted in waiver of issue on appeal, lawyer not ineffective in handling juror issue) Bonck, 8/17:3; (juror misconduct claim properly rejected for lack of showing of prejudice) MacGregor, 10/19:6

Lesser-included: (disorderly conduct not lesser-included of PFMA) Fehringer, 2/16:5; (DUI as lesser-included of vehicular homicide while DUI properly rejected on basis that defense theory precluded DUI) Jay, 3/30:3

Mail fraud: (materiality lacking in claim under “white glove” mansion policy for living expenses based on ambiguous standard of living clause (not actual cost) even though payment was based on misrepresented condition/ownership of temporary housing during repair of wind/fire damaged mansion… case should not have gone to jury, motions for acquittal of insured and broker granted, convictions reversed) US v. Didier, 10/12:5

MIP: (officers had particularized suspicion to ask person in bar his age but failed to state a reason for continuing questioning after he said he was 22… statements properly suppressed, motion to dismiss properly denied (up to State to continue prosecution)) Driscoll, 3/16:4

Negligent homicide: (panelist who expressed concerns about drinking & driving properly not excused for cause… seizure expert properly excluded for lack of connection to Defendant’s driving… DUI as lesser-included of vehicular homicide while DUI properly rejected on basis that defense theory precluded DUI… conviction of 2 counts of negligent homicide and 2 counts of negligent endangerment while driving wrong way on Interstate affirmed, but open-ended restitution for mental treatment of victims, $600 to State for costs of interviewing defense expert, improperly imposed) Jay, 3/30:3; (photos of dead firefighter in vehicle that was struck by jackknifing semi at accident scene properly admitted to show severity of impact and manner of collision) Buslayev, 4/13:5

New trial: (motion for new trial untimely more than 30 days after conviction, letter seeking different lawyer in different trial properly not construed as motion for new trial) Hammer, 7/27:4

Obscene communications: (calling Victim Services person “fucking cunt” in context of exasperation not “fighting words,” Act not unconstitutionally vague, but prima facie provision stricken… remanded for opportunity to withdraw nolo plea, with burden on State to prove Defendant “knowingly or purposely” used “obscene, lewd, or profane language” with “purpose” to offend) Dugan, 3/2:4

Order of protection: (both conduct and result of conduct could have led jury to convict under result-based instruction argued on appeal or statutory/MCJI instruction given, attorney not ineffective in offering instructions defining “purposely” and “knowingly”) Andress, 2/23:6; (ex-wife’s testimony as to history with Defendant probative of her fear of him) Spinks, 9/28:5

PFMA: Fehringer, 2/16:4; (jury properly instructed on Defendant’s conduct in relation to “reasonable apprehension,” counsel not ineffective for not objecting)Birthmark, 4/13:6; (sufficient evidence that Defendant “purposely or knowingly” caused ex-girlfriend injury… conviction affirmed) Walker, 6/29:3

Plea agreement: (request for production of alleged plea agreements years after rape conviction, exhaustion of appeals, properly denied) Longfellow, 6/22:6; (postconviction claims related to agreement to plead nolo to reckless driving in exchange for dismissal of 2nd DUI properly rejected) Mocko, 9/14:5; (State did not violate plea agreement by opposing parole) Clugston, 11/9:5

Plea withdrawal: (incest Defendant’s challenges to sex treatment conditions as exceeding plea agreement rejected) Kippenhan, 3/16:5; (as to assault on prison guard properly rejected over claim of mental issues) Tice, 5/25:5; (properly denied where negligent vehicular assault Defendant claimed lawyer should have interviewed more witnesses as to timing of marijuana use and called marijuana impairment expert and incorrectly led him to believe he would be able to immediately serve deferred sentence in Oregon) Prindle, 7/6:5; (properly denied over claim that attorney promised leniency) Guillen, 8/3:7; (denied) Clugston,11/9:5; (withdrawal of nolo plea to endangerment properly denied) Jackson, 11/9:5; (Alford pleas stemming from kidnap/assault standoff properly not allowed withdrawn based on alleged ineffective assistance) Peterson, 11/23:4; (properly denied Defendant belatedly claiming he did not understand agreement and that colloquy answers were only to satisfy the Judge) McPherson, 11/30:5; (Defense recommendation not binding, Defendant has no right to withdraw plea to felony theft, confusion at plea change hearing not good cause as Defendant was aware of consequences, Defendant not entitled to counsel in preparing motion to withdraw plea) Morgeson, 12/28:2

Postconviction: (postconviction DNA testing not available where identity not significant issue, fact issues waived by guilty plea) DeAvila, 5/4:5; (petition claiming new evidence clearing Defendant who claimed forced confession to 1979 bludgeoning death improperly granted, Judge erred in listening to new evidence purportedly implicating teen girls and failing to closely consider the old evidence) Beach, 5/18:3, (rehearing of opinion reversing new trial order denied… counsel’s assertions/theories do not constitute overlooked facts in record) 6/22:7; (miscarriage of justice exception not applied to untimely petition, Petitioner also failed to provide Justice Court records to support claim of double jeopardy by District Court PFMA conviction) Spinks, 7/6:6; (judge disqualification, no evidentiary hearing, ineffective assistance, probation arrest claims legally insufficient, not amenable to plain error review) Shegrud, 7/13:5; (claim that new evidence of rape exam would demonstrate “actual innocence” could have been raised in prior petition, properly dismissed) Insua, 8/3:6; (request for plea withdrawal based on no parole for 25 years for incest properly denied) Woods, 9/14:4; (claims related to agreement to plead nolo to reckless driving in exchange for dismissal of 2nd DUI properly rejected) Mocko, 9/14:5; (petition untimely, evidentiary hearing not required because Petitioner failed to present newly discovered evidence, request for appointed counsel properly denied) Archer, 9/14:5

Presence at critical stage: (no prejudice by being absent from juror qualification sidebar where prospective juror was excused by stipulation) Wilson, 3/23:6; (threshold for recusal of sentencing judge in postconviction proceeding not met) Burns, 8/10:6

Prisoners: (“prisoner” in 45-50-204 means one serving sentence at prison or other State facility as result of conviction, not applicable to juvenile detained in interview room at jail pending relocation and wearing restraint… mistreatment charge against Deputy dismissed) Madsen, 1/19:6; (DUI Defendant held over-length pre-trial failed to establish duty to ensure orderly processing through system, Defendants met duties under statutes and professional standards, negligence claims dismissed… distress not caused by Defendants’ negligent acts/omissions… §1983 claims fail because, inter alia, cruel/unusual punishment does not apply pre-trial, medical needs met, any overcrowding remedied… Montana Constitution claims similarly fail, speedy trial remedy is dismissal, which was done… punitives claim fails for lack of malice, county immunity… no private AG fees) Kottre, 6/22:7; (consent decree adopting outdoor recreation agreement for Missoula Co. inmates… $34,594.87 fees/costs to Plaintiffs) Chief Goes Out v. Missoula Co., 11/23:8

Privacy in communications: (disparaging remarks on legislative candidate’s Facebook private page about her weight and appearance is protected speech, Justice Court conviction reversed) Blake, 7/13:6

Probable cause: (testimony in support of information sufficient (actually encouraged), affidavit not required) Wills, 3/23:5

Prosecutorial immunity: (properly granted as to false arrest/imprisonment claim stemming from order of protection charge which was later dismissed on venue grounds) Spinks v. Whipple, 4/27:4

Prosecutorial misconduct: (generic objection during cross of expert insufficient to constitute continuing objection that carried over to closing/rebuttal, but alleged mischaracterization of experts as liars motivated by money did not implicate right to fair trial, plain error review denied) Colvin, 3/23:5; (plain error review of vouching claims denied… assault on officer conviction affirmed) McDonald, 4/13:6; (“inflammatory” prosecutorial comments not prejudicial in context of entire trial) Criswell, 7/6:6; (“channeling” infant) Ugalde, 10/26:3

Rape: (part of officer’s testimony omitted by court reporter adequately reconstructed… prior PFMA properly admitted to show lack of consent… conviction of rape of estranged wife affirmed) Caswell, 3/9:5; (criminal history including convictions which had been reversed for legal error precluded fair trial despite ample admissible evidence of guilt, conviction reversed, remanded for retrial) Rogers, 8/17:1; (failure to object to continued participation of juror who knew Prosecutor resulted in waiver of issue on appeal, lawyer not ineffective in handling juror issue… other acts properly admitted, limiting instruction timing not prejudicial… speedy trial claim properly rejected) Bonck, 8/17:3; (plain error review of Prosecutor’s comments on witness credibility, characterizing 12-year-old accuser as truthful and defense witnesses as liars and low-lifes, declined… claim of ineffective assistance for failure to object to hearsay testimony that bolstered accuser’s credibility not record-based, not reviewable on direct appeal) Aker, 9/7:3; (662 days speedy trial claim properly rejected… lawyer reasonably allowed evidence of conduct toward others to advance theory of inappropriate but not illegal behavior… cross as to failure to disclose alibi to officers not violative of Doyle, mistrial properly denied… conviction affirmed) Morsette, 9/28:

Rape/incest: (no abuse of discretion in denying new trial based on allegation that jurors slept through critical testimony contrary to Judge’s observations… no double jeopardy for incest and attempted incest involving separate transactions… amendment from rape to attempted rape was as to form, arraignment not required… convictions affirmed) Geren, 1/5:6

Restitution: (restitution for assault of wife properly included attempted suicide medicals) Jent, 4/13:6; (State not a “victim” as to extradition costs) Brothers,8/24:4; (theft ring member jointly/severally liable for hole in store wall and value of goods passed through, not entitled to benefit of 90-day return policy except salvage value) Tillett, 10/5:6; (challenge waived by failure to object) Lundberg, 10/12:3; (unspecified amount for future counseling improper) Peterson, 11/23:4; (amount lost by A’s investors improperly included in Defendant’s restitution liability where only connection to A’s fraudulent investment scheme was to introduce A to B who had his own independent scheme… remanded to reduce $747,345 restitution by $166,887) Swor, 12/28:5

Revocation: (fines/fees in original sentence properly “reimposed” in revocation judgment although not mentioned in oral revocation) Sullivant, 7/27:3; (probation hold lasted hours, not 26 days, as Defendant was detained on both probation violation and new felony, no violation of 10-day hold statute) Olsen, 8/17:3; (Opper rule requiring conviction based on more than uncorroborated confession not extended to revocation of supervised release (1st impression), revocation properly based on recanted confession of child porn Defendant’s unauthorized contacts with minors following thorough hearing) Hilger, 8/31:6; (sufficient evidence for revocation without continuance to obtain other evidence… new issues in reply brief not considered) Sebastian, 12/7:3; (lifetime supervised release upon revocation of initial supervised release not barred by §3583(h) even when accompanied by prison term) Crowder, 12/28:7

Right to be present: (Defendant not denied right to be present at hearing) Bekemans, 2/23:5

Right to counsel: (motion to compel testimony from trial attorneys as to whether they failed to communicate plea offer to Defendant convicted of deliberate homicide in 1995 construed as 2nd postconviction petition, properly procedurally denied) Woods, 8/10:6; (to extent Municipal Court Defendant failed to unequivocally waive right to counsel because of inconsistency in 4 cases, she effectively did so by failing to cooperate with series of appointed attorneys)Fogarty, 9/7:6

Right to jury: (improperly deemed waived by non-appearance at hearing in light of mental disabilities… disorderly conduct conviction reversed, remanded for new trial) Girard, 6/29:2

