Montana Law Week Subject Index- 2015

Montana Law Week Subject Index – 2015

* Administrative Law

Hearing examiner findings & conclusions: (BPA’s wholesale striking of Scrimm’s findings & conclusions in CSED compliance specialists’ pay dispute in favor of conclusory statements based on improper extra-record preoccupation with impact on state employee collective bargaining rejected, proposed order adopted as final order) Mashek v. DPHHS, 5/16:4

 

* Appellate Procedure

Classification: (reconsideration of panel classification of Aston Martin owner’s challenge to 2013 Agisters’ Lien Law amendments denied) Superior Auto Body & Tow v. Yeager, 4/11:1

Justice conflict: (Justice’s sister Dep. CA) Maloney, 8/29:6

Justice Court: (Justice Court denial of motion to suppress/dismiss MIP properly affirmed in de novo review of stipulated facts and briefs) McGrath, 9/19:6

Mootness: (appeal not mooted by bankruptcy discharge) Gregory Hall v. Don Hall, 8/8:2

Premature: (appeal dismissal as premature because fees ruling pending not amenable to suspension of rules) Krakauer v. Commissioner of Higher Education, 6/13:1

Rehearing: (rehearing denied as to Modesty Creek Road rulings) Lettica Land v. Anaconda-Deer Lodge Co., 12/26:2

Review standard: (disputed standard clarified) Mlekush v. Farmers Ins. Exchange, 10/24:1

Sanctions: (denied) Marriage of Kerutis, 8/1:3

Sanctions: (under FRAP 38 and §1927 imposed in form of Appellees’ fees & costs against Yellowstone Mountain Club co-founder and principal attorney for transparent attempt to wriggle out of unfavorable decisions by smearing Kirscher in recusal motion… co-counsel attempting to distance themselves chastised but not sanctioned) Blixseth v. Yellowstone Mountain Club, 8/8:6

Scope of orders: (appeal of mobile home lease dispute rulings outside scope of orders) Nelson v. Kralick, 6/13:1

Supervisory control: (of Boucher granted ordering in camera review of medical/psychological records of minor with Williams Syndrome over objection from SIWC Defendant that review not necessary and Boucher’s position that he is not a psychologist or psychiatrist and has limited time for review… State has standing to petition on behalf of alleged victim) Boucher, 7/11:5

 

*Arbitration

1031 ranch exchange investment: (award rejecting claims against bank stemming from its role in $5 million 1031 ranch exchange investment losses confirmed) Schilling v. Sterling Bank, 12/5:5

Arbitrability: (City’s waiver argument based on 4-year delay in pursuing arbitration of employee termination is issue for arbitrator) MPEA v. Bozeman, 3/7:1

Notes: (award of $213,194 on notes due, $10,037 pre-judgment interest, $31,251 fees/costs confirmed over untimely challenge by terminated employee that notes were in favor of predecessor entity, not successor which is non-FINRA member) Morgan Stanley Smith Barney v. Stafford, 8/29:7

 

*Attorney Fees, Costs

Contingency: ($7,500,482 fees based on 44% contingency, $90,820 costs) Kelly Logging v. First Interstate Bank, 5/2:3

Equitable attorney fees: (properly awarded Plaintiffs) Bardsley v. Pluger, 10/24:3

ESOP stipulated judgment: ($3,146,185 fees, $89,153 costs awarded in $29 million settlement/stipulated judgment and assignment of rights by grocery chain executives to 35 ESOP participants… $35,816,986 total judgment with $6,816,986 prejudgment interest… appeal bond waived for $26 billion insurer) Tidyman’s Management Services v. Davis, 9/26:2

Fee arbitration: (attorney on disability/inactive status suspended for failing to respond to Arbitration Board’s order to refund fee) Fee Arbitration of Venton v. Clark, 3/7:2

Fees-for-fees: (improperly awarded) $11,2812 award reduced by $4,560 fees-for-fees) Swapinski v. Lincoln Co., 9/19:1

Frivolous claim: ($342,881 fees & costs awarded out of ex-girlfriend’s 16% share of deceased’s $2,808,425 stock account for defense by 3 other beneficiaries of frivolous claim to entire account, affirming Cebull’s award following remand from 9th Circuit to allow objections as to amounts)Scottrade v. Davenport, 4/18:4; (fees/costs awarded for frivolous complaint) Credit Associates v. Prendergast, 10/24:5

Injunction: (fees improperly awarded to owners who prevailed at preliminary injunction stage but lost on merits) MC Inc. v. Cascade City-County Board of Health, 2/28:1

Legal malpractice: (claims alleging erroneous advice that right to appeal $3.8 million defamation judgment would not be lost by filing bankruptcy were property of bankruptcy estate, properly sold by Trustee to malpractice defendant for $12,000) Stokes v. Duncan, 3/28:1

Prevailing party: (wife entitled to appeal fees as prevailing party, not to fees below because she did not cross-appeal) Cadena, 3/28:3

