Montana Law Week Subject Index – 2014
*Appellate Procedure
Appealability: (appeal of guardian appointment waived by failure to “immediately appeal”) Guardianship of SM, 5/10:5; (challenge of validity of holographic will waived by failure to appeal immediately, but other findings/conclusions timely appealed) Estate of Kelly, 6/7:2; (appeal of Rule 11 sanctions premature absent final judgment including amount of fees & costs) Marriage of Marez, 12/27:2
Attorney fees/costs: (Landowners properly awarded fees/costs incurred during prior appeal as prevailing party in street widening litigation) Wohl v. Missoula, 11/29:2
Appeal from justice court: (timely filed computing 30 days from order denying request from relief from judgment, not from entry of judgment (more than 3 months earlier)… satisfaction of security deposit judgment should be considered substitute for an undertaking in this case) Guethlein v. Family Inn,5/17:3
Consolidated proceedings: (appellant may not raise issue raised by another party in consolidated proceedings when it did not adopt or raise it below (1st impression)) Park Co. v. State, 4/12:1
Disparaging remarks about judge: (Defendants’ counsel reproved for disparaging remarks about Judge in appeal) Larson Lumber v. Bilt Rite Const. & Landscaping, 3/15:1
Legal basis: (dog conversion judgment affirmed for lack of comprehensible legal basis for pro se appeal) Munyan v. Kincheloe, 9/13:3
Mootness: (failure to seek stay renders appeal of Internet corporation dissolution order moot) Glacier Electric Cooperative v. Johnson, 1/18:6; (appeal not moot despite Plaintiff’s purchase of property at sheriff’s sale as Defendant could still redeem) Larson Lumber v. Bilt Rite Const. & Landscaping, 3/15:1; (claims not mooted by failure to stay execution, post bond, reinstate lien) Sudan Drilling v. Anacker, 3/22:3; (review of fees does not revive moot issue (1st impression), attempt to challenge interpretation of amended covenants to become prevailing party in HOA dispute mooted by dispute resolution)Houden v. Todd, 5/3:1; (challenge of dissolution of injunction against selling house moot as house has been sold, appeal fees/costs awarded to Trust as matter of equity) Matter of Osorio Irrevocable Trust, 11/1:1; (appeal by family members not mooted by some dropping out) Wyo-Ben v. Bixby, 12/27:1
Notice of appeal: (when multiple motions which toll appeal time are pending, party need not file notice of appeal when 1st motion is disposed of and 2nd notice after subsequent motion is disposed of) Spotted Horse v. BNSF, 6/7:2
Procedure: (pro se Defendant failed to adequately brief or establish reversible error by Larson) Redfern, 5/24:4
Remand: (prior remand limited to determination of amount of fees, award of $116,739.53 affirmed, but subsequent order declaring 70-30-306(2) unconstitutional exceeded law of case and remand instructions) MDT v. American Bank of Montana, 2/1:2
Sanctions: (request for “reasonable” appeal fees rejected on basis that ex-clients already held accountable for “reasonable” fees of $5,019.79 stemming from original $93.99 unpaid fee) Wittich Law Firm v. O’Connell, 3/8:1; (appeal fees/costs denied) Marriage of Schmidt, 8/23:2
Supervisory control: (of Jones as to stacking order denied in light of other issues including bad faith… MVA Defendant assigned claims against insurer to Plaintiffs in exchange for covenant not to execute on $5,250,000 consent judgment) Great Northwest Ins. v. Jones, 5/31:1; (of J. Brown denied as to waiver of service defects in quiet title default) Bank of New York Mellon v. Brown, 6/7:2
*Arbitration
Home construction contract: (enforceable) Day v. CTA, 5/10:4
School teacher: (Board did not violate CBA in hiring outside applicant for vacancy over non-renewed teacher with higher interview score) Koemans,7/19:8
Wrongful discharge: ($142,000, gold mine employee) Zitnik v. Drumlummon Gold Corp., 2/8:8; (Arbitrator did not exceed authority in interpreting CBA to require progressive discipline of policeman before discharge… public policy not violated by requiring reinstatement… authority not exceeded by ordering expungement of fitness exam from personnel file) Livingston v. MPEA, 12/6:2
*Attorney Fees, Costs
Coal tract transfer: ($1,483,449.12 fees/costs recommended (of $2,079,229 sought) for decades of stonewalling by US which forced Plaintiffs to litigate statutory right to coal tract transfer in which they received $5,536,000 worth of coal… amount represents $500 for 1 attorney, $300 for 6, for claimed hours… in lieu of multiplier, no reduction applied to hours despite poor documentation, non-compensable work… findings & recommendations for Christensen by Strong) Nance v. Interior, 1/4:7, (approved by Christensen) 3/15:7
Contingency v. hourly: (attorneys entitled to fees based on what client, as assignee of insurer in $3 million “tough love” suicide consent judgment, would have been able to recover for time & expenses pursuing coverage, not on contingency (amended in an attempt to clarify that it “has always been intended to cover the underlying action and any declaratory judgment action required as Third Party beneficiary or First Party assignee”)) Newman v. United Fire & Casualty, 3/22:7
Costs: (video conference, deposition costs properly taxed, all mediation costs improperly taxed) Lazy JC Ranch v. Donnes, 4/5:2; (Defendant entitled to costs since $95,000 offer of judgment exceeded $65,000 verdict, but bill filed within 5 business days untimely under revised Rule 6 calendar days)Peterson-Tuell v. First Student Transportation, 11/29:1
Declaratory judgment: (homeowners entitled to fees for successful declaratory action) Svee, 12/6:3
Preliminary injunction: ($6,666.91 for defending against Board of Health’s “legal bullying” motion for preliminary injunction against smoking shelters… balance of fees requested not justified under UDJA or equitable exception to American Rule) MC Inc. v. Cascade City-Co. Board of Health, 2/8:4
Right to know: (resident of one county has standing to bring claim to see another county’s settlement agreement (1st impression)) Shockley v. Teamsters,10/25:2; (newspaper’s request for attorney fees for involvement in disclosure of fired ExpoPark manager’s personnel documents denied, could possibly seek fees against manager) Bracco v. Cascade Co., 11/1:4
Right to know/participate: (properly awarded following wolf hunting preliminary injunction) Citizens for Balanced Use v. FWP, 8/16:1
UDJA fees: (properly denied for lack of equitable showing) New Hope Lutheran Ministry v. Faith Lutheran Church of Great Falls, 3/15:3
*Attorney Practice
Attorney hubris: (attorney giving notice of inability to attend plea change hearing due to scheduling conflicts ordered to attend reset hearing prepared to explain lack of professionalism) US v. Pulliam, 8/2:8
Bar admission: (III.C waivers denied, rule revisions including non-reciprocity may be considered) Petition of Georger for Waiver of Bar Exam, 2/1:4; (pro bono reporting process adopted for Bar applicants) Recommendation for a Voluntary Pro Bono Reporting Process by Applicants for Admission to the Montana Bar, 12/20:4
Discipline: (90-days suspension/ censure for dual representation of husband and wife in meth prosecution of husband, representing wife in drug interview as to then former client husband, lack of candor in response to informal complaint) Neuhardt, 4/5:1; (suspension for failing to promptly/fully respond to ODC inquiries) Johnson, 8/2:3; (censure/probation for, inter alia, client advances) Ingraham, 8/2:3; (censure/probation for, inter alia, failure to comply with discovery, keep client informed) Sutton, 8/2:4; (suspension for misappropriation of client’s money, failure to promptly/fully respond to ODC)Laedeke, 9/6:3; (suspension for failure to respond, failure to provide competent representation) Akelstad, 9/20:2; (attorney’s request for immediate disbarment to allow clients to seek client protection funds denied) McLean, 10/18:1; (public admonitions to be imposed by COP for intra-firm conflicts in estate matter, following discussion of whether “minor misconduct”/attorney privacy require public or private admonition) Purdy, Miller, 11/1:2; (public admonition of Penelope Strong to be imposed for incompetent sexual assault representation, $15,000 fees returned) Strong, 11/1:3
Disqualification: (attorney and firm who represented Plaintiff before 2010 still considered by Plaintiff to be her counsel, disqualified from representing Defendants) Shiloh Medical Clinic v. Montana Medical Aesthetics Clinic, 5/24:4
Legal malpractice: (claims stemming from lawyer negotiating 10 years deferred imposition/$60,000 restitution for elder abuse before 2nd lawyer negotiated deferred prosecution/$2,700 restitution rejected) Manix v. Harris, 4/12:2; (claim accrued when defendant learned that attorney mistakenly advised him to plead guilty to felony DUI, not when Court withdrew plea, time-barred) Svaleson v. Marshall, 7/12:1; (claim of failure to secure out-of-state witness in SIWC/sex assault case properly found time-barred) Passmore v. Watson, 11/1:1; (summary judgment for attorney proper for inadequate discovery responses, failure to identify expert) Wylie v. Balaz, 11/22:2; (claims properly dismissed for, inter alia, lack of duty owed to deceased client’s ex-stepchildren… protective order/attorney fees properly granted for discovery requests maintained following dismissal) Burgess v. Bryan, 12/20:2
*Banking, Commercial Paper
Foreclosure: (challenges to nonjudicial foreclosure properly rejected) Durnam v. Bank of America, 4/12:3; (intervention by successor bank properly granted, quiet title default judgments properly set aside) JAS v. Eisele, 4/19:1; (motions to vacate summary judgment for bank properly denied as untimely under 59(e) and 60(b)) Jenkins v. US Bank, 9/6:2; (contract properly interpreted as establishing priority for repayment of subdivision loan, not implied promise to not foreclose absent failure to repay with lot sales… challenge of denial of motion to alter judgment mooted by failure to post appeal bond, sheriff’s sale of lots, expiration of redemption period… motion to join individual owners following summary judgment properly denied) Bank of Red Lodge v. Western Investments, 9/27:3; (challenge to securitization in attempt to avoid paying for property properly rejected via 60(b) motion denial) Carl v. Deutsche Bank National Trust, 9/27:4
Lending breach: (Montana law applicable to suit against Michigan bank… bank’s summary judgment motion based on inapplicable law or clearly disputed material facts… case against bank not extinguished by standstill agreement or personal guaranty… no private cause under TARP, but TARP issues relevant to deceit, fraud, implied covenant, punitives… Krueger; emergency petition for supervisory control as to choice of law, standstill agreement, stay of 1/6/14 trial denied by MSC) Butte Local Development Corp. v. Masters Group International, 1/4:4; (post-trial rulings on $52,037,593 verdict… challenges to general verdict form rejected… fees to be awarded pursuant to loan documents reciprocity, but based on hours, not 40% contingency… bank waived punitives cap by failure to disclose evidence of net worth, but cap also unconstitutional abrogation of right of trial by jury… award of compensatory damages including emotional distress by Guarantors affirmed… punitives supported by actual malice and/or fraud by sweeping accounts without justification or notice… 59(b) motion denied as rehashing of 59(a) issues or new issues that should have been raised in 59(a) motion) Masters v. Comerica Bank, 4/5:3; (claims involving condo development barred as compulsory counterclaims that should have been made in foreclosure or by claim preclusion… summary judgment for bank, jury trial vacated) Kinnaman v. Mountain West Bank, 5/3:4; (breach of modification agreement properly rejected as not written or recorded… fact issues preclude summary judgment as to negligence, also as to negligent misrepresentation under Restatement of Torts §552 (adopted here)… fraud, constructive fraud, CPA claims as to existing loan not precluded by Statute of Frauds, improperly rejected on summary judgment) Morrow v. Bank of America, 5/10:1; (bank wrongfully swept stimulus funds from checking account and offset line of credit with those funds before debt matured, unilaterally changed revolving line of credit to non-revolving, allegedly causing company’s demise… Plaintiff entitled to only ordinary tort damages for wrongful setoff, absolving debt obligation and awarding amount of setoff in cash would be impermissible recovery… any consequential tort damages caused by unilateral change of terms of original loan and/or Change in Terms Agreement are fact issues for jury) Kelly Logging v. First Interstate Bank, 8/23:6
Lien priority: (senior lienholder not required to counterclaim for foreclosure of security interest to retain priority… sufficient documents in pleadings to establish current beneficiary in chain of assignments despite stricken untimely witness/exhibit list) Ruby Valley NB v. Wells Fargo Delaware Trust, 2/1:1
Note: (regardless of whether requiring written notice of intent to exercise reset of balloon loan was contract of adhesion, it was within reasonable expectation of realtor, not unduly oppressive, unconscionable, or against public policy, not violative of CPA… late disclosure of lender merger harmless under new Rule 37, sanctions properly denied) Doherty v. FNMA, 3/22:2; (Defendant’s claim that he owed nothing on note because he did not sell Plaintiff’s house within time/amount conditions resulting in $40,000 recovery on $259,520 sale properly rejected on summary judgment) Gertson v. Nash,12/13:1
*Bankruptcy
Adversary proceeding: (employee’s claims of fraud and intentional/malicious injury arising from “incubation agreement” and profit sharing rejected as exception to employer’s discharge) Meikle v. Olsen, 9/6:6
Defective trust indentures: (properly treated as mortgages), Brandon v. GMAC Mortgage, 6/21:6
Procedure: (appeal of Kirscher’s dismissal of liquidation plan properly dismissed as untimely… no appellate standing as to confirmation order or exculpation clause) BLX Group, 8/30:4; (appeal from Bankruptcy Court’s denial of motion to vacate preliminary injunction moot) Yellowstone Mountain Club, 10/18:4
Sanctions: (alternative sanctions of liability of greater of $13,820,139.84 or value of property and bond in like amount remedial in nature, not criminal, terminating sanctions may be avoided by posting bond) Yellowstone Mountain Club, 10/18:4
*Bench Judgments
Farm/ranch lease: (failure to pay electricity bill not a material breach warranting default… property on ranch belonged to lessee… attorney fees to lessee below and on appeal) LR Ranch v. Murnion, 10/11:1
Insurance coverage: (claims of negligent entrustment/supervision of son who stole death car from parents precluded by home policy exclusions for injury arising out of ownership/use of parents’ car, failure to prove exclusion ambiguities or gross negligence… judgment for insurer as to coverage after $750,000 consent judgment for parents of deceased passenger and remand from summary judgment against insurer) State Farm Fire & Casualty v. Schwan, 10/11:7
Partition: (sisters’ Flathead Lake property partitioned following Supreme Court ruling that hearing is required on referees’ report… partition proposed by referees including bisecting cabin set aside as substantially inequitable, partition proposed by Defendant’s appraiser adopted awarding her portion with cabin and improvements she has used/maintained throughout her life contrasted with Plaintiff’s lack of use/maintenance) Britton v. Brown, 8/30:2
*Church
Church property: (local faction voting 71% to leave hierarchy over homosexual clergy properly precluded from taking property for failure to attain 90% per local constitution, property to remain with minority members, except for cash titled under name of foundation as no trust established… new group improperly denied prejudgment interest on cash, also entitled to postjudgment interest… UDJA fees properly denied for lack of equitable showing) New Hope Lutheran Ministry v. Faith Lutheran Church of Great Falls, 3/15:3