Right to silence: (right to cut off interrogation not infringed, Berghuis/Davis adopted (suspect must articulate desire to remain silent sufficiently clearly that officer would understand it to be a request not to speak)… Miranda waiver voluntary, intelligent… murder accountability conviction affirmed) Nixon, 3/30:4; (habeas petition by child sexual assault Defendant properly rejected) Godfrey, 6/15:7

Securities: (2 of 3 counts of omitting facts relating to sale of a security violative of double jeopardy as based on same statutory elements, same transaction, remanded for resentencing… claim that Business Purpose Notes were not “securities” not preserved, contention that “security” unconstitutionally vague not reviewed for plain error, ineffective assistance claim more amenable for postconviction) Parks, 10/5:5

Sex offender level: (properly raised upon revocation without new PSI/evaluation as there was no increase in sentence length) Claasen, 1/5:6

Sex offender registration: (sex offender conditions properly imposed for failure to register) Ballplume, 6/29:2; (relief properly denied based on continued threat to public safety in light of horrific abuse perpetrated on young daughter and her fears as to his petition… life registration could have been imposed had continuing/violent course been charged rather than only 1 incident of incest) Langford, 9/17:4; (ex post facto, due process challenges properly rejected, failure-to-register conviction affirmed… superseding opinion) Elk Shoulder, 12/28:7

Sexual assault: (psychosexual evaluation proper for misdemeanor deferred imposition) Cantu, 3/9:5; (panelist with reservations about a defendant not testifying properly rehabilitated, not removed for cause… forensic interviewer properly allowed to testify that girl not coached… prior consistent statements properly allowed as made before alleged improper influence by CA… no improper inference from denial of guilt in sentencing) Champagne, 7/27:1; (statements of 3-year-old repeated by mother after child unresponsive at trial properly found non-testimonial, admissible without implicating youth Defendant’s confrontation rights) KU,12/28:3

Sentencing: (separate PFOs illegally imposed… habeas granted) Robinson, 2/2:6; (conclusion that Defendant lacked remorse properly considered in sentencing… cognitive restructuring improperly imposed on DOC commitment, may be restated as recommendation) Bekemans, 2/23:5; (remanded for opportunity to respond to sentence terms/conditions) Andress, 2/23:6; (Request to overrule PFO controlling over felony DUI sentence rejected… jail improper for careless driving… ineffective assistance claim rejected) Kime, 3/2:6; (separate felony DUI and PFO sentences illegal, remanded for resentencing… habeas granted) Ayers,3/2:6; (suspended sentence improperly increased due to indigency (to allow more time to pay fines)) Haldane, 3/9:5: (open-ended restitution for mental treatment of victims, $600 to State for costs of interviewing defense expert, improperly imposed) Jay, 3/30:3; (terms & conditions of parole or conditional release improperly imposed) Birthmark, 4/13:6; ($800 public defender fee affirmed) Acord, 4/13:7; (sentence for investment fraud affirmed) Two Feathers, 6/1:7; (21 months for theft affirmed) St. Pierre, 6/1:7; (96 months for felon in possession of gun legal, substantively reasonable) Jackson, 6/15:8; (challenge of application of sentences as consecutive rather than concurrent properly treated as untimely postconviction petition) Keech, 6/22:6; (no improper inference from denial of guilt in sentencing) Champagne, 7/27:1; (fines/fees in original sentence properly “reimposed” in revocation judgment although not mentioned in oral revocation)Sullivant, 7/27:3; (adult sentence consecutive to juvenile revocation disposition affirmed) Adams, 7/27:3; (judgment should be amended to reflect pronouncement that fees/costs conditioned on ability to obtain work on parole) Case, 7/27:4; (condition of suspended theft sentence to resolve similar charges in other states not illegal) Mottsman, 8/3:6; (challenge to increased burglary sentence during re-sentencing waived by failure to object) Lee, 8/3:6; (sentence for both rape and PFO invalid, habeas granted, remanded for correction, consideration of release from custody) McEvoy, 8/10:8; (enhancement for discharge of firearm in drug offense must be based on jury finding, not judge, under new USSC ruling) Lira, 8/17:4; (numerous illegal conditions) Dietsch, 9/7:6; (appeal of inconsistent oral and written sexual assault sentences as to parole eligibility barred by failure to raise in postconviction proceeding below… attorney not ineffective as to plea agreement, sentencing, right to appeal) Fletcher, 9/17:4; (judge required to consider — not to grant — credit for “elapsed time” under 46-18-203(7)(b), denial of credit for probation/ISP affirmed) Ellenburg, 9/17:5; (Defendant failed to object to conditions which he now questions whether recommended or imposed… recommended conditions are non-binding) Whitehead, 9/28:5; (counsel costs improperty imposed without inquiry into ability to pay) Lundberg,10/12:3; (conditions that govern behavior on parole may be viewed as recommendations to Parole Board) MacGregor, 10/19:6; (Defendant not entitled to presumption of vindictiveness in same total sentence for bank fraud after 2 counts overturned on appeal and no longer a mandatory 24 months consecutive for aggravated identity theft, since underlying conduct including $5 million losses had not changed and scheme sufficiently complex to warrant “sophisticated means” enhancement… all loans properly considered in enhancement, not just loans charged in indictment… certification of transcripts without hearing not clearly erroneous) Horob, 12/28:4; (amount lost by A’s investors improperly included in Defendant’s restitution liability where only connection to A’s fraudulent investment scheme was to introduce A to B who had his own independent scheme… remanded to reduce $747,345 restitution by $166,887… “minor role” reduction properly rejected) Swor, 12/28:5; (letting child print child pornography from Defendant’s computer constituted “distribution” justifying 6-level enhancement to 18 years, not necessary to consider whether “showing” qualified as distribution… plethysmography (not specifically mentioned in “physiological testing” condition) not supported by findings, may not be required as condition of supervised release) Roybal, 12/28:6

Speedy trial: (claims by Defendant who claimed memory loss from DUI arrest trauma properly denied… 533 of 740 days attributed to Defendant) Stops, 5/25:3; (failure to receive Justice Court trial within 6 months completely attributable to Defendant, speedy trial claim properly denied) Chapman, 6/1:4; (claim involving 314 days of good-faith institutional delay out of 426 days in felony DUI case properly denied) Steigelman, 6/15:6; (habeas petition by drugs Defendant properly summarily denied) Paranteau, 6/15:7; (claim rejected) Bonck, 8/17:3; (662 days speedy trial claim properly rejected) Morsette, 9/28:4; (314-days speedy trial claim properly rejected) MacGregor, 10/19:6

Tampering: (both conduct and result of conduct could have led jury to convict under result-based instruction argued on appeal or statutory/MCJI instruction given, attorney not ineffective in offering instructions defining “purposely” and “knowingly”) Andress, 2/23:6; (custody burden statement in sentence of mother for assault of infant could have unintended impact on future civil custody proceeding, stricken… $1,060 fines/fees within discretion, claim that ability to pay not inquired into not considered absent objection below) MacDonald, 4/27:5; (challenge of SRD-enhanced sentence that precluded good time toward parole untimely when construed as postconviction petition, may be more appropriate by habeas) Johnson, 4/27:5

Theft: (Defendant improperly convicted of theft which was charged as predicate for burglary, counsel ineffective for not objecting… burglary affirmed, theft reversed) Tellegen, 11/30:4

Traffic stop: (temporary permit obstructed by snow/hitch proper basis for stop even if could be read upon approaching vehicle, lawyer not ineffective in not pursuing whether officer could read permit once he approached vehicle) Haldane, 3/9:5; (stop of speeder suspected of transporting marijuana properly progressed from warning ticket for speeding to drug investigation) Roy, 3/9:7; (out headlight provided particularized suspicion for stop over claim that lights not required to be on in daylight) Chapman, 6/1:4

Unauthorized tow truck: (pro se appeal to District Court properly dismissed for failure to follow briefing schedule, claim of outrageous conduct by officers attempting to retrieve vehicle from junkyard rejected) Weaver, 3/23:3

Vehicular assault: (Lenihan not available to challenge objectionable sentence, probation conditions, as-applied cruel/unusual argument raised first time on appeal declined… claim of inadequate time to adequately brief plea withdrawal rejected but in any event untimely raised after appeal, “short-cut” reference to untimely District Court plea withdrawal brief rejected… SRD challenges premature, properly raised by petition for extraordinary relief… claim raised in reply brief that right to appellate counsel not waived rejected… vehicular assault/endangerment convictions/sentence of lawyer/ school bus driver affirmed) Whalen, 3/2:4

Vehicular homicide: Holm, 3/16:5; (cross of witness as to no-prison plea agreement sufficient exploration of motive without possible but not charged PFO… expert improperly limited to hit & run bumper bruising when muscle-tearing was not in report, but error harmless… undisclosed fabric expert properly allowed to testify) Garding, 12/7:2

*Discrimination

Disability: (preliminary injunction granted halting MHRA proceeding in airline passenger’s complaint of being hassled about his ventilator, Court likely will ultimately find in declaratory action that complaint is preempted by ACAA, no implied private right of action for violations of ACAA as to electronic respiratory devices, and none of passenger’s state claims can survive preemption) Compass Airlines v. MHRB, 1/12:6, (airline passenger’s complaint of being wrongly hassled about his ventilator preempted by FAA, reconsideration of preliminary injunction against MHRB proceeding denied, permanent injunction granted) 8/31:7; (attorney claiming discrimination against himself by limited elevator access to his office not “aggrieved party,” failed to demonstrate that he suffered actual injury during time elevator locked or that he had standing to assert rights of any client who did suffer discrimination… $6,815 HRB/HRC award properly reversed) Baxter Homeowners Association v. Angel, 4/6:1; ($1,350,000, failure to provide medications to jail inmate who died from DTs… award on appeal from $300,000 award by Spear following remand from HRC reversal of defense finding… suffering occurred for 27 hours between return to jail from ER and transport to hospital, not just 6 hours found by Spear) Stricker (PR of Longsolder v. Blaine Co., 8/17:8; ($85,000 settlement, disability discrimination (lumbar compression fracture), 81-year-old terminated parking booth cashier… $2,955 discovery sanctions) Foos v. Standard Packing Corp., 9/14:7

Pregnancy: ($108,628, beauty salon worker fired because of medical restrictions against bending to perform pedicures… insubordination defense weighed in light of “work first, grieve later” principle) Vieyra v. Etzel, 2/9:7

Race/disability: ($300,000, failure to provide medications to jail inmate who died from DTs… award on remand from HRC reversal of defense finding) Stricker (PR of Longsoldier) v. Blaine Co., 3/30:8

Sexual harassment: (correction officer’s claims of harassment, hostile environment, retaliation in relation to Pine Hills’ response to harassment by masturbatory inmate properly rejected) Puskas v. Pine Hills, 8/24:2; (due process not violated by HRC ruling that Defendant violated real estate transaction provision when Plaintiff only specified public accommodations… remanded for determination of whether HRA applies to commercial leases) Neva v. Bates, 9/7:3

*Elections

Candidate eligibility: (challenge of requirement to declare constitutional eligibility for Presidency properly rejected) Hassan v. Montana, 6/1:6

Judicial: (Montana permanently enjoined from enforcing ban on endorsements and expenditures supporting or opposing a judicial candidate, not the ban on contributions… nunc pro tunc order following 9th Circuit clarification) Sanders Co. Republican Central Committee v. AG, 6/29:7