Rate: (Lincoln County’s attorney rates properly found reasonable based on prevailing local rate despite reference to Kalispell attorneys who practice in Lincoln) Swapinski v. Lincoln Co., 9/19:1

 

*Attorney Practice

Admission: (Minnesota attorney temporarily admitted as County Attorney employee) Irigoin, 4/11:1

Discipline: (60 days suspension for incompetent postconviction representation) Kohn, 3/21:5; (suspension for failure to disclose status as alleged victim and witness while visiting girlfriend in jail) Sutton, 5/9:2; (motion to compel discovery responses granted… COP losing patience with counsel failing to timely cooperate with ODC) Laedeke, 5/16:3; (attorney not required to disgorge $120,000 fee from widow’s $300,000 MVA death settlement as disgorgement not specified in RLDE, but must pay $65,547.10 restitution, disbarred immediately for “borrowing” substantial part of settlement) Laedeke, 7/4:5; (attorney disbarred for failing to respond to Arizona grievances) Rhodes, 12/12:2

Disqualification: (supervisory control of J. Brown’s refusal to disqualify counsel denied for lack of showing breach of Joint Defense Agreement or violation of RPC or statutes governing practice) Thomas, Dean & Hoskins v. Brown, 5/2:3

Non-attorney: (no right to continuance after non-attorney withdrew shortly before trial) Marriage of Kerutis, 8/1:3

Sanctions: (attorney properly sanctioned $2,000 for missing hearing without notice of illness, $10,000 for disrespect of Court… $65,911 improperly assessed for frivolous suit in light of this Court’s finding that FDCPA claim not entirely frivolous, remanded for reconsideration) Serrania v. LPH (Northwest Collectors), 5/2:2; (husband’s divorce attorney properly ordered to pay $10,000 Rule 11 sanction to Court, although consideration of lawyer’s physician wife’s income improper) Marriage of Cox (Myers v. Langton), 6/13:3; ($515,119.90 attorney fees incurred by insurer awarded against Plaintiff’s attorneys for reckless, frivolous conduct in prosecuting bad faith case stemming from suit against CPA firm for bad TIC investment of ranch sale proceeds… priority of original Plaintiff in $4,650,000 settlement squandered by acceptance of 5 additional clients with higher fee agreements… questionable settlement without participation by insurer… insurer set up for bad faith suit to cover up and justify wrongful distribution of monies in trust) Redding v. New York Marine & General Ins., 6/27:7

Unauthorized practice: (law school grad who failed 2 bar exams and is awaiting results of 3rd exam presented at assault with weapon trial as “Deputy County Attorney” constituted fraud on the Court… Student Practice Rule so clearly inapplicable that assertion as excuse unreasonable, vexatious, flimsy, lame… no showing of prejudice by imposter prosecutor that would warrant reversal, but CA ordered to pay OPD $409.50 attorney fees, write contrite apology letter) State v. Doney, 8/22:4; (forgery case dismissed for lack of jurisdiction as result of charging documents signed by imposter prosecutor, change of plea hearing to be set on endangering welfare charge filed after challenge to forgery case… $845 attorney fees to be paid to OPD as sanction, plus apology letter) State v. LaFountain, 8/22:6

 

*Banking, Commercial Paper

Debt collection: (summary judgment properly granted on FDCPA dental bill claim, but on basis that fees & charges were authorized by contract or law, not for failure to quickly dispute claim… attorney properly sanctioned $2,000 for missing hearing without notice of illness, $10,000 for disrespect of Court… $65,911 improperly assessed for frivolous suit in light of this Court’s finding that FDCPA claim not entirely frivolous, remanded for reconsideration) Serrania v. LPH (Northwest Collectors), 5/2:2; (FDCPA not applicable to order for wife to pay half of GAL’s services… GAL’s attempt to enforce collection of payment protected by quasi-judicial immunity (1st impression)… defamation claim properly rejected on summary judgment for failure to sign interrogatory responses… $7,408.70 principal plus interest properly awarded on summary judgment) Amour v. CPI, 6/6:3

Lending breach: (sufficient evidence of fraud in surreptitious conversion of 30-year residential condo loan application to 18-month commercial loan resulting in predictable foreclosure… successor bank liable for punitives arising out of predecessor’s pre-merger conduct… $1 million compensatory, $5 million punitives verdict affirmed… interest improperly awarded from punitives decision rather than verdict) McCulley v. US Bank of Montana, 4/18:1; (Montana law improperly applied over Michigan contract provision… under Michigan law constructive fraud, prospective economic advantage, and deceit would not have been permitted to go to jury as stand-alone tort, only remaining claims are contractual in nature, do not provide basis for punitives… improper evidence of failure to use TARP money for borrower irrelevant, prejudicial, could have influenced jury… $52,037,593 verdict for start-up international office products facility based in Butte that failed when accounts were swept reversed, remanded for new trial on contract claims… punitives cap vis-à-vis $10.5 million award not addressed) Masters Group International v. Comerica Bank,7/4:1