*Civil Procedure
12(b)(6) dismissal: (of complaint against health insurer granted) Bunkers v. Bozeman Deaconess Hospital, 3/15:6
Amendment: (untimely motion to add punitives component fails Rule 16(b)(4) good cause) Ferrell v. Nelson Trucking, 2/22:8; (Defendant should have been allowed to amend answer as soon as mistaken admission was brought to his attention by motion for judgment on pleadings) Stafford v. Fockaert,4/26:2; (amendment to state negligent misrepresentation against supplier of log home materials properly denied as untimely and following summary judgment on home defects claim) Linn v. D&E Const., 12/20:2
Choice of law: (Colorado proper forum to adjudicate claim of Coloradoan based in Colorado discharged by Montana employer… claim analyzed under contract, not tort, principles) Cash v. Montana Silversmiths, 3/29:3
Counterclaims: (Defendant who was sued as individual by corporation may only counterclaim as individual, not as shareholder, counterclaims for corporate dissolution, breach of fiduciary duty dismissed as improper counterclaims… counterclaims for possession, declaratory relief, injunction as to property in which corporation no longer has interest dismissed per Rule 13(h) as joinder of new parties not anchored to counterclaim against original party) Frank DeHaan Inc. v. Robert DeHaan, 2/15:4
Default: (set-aside properly denied in vehicle repair dispute which grew from $4,139 repair bill to $13,454 judgment) Jerry’s Transmission v. Starr, 5/17:4
Discovery: (late disclosure of lender merger harmless under new Rule 37, sanctions properly denied) Doherty v. FNMA, 3/22:2; (amount of insurance subrogation deemed admitted under Rule 36(a)(3) for untimely response to RFAs) Estate of Miller, 4/5:6; (stay pending completion of discovery properly denied, hope of finding smoking gun insufficient to extend discovery) Miller v. Goetz, 6/14:1; (records subpoena quashed as to bank information of LLC members who are not parties to legal malpractice suit and who assert privacy) H&H Development v. Hammer, 10/4:3; (default judgment on liability, expenses for non-compliance with order, preliminary injunction against competitors for intentional spoliation of computer information, discovery abuses in Internet freight brokerage suit) Freightmonster.com v. Miller, 10/4:4
Dismissal: (dismissal without prejudice of constructive discharge suit for failure to name proper party is appealable as refiling would be time-barred… amendment to add County without deleting Sheriff’s Office improperly denied) Seamster v. Musselshell Co. Sheriff’s Office, 4/12:1; (appeal to District Court properly dismissed for failure to appear at omnibus/indigency hearing) Ziolkowski, 4/12:6; (no “motion for reconsideration,” but sufficient basis articulated for reconsideration of dismissal under Rule 60(b)(6)) Miller v. Lancaster, 6/7:3; (additional materials offered in response to 12(b)(6) motion does not automatically convert to summary judgment, thereby extending response deadline… motions to dismiss correctly granted for untimely response)Slagter v. Citibank, 10/18:2
Execution: (attorney sanctions properly paid, albeit to petitioner’s attorney (who offset legal bill) rather than directly to petitioner) Ayers v. Nygren,6/14:1; (conversion, abuse of process, wrongful levy claims against law firm alleging wrongful seizure of everything in home “not nailed down” to leverage settlement of $482,499 land sale verdict improperly dismissed for failure to state claim… constitutional claims properly dismissed… judgment on pleadings improperly granted for judgment creditors) Salminen v. Morrison & Frampton, 12/6:1
Foreign judgment: (reopening of Arizona divorce judgment 6 years later properly denied as untimely) Miller, 4/26:4
Joint/several liability: (properly found between individual/entity defendants in light of inconsistent positions in contract/fraud actions) Larson Lumber v. Bilt Rite Const. & Landscaping, 3/15:1
Judicial admissions: (store’s response to motion for sanctions for lost video of slip & fall contained judicial admissions as to what video would have shown, improperly precluded at trial… defense verdict reversed, remanded for new trial) Bilesky v. Shopko, 11/22:1
Jury: (challenge of jurors for cause properly denied) Peterson-Tuell v. First Student Transportation, 11/29:1
Lis pendens: (title to lots correctly held to be knowingly taken subject to lis) LeMond v. Yellowstone Development, 7/19:2
Offer of judgment: (offer of judgment proceeds in highway inverse condemnation dispute properly awarded to buyer of property on contract as settlement was between buyer and MDT, not to owner who did not participate in the litigation in any meaningful way and failed to prove that any part of the judgment proceeds constitutes Art. II §29 compensation) GEQ v. MDT, 2/22:3
Order of protection: (cyberstalking stemming from blogging properly found to not warrant TOP) Windsor v. Boushie, 4/26:2
Punitives review: ($240 million punitives for 2 deaths from head-on MVA found to be caused by Hyundai steering defect reduced to $72,960,012 (9:1 ratio)… cap unconstitutional, but if upheld by MSC, punitives should be $10 million against knuckle manufacturer and $10 million against vehicle marketer) Olson v. Hyundai Motor Co., 9/27:5
Requests for admission: (request to withdraw or amend under new Rule 36(b) improperly denied as legal malpractice Defendants failed to show prejudice by mere reliance on RFAs for summary judgment (1st impression)) Bates v. Anderson & Bliven, 1/18:1
Res judicata: (petition to reopen probate alleging fraud by PR and newly discovered tangible personal property not precluded under by res judicata by prior dismissal of breach of fiduciary claim “with prejudice” for lack of subject jurisdiction (1st impression)) Benjamin, 9/13:1
Sanctions: ($81,688.26 fees/costs under Rules 11 & 37 and §37-61-421 against Plaintiff & counsel for abuses in credit defamation suit claiming $650,000 arising out of collection of $1,113.12 dental bill) Serrania v. LPH, 1/11:4; (claimed lack of proper notice of reasonableness hearing defeated by Court setting “a different time” per 6(c)(1)(C)… $30,041 judgment for attorney on website defamation claim including fees assessed against Defendant for improper appeal affirmed) Geiszler v. Sayer, 2/1:2; (equivocating admission of liability for train collision not violative of Rule 11, but continuing to assert contributory negligence after clearing conductor of wrongdoing for collision caused by other employee’s switch error requires sanctions, form to be determined post-trial) Schnittgen v. BNSF, 10/18:3
Statute of limitations: (failed subdivision claims time-barred, claim against partner over “note” used in unsuccessful attempt to obtain financing properly rejected on the merits) Palmer v. Quinn, 3/8:2
Summary judgment: (hearing properly denied for failure to file response brief under amended 56(c)(1)(B), summary judgment properly granted lawyers on deceit, malice, conspiracy claims) Miller v. Goetz, 6/14:1
Vacatur: (“equitable balancing” should be applied to determine whether Ridley ruling in favor of insurer should be vacated following insured’s confession of judgment on appeal in excess of policy limits, to preclude adverse impact on separate common law bad faith claims) Ayotte v. American Economy Ins.,6/21:5
*Commerce
Credit report: (arrearage from agreement to pay higher retroactive support, timely paid pursuant to statute, not “delinquent” or “overdue,” but claim that employment lost by CSED’s report of delinquency to credit agencies barred by failure to exhaust… private right under SCRA, §1983, FCRA claims rejected… injustice to Airman with exemplary military and support records recognized, remanded to require CSED to forward Opinion to credit agencies with request to delete erroneous information) Kenck v. CSED, 1/4:1
*Constitutional Law
§1983: (claims against Detective in drug defendant suicide survive summary judgment… objections to Erickson’s recommendations sustained, denied)Peterson v. Missoula, 8/23:7
Firearm possession: (precluded for discharged felon by virtue of not being able to obtain concealed weapon permit) Van der hule v. Holder, 8/2:7
Open meetings/participation: (summary judgment for newspaper improperly granted on disputed facts including whether 4th School Board member’s presence in audience of budget subcommittee transformed subcommittee into un-noticed quorum of full Board to decide salary of principal applicants)Boulder Monitor v. Jefferson High School Dist., 1/18:4
Right to know/participate: (County resident has standing to challenge Commissioners’ policy, adopted in allegedly unannounced meeting, of letting officials receive cash in lieu of health insurance contributions, Fleenor overruled to extent it conflicts, standing reviewed sua sponte… equitable tolling of 30-day statute adopted to allow claim that delay in suing was due to concealment of Commissioners’ actions for 4 years) Schoof v. Nesbit, 1/18:3; (no reasonable expectation of privacy in documents underlying termination of ExpoPark manager who brought WDA suit) Bracco v. Cascade Co., 7/26:7; (Ravalli Treasurer’s investigative/ discipline documents from prior Missoula school employment as food supervisor ordered released to media, other documents with significant private information not released… Media Respondents’ request for fees/costs denied) Missoula Co. Public Schools v. Bitterroot Star, 8/2:6
Right to participate: (claims against City stemming from order of protection against disruptive citizen properly dismissed on summary judgment) Horning v. Polson, 2/1:3
*Contracts
Copier lease: (lessor had “reason to know” that individual who signed lease was agent, individual not liable for principal’s breach) Empire Office Machines v. Demaray, 4/12:2
Failed subdivision: (claims against City, engineers, contractor time-barred, contract claim against partner over “note” used in unsuccessful attempt to obtain financing properly rejected on the merits) Palmer v. Quinn, 3/8:2
Farm lease: (claims dismissed for statute of frauds) Benjamin v. Benjamin, 1/4:3
Land contract: (void as impracticable because subdivision in forest illegal, not saved by intent to challenge law… Montana jurisdiction proper over contract signed in Idaho) Voit v. Mertz, 5/10:4
Real estate: ($28,517 wrongfully retained “overrides” properly awarded Defendants in real estate satellite office dispute, $165,085.50 fees/costs properly awarded pursuant to contract, plus appeal fees/ costs) Floberg Companies (Prudential Floberg Realtors) v. LeCois Ltd (C Mor Real Estate, 5/17:2
Road: (requiring continued work pending approval of change order not against public policy… change order properly denied for failure to give timely notice of nonconforming subsurface) JEM Contracting v. Morrison-Maierle, 2/8:1
Subdivision-related road improvements: (waiver of right to protest SIDs for subdivision-related road improvements constituted contract between predecessors, no need to resort to “operation of law,” but provision for alternate financing if no SIDs void for lack of certainty, party unilaterally making improvements not entitled to reimbursement, also time-barred) Covenant Investments v. First Security Bank, 1/25:1
*Corporations/LLCs
Close corporation: (Oppression claim properly withdrawn from jury after parties rested… 3 dissenters who cannot demonstrate adverse & material effect of voting rights amendment not entitled to recovery for value of class B shares, 1 dissenter is entitled to recovery… appeal by family members not mooted by some dropping out) Wyo-Ben v. Bixby, 12/27:1
Dissolution: (sale of Internet provider to high bidder for $502,000 approved) Glacier Electric Cooperative v. Johnson, 1/4:5
LLC: (challenge of ruling that principal cannot represent LLC in her own name, claim that attorney for Defendant was not attorney of record, request for sanctions for alleged collusion between attorney and Judge, rejected) Sayer v. Boyle, Deveny & Meyer, 2/1:4
*Courts
Amendment: (no jurisdiction to amend order to provide jail for failure to pay $2,500 sanctions 1½ years after matter should have terminated when party failed to appeal) Davenport, 4/26:5
Consolidation: (challenge to name change properly consolidated with other divorce-related cases over claim of denial of right to substitute judges) Tucker v. Allen, 5/3:3
Contempt: (husband not in contempt for failing to pay military retirement to wife as any obligation did not arise from decree… wife properly found in contempt for son’s destruction of husband’s baseball memorabilia) Marriage of Novak, 3/22:4
Ex parte: (communications by AG, MHP, Sheriffs, CAs re 24/7 Sobriety Program unconstitutionality order rapped, contempt cautioned) State v. Spady,8/16:5
Forum selection: (Colorado proper forum to adjudicate claim of Coloradoan based in Colorado discharged by Montana employer… claim analyzed under contract, not tort, principles) Cash v. Montana Silversmiths, 3/29:3; (dispute between California entities over avian conditions at Montana wind farm should be resolved in California pursuant to mandatory forum selection clause in one contract, permissive clause in another… interpretation under California law… supervisory control reversing Gilbert) San Diego Gas & Electric v. Gilbert, 7/26:2
Fraud on court: (claim in attorney fee collection properly rejected based on res judicata, law of case, waiver following prior default judgment affirmance)Wittich Law Firm v. O’Connell, 3/8:1
Judge substitution: (properly denied following remand of mining injunction order where remand order did not address grant of summary judgment contained in same motion) Mines Management v. Fus, 9/27:1
Judicial conflict: (claim that Curtis had conflict in ruling on directed verdict on incest for failure to prove marriage to stepdaughter’s mother when she had previously granted default divorce waived by failure to raise in prior appeal… successor Allison had impermissible conflict in ruling on postconviction petition when he had represented mother in the divorce (1st impression under CJC), remanded for petition anew under new judge
Judicial estoppel: (joint/several liability properly found between individual/entity defendants in light of inconsistent positions in contract/fraud actions)Larson Lumber v. Bilt Rite Const. & Landscaping, 3/15:1
Judicial notice: (no abuse of discretion by taking judicial notice of CSED’s income determination in another support case or by refusing to take judicial notice of the truth of its underlying facts) Marriage of Scanlon, 4/19:2
Judicial standards: (Baugh’s comments at statutory rape sentencing that 14-year-old student was as much in control as 47-year-old teacher and older than her chronological age inconsistent with Montana legal consent law, attempt to retract sentence and rationale inconsistent with Montana law, made inappropriate statements attempting to justify actions, admitted that he violated CJC. JSC recommendation of public censure adopted, plus 31 days suspension without pay at end of term) JSC v. Baugh, 6/7:3; (JSC preliminarily enjoined from contempt proceedings if Plaintiff discloses complaint against Judge and letter notifying of dismissal) Cox v. JSC, 10/4:6
Judicial usurpation of power: (denial of discharged Defendant’s permission to apply for passport a judicial usurpation warranting mandamus) US v. Faherty, 5/17:8
Jurisdiction: (jurisdiction over out-of-state Defendants improperly decided without hearing on disputed fact issues as to alter ego/successor theories… supervisory control of Allison accepted) TC Fuel Components v. Allison, 2/8:2; (Justice Court jurisdiction limited to eviction, no jurisdiction over counterclaims alleging breach of contract, relief from forfeiture because of asbestos on property, asbestos damage… appeal to District Court similarly limited) Wise v. Polejewski, 3/8:3; (Request for intervention in proposed grassroots lobbying ads declined under Younger, not justiciable due to ripeness/standing concerns) Montanans for Community Development v. CPP, 3/29:7; (personal jurisdiction over Florida wire fraud Defendants not established by Montana Plaintiff’s single act of authorizing Montana bank to wire funds to Defendant in Florida) Tackett v. Duncan, 9/27:1