Political practices: (PSC Commissioner properly found to have violated Ethics Code by accepting money from utilities for conservation event, using state facilities for reelection campaign, properly assessed $5,750 fines, $14,945 costs… opponent’s campaign manager had standing to bring complaint) Molnar v. Fox,5/18:2; (defamation claims by PSC candidate against opponent rejected by jury… malicious prosecution, §1983, breach of contract, abuse of process properly rejected on summary judgment… motion to quash subpoena duces tecum to newspaper) Doty v. Molnar, 9/28:3

*Employees

State Employees Benefit Plan: (is a contract between State and employees, preauthorization for disk replacement for teen improperly denied based on “experimental for research” exclusion, tort damages may be pursued if Plaintiffs prevail on breach of covenant of good faith… class action certified) Sangwin v. State, 2/9:2, (class of all State employee benefits plan participants/beneficiaries who were denied benefits based on “experimental for research” exclusion properly certified, but whether State breached its contract fails 23(b)(3) predominance because individual assessments needed… remanded for determination of whether there might be another issue for which individual questions would not predominate) 12/21:2

Wages: (auto dealership “salesman” includes any salesman primarily engaged in servicing vehicles per FLSA, not just those selling vehicles per regulation, statute controls over conflicting regulation… employer gave sufficient notice that it would rely on “salesman” exemption, did not waive the defense… $17,015 overtime properly denied) Thompson v. J.C. Billion, 2/2:2; (named employer failed to raise & prove assertion that actual employer is motel entity, wage award properly affirmed) Wage Claim of Eason, 5/11:4; (extra-duty time not “wages,” overtime/vacation improperly submitted to jury as 180-day limitations period applies to both wages and penalty, $367,750.51 fees/costs for nonsegrable wage claims also reversed) Harrell v. Farmers Educational Cooperative Union of America, Montana Div., 12/21:1

*Environment

Bison hazing: (challenge of grizzly impacts resulting from helicopter bison hazing rejected) Alliance for the Wild Rockies v. USDA, 4/6:7, (injunction pending appeal denied, no showing of likelihood of harm to grizzlies) 6/1:8

Indoor clean air: (County’s prior admissions that “roofed smoking shelters” are “partially open to the outside air” dispositive under UDJA that smoking club shelters are not “enclosed rooms” or “places of work” under MCIAA) MC Inc. v. Cascade City-Co. Board of Health, 12/21:5

Missouri Breaks Monument: (BLM reasonably interpreted Missouri Breaks Proclamation to not require programmatic changes to grazing management and that EIS complied with NEPA, but Woodhawk Allotment EA failed to consider grazing alternatives) Western Watershed Project v. BLM, 6/15:7; (summary judgment for BLM on Missouri Breaks Resource Management Plan affirmed, reversed) Montana Wilderness Association v. BLM, 8/17:4

Remand instructions: (FS was ordered on remand to prepare a “supplemental environmental assessment” consistent with the order and law, instead prepared a “supplement to the environmental assessment,” motion to dissolve injunction will not be considered until it complies with order and law) Friends of the Wild Swan v. FS, 4/6:7

*Evidence, Civil

Expert: (reconstruction testimony, computer simulation, properly admitted in head-on MVA death case… expert’s disclosure did not require correction or updating… Defense verdict affirmed) Howard PRs v. Bradford PRs, 5/18:1

*Evidence, Criminal

Chain of custody: (sufficient chain of custody of latent fingerprints despite irregularities… attempted theft conviction affirmed) McCoy, 1/5:7

Monitored/recorded phone conversations: (recordings of pretext calls between daughter and father violated Allen, but harmless error) Stewart, 2/2:3

Other acts/crimes: (criminal history including convictions which had been reversed for legal error precluded fair trial despite ample admissible evidence of guilt, conviction reversed, remanded for retrial) Rogers, 8/17:1; (other acts properly admitted, limiting instruction timing not prejudicial) Bonck, 8/17:3; (prior assault on wife properly admitted to rebut character evidence) MacGregor, 10/19:6

Photos: (explicit photos admissible under 401 & 402, not excluded by 404(b) or 403, not necessary to analyze under transaction rule) Stewart, 2/2:3; (photos of dead firefighter in vehicle that was struck by jackknifing semi at accident scene properly admitted to show severity of impact and manner of collision) Buslayev,4/13:5

*Family Law

Child custody: (infant with medical issues from pregnancy drug use properly found youth in need of care… abuse/neglect proceeding properly dismissed and custody granted to father) MJ, 3/16:4; (parenting plan properly resolved conflicting accusations with erratic behavior by father and mental issues by mother)NNW, 6/22:5; (no abuse of discretion in declining to adopt plan that would have child shuffling between homes during school year) JH, 7/13:4

Child support: (corporation found to be alter ego to avoid divorce judgment, veil pierced… Rule 11 sanctions denied… $160,655 judgment against corporation for past-due child support) Ellis v. Mountain Pacific General Inc., 2/2:6; (interest on support arrearages improperly imposed at 12% absent decree provision or stipulation, remanded for recalculation at 10%… findings & conclusions not required in ruling on motion in which movant’s analysis adopted as to support arrearage… notice of entry of judgment not required to file Rule 60 motion for correction of order) Steab, 5/25:1; ($6,977/mo support terminated upon high school graduation, not 8 months earlier at age 18, pursuant to statute since decree vague) Pfeifer, 5/25:2; (imputed income) Stark, 5/25:2; (only CSED may enforce its support lien, not transferable to 3rd party) LeCount v. Davis, 6/22:4; ;(child support funds held in divorce proceedings properly applied toward judgment against corporation in separate alter ego proceeding… Rule 11 fees properly denied) Lyon, 12/14:3

Default decree: (prisoner prejudiced by denial of continuance due to medical emergency/circumstances of incarceration, default decree reversed) Eslick, 3/9:4

Execution: (attempt to collect divorce debt by execution on home sold to 3rd parties rejected) Frates v. Rubard, 2/9:4

Maintenance: (jurisdiction not lost over Rule 60 motion upon expiration of 60-day deadline, but whether Judge should have considered the motion mooted by consideration of issue in appeal… maintenance properly awarded) Bossler, 10/12:2

Parental termination: (incarcerated parents properly terminated, child’s attorney not ineffective) ADB, 6/29:1; (Montana retained jurisdiction after child was placed in Utah foster home absent pending Utah proceeding… claim that Utah was more convenient forum properly rejected… termination affirmed) ARB, 11/9:4

Parenting: (plan properly amended based on changed circumstances, deference properly given to children’s wishes, other factors, partly based on parenting plan coordinator’s report) Klatt, 3/2:3; (late-disclosed expert as to boy’s residential preference properly disallowed, but in any event coached boy testified… parenting plan supported by substantial evidence) Churchill, 4/6:4; (no abuse of discretion in adopting father’s parenting plan… explication of non-cite standards, parenting plan discretion) OMC, 6/15:5

Property: (“child support” obligation correctly found to be form of property settlement not subject to modification in light of circumstances/context of settlement… wife judicially estopped from invalidating stipulation amending support and lump sum payments) Simpson, 3/2:2; (pre-nup interpretation governed by in-court stipulation) Burke, 3/16:3; (complicated trucking company assets & liabilities divided as equitably as possible) Bain, 5/4:3; (judicial notice properly taken of bankruptcy) Steab, 5/25:1; (2009 values properly used rather than 2002 separation since parties continued to function as “family unit” and decree was issued in 2012… wife’s $2,584,700 valuation of businesses properly adopted over husband’s $376,945… temporary support during lengthy separation properly not credited to husband in apportionment, voluntary payments of wife’s mortgage should be credited… deferred payment of $1,259,000 equalization preferable to immediate payment which would require sale of businesses) Schwartz, 6/1:3; (no abuse of discretion in not attributing trust assets to wife or in dividing property… final disclosures cannot be waived, but Judge appears to have concluded that both parties had made full disclosures) Fenwick, 6/15:5; (wife improperly sua sponte awarded more than requested in default divorce without notice to husband) Steyh, 7/6:4; (business valuation, trial procedure challenges rejected) Hauser,7/6:5; (Flathead Lake property distribution on remand from Funk plus $59,612 fees affirmed) Funk, 7/20:4; (husband’s interest in mother’s trust contingent until her death, properly excluded from marital estate… not necessary to determine if post-nup agreement existed to pay wife’s credit card debt from uncertain trust… estate equitably distributed… MRAP 19(5) fees/ costs denied) Parker, 8/3:5; (husband properly required to pay wife half the proceeds she used from sale of house she was awarded to pay off business loan that they were “jointly responsible” for) Beld, 8/3:6; (challenges to apportionment of ranches based on unconscionability, failure to formally disclose values, properly rejected) Anderson, 8/31:4; (property properly awarded to wife to satisfy 2007 decree and separate 2012 judgment over claim of improper modification of decree) Guill, 11/9:3

Support: (“child support” obligation correctly found to be form of property settlement not subject to modification in light of circumstances/context of settlement… wife judicially estopped from invalidating stipulation amending support and lump sum payments) Simpson, 3/2:2; (incarceration not grounds for support reduction)Rahn, 5/4:3; (no abuse of discretion demonstrated) Whitaker, 10/5:4; (contempt order appealable, but wife’s challenge of contempt without hearing, interim support order, and fees rejected) Julson, 10/5:4

*Federal Government

Bureau of Reclamation: (sovereign immunity from mobile home owners’ contract claim against eviction from marina trailer court following expiration of concessionaire contract and BOR’s plans to modernize facility, HOA is not 3rd party beneficiary, has no legal right to compel BOR action on contract claim, removal of homes from federal land not a major federal action requiring NEPA analysis, TRO/preliminary injunction against eviction denied… jurisdiction over state-law claims against neighbors for septic drain field prescriptive easement/promissory estoppel denied) Goose Bay HOA v. Bureau of Reclamation, 4/27:7, (injunction pending appeal by Lovell, emergency motion for injunctive relief denied by 9th Circuit… BOR not in violation of prior order by terminating water/septic) 5/4:8

Firearms: (would-be manufacturer/seller of Montana rifle has standing to challenge adverse ATF ruling, but proscribed by federal law under Commerce Clause, Montana Firearms Freedom Act preempted) Marbut v. AG, 8/31:6

*Health Care Providers

Hospital: (TRICARE beneficiary not entitled to “windfall” between what hospital accepted from auto med-pay insurer and reimbursement rate per PPA… motion for judgment on pleadings properly converted to summary judgment based on attachment of PPA to response brief… not necessary to reach class certification issue) Conway v. Benefis Health System, 3/23:1

*Indians

ICWA: (requirements not followed, remanded for new parental termination hearing) KB, 5/25:2

Jurisdiction: (State Court jurisdiction over probate of old flag proper since Tribal Court declined jurisdiction and decedent was domiciled in Cascade and corpus of estate was in Cascade) Gopher, 9/17:3

*Insurance

Abstention: (abstention from coverage declaratory request in deference to state court church sex abuse proceedings… request to add claim arising from discovery of 1994 settlement agreement similarly denied) Travelers Casualty & Surety v. Roman Catholic Bishop of Helena, 3/30:7

Advance payment: (preliminary advance-pay offset of amount paid by med-pay insurer not improper (no obligation to double-pay medicals when making advance payments), issue mooted by settlement of underlying negligence claim… declaratory action not operative factor in changing status quo as to advance payment of medicals, Plaintiff also not prevailing party as insurer reasonably declined to advance-pay all claimed damages until able to confirm causation, attorney fees/costs denied… motion to compel entire claims file denied) Greenough v. Safeco Ins., 3/2:6