Note payments: (timely the business day after Sunday or holiday or late payments waived by failure to object… $39,747 fees/costs properly awarded Defendant under terms of note) Cox v. Cox, 10/3:5

 

*Bankruptcy

Appeal: (Yellowstone Club co-founder with choses in action has standing to appeal confirmation of Plan… appeal as to exculpation clause not equitably moot… appeal as to other requested relief which would require unraveling Plan equitably moot) Yellowstone Mountain Club v. Glasser,5/16:5

Dismissal: (dismissal proper for failure to comply with stipulation for reconverting to Ch. 11) Jonas v. Jonas, 5/16:6; (PI suit by incarcerated Plaintiff properly dismissed for failure to prepare for trial) Worm v. Peterson, 7/18:2

Exemptions: (inherited IRAs not exempt… certified question from Kirscher) Golz, 11/14:1

 

*Bench Judgments

ADA: (defense, ADA/retaliation, county road superintendent) Provance v. Gallatin Co., 5/23:7

Gas common carrier: ($400,000 stipulated damages awarded to gas producer for breach of common law duty of common carrier inherent in grant of BLM easement by failing to accept gas for transport, operate gathering system on non-discriminatory basis, increase line pressures in adjacent field, and by establishing conditions that reduced production and flow of gas, injunctive relief denied, in case in which facts as to common law duty are sui generis) Omimex Canada v. WBI Energy Midstream, 1/24:3

 

*Civil Procedure

Abuse of process: (title insurer did not abuse process by funding easement litigation) Denton v. First American Title Ins., 6/27:4

Acknowledgment: (acceptance of $268,435.94 judgment on MVA verdict waived right to appeal denial of new trial on damages for emotional distress, enjoyment of life, and future medicals associated with prescription drug) Tempel v. Benson, 3/21:2

Agister’s lien: ($9,766 properly awarded for storage of Aston Martin that was initially brought in for repairs) Superior Auto Body & Tow v. Yeager, 6/27:3

Choice of laws: (Ohio law governs employment claim, but Montana could still have jurisdiction… whether Ohio is more convenient requires further consideration) Harrington v. Energy West, 8/15:3

Class certification: (class of state employee benefits plan beneficiaries denied benefits under “experimental for research” exclusion certified on remand, certification modified to require members to be responsible for re-opening their own claims) Sangwin v. State, 6/13:4; (certification of 17-21 laborers in addition to 7 named wage & hour Plaintiffs properly rejected for failure to show class so numerous as to make joinder impracticable

Construction lien: ($5,476,277 unpaid part of general contractor’s fee not lienable against bankrupt resort… settling subcontractor’s $661,767 fee not lienable by successor to general contractor) dck Worldwide Holdings, 8/8:1

Default: (motion to vacate entry of default properly denied based on in-house attorney who was stipulated to receive service repeatedly ignoring service over claim of mistaken belief that outside counsel was handling… $3,970,899.56 verdict for driver injured by falling logs affirmed) Ginn v. Smurfit Stone, 3/21:1; ($224,982.63 net damages default judgment, breach of farm lease) Newman Ayers Ranch v. Stoddard, 5/9:5; (default judgment against pro se home inspector with no hearing to establish damages solely because he was the only Defendant without resources to navigate the system and driving him to bankruptcy by liability that did not exist in first place miscarriage of justice… remanded to direct Plaintiff to reimburse for amounts recovered out of $270,809 judgment) Gregory Hall v. Don Hall, 8/8:2; (pro se will contestant showed good cause to set aside entry of default) Mills, 8/22:1; (motion to set aside entry of default improperly granted summarily without explanation… preliminary injunction in easement dispute improperly based on default but with no findings, conclusions, or reasoning) Robinson v. Feese, 10/17:3

Discovery: (prisoner’s search & seizure suit dismissed for refusal to appear for deposition, Defendants’ request for fees denied) Townsend v. Ihde, 1/10:6; (admitting in deposition to conduct that constituted traffic violations did not merit 37(c)(2) sanctions for denying in discovery violation of statutory provisions) Tempel v. Benson, 3/21:2

Expert disclosure: rulings in dispute over insurance coverage of burned home (repairable or total loss)) Laslovich v. State Farm Fire & Casualty, 5/23:6; (adequate in water rights case, exclusion tainted trial… judgment/fees for Defendants following bench trial reversed) Sharbono v. Cole, 9/5:2

Failure to prosecute: (State’s case against insurer improperly dismissed for failure to prosecute for 17 months) A.M. Welles v. Montana Materials dba L.S. Jensen & Sons, 2/14:1

GAL: (properly appointed to determine whether claims against father and his tavern would be in best interests of children whose mother was killed and father was injured in rollover) Conservatorship of Minor Children, 12/5:2

Hearing: (issue properly “heard” via affidavits/pleadings without need for oral “hearing”) Marriage of Sampley, 5/9:1