Recusal: (claims of ex parte communications, rulings denying due process, biased statements rejected as attempt to wriggle out of unfavorable decision by smearing judge) Blixseth v. Yellowstone Mountain Club, 2/22:6; (successor Judge should have disqualified himself after having represented the CASA/GAL in the same case) BWS, 8/2:4
Removal: (pre-service removal by Montana Defendant in pedestrian/vehicle suit improper under “forum defendant rule,” remanded… fees/costs to Oklahoma Plaintiff denied due to unsettled law, inconsistent holdings) Talbot v. Tokarski, 12/6:5
Res judicata (different judgments by different judges as to same road anomalous but each addressed different sections based on records reflecting differing practices & histories, revisit of prior Opinion affirming 1st judgment barred by res judicata) Lewis & Clark Co. v. Schroeder, 4/26:1
Sanctions/vexatious litigant: (frivolous claims against eBay rejected, “insufferable nuisance” declared vexatious litigant, enjoined from further filings in 8th Judicial Dist. without leave, other restrictions, sanctioned for false in forma pauperis affidavit) Chapman v. eBay, 1/18:6; (request to declare Plaintiff vexatious litigant denied, but Court may seriously consider it in future) Chapman v. Maxwell, 2/15:2
Supreme Court: (candidate’s admission to practice in 2005 satisfies Constitution requirement that a justice be “admitted to the practice of law in Montana for at least five years prior to the date of appointment or election” notwithstanding his choice to take inactive status for some of those years) Cross v. VanDyke, 7/26:1
Summary judgment: (improper for intentional failure to file response brief to leverage a settlement without Rule 56 analysis, but de novo review reveals no fact issues that would preclude summary judgment on medical defamation claims) Chapman v. Maxwell, 2/15:2
Treatment court: (confidential drug test information elicited by honesty admonitions improperly disclosed to law enforcement to investigate a new offense (1st impression)… possession conviction reversed, vacated) Plouffe, 7/19:4
*Crime, Criminal Procedure
Aggravated assault: (challenge to PFO designation, photos depicting mother’s injuries, rejected) Ward, 3/8:5; (attorney’s signed motion for bench trial, ratified by Defendant’s failure to object, satisfied requirement for written waiver of jury… unobjected right to presence claims must be preserved for review by established method such as plain error, no plain error in Defendant not being present at video deposition which was played at trial… despite failure to specifically identify which definitions of purposely and knowingly were applied, sufficient evidence to infer that Defendant acted purposely and knowingly as to the result of serious injury of infant… conviction affirmed) Reim, 4/26:5; (challenges to jury selection, refusal to declare mistrial, and evidence admitted under transaction rule rejected… convictions affirmed) Johnson, 5/31:4
Animal cruelty: (plain error review declined on constitutionality/specific unanimity claims… search warrant for dog breeding operation not overbroad, volunteers not impermissibly allowed to assist execution… all dogs properly forfeited, not just charged dogs… conviction/ sentence affirmed) Chilinski,8/16:4; (sufficient evidence that horses were in Defendant’s “custody” following foreclosure… conviction affirmed) Leachman, 9/13:4
Assault: (alleged threats/conduct prior to charged assault properly allowed under transaction rule… conviction affirmed) Lamarr, 8/23:4
Assault with weapon: (jury properly instructed that it must agree that either of 2 alleged victims or both suffered reasonable apprehension but need not identify the victim… justifiable force properly limited to gun charge, not extended to pool cue… rebuttal properly allowed to impeach defense witness… speedy trial claim properly denied… convictions affirmed) Redlich, 3/15:5; (lab scientist properly allowed to present DNA evidence… insufficient support for excusing Clerk of Court employee for cause… no abuse of discretion in finding knowing waiver of counsel despite psychiatric testimony that Defendant was “more likely than not” in psychotic state at hearing) Chyatte, 5/24:3; (challenges to jury selection, refusal to declare mistrial, and evidence admitted under transaction rule rejected… convictions affirmed) Johnson, 5/31:4; (conviction affirmed over claim of justifiable force in dispute over trailer house) von Koenigsberg-Tyrvaldsen, 6/28:3; (plain error review declined as to failure to immediately assign counsel… instructions as to reliability of cross-racial IDs vis-à-vis which of 2 blacks was shooter properly declined… evidence of stock of condoms in van harmless error… detective’s testimony about reactions of others to GSR testing properly admitted… testimony that it was rare for witnesses to ID suspects from photo line-ups properly admitted… photos/videos depicting vantage points of witnesses properly admitted… Judge’s comment to witness was instruction, not improper comment on credibility… convictions affirmed) Zlahn, 8/30:1; (no prejudice by absence from uncontested fitness proceeding where no reasonable probability that presence would have altered conclusion that Defendant was unfit and prosecution did not resume until he was found fit… although not informed by Judge of a number of rights, Defendant received the actual realization of those rights, plain error review of initial appearance deficiencies declined) White,12/27:3
Bighorn sheep filming: (sufficient evidence of filming hunt in national forest with film/still camera without permit despite no recovery of video) Lewton,6/21:8
Burglary: (sufficient facts that Defendant broke into house with intent to commit custodial interference by taking grandchildren, not necessary to allege custodial interference facts) Moullet, 10/11:3
Child pornography: (Level III sex offender designation properly imposed… legal fees/expenses not pronounced orally improperly imposed in written judgment… 4 days time served promised but not credited) Capes, 4/12:6; (prior state sexual assault conviction properly considered in sentencing) Miller,6/28:6; (50 years proper for images of sadistic conduct, properly imposed consecutive to state sentence, no basis or authority to reconsider Circuit’s review standard) Shouse, 7/5:6
Citizen’s arrest: (sufficient probable cause/exigent circumstances for off-duty officer working as festival security guard to detain unruly/potentially dangerous person, jailable offense not required) Iosofa, 8/23:4
Confession: (statements underlying felony-murder charge properly suppressed as made with reasonable belief and deceptive assurances of immunity… new trial properly granted following conviction, with statements to police and trial testimony to be suppressed) Old-Horn, 6/28:1
Continuance: (day and half to accommodate traveling burn expert to support claim of accidental scalding of child in tub improperly denied… aggravated assault reversed, remanded for retrial) Gleed, 6/14:2
Cruelty to animals: (sufficient evidence that owner should have been aware of risks to horses in small trailer without adequate food, water, medical… sale or adoption at County’s discretion properly ordered with any sale proceeds to be applied to restitution for care of horses… in absentia bench trial conviction affirmed) Beaudet, 6/14:5
Discovery: (once sex-offenses Defendant invoked right to DPHHS files of alleged victims, Judge was required to conduct in camera review to ascertain if they contained exculpatory information… appeal of conviction dismissed without prejudice, remanded for in camera review) Johnston, 12/20:4
Disorderly conduct: (sufficient evidence that Defendants disturbed peace by directing racial epithet toward single person from their car on public street (Cmts requiring more than single person inaccurate)… “spic bastard” fighting words, not constitutionally protected) Nelson, 4/26:4; (“fuck you” directed to 13-year-old constituted “fighting words,” conviction affirmed… (case similar to “spic bastard” conviction of Defendant’s mother)) Oltrogge, 5/24:3
Double jeopardy: (not implicated by endangerment and lesser-included assault convictions) Zink, 3/1:5
Drugs: (Defendant properly found not to possess firearm in connection with marijuana offense, but role enhancement/safety valve inadequately analyzed)Washington, 6/28:5
DUI: (no specific support for eve-of-trial complaints about lawyer, claim of inadequate inquiry into substitution rejected… challenge of $800 counsel costs not preserved for appeal… written judgment failed to credit $100 fine with time served, $75 surcharges improperly imposed for open container) Petersen,1/11:3; (intent to not move vehicle irrelevant to absolute liability offense, Defendant sleeping behind wheel properly convicted of per se DUI) Rand,3/8:6; (61-8-403 reinstatement procedures prevail over Rule 12 responsive pleading requirements, State not required to respond to petition prior to hearing… acquittal of DUI not preclusive as to reinstatement… license properly suspended based on DUI indicia and reasonable grounds to believe Defendant had been driving truck found backed into building) Ditton, 3/15:4; (warrant for blood draw properly based on probable cause, not prior BAC test refusal or alcohol dissipation… privacy, rack & pinion challenges rejected) Giacomini, 4/19:5; (sufficient evidence to convict driver of car found parked while driver went for gas) Pickens, 6/14:4; (observation of driving given deference over video, citation to wrong statute not relevant to particularized suspicion) Schaeffer, 6/28:3; (blood sample properly obtained by warrant following refusal to cooperate in sobriety tests under 2009 implied consent statute) Minett, 8/30:2; (particularized suspicion for stop properly found based on testimony/video of erratic driving) Daniels, 10/11:5; (particularized suspicion to stop based on erratic driving in early morning near bars) Hansen, 10/11:5; (City ordinances making refusal to provide breath/blood test a misdemeanor subject to $500 fine not in conflict with state law, do not impair freedom of speech… refusal of PAST did not preclude post-arrest breath test with consent) Armitage, 10/18:3; (instruction from prior opinion that “it does not matter that the vehicle is incapable of moving” rejected, totality of circumstances test for “actual physical control” of disabled vehicle adopted… 4th-DUI conviction reversed, remanded for reconsideration of motion for acquittal of Defendant whose truck in which he was found intoxicated in parking lot was allegedly incapable of moving due to broken driveline) Sommers, 12/13:5
Elder exploitation: (testimony of victim at competency hearing properly excluded from trial where deteriorating health precluded testifying… conviction affirmed) Homer, 4/12:4
Electronic monitoring: (Goetz applied retroactively to drug prisoner who diligently asserted claims, monitored “evolving” Goetz jurisprudence, sought relief each time retroactivity principles modified… habeas granted to remand for opportunity for State to show whether sufficient evidence without monitoring evidence to sustain conviction) Paranteau, 4/12:6
Endangerment: (double jeopardy not implicated by endangerment and lesser-included assault convictions… criteria for prison alternatives addressed, so not ineffective assistance to not formally invoke statute) Zink, 3/1:5; (negligent endangerment a lesser included of criminal endangerment (1st impression)… evidence could support either, jury should have been instructed on negligent… conviction reversed, remanded) Shegrud, 4/12:5; (sufficient evidence that DUI driver “knowingly” struck truck/trailer that was backing into driveway regardless of whether jury was provided incorrect conduct-based rather than result-based definition for endangerment) Mahoney, 9/13:5
Felony murder: (substantive due process challenge of deliberate homicide by assault of infant not preserved for appeal, not reviewable under plain error, but prior opinion held that assault on minor can support felony murder) Hyslop, 2/1:5
Fitness to stand trial: (not automatically precluded by developmental disability… factual determination by Simonton that murder/kidnap Defendant is fit not amenable to supervisory control) Spell, 10/11:4
Habitual domestic violence: (indictment dismissed for use of uncounseled Tribal Court convictions as predicate offenses under 18 USC 117(a)) Kirkaldie,5/24:5
Hobbs Act robbery: (conviction affirmed) Dennis, 6/28:5; (mistrial properly denied for US’ misstatement of law as to firearms stipulation) Gant, 6/28:6
Impeachment: (rebuttal properly allowed to impeach defense witness) Redlich, 3/15:5
Incest: (request to examine accuser as to prior accusations properly denied for lack of showing of falsity… intoxication instruction based on prescription medications proper… new trial properly denied based on juror’s failure to disclose childhood incest incident… parole conditions, indeterminate future medicals, costs of incarceration improperly imposed) Ring, 3/1:4
Ineffective assistance: (failure to object to conduct-based mens rea instruction for tampering more amenable to postconviction) Golie, 2/1:6; (postconviction counsel challenging his own trial performance raises ethical questions that should be addressed at outset… claims properly rejected for lack of showing of prejudice by incest Defendant) Stock, 3/1:4; (attorney not ineffective by motions to dismiss which alerted State to purported charging error, prompting it to amend, but Defendant could have been convicted of distribution accountability regardless of amendments) Carter, 4/12:5; (motion to substitute counsel following revocation hearing properly denied) Azure, 4/26:7; (trial counsel not ineffective for not calling DNA expert, appellate counsel not ineffective in addressing hearsay which, if improper, was harmless) Golden, 6/7:7; (lawyer not ineffective in relation to failure of police to obtain rape exam of massage client or fingernail scrapings of masseur accused of inserting finger in vagina, or in withdrawing proposed lesser-included sexual assault instruction) Taylor, 6/14:3; (claim based on disciplinary action against attorney properly rejected as improper 2nd motion) Kenfield, 7/5:4; (counsel not ineffective) McGarvey, 7/26:5; (claims as to ineffective assistance of trial counsel in not delivering pathologist report refuting autopsy conclusion of strangulation and of appellate counsel in filing Anders brief properly denied) Haagenson, 8/23:5
Initial appearance: (although not informed by Judge of a number of rights, Defendant received the actual realization of those rights, plain error review of initial appearance deficiencies declined) White, 12/27:3
Instructions: (Deschamps erred in instructing on elements of marijuana distribution prior to opening, but Defendant not prejudiced) Otto, 2/8:3; (jury sufficiently understood general “knowingly”/“purposely” instructions to convict of robbery, sexual assault, rape, attempted kidnap, tampering) Peltier,2/8:3
Insurance fraud: (conviction, $25,079.97 restitution, for roofing claim affirmed) Schaeffer, 3/1:3
Junk vehicles: (sufficient circumstantial evidence that vehicles were junk) Walter, 8/9:3