Assignment of claims: (agent owes no duty to State beyond that assigned by insureds as to insurance with less coverage and not naming State or Historical Commission as required by lease in connection with part of wooden sign blown through windshield… tort claims by insured against agent not assignable to State)Ayotte v. State, 11/30:5

Bad faith: (attorney precluded from testifying as to comp claims handling) Enberg v. American Home Assurance, 4/27:6; (insurers had reasonable basis in law to present intervening causation defense that rollover of bus that hit deer caused by defect of bumper that pressed against tire despite ruling that driver was negligent per se for going into the median… dispute was legal, not factual, for the Court, not a jury… insurers’ motions for summary judgment on affirmative defenses addressed before Plaintiff’s motion, recommended granted to insurers) Penn v. National Interstate Ins., 6/29:4, settled, 7/13:7; (insurance code not applicable to MSF vis-à-vis suit by claimant acquitted of fraud… reasonable basis in law to terminate benefits after learning claimant received wages, proper decision for judge, not jury, fraud acquittal irrelevant to civil case) White v. MSF, 7/20:2; (covenant of good faith/bad faith/UTPA claims properly rejected for reasonable basis for contesting derivative claims) State Farm Mutual Auto Ins. v. Freyer, 10/19:1; (Plaintiff was a “claimant” per 33-18-201(4) & 242 even though the claim was filed by the other driver, insurer not excused from reasonable investigation by paying UM/UIM 3 years after MVA, reasonableness to be determined at trial… whether Plaintiff suffered emotional distress from payment delay is for the jury) McVey v. USAA Casualty Ins., 11/16:2; (UTPA claims by State time-barred, not amenable to relation-back) Ayotte v. State, 11/30:5

Breach of contract: (breach of contract not ameliorated by reasonableness of breaching party’s actions, insurer incorrectly allowed to raise “reasonable basis in law” defense to contract claims where this Court previously held that it incorrectly interpreted policy by applying Each Person limit to refuse further payments for daughter’s derivative claims arising from father’s death caused by mother’s negligent driving) State Farm Mutual Auto Ins. v. Freyer, 10/19:1

Coverage: (policy provided to well driller pursuant to contract with operator covers wrongful death claim by PR of driller employee against operator, operator qualifies as additional insured, coverage as additional insured not nullified by comp exclusivity) Liberty Mutual Ins. v. Continental Resources, 1/12:5; (coverage of claims against road contractor barred by failure of contractor to give timely notice, showing of prejudice not required) Atlantic Casualty Ins. v. GTL, 1/19:6; (owner/operator’s load not excluded from contractor trucking company’s policy as brokered load… death crash covered) Great West Casualty v. Cobra Trucking, 2/16:7; (“conduct of business” in “Business Squire” policy triggers coverage of wildfire that resulted from felling dead tree in yard of home-based business to protect business equipment and personal property from falling tree and then burning the branches for personal aesthetic reasons (“dual-purpose” conduct)) Mountain West Farm Bureau Mutual Ins. v. Fitte, 8/24:7; (damage to personal property of another stored on insureds’ property excluded by intentional acts of insured taking possession, claiming ownership, using… insurer properly awarded $34,000 advanced as insureds’ share of settlement with property claimant… $48,132 fees under UDJA not justified by equitable considerations) Horace Mann Ins. v. Hanke, 11/2:1; (declarations amended 8 months after accident not retroactive per “liberalization” clause to provide State coverage for accident… reformation of minimum-premium policy for failure to notify of maximum coverage for same premium rejected… summary judgment on violation of covenant of good faith for failure to advise of higher limits/additional coverage precluded by fact issues) Ayotte v. State, 11/30:5; (County’s Port Authority qualifies as insured under ambiguous catastrophic excess policy issued to MACo, policy covers loss of buildings within 1,000 of covered buildings including remnants of burned building, reformation properly denied to exclude area within 1,000… $1,925,000 “replacement cost” improperly awarded for parts of building that had been slated for demolition due to pre-fire roof collapse for which Port had received $3 million… Port entitled to prejudgment interest from time “actual cash value” for remnants will be calculated on remand, not from time of fire)Lincoln Co. Port Authority v. Allianz Global Risks US Ins., 12/14:1; (whether accident vehicle was “temporary substitute” for insured vehicle in shop irrelevant to whether insured was occupying covered auto as defined by UIM in light of disputed claim that he told agent to add the accident vehicle to the policy)North Pacific Ins. v. Stucky, 12/14:8

Defend/indemnify: (defense of corporate officers in grocery chain ESOP litigation was tendered when insurer on notice in federal litigation and repeated requests for payment of defense costs in state action, insurer had duty to defend, policy not one of mere indemnification of defense costs, breached duty by abruptly refusing to continue defense coverage based on “Insured v. Insured” exclusion after years of providing defense, not saved by subsequent back-peddling… insurer liable for $29 million stipulated judgment, independent review as to reasonableness or collusion not required) Tidyman’s Management Services v. Davis,1/19:2; (CGL/excess insurers had duty to defend “tough love” school against teen suicide claims, liable for $3 million consent judgment plus $568,767 interest… $1,188,399 fees improperly awarded based on judgment and contingency in underlying case, remanded for recalculation on representation in duty to defend case) Judith Newman (PR of Karlye Newman) v. Scottsdale Ins., 5/11:1; (home insurer ensured that full defense was provided by auto insurer, not required to hire separate counsel, did not breach duty to defend MVA death claims, not liable for $750,000 stipulated judgment) State Farm Fire & Casualty v. Schwan,8/10:1; (claim that insured induced Plaintiff to switch jobs with false hope of eventual ownership of insurance agency, resulting in emotional distress, not covered by CGL policy definitions of accidental “occurrence” (no need to determine whether emotional distress constituted “bodily injury”), no obligation to investigate claim beyond complaint allegations, no duty to defend) Landa v. Assurance Co. of America, 8/10:2; (wrongful refusal to indemnify entitles insured to consequential damages such as attorney fees, not to $2.7 stipulated judgment, remanded for determination of damages if any incurred by mother because of breach of duty to indemnify) State Farm Mutual Auto Ins. v. Freyer, 10/19:1; (no duty to defend/indemnity Diocese for alleged sex abuse which occurred prior to 1/1/77 under occurrence-based certificates or alleged abuse that occurred before 7/1/90 under claims-made certificates… unreasonable to require coverage for events that occurred prior to issuance of certificate of coverage, continuous trigger approach as in asbestos cases rejected… most of 300 claims outside policy period

ERISA: (treating cardiologist’s opinion that lawyer disabled because of heart condition, not depression, given greater weight than that of insurer’s consultants, LTD reinstated retroactively) Tolstedt v. Standard Ins., 6/29:6

“Junk health insurance:” (dissolved Tennessee entity has capacity to be sued on theory of successor liability… fraud, constructive fraud, RICO claims sufficiently pled, punitives may be appropriate… most claims not time-barred… personal jurisdiction exercised over Georgia marketing support entity… alleged relationship among Defendants sufficient to support “affiliation” theory… contract elements sufficiently pled, parol evidence argument is a defense… allegations support unjust enrichment, racketeering claims… claims for fraud, negligent misrepresentation, constructive fraud, vicarious liability sufficiently particularized against each Defendant… claims by one Plaintiff against insurer precluded by settlement agreement absent production of “separate agreement” covering additional medicals or reasoned interpretation of settlement agreement to the contrary) Croteau v. National Better Living Association, 6/8:6

Insured: (employer additional insured under umbrella entity’s comp policy, entitled to immunity under §30-71-411 from claim by Plaintiff who previously received $207,145 comp) Stokes v. Brown, 11/23:5

Med-pay: (auto insurer not obligated to pay insured under med-pay amounts for medicals paid by BCBS as insured did not “incur” those expenses) Winter v. State Farm Mutual Auto Ins., 7/20:7

Negligent procurement: (agent owes no duty to State beyond that assigned by insureds as to insurance with less coverage and not naming State or Historical Commission as required by lease in connection with part of wooden sign blown through windshield… tort claims by insured against agent not assignable to State… UTPA claims by State time-barred, not amenable to relation-back… declarations amended 8 months after accident not retroactive per “liberalization” clause to provide State coverage for accident… reformation of minimum-premium policy for failure to notify of maximum coverage for same premium rejected… summary judgment on violation of covenant of good faith for failure to advise of higher limits/additional coverage precluded by fact issues… summary judgment for agent with case to proceed against insurer) Ayotte v. State, 11/30:5

PPA: (no legal duty under PPA for hospital or clinic to charge 3rd-party auto insurers at BCBS reimbursement rate, contract/fraud claims properly dismissed for failure to state claim) Harris v. St. Vincent Healthcare, 8/3:1

Procurement: (fact issues preclude summary judgment as to whether agent was negligent in not procuring UIM and only $5,000 med-pay when insureds sought same coverage in Montana as they had in Oregon including UIM and $100,000 med-pay… remanded for trial on negligence theory asserted by insureds who incurred $1 million+ damages in DUI head-on) Bailey v. State Farm Mutual Auto Ins., 5/4:1; (whether accident vehicle was “temporary substitute” for insured vehicle in shop irrelevant to whether insured was occupying covered auto as defined by UIM in light of disputed claim that he told agent to add the accident vehicle to the policy) North Pacific Ins. v. Stucky, 12/14:8

Replacement housing: (materiality lacking in claim under “white glove” mansion policy for living expenses based on ambiguous standard of living clause (not actual cost) even though payment was based on misrepresented condition/ownership of temporary housing during repair of wind/fire damaged mansion… case should not have gone to jury, motions for acquittal of insured and broker granted, convictions reversed) US v. Didier, 10/12:5

Revocation upon divorce: (72-2-814 (1993) revokes ex-spouse as beneficiary of life policy where parties divorced prior to enactment and policyholder died after enactment… certified question from 9th Circuit) Thrivent Financial for Lutherans v. Andronescu, 1/26:2

Settlement recommendation: (insurer satisfied Endorsement by recommending settlement of $850,000 verdict by $250,000 from manufacturer and $600,000 from insurer that would satisfy parents of deceased ball player (manufacturer declined settlement, appealed, lost)… insurer satisfied post-judgment interest provision of Endorsement by offering to pay the part of the judgment within policy limits, relieved of post-judgment interest, fees) Hillerich & Bradsby v. ACE American Ins., 3/30:6

Subrogation: (certified auto insurance subrogation question from Haddon accepted) Van Orden v. USAA, 7/13:3

Title insurance: (claims against title company for deed alteration to reflect that condo was commercial properly rejected) McCulley v. American Land Title,4/13:1; (developer entitled to recover losses sustained up to policy limit due to land not abutting a physical road open to public access (to gain legal access by way of 3 named streets in prior subdivisions, Plaintiff had to limit lots in new subdivision from 24 to 15, pay $75,000 to homeowners)… ambiguous policy interpreted per “reasonable expectations” doctrine) Meadow Brook LLP v. First American Title Ins., 6/8:3; (common law negligence, negligent misrepresentation for excepting legal access in preliminary commitment which led to loss of sale although subsequent research by Plaintiff led CA and examiner to conclude that road was county road properly rejected on summary judgment) Harpole v. Powell Co. Title, 9/14:1; (policy adequately insures right of access without insuring that access be based on legal documents establishing an easement) James v. Chicago Title Ins., 10/26:6