Injunction: (pipeline company preliminarily enjoined from constructing road over disputed route on Plaintiffs’ property to riprap creek) Kromarek v. Phillips 66 Pipeline, 10/10:5

Issue preclusion: (2011 tax classification challenge not precluded by Sherlock’s ruling as to 2004 classification which was reversed on appeal without addressing “single & continuous property” issue) Omimex Canada v. DOR, 4/25:1

Judicial admission: (husband’s sketchy recollection of house appraisals in prior divorce hearing not sufficient to preclude evidence of value of house as directed by remand) Marriage of Steyh, 7/11:3

Judgment renewal: (improperly granted on motion rather than in separate action, but judgment debtor not entitled to hearing on legality of 2004 $2.5 million intellectual property judgment) Wallace v. Hayes, 3/21:4

Laches: (no extraordinary circumstances to apply laches where suit was brought 5 years after breach) Bottrell Family Investments v. Diversified Financial, 7/11:1

Medical damages: (actual amounts billed to deceased tort victim admissible, not limited to amounts actually paid by Medicare/BCBS… reasonableness of bills as measure of damages to be determined by the jury… Defendants may contest reasonableness, Plaintiff may counter with what Medicare pays to other providers… order admitting only evidence of amounts insurers paid violates collateral source rule… supervisory control of Oldenburg granted) Meek v. Oldenburg, 5/16:1 Oral argument: (husband’s rights not affected by no oral argument on Rule 60 motion) Marriage of Cox, 6/13:2

New trial: (properly granted following defense verdict that found admitted negligence was not cause of injury to Plaintiff despite evidence that hand fracture was caused by MVA) Reis v. Luckett, 12/5:1

No-contact order: (“suitable mode” of responding to Petitioner’s invocation of jurisdiction… review of no-contact order and purported attorney conflict hampered by lack of transcript) Townsend v. Glick, 11/28:2

Order of protection: (denial of motion to dismiss POP based on release of civil claims not abuse of discretion) Lear v. Jamrogowicz, 6/27:3; (4 successive calls from jail properly charged as 4 counts over argument that they were continuation of interrupted calls) Strong, 9/5:3; (order of protection improperly amended sua sponte without notice) Bardsley v. Pluger, 10/24:3

Post-judgment interest: (improperly awarded from punitives decision rather than verdict) McCulley v. US Bank of Montana, 4/18:1

Punitives review: ($16,760,000 punitives upheld on top of $286,550 compensatory verdict for bank’s wrongful set off/breach of contract with logging company… punitives cap unconstitutional… $7,500,482 fees based on 44% contingency, $90,820 costs) Kelly Logging v. First Interstate Bank,5/2:3

Sanctions: (attorney properly sanctioned $2,000 for missing hearing without notice of illness, $10,000 for disrespect of Court… $65,911 improperly assessed for frivolous suit in light of this Court’s finding that FDCPA claim not entirely frivolous, remanded for reconsideration) Serrania v. LPH (Northwest Collectors), 5/2:2

Verdict amendment: ($75,348.18 verdict for logger/contractor against property owner amended to reflect $50,348.18 as breach of contract damages rather than mutually exclusive unjust enrichment damages, and to vacate $25,000 for breach of implied covenant as double recovery) Ryffel Family Partnership v. Alpine Country Const., 12/5:4

 

*Commerce

Auto dealership: (subject jurisdiction/federal preemption must be considered in same line-make franchise award following termination as part of Ch. 11 sale in light of 6th Circuit ruling) Rimrock Chrysler v. Lithia Motors, 7/25:4

 

*Conservatorship

Conservatorship: (no standing by son to assert mother’s due process rights including private counsel, Judge within discretion to appoint OPD… opposing party not bound to notice requirements when son removed his counsel 2 days before trial… no abuse of discretion in appointing non-relative guardian… distrust among siblings justified 3 conservators including attorney without statutory priority… no abuse of discretion to preclude conservators acting in mother’s elected corporate roles… attorney/conservator properly awarded fees for administration of complex, multi-million-dollar estate, sanctions properly assessed against dissenting conservator for objecting to fees… attorney misconduct allegations not properly before MSC) Guardianship & Conservatorship of AMM, 8/29:2

 

*Constitutional Law

Abortion: (2011/13 laws requiring parental notification/consent for abortion by minor not identical to 1995 law ruled on in 1999, present challenge not barred by issue preclusion) Planned Parenthood of Montana v. State, 2/7:1

Open meetings: (illegal executive session for deliberation on selection of city manager remedied by additional public meetings) Citizens for Open Government v. Polson, 2/28:2

Right to know: (investigative documents related to school food supervisor’s termination properly ordered disclosed… preemptive petition by schools prudent) Missoula Co. Public Schools v. Bitterroot Star, 4/4:1; (release of documents related to $2 million MMIA/Bozeman settlement properly subject to privilege log) Nelson v. MMIA, 7/18:2; (right to know/participate not implicated by County considering small bridge on private property with limited use… no standing to sue County for negligence because no property interest in crossing… fees to County properly denied) Fletcher v. Park Co., 7/25:3