Jury: (Judge’s questioning not attempt to prompt panelist to recant initial statements, but to clarify extent experiences with law enforcement would impact ability to fairly judge witness credibility, not improper rehabilitation, removal for cause properly denied) Johnson, 1/25:2; (attorney’s signed motion for bench trial, ratified by Defendant’s failure to object, satisfied requirement for written waiver of jury) Reim, 4/26:5; (challenge properly denied) Johnson,5/31:4; (challenge for cause of prospective juror whose daughter had been victim of sexual violence properly denied) Cudd, 6/7:6; (failure to personally appear at time set for pretrial hearing properly deemed waiver of jury… claimed mistake as to time insufficient excuse) Loberg, 6/14:6; (challenges to 3-weeks mid-deliberations adjournment, right to be present when Judge went into hall to investigate juror/witness contacts, jury pool procedures not preserved) Robertson, 10/25:3
Justifiable force: (properly limited to gun charge, not extended to pool cue) Redlich, 3/15:5; (Defendant may not offer interview statement made 4 months after shooting to prove that at time of shooting he knew of instances of violence by deceased as told to him by woman deceased had allegedly abused… no hearsay exception… supervisory control reversing Olson) State v. Olson, 7/19:5; (justifiable force in bar altercation properly rejected… criminal endangerment conviction, $324,215 restitution affirmed) Erickson, 11/22:2
Mail fraud: (judgment of acquittal following jury conviction of fraudulent claims under white glove mansion policy reversed) Didier, 12/6:5
Nonsupport: (prosecutorial misconduct, vindictive prosecution, IAC postconviction claims properly rejected based on plea agreement waiver and on the merits) Taylor, 4/26:6
Obstruction: (sufficient evidence that intoxicated passerby asking for ride impeded traffic stop despite officer’s view of no intent) Eisenzimer, 8/23:3
PFMA: (niece not “family member” of Defendant because she did not reside in his household (1st impression)… conviction reversed) Gregori, 7/5:3
PFO: (challenge to PFO designation rejected) Ward, 3/8:5
Plea withdrawal: (sentencing recommendation in ambiguous plea agreement properly rejected without opportunity to withdraw… ineffective assistance claim more amenable to postconviction) Olson, 1/25:3; (claim that nolo plea not authorized in sex cases waived by failure to raise below… claim of coerced plea in online chat sting properly rejected) Paisley, 4/26:6; (properly denied despite counsel’s concession that advice as to PFO potential was erroneous) Hendrickson, 5/31:3; (Defendant’s recently regained memory that he was not driving insufficient evidence of innocence to overcome time bar on withdrawal of nolo plea to vehicular homicide while under influence) Shepherd, 6/14:6; (denied for Defendant sentenced to 135 years for casino robbery and rampage in 1998) Middlemis, 7/5:4; (plea withdrawal based on “new evidence” of no semen in 1991 rape exam, no injuries consistent with “two hour brutal rape,” properly denied) Kinlock, 7/12:4; (full 46-12-211(4) advisory must be given at time Judge notifies Defendant that he is rejecting plea agreement, not part at plea change hearing and part at sentencing hearing (1st impression)… sentence vacated) Zunick, 9/13:4; (guilty plea to sexual assault of child by “unbright” but not retarded defendant properly denied… motion time started from amended judgment) Garner, 12/6:4; (PSI statement that Defendant was “thinking about withdrawing my plea” properly not construed as motion to withdraw… Judge not mind-reader) Diamond, 12/20:4
Postconviction: (out-of-time petition properly rejected for failure to proffer new evidence that sexual assault Defendant may have been incompetent or unfit at time of 2001 plea) Young, 2/22:4; (out-of-time petition properly rejected for failure to proffer new evidence that sexual assault Defendant may have been incompetent or unfit at time of 2001 plea) Young, 3/8:6; (denied for Defendant sentenced to 135 years for casino robbery and rampage in 1998)Middlemis, 7/5:4; (State did not fail to disclose exculpatory or impeachment evidence in double murder trial… counsel not ineffective) McGarvey, 7/26:5; (claims as to ineffective assistance of trial counsel in not delivering pathologist report refuting autopsy conclusion of strangulation and of appellate counsel in filing Anders brief properly denied) Haagenson, 8/23:5; (petition alleging ineffective assistance improperly summarily dismissed based on handwritten prison form petition in light of 25-page typed supporting memorandum… other claims properly dismissed) Hardman, 9/13:5; (motions stemming from 2010 revocation of 1997 statutory rape sentence properly rejected) Evert, 12/20:5
Presence: (unobjected right to presence claims must be preserved for review by established method such as plain error, no plain error in Defendant not being present at video deposition which was played at trial) Reim, 4/26:5
Prisoners: (sentencing judge may not direct administration of prison’s visiting rules for a particular inmate, motion to mandate regular visitation for family of sex offender correctly denied… but since State concedes that minor contact provisions in sentence apply only to probation, opinion directed to DOC for possible resolution) Boyles, 12/20:5; (sentencing judge may not direct administration of prison’s visiting rules for a particular inmate, motion to modify judgment of SIWC inmate so he can visit his children at MSP correctly denied… but since State concedes that minor contact provisions in sentence apply only to probation, opinion directed to DOC for possible resolution) Bailey, 12/20:6
Probation search: (search of purse proper in light of drug offense and deferred imposition medications condition, pills in purse properly not suppressed)Fischer, 5/10:6
Prosecutorial misconduct: (plain error review declined for claim of prosecutorial vouching) Walton, 3/1:2; (comment that drug Defendant did not “accept her consequences” improper but prejudice diminished by admonishment and instructions… plain error review denied as to “common sense” burden of proof statements) Jensen, 3/8:4
Rape: (evidence of previous assault/harassment of alleged victim properly admitted… plain error review of bad acts instructions declined… no ineffective assistance in not objecting to bad acts… conviction over defense of consensual rough sex affirmed) Crider, 6/7:5; (new trial should have been granted for use of newspaper article about prior molestation charge (of which Defendant was acquitted) to insinuate that Defendant was child molester and therefore more likely to have assaulted alleged victim rather than merely explain how article prompted her to come forward after 4 years) Franks, 10/11:2
Restitution: (properly imposed for money directly given to land investment theft by deception Defendant, excise taxes for early withdrawal of retirement, tax attorney fees… restitution improperly imposed for other tax obligations) Cerasani, 1/11:2; (improperly imposed jointly with other vandals for aggregate damages in 11-day spree when youth admitted to only 2 days) BW, 2/15:3; (improperly imposed for extradition costs when Montana escapee was “apprehended” by Idaho officers) Macy, 2/15:3; (indeterminate future medicals, costs of incarceration improperly imposed) Ring, 3/1:4; (insufficient evidence for restitution to repaint entire house to match repairs to attached garage damaged by DUI driver) Aragon, 4/19:4; (not discharged when prison sentence discharged, DOC authorized to garnish wages from unrelated incarceration) Ferre, 4/19:5; (for road rage injuries properly ordered in full amount of medicals/dentals, not offset by victim’s insurance) Fenner, 5/31:3; (properly awarded for items stolen from salvage yard and damage to driveway, improperly awarded for boats not included in charges, insufficient evidence of truck value) Simpson, 7/12:2; (properly based on store’s estimated losses from burglary) BB, 8/9:4; (not precluded by law of case, UDCR 2, restatement of conditions as recommendations to DOC, length of deliberate homicide sentence not based on time to pay restitution) Winter, 9/6:4; (restitution for sex abuse victims for 5 years per 2008 sentence not abated, properly extended 3 years pursuant to 2008 requirement for full payment) Passmore, 9/20:3; (consideration of resources/future ability to pay not required since 2003… future medicals improperly stated as unspecified amount up to a $25,000 cap, speculative evidence insufficient to support that amount, remanded for reconsideration) Hogsten, 10/25:4; (sufficient evidence to support restitution for damage to car from kick by petite girl) DDM, 11/1:4; (properly based on victim’s affidavit) Wunderlich, 11/1:4; ($29,859 restitution awarded to 1 victim in child porn bulletin board conspiracy out of $11,980-$16,400 requested from each of 13 Defendants, 0 to 2nd victim out of $150,000 requested from each Defendant, determined by “continuing traffic”/“relative causal role” equation) Wencewicz, 11/1:5
Revocation: (corroboration of parole violation admissions not required… corroboration via mother’s hearsay not violative of due process) Macker, 1/11:3; (proper despite no District Court appearance for 50 days and allegedly unreliable PSI history, considering arrest in Indiana, Justice Court appearances, appointment of attorney, lengthy history, requested disposition) Edmundson, 2/1:5; (sentencing dates including time-served properly calculated, revocation petition timely) Johnston, 3/8:5; (procedural challenges properly rejected) Weller, 6/28:3; (15 months substantively reasonable) Stewart,6/28:6; (properly supported by seized phones, other violations) Nauman, 7/5:4; (witnesses as to alleged victim’s credibility as to rape/PFMA properly limited to 3 rather than 7 requested by Defendant… regardless, revocation proper based on alcohol admission) Bergman, 10/11:4
Right to be present: (no prejudice by absence from uncontested fitness proceeding where no reasonable probability that presence would have altered conclusion that Defendant was unfit and prosecution did not resume until he was found fit) White, 12/27:3
Right to counsel: (infringed by insistence on expeditiousness in denying post-deadline motion for continuance to proceed to trial with counsel of choice… drug conviction reversed, remanded for re-trial) Osorio, 11/8:4
Sanctions: (no jurisdiction to amend order to provide jail for failure to pay $2,500 sanctions 1½ years after matter should have terminated when party failed to appeal) Davenport, 4/26:5
Seizure: (no objective data to support belief of “suspicious activity” that would warrant ID requests of occupants of vehicle in park parking lot, passenger’s meth should have been suppressed (youthful appearance of driver who turned out to not have license, caretaker doctrine, not given as reasons for stop)) Strom, 9/6:3
Sentencing: (written judgment improperly added parole condition of prison sex treatment to oral pronouncement… outpatient sex treatment as recommended in PSI properly imposed as condition of suspended part of sentence… adequate justification for 5-year parole restriction) Charlo, 2/1:6; (parole conditions, indeterminate future medicals, costs of incarceration improperly imposed) Ring, 3/1:4; (Sentencing dates including time-served properly calculated, revocation petition timely) Johnston, 3/8:5; (legal fees/expenses not pronounced orally improperly imposed in written judgment… 4 days time served promised but not credited) Capes, 4/12:6; (parole conditions may be treated as recommendations, not imposed… habeas granted) Walker,4/12:7; (amendment to remove counsel costs condition properly denied a decade after it was imposed, statute allowing request for remission “at any time” waived by failure to raise below) Byers, 4/26:7; (Defendant had notice of challenged conditions in written judgment which were adopted from PSI and opportunity to respond, request to limit conditions to oral pronouncement properly denied… appeal timely more than year after written judgment as restitution issue was reserved) Leskovec, 5/17:5; (rape defendant improperly re-sentenced to 90 years on remand from habeas PFO order in “bizarre procedural arrangement” in which neither he nor counsel was present at civil hearing, believing the criminal case had been stayed) McEvoy, 5/24:1; (Judge did not mistakenly believe she lacked authority for both secure treatment facility and deferred imposition for meth defendant) Peone, 5/24:2; (60 years for PFO improperly imposed by Langton separately to 60 years for rape/kidnap/ weapon… habeas granted) Whitlow, 6/28:3; (5-years for deceptive practices/PFO properly imposed consecutive to 14-year federal sentence, was not merely to assure restitution) Roll, 7/12:3; (sufficient evidence that jury made factual finding as to ages of victim (under 16) and Defendant (more than 3 years older) to satisfy felony enhancement under Apprendi) Ghostbear,8/2: 5; (1996 drug/PFO sentence illegal separate sentences under current precedent despite prior affirmation… habeas granted) 8/2:6; (sentence to MSP rather than DOC constituted rejection of plea agreement without opportunity to withdraw plea, remanded for correction or opportunity to withdraw)Nauman, 9/20:3; (judgment improperly omitted stay of restitution as pronounced orally… sex offender designation improperly imposed for theft… sex conditions improperly imposed based on rape conviction which was reversed and dismissed on remand, remanded for reconsideration of nexus) Rogers,10/4:2; (condition in written judgment that was not in oral pronouncement stricken) Robertson, 10/25:2; (endangerment for having child in DUI car not eligible for deferred imposition under prior felony rule exception where threat of injury (as opposed to risk) is element but no injury occurs… plea agreement that recommended deferred before prior felony discovered correctly not specifically enforced) Cleveland, 11/22:3; (Lenihan review of 1994 restitution/ reimbursement challenge declined as objectionable rather than illegal… claim that garnishment of tribal payments violates “bad men” provision of 1868 treaty not reached) White, 11/22:4; (365 months on remand for sex abuse of minor/attempted child pornography receipt substantively reasonable) King, 12/27:5; (sentence for controlled substance by deception within calculated Guidelines range, Defendant waived right to appeal… USA urged to consider more precise language in appellate waivers as to distinction between objection to calculation and request for downward departure)Johnson, 12/27:5; (claim that some meth was for personal use rather than distribution rejected) Renova-Castillo, 12/27:5; (62 months for assault with weapon substantively reasonable) Whiteman, 12/27:6; (remarks suggesting harsher sentence for assault on officer to set example for Tribe improper, remanded) Bulltail, 12/27:6; (upward variance imposed (not upward departure), Rule 32(h) notice not required… sentence 12 months above Guidelines for felon in possession of firearm substantively reasonable) Ames, 12/27:6
Sentence review: (applicant may not withdraw petition after hearing concluded (1st impression), but counsel was ineffective in urging more onerous sentence than imposed by Deschamps… increased sentence vacated, remanded for reinstatement of original… SRD affirmed, reversed (opinion & order))Averu v. SRD, 10/4:1
Sex abuse of children: (conditions restricting contact with minors properly imposed on Defendant with minor children) Simpson, 8/9:3
Sex offender registration: (failure-to- register conviction infirm as based on 2006 interstate travel while Defendant is pre-Act offender) Latterell, 8/30:5; (sentence to MSP rather than DOC constituted rejection of plea agreement without opportunity to withdraw plea, remanded for correction or opportunity to withdraw… disputed sex offender conditions recommended in prior sex assault conviction properly imposed for failure to register… “vagueness” of “pornography” not addressed) Nauman, 9/20:3