Umbrella: (household exclusion correctly found to unambiguously exclude wife’s claim as passenger in vehicle driven by husband, not violative of reasonable expectations or public policy, but incorrectly found unconscionable… summary judgment improperly granted to insureds) Fisher (Conservator for McCartney) v. State Farm Mutual Auto Ins., 8/3:2

*Landlord/Tenant

Rental dispute: (bench trial award of $42,477 including treble damages in rental dispute affirmed… Court declines to conduct evidentiary hearing) Swapinski v. Hubbard, 4/6:2

*Local Government

Clerk & recorder: (properly mandated to record deed in 2002 (prior to amendment of law) to allow sale of mortgage security tract without court order, County not prejudiced by writ 2 days before closing without opportunity to respond… $32,884 fees properly awarded as prevailing party in mandamus and as sanction for County’s “abhorrent” litigation strategy of filing in court action its ODC complaint against Plaintiff’s attorney for alleged conflict resulting from previous deputy CA job) Braach v. Missoula Co. Clerk & Recorder, 4/27:3

County roads: (roads across old mining placer properly determined to be county roads) L&C Co. v. Skinner, 7/13:2; (preliminary injunction to block use of allegedly abandoned road denied) Stradtman v. Ryegate, 10/19:7

Fire district: (district created in 1989 entitled to expand services pursuant to 1991 amendment of statute… PSAP must notify but has discretion as to dispatch)Bull Lake Fire Dist., 11/30:2

Police compensation: (defense verdict rejecting officers’ claim for on-call compensation supported by substantial evidence, not reversibly similar to bench judgment for EMTs) Stubblefield v. West Yellowstone, 3/30:2

Zoning: (zoning challenge properly rejected) Motta v. Granite Co. Commissioners, 7/20:3; (ag/forest protest provision unconstitutional delegation of legislative power to individuals to halt zoning changes) Williams v. Missoula Co. Commissioners, 8/31:1

*Mental Commitment

Attorney: (person’s active participation in hearing did not reduce lawyer to “standby”… due process not violated by evaluator presenting report in testimony rather than filing it… complaints about lawyer amount to ineffective use rather than ineffective assistance… commitment affirmed) NA, 9/14:3

Commitment: (sufficient evidence that mental illness prevented ability to care for basic needs… overt acts were delusional behavior, paranoid beliefs, statements to officers and doctor… ineffective assistance claim rejected) RF, 3/16:3

Conditional release: (petitions to extend conditional release not filed within 2 weeks before expiration of detention or extension, orders granting petitions vacated)SC, 6/1:2

Involuntary medication: (order was sufficient to authorize involuntary medication in light of other findings, but judges are urged to plainly state whether circumstances justify it and why it was chosen from alternatives, not necessary to address objections to amendment of original order to expressly authorize medication) RKW, 3/16:2; (involuntary medications properly supported) LA, 11/16:7

Jury: (jury findings, along with Judge findings, sufficient to satisfy statutory commitment requirements notwithstanding §127(8) requirement of “detailed statement of facts”) LA, 11/16:7

Testimony: (plain error review of “no more than 3 minutes” to testify not warranted as testimony not actually limited) JSW, 3/9:4; (right to testify not denied by Judge’s interruption after familiar figure in commitment proceedings had testified for significant time) MFW, 10/12:2

Waiver of rights: (person waived rights by allowing counsel to state in open court his desire to waive) RKW, 3/16:2; (Judge should have made further inquiry, following counsel’s representation, that person was capable of intentional & knowing waiver of presence at commitment hearing… commitment reversed) PAC,4/6:3

*Oil/Gas

Lease: (leases correctly found to have remained in effect by some production prior to expiration of primary term, continuation of drilling operation, diligent steps to rectify cessation… fees properly awarded for failure of Plaintiffs to establish forfeiture, Defendant also entitled to appeal fees) Moerman v. Prairie Rose Resources, 8/31:3

Termination: (Plaintiffs seeking to cancel for insufficient production required to follow 90-day notice requirement of lease which takes precedence over statute… dismissed without prejudice) JK Development v. R&A Oil, 11/23:7

*Partnerships

Dissolution; (farm, arbitration, settlement) Robertus v. Robertus, 10/5:7

*Probate

Power of attorney: (Decedent lacked capacity to execute power of attorney, purported attorney in fact breached fiduciary duty by transferring property within days of death knowing of will) Yeaton, 9/17:3

PR: (ex-wife properly PR as conservator of children in intestate probate of ex-husband’s estate) Bennett, 8/17:1

Reformation: (Restatement of Property allowance for reformation of donative documents to correct unilateral mistakes adopted as to instruments other than wills… while donative instrument may be subject to reformation after death, permitting a stranger to the contract to request reformation to name himself a beneficiary not proper… no evidence that beneficiary designations are mistaken… proceeds properly paid to estate under contract terms despite existence of will)Irvine, 9/28:1

Will: (beneficiary of ranch including 2032A property also entitled to income from 2032A property, properly allowed to object to amended final accounting which distributed income to siblings as part of residuary estate) Ecton v. Ecton, 5/4:2; (proponent of holographic will presented prima facie case of due execution by signature in block letters, evidence of intent… will not revoked per exclusive statutory ways despite dismissive letter to devisee, suit against alternate devisee)Harless, 10/5:2

*Property

Condemnation: (eminent domain available for gas pipeline compressor station, but fact issues remain as to necessity of specific property) McEwen v. MCR,1/12:1

Church: (Court bound by Synod Council’s decision that local faction voting 71% to leave hierarchy over homosexual clergy issue may not take property for failure to attain 90% vote per local constitution, property to remain with re-named minority members… same result under neutral secular principles, including property titled under name of foundation… Plaintiffs have standing despite secret vote) New Hope Lutheran Ministry v. Faith Lutheran Church of Great Falls, 1/5:7

Damages: (approach to damages to property clarified, temporary injury must be established for restoration costs, includes damage to property that can be restored to substantially same condition, personal reasons required when seeking restoration costs disproportionately in excess of diminution, including whether party genuinely intends to restore… cost of restoring contaminated ponds exceeds value, requiring personal reasons for restoration costs, entitlement to restoration damages improperly decided on summary judgment but error harmless… “objectively reasonable” as separate element of proof of personal reasons rejected, jury appears to have heeded instruction to limit damages to reasonably necessary to restore by awarding $310,400 rather than $2.2 million requested, $138,000 suggested… restoration costs properly awarded for breach of contract (with interrelated trespass and nuisance claims)… evidence that transmission company jumped grazing lease bid relevant to show malice) McEwen v. MCR, 1/12:1

Ditch easement: (claim properly denied) Roland v. Davis, 6/15:2

Easement: (original grant of permission to use dock continued with subsequent owners, Molitor “permission never carries over” rule overruled, claim of adverse possession properly rejected) Pedersen v. Ziehl, 10/19:3; (transaction documents created valid easement for private access in subdivision by depiction on plat referenced in deed despite no express language or grant of reservation in deed… challenges to validity of lot sale rejected… claim of subdivision access as described in plat not barred by equitable principles) Yorlum Properties v. Lincoln Co., 10/19:4

Easement foreclosure: (1st trustee’s sale void for inadequate notice to lake access easement holder (1st impression), easement properly extinguished by 2nd sale, “one-action” rule, equitable estoppel inapplicable) Terry Bell Generations Trust v. Flathead Bank of Bigfork, 6/15:2; (purchaser is on constructive notice of recorded servitudes & encumbrances granted by existing & prior owners (adopting broad chain-of-title concept), summary judgment improperly granted to Plaintiffs who failed to discover 100 easement but had constructive notice in grantor index for conveyances… encroaching structures & cropland must be removed to extent they unreasonably interfere with easement rights, to be determined by balancing interests) Earl v. Pavex, 11/16:3; (adverse use of property cannot run while federal government owns it, did not begin until FS conveyed title to private entity, no adverse use during period of license agreement, agreement improperly invalidated based on purportedly false representations of no right to use property when party did not at that time have prescriptive easement, no adverse use for 5 years… license agreement improperly rescinded, no false representation or mistake of fact or law by counsel as to assertion of lack of authority to use property… “final judgment” following award of prescriptive easement and rescission of license deprived Defendant of jury trial on bifurcated negligent misrepresentation and related counterclaims) Burcalow Family LLC v. The Corall Bar Inc., 11/16:4; (scope of recreation/residential use inadequately defined on remand) Brown & Brown of MT v. Raty, 11/16:5

Encroaching buildings: (properly ordered removed… costs affirmed except $250 for pre-litigation survey) Jones v. Shaurette, 4/6:3

Foreclosure: (borrowers not entitled to right of redemption in judicial procedure foreclosure of trust deed and because property was single-family at time of trust deed execution) Cavanaugh v. CitiMortgage, 11/23:1; (MERS not a beneficiary under STFA (1st impression), relationship with lenders insufficiently established to warrant summary judgment that it is a special agent of the lender with authority to assign trust deed (Plaintiffs improperly ambushed on appeal with argument not raised below)) Pilgeram v. GreenPoint Mortgage, 11/30:1

Inverse condemnation: (Court may instruct on market value and restoration costs as alternative measures of damages to home from leaking water mains, leaving measure and extent of compensation for physical property damage to the jury on the evidence and argument at trial… cost of temporary lodging and expenses is compensable component of “just compensation to full extent of the loss”per Art. II §29… 70-30-306(2) does not limit fees to hourly rate in §29 self-executing inverse condemnation cases, Rauser notwithstanding) Evenhus v. Great Falls, 1/26:2; (street right of way: (properly limited to 60, abutting owners properly awarded damages for taking but should have been based on value at time of taking… Plaintiffs entitled to “necessary expenses” per Art. II §29 for inverse condemnation… fees for fees properly denied except that counsel may pass to Plaintiffs fees/costs incurred in proving litigation expenses other than attorney fees… 1983/1988 damages/fees properly denied) Wohl v. Missoula, 3/9:3

Land transfers: ($1.6 million verdict, specific performance, $176,834 attorney fees, arising out of dizzying array of land transfers, assignments, corporate metamorphoses, abuse of process, deceit affirmed… Plaintiff entitled to appeal fees) Boyne USA v. Spanish Peaks Development, 1/19:1

Never-to-be-sold lots: (claim that adjacent lots were never to be sold properly rejected on quiet title summary judgment) Pennington v. Flaherty, 6/22:2

Partition: (objections to referees’ report sufficient to compel hearing (1st impression)) Britton v. Brown, 3/2:1; (acceptance of partition extinguished any claim to life estate in new house on land awarded to Defendant or insurance from burned house… Plaintiff retained right to access creek for stock water following partition based on water right and easement to benefit land not subject to the partition) Hughes v. Hughes, 7/6:1

Prescriptive easement: (properly found over destroyed road, Defendant ordered to restore it) Summers v. Cook, 3/30:3

Public prescriptice easement: (not limited to bridge destroyed by wildfire, includes replacement bridge in place at time of prior MSC decision which became law of case) PLA v. Jones, 3/9:2

Public roadway: (entire road from highway to river including across farm properly determined to be county road) Sayers v. Chouteau Co., 3/9:2

Real estate sale: (evidence of scheme to acquire ranch for substantially less than husband in divorce action should have listed it for, that husband breached duties as trustee and attempted to sell cheap contrary to court orders… trust not liable for husband/trustee’s acts… no evidence that wife impermissibly filed lis to protect her settlement agreement 50% share of ranch… fact issues as to whether buyer had valid claim to specific performance preclude summary judgment as to wife’s claim for abuse of process) Montana Capital Funding v. Kelleher, 7/6:7