 

*Consumer Protection

CPA: (some claims arising from 2001 construction and subsequent inspections & repairs time-barred, some not… expert not required for CPA claims as to contract and billing) Hein v. Scott, 7/18:1; (chalet seller did not negligently misrepresent that ski-out access would be built by developer or violate CPA because representation was as to a future event, true at time it was made, prevented only by developer’s bankruptcy… argument about negligent misrepresentation elements not waived by raising in reply brief in support of in limine motion when opponent raised it in response brief… $2,232,386 bench judgment reversed) WLW Realty Partners v. Continental Partners, 11/7:1

 

*Contracts

Conflicting provisions: (in companion health insurance contracts as to coverage waiver and 75% participation construed against drafter to give waiver provision precedence) Montana Health Network v. Great Falls Orthopedic Associates, 7/11:2

Cooperate & participate: (provision requiring parties to real estate agreement to “cooperate and participate” in quiet title action does not require payment of share of attorney fees) St. Marie Development Corp. v. Bethea, 9/12:2

Election of remedies: (specified remedies are not exclusive per contract language listing sequential remedies “in addition to other remedies,” Plaintiff may accept Defendants’ forfeited interests and liquidate software entity following doomsday election, then sue for deficiency… no extraordinary circumstances to apply laches where suit was brought 5 years after breach) Bottrell Family Investments v. Diversified Financial, 7/11:1

Gravel access lease: (properly construed without parol evidence purporting to allow renewal in perpetuity) Robak v. Ravalli Co., 5/16:3

Indemnification: (paving contractor entitled to indemnity from subcontractor for damage to vehicles from primer which emulsified in rain, negligence/foreseeability not required) A.M. Welles v. Montana Materials dba L.S. Jensen & Sons, 2/14:1

Mineral interests: (claim that 90-year-old deceased veterans home resident sold rich mineral interests for $10,000 cash based on 1-page handwritten agreement barred by rescission, laches, unclean hands… tort claims against PR also rejected… mineral interests devised to Eastern Montana Veterans Home Foundation) Richards v. Estate of Samuelsen, 4/11:2

Sales contract: (binding contract under UCC existed for chemical/fertilizer orders made by and signed for by ostensible agent son of company owner… prejudgment interest properly awarded for 2 years during which case languished… owner improperly held personally liable) Fitterer Sales Montana v. Mullin, 9/19:3

 

*Corporations

Agent: (summary judgment that home inspector is shielded from personal liability is precluded by fact issues indicating he was not acting in corporation’s business interests in allegedly deficient inspection) Mellem v. Complete Home Inspections, 3/21:5

Dissolution: (does not preclude fiduciary claims against shareholders) Kulko v. Davail Inc., 12/12:1

 

*Courts

Adoption of order (challenge to adoption of order prepared by County’s attorneys rejected… $11,2812 award reduced by $4,560 fees-for-fees) Swapinski v. Lincoln Co., 9/19:1

Dismissal: (lawyer’s restitution suit against secretary properly dismissed upon motion of lawyer and over objection of secretary following determination of amount in criminal case) Sweeney v. Wylie, 6/27:5

Disqualification: (de novo review adopted for denial of recusal request… timeliness requirement adopted for claim of disqualification that can be waived under CJC 2.12(C), claim of bias or prejudice cannot be waived and thus timeliness requirement not applicable to bias or prejudice, claim of knowledge of facts in controversy acquired from prior representation of client in separate but related matter subject to timeliness requirement… claim for disqualification of sentencing judge who represented SVORA Defendant’s daughter in abuse/neglect case in which Defendant was accused of incest subject to timeliness requirement, waived by counsel’s apparent tactical decision to not seek disqualification) State v. Dunsmore, 4/25:5; (no basis to seek testimony or recusal of Judge) Marriage of Cox, 6/13:2; (rule of necessity permits a judge to hear a case in which a plaintiff sues all judges of the district) Glick v. Edwards, 10/24:6

Ex parte: (husband not prejudiced by Court staff’s effort to assist pro se litigant or contact with opposing counsel) Marriage of Cox, 6/13:2

Judicial immunity: (Judge immune from suit seeking damages for alleged wrongful removal of child) Hill v. Knisely, 9/12:4

Jurisdiction: (no long-arm jurisdiction over Minnesota dairy supplier doing business with Montana broker… objections not waived by failure to raise in notice of appearance) The Milky Whey v. Dairy Partners, 1/31:1; (insufficient facts pled in complaint to establish jurisdiction over Ohio manufacturer of refrigerator that allegedly caused fire in Florida in RV made in Alabama and purchased by Montana LLC, deficiency not cured by arguments in brief derived from manufacturer’s website… leave to amend complaint denied for failure to establish general jurisdiction perDaimler) Streetwise LV LLC v. Norcold, 4/25:6; (Ohio law governs employment claim, but Montana could still have jurisdiction… whether Ohio is more convenient requires further consideration) Harrington v. Energy West, 8/15:3