Sexual assault: (plain error review declined for claim of prosecutorial vouching… although Judge should have been more circumspect about bringing attention to background of mother who supported Defendant, his clarification of children’s multiple fathers did not call into question mother’s morality or impugn her testimony… conviction affirmed) Walton, 3/1:2; (postconviction DNA testing properly denied in light of strong eyewitness testimony of assault of child… §46-21-110(5)(3) does not authorize testing of previously untested persons or comparison of newly obtained DNA with federal databases… trial counsel not ineffective for not calling DNA expert, appellate counsel not ineffective in addressing hearsay which, if improper, was harmless) Golden, 6/7:7; (child properly allowed to testify out of presence of Defendant… forensic interviewer properly allowed to testify about child’s statements that were inconsistent with trial testimony… conviction affirmed) Pound, 6/14:4; (sufficient evidence that jury made factual finding as to ages of victim (under 16) and Defendant (more than 3 years older) to satisfy felony enhancement under Apprendi) Ghostbear, 8/2:X, (replaced opinion) 10/25:4
Speedy trial: (waiver of jury trial by unexcused failure to appear at pretrial conference, notice of consequences, prompt rescheduling of trial constituted good cause to hold bench trial 8 days beyond 6-month misdemeanor time) Lake, 2/22:4; (denied) Redlich, 3/15:5; (claim of burglary defendant in federal prison on unrelated charge improperly considered under IAD rather than 6th Amendment) Nickerson, 4/19:6; (challenge of dismissal without de novo review of Justice Court record as to speedy trial claim not preserved for appeal) Pickens, 6/14:4; (claim improperly denied for felony DUI Defendant whose case fell off Justice Court calendar and who failed to complain until after information filed in District Court 178 days after arrest and who wore SCRAM for 8½ months) Zimmerman, 7/5:3; (no good cause shown in not bringing misdemeanors to trial within 6 months over Judge’s finding that crowded docket was not good cause… remanded for dismissal of DUI) Broadwater, 7/26:5; (Defendant waived 6-month misdemeanor speedy trial violation claim by counsel requesting postponement, no need to address rationale for refusing to dismiss DUI transferred from City Court to District Court as felony) Christensen, 11/22:3; (737 of 918 days properly attributed to Defendant who “simply walked away from the process” and was not prejudiced… Sheriff’s Office not obligated to babysit defendants released pending trial… DUI/1-way street in absentia convictions affirmed) Hodge, 11/29:4
SS Fraud: (US failed to establish restitution amount resulting from lie as to marital status) US v. Milliron, 6/21:7
Statutory rape: (15 years, all but 31 days suspended, following revocation of deferred prosecution due to failure to comply with sex treatment statutorily inadequate for teacher who had sex with student, at least 2 years of 4-year minimum required… remanded for sentencing by different judge in light of Baugh’s suggestion that student had “control” of situation and was seemingly older than “chronological age” of 14) Rambold, 5/3:3; (challenge for cause of prospective juror whose daughter had been victim of sexual violence properly denied) Cudd, 6/7:6
Tampering/fabricating: (Defendant who falsely claimed rape properly charged with felony tampering with or fabricating “physical evidence” in the form of vaginal secretions from recent sex with husband to mislead officials into believing that ex-boyfriend had raped her, actual underlying rape not necessary, charge improperly dismissed) Nelson, 6/7:4
Theft: (sufficient evidence of theft of jackets) Robertson, 10/25:3
Theft/arson accountability: (failure to offer “mere presence” instruction to bolster theory that Defendant did not participate in crime constituted ineffective assistance warranting new trial… prosecutorial misconduct to urge jurors to rely on hearts, souls, centers, essences) Chafee, 9/6:3
Trespass: (VFD Board had no authority to suspend members or ban them from entering fire hall, trespass convictions vacated) Robertson, 10/25:3
Vindictive prosecution: (claim properly rejected) Ridge, 11/1:3
Violent offender registration: (relief from lifetime registration properly denied MSP felony DUI inmate who was convicted of cocaine in Florida during 10-year registration period from Maryland robbery with deadly weapon) Montagna, 9/6:5
*Discrimination
Disability: (heart condition brought about by stress from supervisory position at cement plant, did not substantially limit work in class of jobs, Plaintiff not considered disabled, himself determined he could not do job when he resigned (not constructively discharged), employer did not discriminate based on disability) Estate of Welch v. Holcim, 1/11:1; ($1,350,000 for failure to provide medications to jail inmate who died from DTs voided by irregularities of HRC attorney meeting individually with members following hearing and prior to award, initial order by Spear finding no discrimination reinstated as final decision) Blaine Co. v. Stricker (PR of Longsoldier), 3/22:5
Sex: ($119,926.94 including $100,000 emotional distress for 5 months of harassment of bartender that started with inappropriate language by co-owner, grew to ugly descriptions of proposed sexual contact, spun out of control into terrifying “sneak attack” sexual contacts… constructive discharge established, but retaliation not proven) Stover v. The Bum Steer, 4/5:7
Sex discrimination/retaliation: (claims barred by HRA exclusivity despite re-characterization as wrongful discharge, now untimely) Lay v. DMA, 8/16:6
*Elections
Initiative: (original proceeding challenge of AG’s approval of I-171 rejected) Hoffman v. AG, 4/5:2; (11th-hour petition to revise I-170 fiscal statement rejected) If You Like Your MSU Funding You Can Keep It v. AG, 4/19:3
Political committee disclosure: (election-eve request for preliminary injunction against enforcement of political committee disclosure laws denied)Montanans for Community Development v. Motl, 10/25:5
Referendum: (request to strike LR-126 because of improper reference to NVRA in ballot statement denied, but AG directed to revise statement) MEA-MFT v. AG, 2/8:2; (LR-127 title exceeds 100-word limit when counting statutory citations as words, not legally sufficient, enjoined from ballot… fees denied to Petitioners) MEA-MFT v. State, 3/29:1
*Employees
Benefits: (employer handbook not standardized group employment contract, sick leave bank payout terminable at any time… accrued leave not vested for employees with under 25 years, not deferred compensation or wages under Wage Act) Chipman et al v. Northwest Healthcare et al, 1/25:1
ERISA: (big HIPAA does not prohibit rating employers in purchasing consortium, preempts identical Montana statute, method of rating consortiums does not violate Montana’s little HIPAA… UTPA anti-discrimination statute cannot be used to challenge discriminatory rating… breach of contract claim cannot be maintained when it requires adjudication of matters for which there is no private right… Plaintiffs fail to state claim in complaint under SEHIAA, which in any event does not provide private right of action to directly challenge rating practices… Montana insurance code places primary enforcement duty with Commissioner… class/common fund claims moot… Plaintiffs suffered no actual damages, no basis for restitution of premiums… analysis of non-preempted state claim on remand from affirmance of other rulings… 2nd request for remand to State Court or certification to MSC denied) Fossen v. Caring For Montanans, 2/15:5; (felony exclusion not applicable to Interstate MVA in which insured and passenger were killed in collision with truck as unlikely that speeding and phone use would support negligent homicide or criminal endangerment particularly in light of possibility of truck driver failing to use hazard lights while slowed on hill… insurer must pay $83,000 accidental death benefit) O’Neal v. Life Ins. of North America, 4/19:8
Sheriff’s Retirement: (Deputy’s PTSD disability claim properly rejected based on psychologist’s medical records review and Sheriff’s testimony) Fauque v. PERB, 7/26:4
Wages: (storm chaser roofing salesman properly found to be owed $39,080 commissions, 55% penalty of $21,494) America’s Best Contractors v. Singh,4/12:3
*Environment
Bison hazing: (helicopter hazing of Yellowstone bison correctly found not harmful to grizzlies… AWR had standing, complied with citizen suit notice provision) Alliance for the Wild Rockies v. USDA, 11/29:6
CERCLA: (ASARCO’s request for contribution from Atlantic Richfield for $99,294,000 paid under 2009 consent decree for East Helena Site barred by 3-year statute) ASARCO v. Atlantic Richfield, 8/30:6
Flathead Forest logging: (preliminary injunctions logging properly denied) Friends of the Wild Swan v. FS, 10/11:8
SMCRA: (suit to bar DEQ Director from approving coal mining permit because she assertedly will violate “subsidiary duties” properly dismissed for lack of standing and ripeness because alleged injury not imminent… “firm prediction” not possible) MEIC v. Stone-Manning, 9/20:5
*Evidence, Criminal
Exculpatory/impeachment: (State did not fail to disclose exculpatory or impeachment evidence in double murder trial) McGarvey, 7/26:5
Hearsay: (appellate counsel not ineffective in addressing hearsay which, if improper, was harmless)
Search & seizure: (Pastos inventory searches affirmed… search of purse seized after shoplifting arrest and transported separately to station valid inventory search, suppression of cocaine in purse properly denied) Demontiney, 4/19:3; (suspicionless searches properly imposed on child pornography Defendant)Tafelmeyer, 9/20:6
Postconviction DNA testing: (properly denied in light of strong eyewitness testimony of assault of child… §46-21-110(5)(3) does not authorize testing of previously untested persons or comparison of newly obtained DNA with federal databases) Golden, 6/7:7
Prior acts: (alleged threats/conduct prior to charged assault properly allowed under transaction rule… conviction affirmed) Lamarr, 8/23:4
*Family Law
Adoption: (right to counsel extended to indigent parents in adoption proceedings based on equal protection vis-à-vis State termination proceedings) AWS,12/13:2
Attorney fees: (no abuse in awarding part of claimed fees without reasonableness hearing) Smith, 4/26:3
Child-grandparent: (relationship not established by grandmother, sole custody properly awarded to father following death of mother) SJH, 3/1:1
Child support: (arrearage from agreement to pay higher retroactive support, timely paid pursuant to statute, not “delinquent” or “overdue,” but claim that employment lost by CSED’s report of delinquency to credit agencies barred by failure to exhaust… private right under SCRA, §1983, FCRA claims rejected… injustice to Airman with exemplary military and support records recognized, remanded to require CSED to forward Opinion to credit agencies with request to delete erroneous information) Kenck v. CSED, 1/4:1; (no abuse of discretion by taking judicial notice of CSED’s income determination in another support case or by refusing to take judicial notice of the truth of its underlying facts… income properly imputed for support purposes) Scanlon,4/19:2; (no abuse in incorporating 2-year-old CSED calculation in final decree) Smith, 4/26:3; (support calculation properly based on income averaging)Anderson, 5/10:6; (ex-wife may not recover distress damages arising from new wife’s alleged fraudulent transfers to avoid husband’s estate’s obligation to pay support… support for 1 child properly terminated upon graduation per parenting plan, estate obligated to pay support until 2nd child graduates or turns 19, whichever is earlier… fraudulent transfers claim rejected in bench trial) Thompson v. Hicks, 6/21:2; (pro se support obligations properly determined)Beach, 8/2:5
Contempt: Conrad, 6/21:1
Custody: Crowley, 3/1:1; (no abuse in allowing children to move to Washington with mother in light of father’s failure to support and medical marijuana operation) Smith, 4/26:3; (counselor’s advice properly considered in custody determination) Anderson, 5/10:6; (equal time between Montana and Arizona physician parents properly awarded) Woerner, 5/31:2; Conrad, 6/21:1; (primary custody of children properly awarded to wife) Pesanti, 12/13:4
Due process: (pro se wife given sufficient time/latitude in presenting her case) Golie, 7/12:2
Execution: (challenge of judgment allowing ex-wife to execute on “any business owned by any business owned and/or operated” by husband or 3rd-party associate not preserved for appeal… pro se husband not permitted to raise arguments on behalf of associate or current wife, sanctioned as vexatious litigant, assessed ex-wife’s appeal fees/costs, barred from further litigation against ex-wife without court approval) Guill, 12/13:3
Maintenance: (past, ongoing) Crowley, 3/1:1; (extended maintenance properly awarded in part based on income imputed to husband… appeal fees/costs denied in light of maintenance and estate distribution) Deschamps, 3/15:4; (head injury insurance improperly characterized as purely income in denying maintenance/ fees) Novak, 3/22:4
Name change: (children’s surname properly changed to that of step-father… challenge properly consolidated with other divorce-related cases over claim of denial of right to substitute judges) Tucker, 5/3:5
Nonparent visitation: (improperly awarded to former stepmother without finding that parents were unfit or that presumption in favor of their wishes had been rebutted) CTC, 11/29:4
Parental rights: (incarcerated father’s request that infant be adopted privately, not through DPHHS, properly rejected) SS-G, 4/12:4; (failure to meet procedural deadlines did not affect subject jurisdiction… successor Judge should have disqualified himself after having represented the CASA/GAL in the same case) BWS, 4; (rights of incarcerated father improperly terminated on petition of mother and based on failure to timely answer due to prison red tape)KJB, 12/13:4
Parenting: (final parenting plan improperly entered based solely on father’s absence from mediation) Wendt, 7/12:1; (parenting schedule involving wife’s MANG deployment properly adopted) Schmidt, 8/23:2; (parenting time properly apportioned between geographically distant parents) GJA, 8/23:3; (contempt by wife properly found for failure to abide by parenting plan imposed 10 years earlier… child’s wishes at 14, likely influenced by mother, only 1 factor in considering amendment… appeal of Rule 11 sanctions premature absent final judgment including amount of fees & costs) Marez, 12/27:2
Paternity: (assertion against 2nd putative father properly rejected following DNA test of 1st putative father) Donahue, 5/10:5
Property: Crowley, 3/1:1; (business properly valued in light of widely conflicting opinions) Novak, 3/22:4; (reopening of Arizona divorce judgment 6 years later properly denied as untimely) Miller, 4/26:4; Conrad, 6/21:1; (estate consisting substantially of gifted/ inherited assets properly distributed 3/4 to wife… husband “very nearly” sanctioned for misleading/inaccurate briefing) Rintoul, 8/23:2; (wife’s credit union account improperly included twice… value of bank account properly determined in light of wife’s history of transfers between 13 accounts… post-separation account held jointly with boyfriend properly included… clerical error in retirement benefits order to be corrected) Schmidt, 8/23:2; (farm/ranch valuation/distribution affirmed, reversed)Richards, 8/23:3
Retirement: (husband not in contempt for failing to pay military retirement to wife as any obligation did not arise from decree) Novak, 3/22:4; (personal property properly valued at present market value) Strieter, 9/13:3
Support: (conflicting findings as to husband’s income by CSED and Judge require reconsideration of support award) Pesanti, 12/13:4
Survivorship Benefit Plant: (ANG member not required by divorce agreement to designate former wife as beneficiary of Survivorship Benefit Plan which is akin to life insurance… review by contract principles, not abuse of discretion) Bushnell, 5/24:1
Visitation: Crowley, 3/1:1