Road easements: (not established by lakeshore owners to developer’s adjacent land) Thayer v. Hollinger, 3/9:2

Specific performance: (specific performance of buy-sell awarded in divorce affirmed over claim of post-divorce oral agreement) Posselt v. Powers, 1/26:2; (specific performance of letter agreement to sell interest in property to sister properly enforced over claimed oral agreement with brother, manner of acceptance not limited to that suggested in offer) Olsen v. Johnston, 2/23:5

Street right of way: (properly limited to 60, abutting owners properly awarded damages for taking but should have been based on value at time of taking… Plaintiffs entitled to “necessary expenses” per Art. II §29 for inverse condemnation… fees for fees properly denied except that counsel may pass to Plaintiffs fees/costs incurred in proving litigation expenses other than attorney fees… 1983/1988 damages/fees properly denied) Wohl v. Missoula, 3/9:3

Title: (Estate’s claim of outright ownership of farm by adverse possession rejected, farm properly divided into 72nds representing intestate share that passed from ancestor since 1927) Estate of Bjornrud, 7/20:4

Warranty deed: (claim that Montana property held for Florida drug dealer while he was in prison rather than deeded outright and that deed was forged and funds from dealer’s bank account converted properly rejected in bench trial) Willis v. Fertterer, 10/5:1

*Railroads

Crossings: (City did not owe or breach duty to pedestrian who slipped on snow & ice on pedestrian part of crossing of city street which is also state highway… State owed common law duty to maintain crossing in reasonably safe condition, whether it breached duty is jury question… claim against railroads preempted by federal law) Belmarez v. State, 10/12:3

FELA: (engineer who knew work was possible cause of injury had duty to investigate, pursue potential claims, failed to make cumulative trauma/repetitive injuries claim within 3-year FELA statute… additional discovery properly denied for failure to show what would have been material) Bridgman v. UP, 10/12:1

*Settlements

City pool heart attack death: ($900,000, failure to timely respond to heart attack at City pool, have AED on-site, death… summary judgment rejection by Knisely of City’s negligence/public duty claims) Bieber v. Billings, 11/9:6

DUI death: (specific action exception not applicable where officers’ acts in responding to report of drunk driver not directed to driver killed in subsequent MVA, but custody exception applies where officers directed person not to drive but to be driven home… public duty doctrine not violative of constitutional or statutory law, settled for $222,000 from City) Trewhella v. Billings PD, 3/16:7

Oil rig fire: (“substantial 8 figures,” face/hands burns disfigurement) Roberts v. “BLANK,” 12/7:5

Work comp bad faith: ($1,275,000 by MPC’s insurer following defense verdict and order for new work comp bad faith trial based on juror misconduct, in addition to previous $2.5 million from co-Defendant NWE and $200,000 from adjuster, in addition to previous $2.5 million underlying work comp) Gonzales v. MPC, 9/17:7

*Social Security

EAJA: (“position of the United States” includes both its litigation position and underlying agency action (the ALJ decision), EAJA fees improperly denied on basis that US substantially justified because it prevailed at administrative and district court levels before losing in 9th Circuit

SSD/SSI: (Claimant had documented history of exaggerating medical problems to pursue benefits, ALJ followed treating physician’s suggestion to look to her “medical records” for the bases for her opinion that Claimant is disabled, correctly found insufficient support in records for doctor’s unsubstantiated conclusions of disability) Parent v. SSA, 6/1:5; (application based on mental impairments improperly denied) Kellberg, 11/30:8

*State Government

Board of Real Estate Appraisers: (discipline of appraiser affirmed over claim that he was only performing “consulting appraisal” to confirm realtor’s listing price)Heppner v. Board of Real Estate Appraisers, 6/15:3

State healthcare plan: (subject to Insurance Code “made whole” provisions) Diaz v. State, 11/9:2

*Taxes

Assessment challenges: (challenges to methods/procedures for assessing coking/refinery properties must be raised administratively, not as declaratory action)CHS v. DOR, 4/20:3

Coal: (DOR correctly apportioned tax to counties overlying mine) Musselshell Co. v. Yellowstone Co., 1/5:5

Fuel: (modified truck traveling from ranch to obtain feed in town not exempt from diesel fuel tax) Coleman v. DOT, 3/30:3

Income: (deduction of expenses in pursuit of psychology doctorate properly denied) Myrup v. DOR, 5/25:1

Property: (subdivision covenants do not effectively prohibit ag use, unsold lots continuously used for ag improperly reappraised residential) DOR v. Heidecker,7/6:3; (equal protection not violated by taxes based on beginning of 6-year cycle while value declined during cycle… legislative power improperly exercised in ordering mid-cycle reappraisal) Covenant Investments v. DOR, 8/10:5; (DOR’s goodwill/intangible property regulations conflict with statutes) Gold Creek Celular of Montana (Verizon Wireless) v. DOR, 9/28:3; (DOR properly retroactively assessed voice, cable, data systems over single distribution system as class 13 rather than separately as class 8, increasing taxes by 329%) Bresnan Communications v. DOR, 12/7:1

Tax deed: (liquidation of tax lien, certificate of redemption, moot appeal of judgment by Ulbricht that tax deed void because Treasurer failed to send notices to all “easily ascertainable” addresses) Showell v. Lundvall, 7/13:3; (void for failure to give notice of application to mortgage company listed on Sched. B but only incorporated by reference to numbered exceptions on Sched. C of title guarantee even though notice given to owner… deed recipient concedes notice error, declaratory judgment… attorney fees awarded to owner under §27-8-311 on summary judgment over argument by deed recipient of fact issues as to equitable considerations and claim that request for fees is improper tactic… fee award settled prior to hearing on amount) Harper v. Tolentino, 7/27:5

*Torts

Accountant malpractice: (tort claim alleging erroneous advice as to 1031 exchange of related-party properties timely filed, jury question as to timeliness of misrepresentation claim, summary rejection of claims as time-barred improperly granted… Plaintiffs entitled to also assert breach of contract, timely contract claims improperly dismissed… further analysis necessary to determine which insured-insurer documents entitled to work product or attorney-client) Draggin’ Y Cattle v. Addink, 11/2:2

Bar negligence/dram shop: (claims rejected for failure to give timely mail notice… alleged oral notice to former bar president, acknowledgment by him, insufficient, statutory notice not useless act… no estoppel/waiver by former president’s alleged encouragement to sue bar) Waddell v. Miller, 7/20:7; (fact issues as to altercation which started inside bar and ended in assault outside preclude summary judgment under Kipp negligence factors… dram shop claim properly rejected on summary judgment for lack of evidence that assaulter had been served) Harrington v. Crystal Bar, 8/3:3

Childhood sex abuse: (summary judgment on statute of limitations precluded by fact issues as to when Plaintiffs connected claimed physical/psychological problems to abuse by scout leader 40 years ago) BM v. Boy Scouts of America, 9/14:6

Civil conspiracy: (no colorable claim of civil conspiracy, object (sale of company), means (transfer of assets) were lawful, claim also time-barred) Lence Family Trust v. Christensen, 8/24:5

Emotional distress: (independent claim of emotional distress from FBI interview of Plaintiff relating to bank employee unsupported by evidence of intensity, properly dismissed on summary judgment) Feller v. First Interstate Bancsystem, 4/13:3; (insufficient emotional distress to support NIED/IIED) White v. MSF,7/20:3

Excessive force arrest: (claims properly rejected per qualified immunity) Rivera, 6/15:7

False arrest: (prosecutorial immunity: (properly granted as to false arrest/imprisonment claim stemming from order of protection charge which was later dismissed on venue grounds) Spinks v. Whipple, 4/27:4

Fraud: (claim of fraudulent misrepresentation of health of principal, value of company, and need to sell time-barred, not tolled by close relationship of parties, constructive fraud claim similarly time-barred) Lence Family Trust v. Christensen, 8/24:5; (facts underlying claim that ex-wife forged signature on deed known or could have been discovered at divorce hearing, time-barred… due process not violated by dismissal without hearing… fees/costs improperly awarded on erroneous basis that fraud proceeding was continuation of divorce) Kananen v. South, 8/31:2; (claims properly dismissed for failure to plead with particularity, show reliance on representations) Fossen v. Fossen, 10/26:2 indemnity/contribution claim properly dismissed as relating back to fraud claims

House defects: (claims against seller and seller’s agents properly resolved on summary judgment… summary judgment standards explicated) Moline v. Saint-Denis, 6/15:4

Inherently dangerous: (counselor at state-contracted juvenile facility is inherently dangerous activity, State potentially liable for assault injuries from escape attempt) Valerio v. State, 10/5:7

Malicious prosecution: (claim fails because MSF did not “instigate” DOJ prosecution, had probable cause for reporting suspected fraud) White v. MSF, 7/20:3; (supervisory control denied as to Fagg’s denial of summary judgment for attorneys in action stemming from assault & battery complaint) Billings Legal v. Fagg,9/14:4

Medical records privacy: (letter from physician to MSF expressing concern about surveillance video undermining what he was led to believe falls under authorized communication, not breach of privacy or physician/patient, not knowingly assisting in prosecution, claims against doctor dismissed on summary judgment) Simms v. Schabacker, 11/2:5

Medical malpractice: (Plaintiffs’ standard of care instruction properly rejected, Defendant’s instruction on “mere fact of injury” properly given… fistula bleeding death defense verdict affirmed) Anderson v. Harper, 12/14:1

Mining subsidence: (JML that subsidence caused current damage to apartment building properly denied in light of other possible causes including school construction… defense verdict affirmed) Barile (Tripp & Dragstedt Apartments) v. ARCO, 9/17:1

Negligence: (dispute as to whether favored driver in uncontrolled intersection maintained adequate lookout raises comparative negligence, precludes summary judgment for favored driver) Tonner v. Cirian, 1/5:1; (premises liability law applies to restroom slip & fall by tenant’s independent contractor janitor, summary judgment for landlord improperly based on construction law and determination that no reasonable jury could find breach of ordinary care) Steichen v. Talcott Properties, 1/26:1; (pro se tractor driver’s challenges to $631,018 net MVA bench judgment rejected… elderly pro se ranch owner required evaluation of need for conservator, reversal also required by failure to separately serve her notice of attorney withdrawal, remanded for new trial as to her vicarious liability) Stewart v. Rice, 3/9:1; (apartment icy stairs fall claim properly rejected on summary judgment) Salvi v. Congdon, 7/6:4; (summary judgment on negligence/warranty/CPA precluded by issues as to when serious defects in log home should have been discovered… insufficient record to address whether owners were “consumers” under CPA… release binding only on original owners, not on parents’ subsequent 36% interest, encompassed all claims including latent defects, not just specifically mentioned mold… manufacturer improperly dismissed on Plaintiffs’ motion without opportunity for builder to respond) Johnston v. Centennial Log Homes, 7/13:1; (pellet stove installers entitled to summary judgment for Plaintiffs’ failure to produce expert as to standard of care, competent evidence of causation of house fire) Tyler v. JR Contracting, 8/31:5; (Plaintiffs’ trial brief statement that State made “reasonable and necessary” decision in direction of backfire was in context of inverse condemnation, not judicial admission of fact as to negligence, promptly “corrected”… public duty defense properly stricken as prejudicial due to late assertion… challenge to lack of expert as to wildfire suppression standard waived by failure to object… venue challenge waived by acquiescence in jury selection… sanctions for untimely/mis-dated fire photos properly rejected… $730,000 verdict affirmed) Weaver v. State, 9/7:2; (State owed no duty to trucker or flagger who was run over at travel plaza paving site, not vicariously liable for torts of project contractors… summary judgment properly denied for trucker on contribution claim against State since there was no “maintenance” and project not under State control) Dick Irvine v. State,9/28:2; (verdict of no injury in low speed MVA affirmed) Anderson v. Eller, 10/5:3; (claims against School Board in suicide of suspended athlete properly rejected on summary judgment for lack of foreseeability) Gourneau v. Hamill, 10/26:1; Carestia v. Robey, 11/16:1