Justice court: (jury trial waived by failure of Defendant to personally appear at pretrial hearing, good cause to conduct DUI bench trial past 6 months) Thompson, 10/3:6

Municipal court: (Municipal Judge in criminal bench trial not required to issue written findings… sufficient implied findings to support conviction of Defendant found alone in car in alley with engine running over claim of necessity (shelter)) Hofstetter, 11/21:3

Scheduling order: (ongoing discovery dispute, recent developments in Montana insurance law, not good cause for amending order) Talmage v. ACE Property & Casualty Ins., 9/5:7

Small claims court: (dismissal of appeal to District Court erroneously based on Municipal Court deadline rules) Todd Kiser v. Noel Kiser, 11/14:1

Venue: (campaign practices dec action properly moved from Park to L&C where enforcement action was pending, but improperly sent to specific judge presiding over enforcement action… consolidation up to L&C judges) Wagman v. CPP, 6/27:4

 

*Crime, Criminal Procedure

Assault on officer: (Instruction requiring finding that deputies were officers during confrontation failed to also instruct that Defendant must have known them to be officers… convictions reversed) Carnes, 4/18:2

Assault with weapon: (Salvation Army Agreement to pay rent properly excluded over claim that it superseded judgment for possession relied on by landlord and officers to force entry into apartment… hearing-impaired Defendant’s defense of justifiable force in defense of structure and person properly rejected) Stanley, 10/10:4

Attempted deliberate homicide: (spontaneous statements after being taken into custody and requesting attorney were not in response to interrogation, not subject to Miranda… one stabbing victim properly allowed to remain in courtroom while other victim testified) Braulick, 5/30:5; (Defendant properly precluded from playing tape of police interview of alleged victim, transcript was sufficient for impeachment… jury properly instructed on mental disease/defect… convictions affirmed) Arnold, 7/11:6

Confrontation: (wife’s testimony at order of protection hearing hearsay, pro se husband had opportunity to cross-examine but did not have same motive as in assault with weapon case, reading transcript to jury not harmless, conviction reversed) Pingree, 7/11:4; (right not violated by Skype testimony of California witness in animal cruelty case) Duane, 8/22:4

Cross-examination: (of wife as to alcohol in relation to PFMA charge properly limited under “wide latitude”) Chute, 7/18:6

Deliberate homicide: (interview without Miranda waiver contained nothing incriminating, but in any event there was ample evidence of guilt of murdering ex-wife) Larson, 9/19:5

Discovery: (of “all forensic reports” from 1976 homicide prosecution denied in latest effort to withdraw guilty pleas… nothing useful in sealed envelopes opened first time in 40 years) Brown, 10/10:3

Drugs: (claim that Defendant was compelled to grow marijuana to treat chronic pain undercut by avowed purpose of testing Montana law, lack of evidence of compulsion) Urziceanu, 1/10:4; (trooper’s opinion that driver was likely under influence of stimulant such as meth was rationally based on his perceptions… trooper did not conduct DRE evaluation but was qualified as DRE expert… meth conviction affirmed) Pulliam, 1/17:4; (deputies properly observed marijuana plants in plain view when they accompanied resident to rural residence for move-out assistance) Urziceanu,2/28:5; (particularized suspicion to stop based on erratic driving… interpreter costs, administration fee improperly imposed) Duong, 3/7:2; (particularized suspicion for dog sniff of vehicle, sufficient probable cause for search warrant despite application’s mention of incident in which Defendant was stopped and a passenger was arrested for drugs but omitting that charges had been dismissed… marijuana conviction affirmed) Mercer, 3/7:3; (particularized suspicion to stop truck because of broken tail light properly found by District Court despite Tribal Court’s contrary finding… sufficient probable cause to search truck… meth possession conviction affirmed) Moulton, 4/4:3; (conviction of conspiracy to possess with intent to distribute and distribution of meth affirmed… specific buyer-seller instruction not necessary) Moe, 4/11:5; (pills properly seized from purse at train station following tip based on corroboration and consent to search… written judgment improperly departed from oral pronouncement) Dupree, 4/25:3