*Federal Government
False Claims Act: (up to $5.25 million to US for allegedly misleading providers about billing federal health care programs for medical device, up to $945,000 to whistleblower) Schmasow v. EndoGastric Solutions, 3/1:6
FOIA: (documents in investigation of Job Corps hostility properly redacted in part, improperly redacted in part) Kowack v. FS, 9/13:6
*Guardianship
Appeal: (appeal of guardian appointment waived by failure to “immediately appeal”) SM, 5/10:5
Appointment: (brother and sister-in-law properly named in place of husband… fees properly awarded to guardians for frivolous petitions) JAL, 8/2:4
Termination: (inadequate record for review of whether guardian failed to act in best interests… guardianship not terminated by marriage or revocation of power of attorney) LDL, 11/8:1
Venue: (venue properly changed from county of residency at time of petition to county of assisted living facility) HO, 11/1:2
*Homeowners Association
Member challenges: (properly rejected on summary judgment) O’Connell v. Glastonbury Landowners Association, 3/8:4
*Indians
Indian child: (guardianship properly awarded to foster parents) Matter of JS, 4/19:3
Right to counsel: (tribal convictions may be used in subsequent prosecutions only if right to counsel guaranteed) US v. Bryant, 10/11:8
Sovereign immunity: (FCA, whistleblower, other claims relating to termination of tribal college nursing staff dismissed based on sovereign immunity… claims against Board Members personally may still be viable) Cain v. Salish Kootenai College, 12/20:7
*Insurance
Additional insured: (general contractor is “additional insured” under subcontractor’s CGL/umbrella policies, insurers have duty to defend subcontractor’s employee’s injury claim arising out of gas line rupture) WBI Energy Transmission v. Colony Ins., 10/4:7
Billing & practice guidelines for appointed counsel for insureds: 2/8:8
Bad faith: (common law bad-faith claims against auto insurers time-barred… Molloy affirmed) Nelson v. Hartford Ins., 5/3:7; (“equitable balancing” should be applied to determine whether Ridley ruling in favor of insurer should be vacated following insured’s confession of judgment on appeal in excess of policy limits, to preclude adverse impact on separate common law bad faith claims) Ayotte v. American Economy Ins., 6/21:5; (investment brokerage policy providing for consolidation of similar claims valid under NY law… insurer had reasonable basis to consolidate so coverage was for single occurrence subject to $2 million limit, not $8 million aggregate… defense costs consumed $2 million limit) Donovan v. Catlin Specialty Ins., 8/30:5
Consolidation of claims: (investment brokerage policy providing for consolidation of similar claims valid under NY law… insurer had reasonable basis to consolidate so coverage was for single occurrence subject to $2 million limit, not $8 million aggregate… defense costs consumed $2 million limit)Donovan v. Catlin Specialty Ins., 8/30:5
Coverage: (ambiguous Builders’ Risk policy construed to cover pipeline right of way after it was cleared, excavated, and leveled as “structure” and therefore “Covered Property,” not precluded by “land” exclusion, interpretation not inconsistent with additional coverage for Site Preparation… right of way sustained “direct physical loss or damage” as result of extreme precipitation, covered by policy… insurer did not waive and is not estopped from asserting policy defenses by not including them in reservation letter) Barnard Pipeline v. Travelers Property Casualty, 3/22:7
Coverage/defend: (cosmetics students’ claims against school of, inter alia, boorish behavior by instructor and wrongful expulsion after filing complaints did not trigger duty to defend under CGL bodily injury coverage… expert’s opinion of physical manifestations of emotional distress did trigger duty, but duty met by acceptance of defense under reservation shortly thereafter… no coverage/ duty to defend against expulsion under “wrongful eviction” clause… insurer not liable for $4 million consent judgment entered after it accepted defense under reservation) Walden v. Maryland Casualty, 11/22:4
Defend/indemnify: (only “false conflict” between Utah and Montana law as to “arising out of” in context of duty to defend, Montana law applied to CGL/umbrella policies covering Utah entity that provided services to Montana residential youth program… complaint drew causal connection between services provided from Utah and suffering/suicide of teen in Montana, insurer breached duty to defend, liable for $3 million consent judgment) Newman v. United Fire & Casualty, 1/25:6; ($1,265,000 properly awarded pest control manufacturer, distributor, apple orchard against CGL/PCOH insurer for failure to defend/indemnity moth damage claims) Scentry Biologicals v. Mid-Continent Casualty, 2/22:1; (insurer had no duty to indemnify $210,000 sex discrimination stipulated judgment prior to exhaustion of $25,000 retention, but under NY law “exhausted” is ambiguous, construed against insurer to include settlement by compromise… retention was exhausted and insurer’s duty to indemnify was triggered upon entry of the stipulated judgment… further briefing ordered on reasonableness of stipulated judgment as required by NY, but summary judgment for nonmovant Plaintiff likely on claim that insurer breached duty to indemnify but not duty to defend) Lasorte v. Lloyds, 2/22:7; (insurer breached duty to defend truck driver’s estate against claims by injured passenger and estate of deceased infant, responsible for $3,253,603.60 consent judgment) Benton-Kennedy v. Maxum Casualty Ins., 4/19:6; (Potentially Liable Party notices under Montana’s CECRA are functional equivalent of “suits” under insurance policies, subject to unequivocal demonstration standard… insurer breached duty to defend when presented with request to defend and PLP letters, should have defended and filed dec action to discern coverage… insured entitled to judgment in the amount of $650,000 consent judgment it paid City for site cleanup, plus attorney fees incurred during CECRA proceedings, post-judgment interest at 10%… entitled to fees for this action, amount to be resolved by the parties) Pacific Hide & Fur v. Great American Ins., 5/31:6; (question certified to MSC whether insurer must demonstrate prejudice from lack of notice of damages claim by 3rd party to avoid defense/indemnification) Atlantic Casualty Ins. v. Greytak, 6/28:5; (Court correctly found, without coverage analysis, that insurer breached duty to defend after recognizing policy potentially implicated, estopped from denying coverage… $29 million stipulated judgment improperly granted without reasonableness hearing… insufficient basis for collusion inquiry… prejudgment interest properly awarded from stipulated judgment, not 1st stipulation… Montana law properly applied to policy with no choice-of-law provision) Tidyman’s Management Services v. Davis, 8/9:1; (no duty to defend negligence claims based on contract) Beaverhead Co. v. MACo JPIA, 10/11:1
Disparaging comments by competitors: (claimed intentional interference by disparaging comments from competing insurers rejected for lack of showing of damages) Victory Ins. v. Liberty Northwest Ins., 2/1:7
Group health plan: (class certified in made-whole challenge of exclusions providing that auto liability be exhausted prior to processing claims… JPT, not County, statutory insurer subject to made-whole laws… Defendants ordered to reform plans by removing illegal exclusion… notice to absent class members ordered… summary judgment on common law bad faith claim precluded by fact issues as to whether TPA acted as adjuster) Roose v. Lincoln Co. Employee Group Health Plan, 10/11:5
Med-pay: (based on plain language of auto policy and common sense meaning of “incurred,” insured not precluded from duplicate payment for medicals paid under health policy (1st impression)… insured entitled to fees/ interest, claim for punitives waived by failure to pursue in appeal) Winter v. State Farm Mutual Auto Ins., 7/5:1
Negligent procurement: (expert required to establish duties of agent to value business property/ inventory, monitor property acquisitions, suggest upgraded coverage, Fillinger distinguished because insured did not request specific coverage, summary judgment for insurer and agent properly granted for lack of expert) Dulaney v. State Farm Fire & Casualty Ins., 5/17:1
Reserve information: (relevant to bad faith claim, insurer not entitled to protective order excluding all information related to reserves in discovery, may seek to ameliorate any prejudice by in limine motion or cautionary instruction) Barnard Pipeline v. Travelers Property Casualty, 1/18:8
Settlement: (insurer’s consideration of $40,000 med-pay as element of $192,615 MVA liability settlement reasonable as matter of law… no justiciable controversy that would support bad faith, class action) Winstead v. State Farm Mutual Auto Ins., 4/26:7; (rescission of telephonic settlement agreement for pedestrian/auto injuries properly rejected on claim of mutual mistake of fact) Mears v. Safeco Ins., 6/21:5
Stacking: (supervisory control of Jones as to stacking order denied in light of other issues including bad faith… MVA Defendant assigned claims against insurer to Plaintiffs in exchange for covenant not to execute on $5,250,000 consent judgment) Great Northwest Ins. v. Jones, 5/31:1
Subrogation: (when damages are discrete, readily ascertainable, completely covered under separate policy or part of policy for which separate premium has been paid, subrogation may proceed only as to that element of loss… insurer entitled to subrogation of vehicle damage although insured has not recovered all PI damages… certified question answered for Haddon) Van Orden v. USAA, 2/22:2; (med-pay/UIM “other insurance” clauses valid, not violative of “made whole” as de facto subrogation) Scheafer v. Safeco Ins., 3/22:1; (insurer precluded from subrogation against contractor for amounts paid for post-construction broken-pipe flooding of school… waivers not violative of public policy, not ambiguous, apply to real & personal property, contractor not barred by clean-hands/judicial-estoppel… 1st-impression issues) Employers Mutual Ins. v. Swank Enterprises, 10/4:2
Title insurance: (endorsement correctly found to cover losses if future development not accessible via specified roads in existing subdivisions) Meadow Brook LLP v. First American Title Ins., 7/19:1; (“right of access” properly not extended to claimed “reasonable expectations” of surveyed & depicted “legal access”) James v. Chicago Title Ins., 12/13:1
UIM: (tortfeasor has sufficient assets that Plaintiff’s settlement release prejudiced her UIM insurer, precluding UIM recovery) Sharpe-Hiel v. Farmers Ins., 12/27:4
Underwriting: (legal malpractice underwriting guideline precluding attorneys who do more than 10% plaintiff insurance bad faith not violative of public policy as malpractice insurance optional in Montana, not violated by any specific statute) Angel (Angel Law Firm) v. Darwin National Assurance, 3/29:5
Work comp offset: (unambiguous, does not result in “double offset” for UIM insurer, precludes double recovery for insured) Preston v. Hartford Casualty Ins., 11/22:5
*Legislature
Redistricting: (challenges to assignment of 2 holdover senators properly rejected) Willems v. State, 3/29:1
*Local Government
Annexation: (amendment adding majority of owners properly not allowed to relate back to original petition after 30-day deadline… annexation statute prevails over relation-back Rule) Sharp v. Eureka, 8/16:1
City negligence: (reconsideration of ruling by Curtis that public duty doctrine bars claims against City stemming from skateboarder’s death on subdivision path in light of subsequent Gatlin denied… summary judgment for City on remaining claims: “willful or wanton misconduct” not stand-alone tort that would support wrongful death damages) Kent v. Columbia Falls, 3/29:2
County roads: (Petitioners seeking recognition of county road across private land per §7-14-2622 (2009) must establish by clear & convincing evidence that it has always been maintained & publicly traveled (1st impression)) Petition of Solf, 4/19:7, (Petitioners failed to provide clear & convincing evidence (or even preponderance) of creation of county road pursuant to §7-14-2622… Rule 52(c) motion granted for landowners following Petitioners’ case-in-chief at bench trial) 5/3:5
Interlocal agreement: (resolution was administrative act by City not subject to repeal by referendum… Plaintiffs not required to challenge referendum within 14 days of petition approval… suit not untimely based on laches) Phillips v. Whitefish, 7/26:3
Zoning: (roof restrictions impermissible building code under guise of zoning ordinance… homeowners entitled to fees for successful declaratory action)Helena v. Svees, 12/6:3
*Mental Commitment
Right to be present: AG, 6/14:2
Sufficiency of evidence: AG, 2; (sufficient evidence that person was unable to provide for health & safety due to noncompliance with meds to support commitment… not necessary to address whether she would predictably deteriorate and become danger to herself without treatment… sufficient evidence in “minimally sufficient” written order buttressed by implied findings from hearing that Warm Springs was least restrictive) SM, 11/29:3; (commitment to MSH properly based on suicide attempts, prior admissions… no error in proceeding immediately to dispositional hearing after finding disorder… no need to address constitutionality of §126(a)(d) “deterioration standard”) SL, 12/13:2
Waiver of rights: (stipulation insufficient without evidence/record establishing knowing/intentional waiver of rights… commitment reversed) AM, 8/23:1; (statutory/due process rights violated by commitment without intentional/knowing waiver of procedural rights despite assurances by counsel and professional that person would enjoy community commitment) NA, 9/27:3
*Oil/Gas
Gas well: (claim dismissed for failure to state claim) Benjamin v. Benjamin, 1/4:3
*Partnerships
Dissolution: (challenges to latest rulings in protracted farm/construction partnership dissolution case affirmed) Baltrusch v. Baltrusch, 3/8:4
*Probate
Heirs: (Illinois farm partnership interest properly held to pass to lineal descendants/siblings under Montana UPC… “heirs” in LP agreement refers to designees under intestate succession law of state of demise (Montana) of decedent who had a will but no surviving spouse or descendants) Kelly, 9/27:2
Holographic will: (challenge of validity of holographic will waived by failure to appeal immediately, but other findings/conclusions timely appealed)Kelly, 6/7:2
Jurisdiction: (no jurisdiction by District Court, as opposed to Probate Court) Benjamin, 1/4:3
Reopen: (petition to reopen probate alleging fraud by PR and newly discovered tangible personal property not precluded under by res judicata by prior dismissal of breach of fiduciary claim “with prejudice” for lack of subject jurisdiction (1st impression)) Benjamin, 9/13:1
Testator’s intent: (constructive trust properly imposed, insurance properly ordered returned, to effect father’s intent that money be used to support widow then children equally… son unjustly enriched by retaining accounts held jointly with father) Beals, 1/4:2
Will: (joint will allowed surviving wife to establish trust during her life) Hedrick, 5/10:3; (verbal act doctrine properly applied to witness who did not see testator sign but acknowledged testator’s statement that signature was testator’s… no fact issue as to undue influence) Mead, 10/4:1
*Property
Ag covenant revocation: (summary judgment properly granted that County consented to ag covenant revocation, jury properly allowed to decide whether developer had notice of and failed to complete conditions for revocation (jury determined that he had), post-trial rulings mostly affirmed, reversed as to responsibility for road improvement) L&C Co. v. Hampton, 8/16:2