Product liability: (opinion that improper assembly of steering components of crashed Honda ATV caused “difficult and unpredictable” steering stricken for failure to satisfy Rule 702 reliability/relevance, leaving insufficient evidence to establish manufacturing defect claim… JML for Defendant following hung jury) Johnson v. American Honda Motor Co., 2/9:5

Public duty: (“special relationship” exception not applicable to City’s subdivision involvement vis-à-vis slope failure on Plaintiffs’ lot) Brown v. Kalispell, 6/1:5

Ski area operator liability: (failure to warn/negligence claims by skier injured in crash into boulder field obscured by unmarked cat track survive summary judgment notwithstanding statutory definition of “inherent dangers and risks of skiing”) Kopeikin v. Moonlight Basin, 11/9:6; (industry chairlift safety standard not adopted by government agency, not conclusive as to standard for unloading accident, expert still required to determine whether lift complies with “current standards” per statute) Willink v. Boyne USA, 12/21:8

Tortious interference: (tortious interference claim rejected on LR 56.1(d) deemed admission of undisputed facts that letters based on good faith belief of breach of agreement… 56(d) not satisfied but additional discovery would not add essential facts, pursuit of settlement not valid excuse for not diligently pursuing discovery… amendment to add factual allegations and conversion claim denied) Rocky Mountain Biologicals v. Irvine Scientific Sales, 11/2:6

Unjust enrichment: (unjust enrichment claims may arise from Indian school’s alleged failure to distribute equitable shares of funds to Tribe which it obtained by marketing plight/need of Tribe… forensic accounting cause supplanted by discovery rules… contract, negligent misrepresentation, fraud, conversion, cultural genocide claims unsupported, constitutional claims obviated by non-constitutional remedies) Northern Cheyenne Tribe v. Roman Catholic Church, 2/23:2, (claim that Diocese is separate from co-Defendant Indian school to be resolved on remand, rehearing denied) 3/16:2

Unlawful detainer: (removal of house occupant properly ordered, $4,185 fees properly awarded) Unterholzner v. Blake, 11/9:3

Wrongful death: (reconstruction testimony, computer simulation, properly admitted in head-on MVA death case… expert’s disclosure did not require correction or updating… Defense verdict affirmed) Howard PRs v. Bradford PRs, 5/18:1; (parents of deceased adult may seek wrongful death damages for grief, sorrow, mental anguish, to be pursued by PR along with other claims… inconsistent analyses/holdings, imprecise use of “heirs” clarified) Estate of Bennett, 8/24:1

Wrongful discharge: (dispute as to whether termination pursuant to “best interest” of employer nullified term contract and rendered Plaintiff at-will should be resolved by arbitrator) Marsden v. BCBSMT, 1/5:2; (handbook and safety lockout procedures should be read together, employee on suspension for non-safety violations properly terminated for safety violation) Barrett v. Plum Creek Northwest Plywood, 2/16:6; (Court lost jurisdiction over and properly dismissed spoliation/declaratory claims once Plaintiff agreed to arbitrate WDA claim, but similarly had no jurisdiction to rule that 39-2-914(5) does not violate jury, equal protection, due process rights) Ensey v. Mini Mart, 4/13:4; (Montana supervisor properly terminated by Florida managers based on complaints of Montana employees) Sullivan v. Continental Const., 4/27:1; (UI eligibility “conduct” not grounds for summary judgment on “good cause”… sanctions properly denied for deletion of computer files… punitives foreclosed by summary rejection of public policy violation claim… expert properly allowed to testify on effect of Plaintiff’s and manager’s actions on co-workers, did not opine on good cause for termination… rumors about sex triangle properly allowed to show effect on co-workers… defense verdict affirmed) Cartwright v. Sheels All Sports, 6/22:1; (liability of president improperly submitted to jury… mention of amount of another employee’s settlement insufficient to reverse $90,000 discharge verdict… 3% limit should have been applied to $300,000 punitives award) Harrell v. Farmers Educational Cooperative Union of American, Montana Div., 12/21:1

*Trusts

Distributions: (distributions from house sale properly made first to brothers who had pitched in to save house, then to sister for whom trust was created) Lane v. Caler, 4/27:1

*Unemployment Compensation

Judicial review: (judicial review petition improperly rejected for lack of brief… DLI not prejudiced by not being served) Jacky v. Avitus Group, 10/19:5

Misconduct: (teacher properly found fired for misconduct, ineligible for UI) Roberts v. BLA, 11/23:2

*Utilities

Electricity termination: (power companty may be sued for damages) Schuster v. NWE, 12/14:3

Temporary rate decrease: (order denying costs and temporary rate decrease and remanding to PSC is final, appealable order… costs for proceedings in PSC, District Court, MSC properly denied as remand for determination of whether to allow amended complaint to cure standing did not constitute prevailing… request for temporary street lighting rate decrease properly denied pending PSC decision on remand) Williamson v. PSC, 1/5:4

*Verdicts

Alleyway access: ($41,625, breach of partial assignment contract, disputed alleyway access to apartment complex/condos, $32,590 fees, $1,356 costs) Ault Development v. Western Montana Mental Health Center, 2/2:7

Assault: ($15,000 net (75% father, 25% Plaintiff son, 0 casino/restaurant), altercation in which casino employee/father fired shots at son, property/PTSD) Jones v. Jones, 10/26:8

Auto: ($12,500, open intersection MVA, admitted liability, soft-tissue low back) Bosley v. Barrie, 2/2:7; (default for late disclosure of Explorer rollovers properly denied… other incidents properly excluded for lack of similarity… Safety Canopy standardization properly excluded, no improper “consumer choice” defense… no prejudice by limitations on indemnity agreement between manufacturer and rental agency… defense verdict for manufacturer and rental agency in rollover death affirmed) Stokes (PR for Carter) v. Ford Motor, 2/16:1; (reconstruction testimony, computer simulation, properly admitted in head-on MVA death case… expert’s disclosure did not require correction or updating… Defense verdict affirmed) Howard PRs v. Bradford PRs, 5/18:1; ($65,000, bus/auto intersection low-speed rear-ender, whiplash, admitted liability, disputed mild traumatic brain) Peterson-Tuell v. First Student Transportation, 8/3:7; (defense, rear-end, admitted liability) Reichelt v. Julian, 8/31:5; (verdict of no injury in low speed MVA affirmed) Anderson v. Eller, 10/5:3; (Defense, collision with fire truck door) Fergusson v. Sourdough Fire Dept., 10/5:7; ($268,435.94, MVA, summary judgment for Plaintiff as to negligence and negligence per se, cervical fusion/shoulder surgery) Tempel v. Benson, 10/19:8; ($65,554, 3 passengers, City bus/auto MVA, admitted liability… $300,000 settlement by driver with alleged brain injury) Doran v. Billings Metropolitan Transit, 10/26:7; (defense, admitted negligence for low-speed rear-end MVA but no causation, cervical/bicep… $310,000 settlement of earlier MVA) Townsend v. Stoner, 12/14:6

Backfire: ($750,000 verdict affirmed) Weaver v. State, 9/7:2

Banking: (letter from bank president proffered in support of equitable estoppel claim properly excluded as not meeting estoppel elements, verdict that lumber wholesaler owed nothing to lender for alleged violation of assignments between mill and lender and that lender owed nothing to wholesaler under estoppel theory for allegedly inducing wholesaler to continue advancing funds to failing mill affirmed) Simpson Lumber v. Three Rivers Bank, 10/26:1

Construction fall: (defense, negligence but no causation, traumatic brain) Salazar v. A&J Const., 2/9:7

Construction lien/subdivision buy-sell: ($425,000 for invalid/inaccurate construction lien, $550,000 for false statements in lien statement or knowingly false filing of statement, $450,000 for breach of subdivision buy-sell, $2 punitives… claim of unjust enrichment by residences constructed prior to closing rejected by J. Brown following verdict) Rosa Const. v. Capstone Builders, 9/17:6

Contract: ($11,943, breach of contract for sale/purchase of metals for recycling) SSI Big Sky (Schnitzer-Billings) v. Russell, 11/9:8

CO exposure: (defense, gas furnace) Fenton v. Keck, 11/30:8

FELA: ($1.7 million, FELA, cumulative back injuries with striking snow-obscured pipe with skidsteer the “the final straw”) Dannels v. BNSF, 2/23:7; (defense, FELA, slipped locomotive hatch door, traumatic brain/neck) Spottedhorse v. BNSF, 12/21:6

House defects: ($41,000, construction defects alleged by subsequent purchasers of $11.5 million vacation home, $2.5 million consent judgment by previous owners) Isackson Family Trust v. LaChance Builders, 5/4:6

Insurance: (directed verdict for Plaintiffs prior to commencement of trial for $539,717.90 cancer policy benefits/interest based on pre-trial ruling that Notice Prejudice Rule applies and insurer suffered no prejudice (insurer tendered the $539,717.90 prior to trial reserving right to appeal), subsequent verdict that insurer owes Estate no more money under policy, breach of UTPA but no resulting damage… attorney fees awarded) Estate of Gleason v. Central United Life Ins.,3/23:7; (defense, no material misrepresentation in application on home insured as rental but which had no tenant and was vacant during policy period, policy not properly rescinded, but no coverage because owner had not used reasonable care to maintain heat, resulting in frozen plumbing, water damage) Wright v. Safeco Ins., 8/17:6

Ladder fall: (defense, ladder fall by non-employee at home of friend, fractured tibia/fibula) Clark v. Fox, 4/27:6

Land transfers: ($600,001 verdict, specific performance, $176,834 attorney fees, arising out of dizzying array of land transfers, assignments, corporate metamorphoses, abuse of process, deceit affirmed… Plaintiff entitled to appeal fees) Boyne USA v. Spanish Peaks Development, 1/19:1

Medical malpractice: (defense, alleged failure to timely revise A/V fistula leading to bleeding death) Estate of Anderson v. Harper, 3/30:6, (Plaintiffs’ standard of care instruction properly rejected, Defendant’s instruction on “mere fact of injury” properly given… fistula bleeding death defense verdict affirmed) 12/14:1

Ophthalmology malpractice: (defense, loss of eye by 5-year-old) Shea v. Noble, 7/13/13

Property damages: (approach to damages to property clarified, temporary injury must be established for restoration costs, includes damage to property that can be restored to substantially same condition, personal reasons required when seeking restoration costs disproportionately in excess of diminution, including whether party genuinely intends to restore… cost of restoring contaminated ponds exceeds value, requiring personal reasons for restoration costs, entitlement to restoration damages improperly decided on summary judgment but error harmless… “objectively reasonable” as separate element of proof of personal reasons rejected, jury appears to have heeded instruction to limit damages to reasonably necessary to restore by awarding $310,400 rather than $2.2 million requested, $138,000 suggested… restoration costs properly awarded for breach of contract (with interrelated trespass and nuisance claims)… evidence that transmission company jumped grazing lease bid relevant to show malice… $439,400 verdict for ranchers affirmed, remanded for resolution of condemnation) McEwen v. MCR, 1/12:1; ($295,000, home damage from county water tank leak… inverse condemnation claim directed out for failure of proof, admitted liability for negligence) Stevenson v. County Water Dist. of Billings Heights, 4/13:8