DUI: (challenge of prior DUIs underlying felony properly rejected) Koski, 1/10:4; (Intoxilyzer’s 20-minute ingestion deprivation period not mandatory under new rule, but still sufficient evidence of no ingestion) Levanger, 3/21:5; (no evidence that will was overborne or capacity for self-determination critically impaired by “coercing” Defendant to take balance tests despite claimed ear condition, felony DUI affirmed… sentences for no insurance or registration exceeded statutory mandates) Speer, 3/28:5; (Crime Lab report properly admitted under Rule 803(6) hearsay exception despite no notice in writing as Defendant had received it in discovery and had opportunity to cross-examine author) Schwarzmeier, 4/11:2; (reasonable ground to stop for failure to stop at sign, Deputy did not represent that Defendant would not lose license if he provided PBT sample, claim of disabling fear of blood-draw needles properly rejected… reinstatement properly denied) Kummerfeldt, 4/25:4; (slightly crossing yellow center line grounds for stop, over argument that statute allows occasional movement from lane) Mitchell, 5/9:3; (DFE from dust remover properly considered a “drug” for DUI purposes) Pinder, 6/13:3; (testimony by toxicologist by 2-way video without finding of necessity harmless error in light of other testimony) Curry, 6/20:4; (exculpatory evidence claim rejected… independent blood test not clearly requested… alleged perjury by officer as to patrol car seat belt policy not material to criminal case, and no evidence of perjury) Opie, 6/20:5; (particularized suspicion for stopping vehicle based on crossing yellow line early Sunday, plus weaving and touching lane line 2nd time, over testimony of photogrammetry expert) 7/25:6; (24/7 sobriety program breath tests not unreasonable searches but require individualized assessment… contempt for missing tests properly reversed by District Court for lack of assessment) Spady, 8/1:4; (right to independent blood test not violated for Defendant ultimately sentenced to 30 years at MSP for 4th DUI/PFO) Hoots, 9/19:7; (officer not precluded from obtaining consent for post-arrest blood/breath sample after refusal of PAST) Dallman, 9/19:7; (Defense not impaired by State’s timely replacement of proposed instructions with instructions fitting charge) Vegge,10/3:6; (jackrabbit start at night with pedestrians particularized suspicion to stop) Sharp, 10/10:3; (Intoxilyzer and operators properly recertified) Poitras, 10/10:3; (blood drawn 8 hours after driving within reasonable time under circumstances of delay in getting to hospital) Hala, 10/24:4; (all 3 Idaho DUIs properly counted in Montana 4th DUI charge, including a felony 3rd that was plea bargained to a misdemeanor 2nd) Barrett, 10/24:5; (Municipal Judge in criminal bench trial not required to issue written findings… sufficient implied findings to support conviction of Defendant found alone in car in alley with engine running over claim of necessity (shelter)) Hofstetter, 11/21:3; (“reasonable grounds” to stop, license reinstatement properly denied) Hanawalt, 12/5:3; (Prosecutor’s comments that if Defendant was innocent she would have proven it by submitting to breath test improper but not sufficient to find plain error… conviction affirmed) Favel, 12/5:3

Election between offenses: (claim of double jeopardy, illegal multiple offenses in charging elder abuse and aggravated assault premature before conviction) Violette, 2/28:5

Entrapment: (Respondent to Craigslist sting seeking legal encounter was diverted by “chatter” into seeking under-age encounter, charge dismissed based on entrapment) Adams, 12/5:5

Ex post facto: (14 new sex offender conditions imposed at 2012 revocation under 1991 amendment as made retroactive by 2001 amendment and applied to 1988 offense are not punitive in nature, not ex post facto) Piller, 1/3:5

False statement to FBI: (Tribal police officer’s convictions in relation to allegedly threatening jail or oral sex affirmed despite acquittal of sex abuse… victim’s 10-year-old convictions properly excluded for credibility impeachment) Connelly, 6/6:6

Felon in possession: (felon in possession/robbery/brandishing convictions affirmed) Tichenor, 2/14:4; (sufficient evidence to support conviction… counsel implicitly waived right to closing argument (1st impression)) Richter, 4/11:4

Firearms: (new-trial hearing required on claim that ex-girlfriend loudly proclaimed before jurors in lobby Defendant’s criminal past, bad behavior, willingness to do anything for money… pro per and other claims properly rejected) McChesney, 6/6:7; (firearms while subject to court order, jury properly allowed to view traffic stop video (exhibit, not trial testimony) during deliberations, did not violate right to be present at all stages… 4-level enhancement warranted by guns in car and evidence of contemplated drug transaction) Chadwell, 9/5:7

Fitness: (statute unclear when 90 days for ruling begins, but challenge to timeliness waived by agreeing to continue treatment) Robertson, 12/12:2

Forfeiture: (warrant to search Hummer purportedly owned by Washington murder/drugs suspect properly issued and executed… personal service of notice of forfeiture hearing not required when attorney received proper notice… seizure of Hummer and cash in tool box affirmed as to suspect… mother claiming co-ownership of Hummer not properly served, forfeiture of Hummer as to her reversed) Bilderback, 7/4:6

Fraudulent investment scheme: (convictions/sentences of 4 Defendants affirmed, 1 conviction reversed) US v. Suzette Gal, 4/4:4

Game: (statute of limitations for unlawful possession of wildlife begins when one ceases to possess… Krueger reversed on supervisory control) State v. Krueger, 10/17:4

Hunting: (evidence obtained by undercover agents of violations by Defendant who solicited hunting on his ranch properly admitted… jury properly allowed to take into deliberations tapes of conversations between agents and Defendant) Indreland, 1/31:4