Condemnation: (prior remand limited to determination of amount of fees, award of $116,739.53 affirmed, but subsequent order declaring 70-30-306(2) unconstitutional exceeded law of case and remand instructions) MDT v. American Bank of Montana, 2/1:2; (Landowners properly awarded fees/costs incurred during prior appeal as prevailing party in street widening litigation) Wohl v. Missoula, 11/29:2
Covenants: (review of fees does not revive moot issue (1st impression), attempt to challenge interpretation of amended covenants to become prevailing party in HOA dispute mooted by dispute resolution… Restated Covenants did not preclude fees to prevailing party pursuant to original covenants… HOA board member who was sued in individual capacity not insulated from fee award… fees for fees improperly awarded… difference between removal/remand fee request and amount awarded by Federal Court improperly awarded in State Court… fees for 2 firms reasonable… $371,513.03 fees/costs affirmed with modifications) Houden v. Todd, 5/3:1
Easement: (location of easement granted in deed properly determined in bench trial, easement by necessity properly rejected) Tungsten Holdings v. Freyder, 1/4:3; (summary judgment improperly granted to dominant tenement on non-use in light of grant language as to “any segment”… whether limited to logging to be determined by finder of fact) Whary v. Plum Creek Timberlands, 3/22:2; (prescriptive easement over road established by adverse use) Lazy JC Ranch v. Donnes, 4/5:2; (prescriptive easement properly established by adverse use despite neighborly accommodation, scope more than just moving cattle) Lyndes v. Green, 5/3:2; (Flathead Lake driveway disputes properly resolved in favor of Defendant neighbors) Zuazua v. Spear & Erickson,5/17:5; (express/implied easements between spring and water bottling facility on subdivided ranch properly determined… jurisdiction over water rights issues properly deferred to Water Court… attorney fees improperly awarded under ditch interference statute) Old Standard Life Ins. v. Huntley Land,5/31:1
Fraudulent transfer: (summary judgment for Defendants properly precluded by fact issues as to alleged fraudulent transfer, transaction improperly found to be not for reasonably equivalent value, improperly found fraudulent (constructively or intentionally)) Larson Lumber v. Bilt Rite Const. & Landscaping, 3/15:1; (claims properly resolved against debt collection Defendants) 623 Partners v. Hunter, 10/25:2
Home defects: (initial developer owed no duty to subsequent purchasers of home with settling defects (1st impression in Montana), not personally liable as partner of partnership) Kohut v. Skovron, 8/9:4
Inverse condemnation: (remedy for taking/ damage claim resulting from City’s alleged improvident approval of subdivision and building permit on steep slope does not pass to property owners who purchased after the approvals) Brown v. Kalispell, 9/20:4
Patents: (competing claims deriving from mining/ homestead patents properly resolved) Hansard Mining v. McLean, 8/2:2
Public road/access: (public road right-of-way established by prescription includes land necessary for maintenance, safe/convenient use, not just part traveled, separate secondary easement not applicable to determine width… recreation prior to 1985 may be considered in determining width of public right-of-way… use of road for foot access to river reasonably foreseeable use of public prescriptive road right-of-way that crosses river, not dependent on whether this use was established adversely during prescriptive period… access to river via right-of-way granted by deed to County not unconstitutional taking of riverbed) Public Lands Access Association v. Madison Co., 1/18:5; (different judgments by different judges as to same road anomalous but each addressed different sections based on records reflecting differing practices & histories, revisit of prior Opinion affirming 1st judgment barred by res judicata) Lewis & Clark Co. v. Schroeder, 4/26:1
Quiet title: (supervisory control of J. Brown denied as to waiver of service defects in quiet title default) Bank of New York Mellon v. Brown, 6/7:2
Real estate: (constructive fraud/deceit claims properly dismissed, but for lack of sufficient evidence to defeat summary judgment, not because injuries resulted strictly from breach of buy-sell… negligence claim for damages during occupancy of house under rental addendum not limited to earnest money)Dewey v. Stringer, 6/7:1; (Freddie Mac, as possessor of property where Plaintiff fell through basement access, had duty to use ordinary care in maintaining the property in a reasonably safe condition and warn of hidden/lurking damages… unrelated buyer’s agents who had previously seen the opening did not have a duty) Young v. FHLMC, 10/18:5
Well driller’s lien: (initial judgment dismissing lien rendered nullity by reversal, could not release property from lien… claims not mooted by failure to stay execution, post bond, reinstate lien) Sudan Drilling v. Anacker, 3/22:3
Yellowstone Mountain Club: (individual properly dismissed for lack of personal interest in property, title to lots correctly held to be knowingly taken subject to lis, successor trust not judicially estopped from asserting claims different from predecessor’s, contract arguments settled by Bankruptcy Court, bankruptcy trustee properly chose not to defend against Plaintiff’s complaint, suggestion of possible collusion not properly raised, Defendants may not challenge stipulations of Plaintiff and Trust… insufficient findings to review whether equitable award of 28 acres in place of original 5 constituted unjust enrichment) LeMond v. Yellowstone Development, 7/19:2
*Railroads
Negligent mismanagement: (claim following hi-rail/freight train collision governed by unique Montana law, not preempted by RLA, fact issues as to employee’s and RR’s conduct leading to the collision preclude summary judgment) Wolfe v. BNSF, 5/17:7
*Schools
Students with disabilities: (available parent has priority for appointment as surrogate for adult student with disabilities… claim not moot despite aging out of school system) Matter of CS, 4/19:2
*Settlements
Murder of woman with assault pistol purchased with application which did not disclose mental commitment: (settlement with store for confidential amount) Woods v. Steadman’s Hardware, 1/25:5
PERS withholding: ($2.1 million, withholding of PERS contributions for 16 mental health center employees despite 1999 law precluding eligibility)Baker v. Center for Mental Health, 2/1:8
Subdivision access: ($812,000 ($675,000 cash plus assumption of improvements to access road valued at approximately $137,000), unlawful subdivision variance denial) Big Sky Development Group v. Ravalli Co., 5/31:6
*Social Security
SSD: (denied) Putman, 6/21:6; (denied) Febach, 7/5:5; (denied) Acord, 7/5:5; (denied) Fish, 7/5:5; (insufficient basis for rejecting work week limitation)Snoeck, 9/13:6; (denied) Kibble, 9/13:7; (ambulation, denied) Engelhardt, 11/8:3
SSI: (denied) Gopher, 6/21:7; (denied) Champagne, 7/5:5; (mental, denied) Ross, 11/8:3
Fraud: (US failed to establish restitution amount resulting from lie as to marital status) US v. Milliron, 6/21:7
*State Government
Board of Housing: (low-income housing tax credits properly allocated on remand) Ft. Harrison Veterans Residence LP v. Montana Board of Housing,2/8:5
Board of Personnel Appeals: (MDT HR Civil Rights Bureau Chief demotion grievance denied, alcohol odor/performance correlation) MDT v. Cozzie,6/14:7
Board of Psychologists: (licensure properly denied to on-line university graduate for failure to meet curricular rules… Board did not err in rejecting HO’s interpretations of its rules) Mayer v. Board of Psychologists, 4/5:3
Milk control: (petition to repeal/amend 12-day sale rule properly rejected) Core-Mark International v. Board of Livestock, 8/2:3
PSC: (takings/due process claims stemming from denial of grandfathered PCN under SB 140 not preserved for judicial review… denial of Class B application properly affirmed) Billings Yellow Cab v. PSC, 10/18:1
Unemployment Insurance: (corporate officer working without pay under implied contract required to report hours… properly ordered to repay $28,387 plus 33% penalty) Sayler v. DLI, 9/27:4; (work environment and Army recruitment office’s responses to employee’s concerns not so egregious or unreasonable as to constitute compelling reasons for quitting, UI properly denied) Huset v. BLA, 10/18:2
*Taxes
Coal: (severance/gross proceeds taxes paid to Tribe not deductible for RITT) Westmoreland Resources v. DOR, 8/16:4
Tax deed: (County’s failure to contemporaneously file affidavit of publication not fatal to tax deed in light of full notice, due process) Zinvest v. Hudgins,8/2:1; (tax deed holder gave proper notice under statute, no additional duty to further investigate possible addresses, but quiet title summary judgment deferred pending claims against Treasurer as to “suspicious” behavior) Purinton & Co. v. 19th Avenue Properties, 9/27:7
*Torts
Abuse of process: (seeking to coerce damages for criminal defendant not ulterior motive to support abuse of process) Spoja v. White, 1/18:2; (untimely)Frontline Processing v. Barack Ferrazzano Kirschbaum Perlman & Nagelberg, 6/21:6; (claim rejected in title insurance dispute) Denton v. First American Title, 8/23:6
Attorney deceit: (improperly dismissed on summary judgment) Spoja v. White, 1/18:2
Conspiracy/blacklisting: (claims pertaining to employment, interference with businesses, prima facie tort as alleged retribution for $25 million environmental suit settlement fail for lack of showing of unlawful or wrongful acts) Burnett v. PPL Montana, 3/8:1
Defamation: (statement by daughter to parents that she was stalked by HOA suit defendants, republication by parents to HOA defendants’ lawyer, properly dismissed) Cherewick v. Gildehaus, 4/26:1
Excessive force arrest: (fact issue as to reasonableness of force in allegedly jamming bad checks arrestee’s foot under seat of patrol car precludes dismissal of assault & battery… other claims/motions properly dismissed) Schuster v. Yellowstone Co., 9/6:1
False arrest/imprisonment: (10-count complaint stemming from citations for waste of game rejected on summary judgment… Plaintiffs’ counsel chastised for violating LR in filings, lack of due diligence in bringing claim) White v. Maurier, 3/29:6
Malicious prosecution: (JML properly granted on malicious prosecution of attorney whose client claimed he had been held at MSP 14 months beyond proper release date) Spoja v. White, 1/18:2; (improperly dismissed) Frontline Processing v. Barack Ferrazzano Kirschbaum Perlman & Nagelberg, 6/21:6
Medical malpractice: (MLP claim of negligent performance of ERCP and failure to provide sufficient information for informed consent reasonably encompassed court claim of failure to consider alternatives, “reasonable detail” requirement satisfied for court jurisdiction (1st impression)) Pickett v. Cortese, 7/5:1; (claims properly rejected on summary judgment and at trial for lack of proper expert as to standard of care of VA NP and pharmacy)Holtshouser v. US, 12/27:5
Negligence: (evidence of trauma/depression from husband’s sex abuse of daughter 20 years before MVA properly admitted to rebut wife’s brain trauma claim from MVA over relevancy/causal objection… undue prejudice not preserved for appeal) Peterson-Tuell v. First Student Transportation, 11/29:1
Negligence/CPA: (summary judgment for shop on claim stemming from inadequate repairs improperly granted based solely on other driver’s insurer’s determination and payment of vehicle damage values) Bracken v. McDonnell Enterprises (Big Sky Collision Center), 1; (defense verdict in collision with fire truck affirmed) Fergusson v. Esch, 8/23:1
Product liability: (confusing safety board’s conclusion that finger nail product “safe as used, when skin contact is avoided” improperly admitted, compounded by refusing to let nail technician counter on cross and instruct that it was foreseeable to seller that technicians would get it on skin and inhale vapors and by defining “safe as used” as referring to incorporation of specific ingredient, not how consumer uses the product… defense verdict reversed, remanded for new trial) Kenser v. Premium Nail Concepts, 10/25:1
Respondeat superior/negligent supervision: (claims against securities brokerage stemming from failed TICs time-barred as agent’s relationship not concealed) Thieltges Farms v. Royal Alliance Associates, 9/20:1
Social worker negligence: (claims against State for removing girls from mother without adequately investigating report of psychological abuse dismissed for lack of expert as to standard of care of investigator) Weber v. State, 3/29:4
Wrongful death: (“willful or wanton misconduct” not stand-alone tort that would support wrongful death damages) Kent v. Columbia Falls, 3/29:2
Wrongful discharge: (Colorado proper forum to adjudicate claim of Coloradoan based in Colorado discharged by Montana employer… claim analyzed under contract, not tort, principles) Cash v. Montana Silversmiths, 3/29:3; (no prima facie political discrimination in discharge of tourism administrator… DOC Director immune… good cause for termination based on failure to comprehend budget which jeopardized tourism funds) Baumgart v. State, 7/26:2
*Trusts
Injunction: (challenge of dissolution of injunction against selling house moot as house has been sold… appeal fees/costs awarded to Trust as matter of equity) Matter of Osorio Irrevocable Trust, 11/1:1
Ranch claims: (All but 2 ranch trust claims properly disposed of by claim preclusion, judicial estoppel, issue preclusion, statute of limitations) Gibbs v. Altenhofen, 8/2:1
Trustee removal: (petition to remove trustees of family farm trust properly rejected) Kavon v. Kavon, 5/10:3
Trustee’s duties: (dispute over invasion of principal for wife’s care improperly resolved in favor of remainder beneficiary/trustee/grandson… trustee should be removed… prior accountings not needed to further explore breach of duties) Valma Todd v. Edward Todd, 2/15:1
*Utilities
Territorial integrity: (co-op had right to provide 3-phase to new seed plant because it had closest line and capacity… MDU did not add plant to its territory by providing 1-phase construction power) Sheridan Electric Co-op v. MDU, 12/27:1
*Verdicts
Auto: ($2,103,301.73 to motorcycle Counterclaimant against car Plaintiff, multiple fractures… $250,000/$900,000 high-low agreement) Marino v. Moua,2/8:6; (defense, intersection) Bracha v. Estate of Hanley, 3/1:6; ($400,000, head-on MVA, admitted liability, hand/neck/back/PTSD) Locke v. Estate of Davis, 3/8:7; (defense, white-out MVA counter-claim… $30,000 settlement of primary claim… Tribal Court jurisdiction issue) Louis v. Carlson, 5/3:6; (defense ($2,000 damages but 60% contributory), bicycle/auto collision in Grizzly Triathlon , fractured elbow… insurer’s admission of liability not binding on Defendant) Gregory v. Suomi, 6/21:3; ($450,000 (to be reduced to $200,000 UIM limits), intersection MVA, admitted fault, elbow/shoulder) Mlekush v. Farmers Ins. Exchange, 7/26:8; (defense verdict in collision with fire truck affirmed) Fergusson v. Esch, 8/23:1; ($59,500, auto/school bus, summary judgment negligence, $92,929 Ridley, neck/back/chest/ankle) Brittsan v. Stanton, 8/30:3; ($29,100, 4-way stop rear-end MVA, admitted fault, soft-tissue neck/low back, disk herniations, dental, thumb/wrist) Bryer v. Cox, 8/30:4; ($3,655, admitted liability rear-end MVA, low back) O’Conner v. George,9/20:5; (evidence of trauma/depression from husband’s sex abuse of daughter 20 years before MVA properly admitted to rebut wife’s brain trauma claim from MVA over relevancy/causal objection… undue prejudice not preserved for appeal… challenge of jurors for cause properly denied… Defendant entitled to costs since $95,000 offer of judgment exceeded $65,000 verdict, but bill filed within 5 business days untimely under revised Rule 6 calendar days) Peterson-Tuell v. First Student Transportation, 11/29:1; (defense, stop sign MVA, admitted liability, neck/back) Reis v. Luckett, 12/20:6