Real estate: (defense, alleged failure of dual agent to warn buyer of risks in complex 1031 transaction) Calaway, 5/25:6; (house defects claims against seller and seller’s agents properly resolved on summary judgment) Moline v. Saint-Denis, 6/15:4

Slip & fall: (defense, fractured elbow/knee, shoulder surgery) Bilesky v. Shopko Stores, 2/16:6; (defense, marble stairs fall, diskectomy) Kittel v. State, 2/23:8; ($108,260, water leak slip & fall at Tech SUB, fractured shoulder) Dominguez v. State, 5/18:5

Smoke inhalation: ($1,271,100, death in burning house, liability as spoliation sanction) Welch v. Presser, 3/2:8

Wages/wrongful discharge: (extra-duty time not “wages,” overtime/vacation improperly submitted to jury as 180-day limitations period applies to both wages and penalty, $367,750.51 fees/costs for nonsegrable wage claims also reversed… liability of president improperly submitted to jury… mention of amount of another employee’s settlement insufficient to reverse $90,000 discharge verdict… 3% limit should have been applied to $300,000 punitives award) Harrell v. Farmers Educational Cooperative Union of American, Montana Div., 12/21:1

Water feud: ($191,000 for Defendants on IIED/interference with business counterclaims in dispute over access to spring affirmed, punitives supported by intentional acts but remanded for statutory review of $50,000 award… verdict of justifiable force assault by Defendant in defense of property reversed) Kaestner v. Masten, 1/5:3

Water main break: ($65,000, inverse condemnation damage to house from city water main breaks including emotional distress, loss of use) Evenhus v. Great Falls, 10/12:4

Wrongful discharge: (UI eligibility “conduct” not grounds for summary judgment on “good cause”… sanctions properly denied for deletion of computer files… punitives foreclosed by summary rejection of public policy violation claim… expert properly allowed to testify on effect of Plaintiff’s and manager’s actions on co-workers, did not opine on good cause for termination… rumors about sex triangle properly allowed to show effect on co-workers… defense verdict affirmed)Cartwright v. Sheels All Sports, 6/22:1; (defense, dental assistant) Leake v. Montana Oral Surgery & Dental Implant Center, 11/23:7

*Water

Abandonment: (standard of review of Water Court clarified… 79 Ranch governs abandonment, properly applied retroactively to pre-73 right to creek… Claimants sufficiently rebutted presumption of intent to abandon by 20 years nonuse) Heaverland v. State, 11/9:__; (Master erred in concluding that Helena abandoned part of its rights, Helena provided evidence of non-abandonment pursuant to 1999 amendments giving special treatment to municipalities, evidence showed efforts in system improvements, reliance on engineer’s reports for future needs, use of facilities & system for emergency water… Master correctly found place of use encompasses lands as well as facilities) Claim of Helena, 12/14:6

Appropriation notice: (amendment of appropriation notice based on claim that wrong section was listed in 1896 properly denied) Weinheimer Ranch v. Pospisil, 4/13:4

Groundwater permit: (DNRC had authority to deny subdivision water permit despite settlement with objectors, properly required applicant to mitigate usage, improperly determined that proposed mitigation was inadequate… applicant not prejudiced by bias) Bostwick Properties v. DNRC, 3/2:2

Right: (Plaintiff retained right to access creek for stock water following partition based on water right and easement to benefit land not subject to the partition)Hughes v. Hughes, 7/6:1

Streambed: (channel adjacent to river properly found to be natural waterway that may be used to transport irrigation water, not man-made irrigation ditch, ranch properly allowed to maintain) Livingston v. Park Conservation Dist., 8/24:3

Water use agreement: (injunction improperly granted on grounds not requested by water users… irrigation districts not statutorily required to conduct vote or seek court approval before entering into water use agreement with Tribes and US) Western Montana Water Users Association v. Mission Irrigation Dist., 4/13:5

*Workers’ Compensation

AMA Guides: (5th Edition AMA Guides “current edition” on date OD claimant reached MMI in 2001 per 1999 WCA) Johnson v. Liberty Northwest Ins.,8/10:8

Disability: (Petitioner not MMI while undergoing pain evaluation/ treatment on referral from treating physician, subjective pain complaints insufficient to support PTD) O’Mahoney v. Liberty Ins., 3/16:8; (Multiple Chemical Sensitivity not proven causally related to job injury, existence of somatoform disorder not established, Petitioner suffered only temporary aggravation, reached MMI, TTD denied) Gaudette v. MSF, 3/23:8; (job approvals inconsistent with physical limitations/ vocal impairments, Claimant entitled to PTD) Thompson v. MSF, 9/7:8

Employer/employee: (HB 119 inclusion in WCA of Hutterites engaging in commercial activities for remuneration upheld over free exercise, establishment, equal protection claims) Big Sky Colony v. DLI, 1/12:3

Exclusivity: (MSP taser training claim properly rejected for lack of evidence of intent to harm… no independent cause for spoliation) Harris v. State, 2/23:4; (employer additional insured under umbrella entity’s comp policy, entitled to immunity under §30-71-411 from claim by Plaintiff who previously received $207,145 comp) Stokes v. Brown, 11/23:5

Ex parte provider contact: (§39-71-604(3) unconstitutional under Art. II §10 as applied to Petitioner as she is willing to let insurer communicate with providers if she is included in communications to protect her privacy) Malcomson v. Liberty Northwest, 8/24:8

Fraud: (insurance code not applicable to MSF vis-à-vis suit by claimant acquitted of fraud, reasonable basis in law to terminate benefits after learning claimant received wages, proper decision for judge, not jury, fraud acquittal irrelevant to civil case, malicious prosecution claim fails because MSF did not “instigate” DOJ prosecution, had probable cause for reporting suspected fraud, insufficient emotional distress to support NIED/ IIED) White v. MSF, 7/20:2

Impairment: (right to impairment accrues at MMI, even though rating subsequently issued to determine precise value, estate of claimant who died prior to rating entitled to impairment award) Torgerson v. Transportation Ins., 8/31:8

Incarceration benefits cut-off: (challenge to 39-71-744 benefits cut-off after 30 days incarceration rejected) Goble v. MSF, 4/6:8

Injury: (Petitioner failed to prove he contracted RMSF while working as hunting guide) Benson v. UEF, 8/24:8

Interim benefits: (prima facie case for interim benefits made in dispute as to treating physician, job accommodation, DLI order granting interim benefits affirmed)Hartford Fire Ins. v. Hostetter, 6/29:8

Mediation: (OD claim must be mediated, Petitioner’s argument that injury claim includes notice of hybrid OD/injury insufficient to overcome mediation jurisdictional requisite… mediator’s report not admissible in WCC) Mackey v. ACE American Ins., 1/12:8; (Plaintiff requesting sanctions against Defense counsel materially misrepresented mediation, sanctions denied… Defendant’s request for fees/costs from Plaintiff as vexatious litigant to be determined) Chapman v. Twin City Fire Ins., 6/15:3

Medical records review: (reports/testimony of doctors who rendered impairment ratings based on review of records that conflicted with treating doctor’s impairment rating admissible) Estate of Hirth v. MSF, 1/26:8

OD: (belief that courthouse annex conditions exacerbated COPD resulting in OD not supported by medical evidence) Langston v. MACWCT, 7/27:7; (fact issue as to when Claimant who had been taking pain meds for years knew or should have known she had OD vis-à-vis 1-year filing time preclude summary judgment for insurer) Dvorak v. MSF, 8/3:3

Offset/recoupment: (insurer not estopped from offsetting son’s auxiliary SSD and recouping funds overpaid during time it did not invoke offset, not estopped from recouping $6,049 obtained by union rep) Peters v. American Zurich Ins., 8/3:7

Penalty: (fees/penalty properly denied due to reliance on prior impairment increase denial for terminating patch coverage, reinstatement under reservation)Stewart v. Liberty Northwest Ins., 4/27:2; (denied) Peters v. American Zurich Ins., 8/3:7; (termination not unreasonable in complex situation, penalty/fees denied) Thompson v. MSF, 9/7:8

Procedure: (motion to exclude doctors for failure to meet 26(b)(4) disclosure requirements denied in light of Petitioner’s failure to follow scheduling order procedures) Estate of Hirth v. MSF, 1/26:8; (MSF equitably estopped from using 603(2) corporate officer notice to avoid indemnifying Hartford for benefits it paid under 407(5)… summary judgment against element 3 of estoppel reconsidered, all 6 elements satisfied) Hartford Ins. v. MSF, 2/16:8; (insurer entitled to information relating to ND claim under broad discovery rules subject to admissibility challenge… Petitioner entitled to copy of audio recording of ND statement, not just transcript) Overholt v. Liberty Northwest Ins., 3/9:9; (summary judgment improvidently granted as to whether Petitioner can perform injury job)Trevino v. MSF, 4/6:7; (claim for continued payment of pain patches not barred by collateral estoppel of prior impairment rating entitlement) Stewart v. Liberty Northwest Ins., 4/27:2; (pro se’s motion to exclude documents denied for failure to provide proof of service) Griffin v. Liberty Northwest Ins., 5/11:7; (motion to exclude law enforcement witnesses/records as to post-accident assault premature, objections to medical records go to weight, not admissibility) Nease v. MCCF, 8/17:7

Psychiatric evaluation: (sufficient grounds for psychiatric evaluation after 7½ years of TTD with little improvement) Chapman v. Smurfit-Stone, 6/8:8

Re-open: (re-open, including medicals, denied) Griffin v. Liberty Northwest Ins., 5/11:7; (reopen based on alleged duress and mistake as to which shoulder was injured denied) Bond v. Associated Loggers Exchange, 6/15:8

SIF: (SIF had no duty to contact employer and request compliance with §39-71-906, properly denied reimbursement to insurer because it did not have vocational handicap certificate from employer) MIGA v. SIF, 8/17:6

Time-of-injury job: (summary judgment that Petitioner capable of time-of-injury job, not entitled to additional PPD/rehab) Trevino v. MSF, 2/23:8, (summary judgment improvidently granted as to whether Petitioner can perform injury job) 4/6:7

Wages: (good cause to calculate AWW under §123(3)(b), annual bonus included, vacation pay, employer 401(k) contributions excluded… 123 not proven unconstitutional) Peters v. American Zurich Ins., 8/3:7

*Youths

Adjudication/sentencing: (adjudication and sentence of youth who drove vehicle toward officer affirmed) RPJH, 6/1:7

Confrontation: (statements of 3-year-old repeated by mother after child unresponsive at trial properly found non-testimonial, admissible without implicating youth Defendant’s confrontation rights) KU, 12/28:3

Restitution: (youth who admitted to 2 days of vandalism spree properly ordered to pay restitution jointly & severally with other vandals for entire 11 days under criminal mischief statute, but plain error in not fully considering ability to pay… $78,702.09 reversed, remanded for new hearing) KEG, 5/25:4

Sentencing: (adult sentence consecutive to juvenile revocation disposition affirmed) Adams, 7/27:3

Transfer to youth court: (transfer properly denied, but numerous illegal sentence conditions) Dietsch, 9/7:6

YCA: (instructing deadlocked jury on purposes of YCA prejudicial error, requires reversal of animal cruelty… erroneous statutory citation in charging documents does not require dismissal of dog at large) EMR, 2/16:5