Bar altercation: (defense, broken nose) Law v. Reno Club, 6/28:4
Bridge easement: ($410,000, tortious interference with public easement over bridge, public nuisance… trial following Supreme Court ruling that public prescriptive easement not limited to bridge destroyed by wildfire, includes replacement bridge in place at time of prior MSC decision which became law of case) Public Land/Water Access Association v. Jones, 7/19:6
Bus software contract: ($28,409,512 verdict improperly reduced by $9,439,756 consequential damages as precluded by contract and $70,000 lost perpetual license fees as duplicative of award for lost license fees, original award reinstated in full, Plaintiff awarded appeal costs… Plaintiff’s expert’s testimony properly admitted, sufficient evidence of causation, sufficient detail of lost fees/royalties) Education Logistics v. Laidlaw Transit, 7/19:7
Chairlift unloading injury: (defense, hip), Willink v. Boyne USA, 2/15:8
CO exposure: (defense, claimed CO exposure due to disruption of venting by roofer) Sweeney v. Jared Langley Roofing & Remodel, 6/21:4
Dropped newly framed wall: (defense, claim of common law negligence following $332,000 comp settlement, lumbar burst fracture) McDonald v. Ponderosa Enterprises, 2/8:7
FELA: ($500,000, scaffold fall, back) Tsohonis v. BNSF, 7/19:5; ($4,321,814, FELA, train collision due to switch error, lumbar annular tear, psychological… summary judgment on RR’s liability and striking RR’s contributory negligence defense) Schnittgen v. BNSF, 10/25:5
House fire: (defense, negligent use of extension cord not cause of house fire) Delacey v. Conant, 1/11:6; (defense ($2,000 damages but 75% negligence by Plaintiff landlord), rental house fire from fireplace insert) Montgomery v. Kuntz, 2/8:6
Insurance bad faith: ($2.7 million, NIED, widow of motorcyclist killed by UIM drunk driver, insurance bad faith… summary judgment that insurer breached by refusing to unconditionally pay undisputed UIM) King v. GEICO Ins., 3/8:8; (defense, alleged insurance bad faith in claim against law firm credit card collection case) McCollough v. Minnesota Lawyers Mutual Ins., 3/15:8
Jail death: ($565,500 net (65/35), death of alcoholic jail inmate… County agrees to waive any appeal or set-off… confidential settlement by nursing service) Wasson by Diem v. Missoula Co., 11/8:2
Lending breach: ($52,037,593, lending breach, failure to use TARP money to help struggling business… $275,251 owed by business to local development corporation) Butte Local Development Corp. v. Masters Group International, 1/25:3; ($1 million damages, $5 million punitives, bank fraud in converting 360-month residential condo loan application to 18-month commercial loan) McCulley v. US Bank of Montana, 2/22:5; (defense, no fraud, deceit, CPA violation by bank in connection with elderly delinquent borrower’s request for HAMP modification… elder abuse claims dismissed on summary judgment, directed verdict against refinance/insurance products claims) Bissell v. Wells Fargo Bank, 3/8:7; (post-trial rulings on $52,037,593 verdict… challenges to general verdict form rejected… fees to be awarded pursuant to loan documents reciprocity, but based on hours, not 40% contingency… bank waived punitives cap by failure to disclose evidence of net worth, but cap also unconstitutional abrogation of right of trial by jury… award of compensatory damages including emotional distress by Guarantors affirmed… punitives supported by actual malice and/or fraud by sweeping accounts without justification or notice… 59(b) motion denied as rehashing of 59(a) issues or new issues that should have been raised in 59(a) motion) Masters v. Comerica Bank, 4/5:3, (appeal issues narrowed) 9/6:2; ($286,550 for wrongful set off/breach of contract, $16,760,000 punitives) Kelly Logging v. First Interstate Bank, 8/23:6
Log falling from truck at mill: (traumatic brain/back fractures/consortium, default judgment on liability by bankrupt Defendant… pretrial stipulation that claim would be “capped” at $2.5 million including cash and stock, increased stock value increases cap to verdict amount) Ginn v. Smurfitt Stone Container, 1/25:4
Medical malpractice: (defense, disk replacement) Gary v. Varnavas, 2/15:4; (defense, APRN malpractice, mental care) Farago v. Clark, 11/29:5; (defense, claimed unnecessary foot surgery, prolonged orthotic boot) Hastie v. Alpine Orthopedics & Sports Medicine, 12/13:5; (defense, alleged failure to diagnose existing knee infection prior to total knee arthroplasty) Aber v. Michelotti, 12/13:6
MVA investigation: ($2 for Deputy’s unlawful entry into home, County/deputies not negligent in investigation or use of force during handcuffing in investigation of MVA, not liable for excessive force or unlawful seizure, State/trooper not liable for unlawful seizure or negligent investigation) Howell v. Earl, 7/12:5
Podiatry malpractice: (defense) French v. Beighle, 8/2:7
Porch encroachment: (defense) Arcadia of Montana v. Kelly & Werner, 7/12:5
Product liability: ($248,106,668 ($8,106,668 actual damages, $240 million punitives), head-on MVA, Hyundai Tiburon steering defect v. claim of fireworks in car, 2 deaths) Olson v. Hyundai Motor Co., 5/17:6, ($240 million punitives for 2 deaths from head-on MVA found to be caused by Hyundai steering defect reduced to $72,960,012 (9:1 ratio)… cap unconstitutional, but if upheld by MSC, punitives should be $10 million against knuckle manufacturer and $10 million against vehicle marketer) 9/27:5; (confusing safety board’s conclusion that finger nail product “safe as used, when skin contact is avoided” improperly admitted, compounded by refusing to let nail technician counter on cross and instruct that it was foreseeable to seller that technicians would get it on skin and inhale vapors and by defining “safe as used” as referring to incorporation of specific ingredient, not how consumer uses the product… defense verdict reversed, remanded for new trial) Kenser v. Premium Nail Concepts, 10/25:1
Wrongful discharge: ($70,000, wrongful discharge, dental receptionist fired for alleged rudeness to prospective patient) Kenley v. Johnson, 12/6:4
Scooter crash: (defense, scooter crash, alleged arm grab, ankle/clavicle fractures) LaCounte v. Bravard, 8/9:5
Security officer altercation: (defense, Federal Reserve security officer’s claimed neck injury from altercation with trespasser barred by statute of limitations… trial following Supreme Court ruling that fact issues as to when he learned of injury precluded summary judgment) Siebken v. Voderberg,11/1:5
Slip & fall: (defense, parking lot pothole) Oertli v. Shopko, 7/19:6
Snowplow/auto: (defense, neck/back/shoulder/hand pain) Brunetto v. State, 1/25:5
Wrongful discharge: (defense, plasma center assistant manager) Adkins v. Baxter International (BioLife Plasma), 1/25:7; ($244,239, wrongful discharge, MDC psychology specialist allegedly fired for attempting to entice client to move in with her) Pritchard-Sleath v. DPHHS, 9/13:7
*Water
Delivery: (no private right to deliver water through ditch… rights that can be diverted properly listed) Eldorado Co-op Canal Co. (Claimant), Lower Teton Joint Objectors, 10/11:2
Diversion flume: (rights correctly determined in accordance with some of Master Ritter’s findings, contrary to some findings) Skelton Ranch v. Pondera Co. Canal & Reservoir, 7/5:2
Diversion/use: (objector failed to present sufficient evidence to contradict ranch’s claimed point of diversion and place of use under pre-73 law) Marks v. 71 Ranch, 9/20:2
Jurisdiction: (over water rights issues properly deferred to Water Court… attorney fees improperly awarded under ditch interference statute) Old Standard Life Ins. v. Huntley Land, 5/31:1
Objection to claim: (mining claim owner’s objections to neighbors’ claim to domestic water from well on mining claim properly dismissed) Nelson v. Brooks, 5/17:5
*Workers’ Compensation
Causation: (Petitioner entitled to treatment for hip condition resulting from injury when stepping up onto truck) Myles v. Sparta Ins., 6/7:8; (congestive heart failure caused by sleep apnea, not exposure to dust, exhaust, in street work… denial of claim not unreasonable) Kramlich v. MMIA, 12/20:8
Coverage limitation stipulation not violative of prohibition against waivers of rights, requirement that MSF insure any employer) Lucker v. MSF, 11/1:8
Death benefits: (widow not entitled to PPD in form of 100% impairment for death, entitled to burial expenses, costs) Monroe v. MACWCT, 3/29:7
Discovery: (Claimant compelled to provide dates of insurer’s alleged ex parte communications with doctors if known and identify witnesses who will testify on this issue, compelled to reveal specific benefits to which she believes she is entitled… protective order against IME doctor information granted in part, denied in part) Vulk v. Employers Compensation Ins., 5/24:6
Ex parte contacts: (§604(3) ex parte insurer/provider contacts unconstitutional as violative of right of privacy… a narrowly crafted release authorizing ex parte contact solely for administrative purposes would not violate privacy) Malcomson v. Liberty Northwest, 1
Extraterritorial: (no Montana jurisdiction under 39-71-402(1) (2013) where Petitioner who relocated to ND was injured while working in ND) McCoy v. Travelers Casualty & Surety, 2/8:7
Filing time: (Petitioner knew/should have known that work at Libby lumber mill contributed to ARD years before filing claim, time-barred) Peterson v. Liberty NW Ins., 1/11:7; (widow could not have known death related to job until advised by attorney, timely filed thereafter) Monroe v. MACWCT, 3/29:7 Impairment: (dispute as to wage loss due to job injury precluded summary judgment for either party on impairment) Davidson v. Benefis, 6/7:8
Injury: (Petitioner injured foot at work, entitled to medicals, but continued to work until quitting and moving out of state for reasons unrelated to injury so not entitled to wage loss… insurer not unreasonable in denying claim) Starkey v. ACE American Ins., 3/29:8
Last injurious exposure: (potentially causal standard applied to determine that County liable for ARD from exposure to asbestosis on road crew which led to death as opposed to prior exposure at Grace) Monroe v. MACWCT, 3/29:7; (last injuriously exposed to asbestos at successive mill employers, not at subsequent convenience store) Baeth v. Liberty NW Ins., 5/10:7
Major contributing cause: (janitorial work not major contributing cause of condition) Boland v. MSF, 4/5:6
Medical records privacy: (letter from doctor to MSF expressing concern about surveillance video was authorized communication, not breach of privacy or physician/patient, not knowingly assisting in fraud prosecution… claims against doctor properly dismissed on summary judgment) Simms v. Schabacker,12/20:1
Medicals: (as held in prior case, Petitioner entitled to ongoing medical benefits including diagnostic tests… entitled to prescription medications even if at MMI (although probably not at MMI)… insurer liable for penalty/fees for unreasonable termination) Koch v. Employers Ins. Group, 5/24:8
Misrepresentation of condition: (Petitioner misrepresented respiratory condition as depicted in video surveillance, not PTD, not entitled to retroactive TTD or ongoing treatment) Rushford v. MCCF, 6/7:7
New injury: (Petitioner did not suffer new injury which would sever insurer’s liability under §39-71-407(5), unreasonable to refuse further benefits, Petitioner entitled to penalty/ fees… insurer has not proven that current elbow condition unrelated to OD) Engle v. Hartford Underwriters, 1/11:8
Non-use of medicals: (claim properly considered under 1991 WCA’s 60-month limitation for non-use of medicals… Respondent equitably estopped from asserting defense under 704(1)(d)… Respondent has not proven that current knee condition is due to superseding intervening cause or that claim is barred by statute of repose, statute of limitations, estoppel, or laches) Newlon v. Teck American, 5/24:7
OD: (treating physicians’ testimony supports ARD from plywood mill over insurer’s contention of long-term smoking, last injuriously exposed to asbestos at successive mill employers, not at subsequent convenience store… not judicially estopped by civil suits from claiming OD… Petitioner entitled to 45% impairment benefits, medicals… insurer not unreasonable in denying claim) Baeth v. Liberty NW Ins., 5/10:7; (Petitioner knew/should have known she had OD on day her doctor took her off work and referred her to a specialist, not earlier when she was taking pain meds… decision on remand from reversal of prior finding of untimely claim) Dvorak v. MSF, 5/10:7
Penalty/fees: (awarded) Engle v. Hartford Underwriters, 1/11:8; (denied) Starkey v. ACE American Ins., 3/29:8; (awarded) Koch v. Employers Ins. Group,5/24:8; (denied) Davidson v. Benefis, 6/7:8; (denied) Kralich v. MMIS, 12/20:8
PPD ineligibility during incarceration: (challenges properly rejected) Goble v. MSF, 4/19:1
Pre-authorization: (Petitioner not entitled to payment for unauthorized visits to California doctor or to untimely requested travel reimbursement) Nelson v. MSGA, 5/31:7
Retirement: (Petitioner who started receiving SSR at 62 and was injured at work at 63 is “retired,” not eligible for PTD) Gray v. MSF, 2/15:8
Treating physician: (claim for payment for treatment by non-“treating physician” not time-barred, summary judgment precluded by dispute as to whether treatment properly obtained under WCA) Nelson v. MSGIA, 1/25:7
TTD: (Petitioner terminated while in modified position entitled to TTD between termination and surgery, no loophole for where worker begins modified duty before receiving TTD, termination for not being a “fit for culture, property, department” too nebulous to constitute “disciplinary reason”) Spencer v. Zurich American Ins., 10/25:5
UEF: (prerelease resident was direct employee of roofing contractors, not statutory employee of prerelease, at most only casual employee of house owner who was not in rental business… UEF liable for comp, with right to indemnification from defaulted roofing contractors) Jensen v. UEF, 3/1:7
Unclaimed medicals reimbursement: (WCC lacks jurisdiction over PR’s claim that $95,846 asbestosis medicals paid by Libby Medical Plan for which neither Libby Medical Plan nor Grace will accept reimbursement from insurer should be paid to her or Montana Justice Foundation or charity, not retained by insurer… awarding the $95,846 to PR would constitute double recovery… PR lacks standing since she has no personal stake) Moreau v. Transportation Ins., 4/12:7
Wages: (teacher not entitled to TPD as income is greater now than at time of injury despite loss of coaching position) Nelson v. MSGIA, 1/25:7; (reconsideration of rulings as to bonus/AWW, offsets, overpayments denied) Peters v. American Zurich Ins., 3/1:7
Waqe loss: (Petitioner had actual wage loss under pre-11 PPD statutes, found following trial to be entitled to PPD… dispute as to wage loss due to job injury precluded summary judgment for either party on impairment) Davidson v. Benefis, 6/7:8
*Youths
§208 order: (correctly modified to eliminate parole eligibility requirement of MSP sex treatment of youth, now 21, who raped 3-year-old when 13, no error in not further removing from adult corrections system to allow Massachusetts program) ASM, 5/31:5
Sentencing: (pronouncement failed to specify that robbery sentence would be for less than 40 years… adult sentence should not exceed 5-year DOC commitment recommended by State at disposition which Judge apparently intended to adopt) DC, 11/8:1
Sex registration: (youth properly required to register despite contrary intent of plea agreement) KRW-B, 9/13:6
Transfer: (claim of illegal statutory rape conviction for failure to afford transfer hearing rejected) Carsten, 2/1:7; (Youth Court had jurisdiction to transfer to District Court despite lack of notice to parents, youth and counsel acquiesced in transfer) EG, 6/14:6