Intimidation: (conviction for “not serious” bomb threat affirmed) Christ, 12/5:3

Jurisdiction: (Defendant not entitled to grand jury under Montana’s constitutional and statutory scheme for initiating prosecution) Montgomery, 6/6:4

Jury: (panelist who was employed by CID which was involved in investigation of unlicensed outfitter should have been removed for cause… conviction of 38 counts of outfitting without a license reversed, remanded for new trial) Kebble, 7/18:5; (infringement on right to be present during Judge’s inquiry during deliberations as to whether jury would reach a verdict that night was trivial, new trial after conviction of assault of officer properly denied) Northcutt, 9/12:7

Justifiable force: (Defendant required to testify to lay foundation) RSA, 7/25:5

Migratory birds: (conspiracy to kill, transport, sell eagles is felony, trafficking in bird parts is misdemeanor) Crooked Arm, 7/25:8

Mischief/theft/trespass: (no prejudice from evidence of no driver’s license since 2004 due to DUI… instruction on lesser-included misdemeanor criminal mischief properly not given… no ineffective assistance by failing to request result-based definition of “purposely” committing criminal mischief… sentence not improperly based on indigency (time it would take to pay restitution)) Tweten, 11/21:2

Negligent homicide: (late-discovered material witness properly permitted to testify… sufficient evidence that decedent’s death resulted from Defendant failing to render aid after running over him and leaving him immobile in sub-0 weather) Bowen, 8/29:4

New trial: (untimely motion for new trial based on woman’s impost-trial statements that she remembered urinating on herself and could not feel below waist contradicting trial testimony that fluid was vaginal should have been granted because of reasonable probability of different outcome of trial of alleged digital massage rape, not left to postconviction consideration) Morse, 2/28:3; (misrepresentation of damage photos (MVA v. later bird crash) deprived Plaintiff of fair trial… $3,655 verdict in admitted liability rear-ender reversed, remanded for new trial) O’Connor v. George,9/19:2

PFMA: (new trial properly denied based on claim that girlfriend was coached by victim advocate and text messages from girlfriend were improperly excluded

Plea agreement: (did not preclude victim/witness letters at sentencing) Price, 6/6:8

Plea withdrawal: (erroneous commitment to “MPC” rather than “DOC” per plea agreement was properly corrected factual error, not basis for withdrawal) Zlahn, 3/21:4; (deliberate homicide Defendant not provided adequate opportunity to explain complaints about counsel, remanded for adequate inquiry) Schowengerdt, 5/23:3; (withdrawal of guilty plea to 2nd degree murder for 4 DUI deaths properly denied) Eagleman, 6/6:7; (voluntariness of plea not affected by lack of awareness of potential discretionary parole restriction) Lewis, 7/18:5; (no good cause to withdraw nolo to sex offender’s address where agreement breached by SIWC prior to sentencing) Warner, 8/22:3; (Defendant knowingly entered plea under §211(1)(c) despite claim that he thought it was (b)… hearing into alleged attorney misconduct during private conversations before rejecting ineffective assistance claims not necessary since Defendant could not withdraw plea) Buettner, 12/26:3

Postconviction: (claims of ineffective assistance by unpreparedness in examination of murder witness properly rejected without hearing as having been decided on direct appeal… affidavits do not change prior holding of no prejudice) Edwards, 1/17:4; (claim of ineffective assistance by failing to demand jury for PFMA defendant properly denied) Ellison, 1/24:2; (claims relating to withdrawal of nolo plea to theft and ineffective assistance properly denied) Strizich, 6/13:3; (pro se incest Petitioner not entitled to counsel to assist with new arguments… trial/appellate counsel not ineffective for not objecting to “gratifying” or “regularly resides”… 50-year sentence legal) Stewart, 6/13:4; (Beach II Concurrence test requiring innocence unquestionably established based on new evidence not suited to §46-21-102(2) requirement that new evidence be “proved and viewed in light of the evidence as a whole”… petition denial reversed, remanded for reconsideration) Marble, 8/22:2; (claims of new evidence in form of expert testimony challenging AHD diagnosis in child’s death and ineffective assistance for not presenting the evidence at trial remanded for consideration under Marble) Wilkes, 9/19:4; (claims by aggravated burglary/assault with weapon Defendant who can never be satisfied with counsel rejected) Clary, 10/17:5; (petition claiming new evidence of innocence properly rejected as untimely) Devlin, 10/24:5; (claims properly rejected without response or hearing except as to PFO issue) Chyatte, 12/19:1; (new filing period not triggered by amended judgment clarifying probation conditions) Vondal, 12/19:2

Pretrial punishment: (plain error review declined for claims of pretrial punishment by being held in solitary & restraints for 5 months prior to sentencing, allegedly sanctioned by Judge at transport hearing while Defendant was at MSH for fitness evaluation) RSA, 7/25:5

Protective order: (violation supported by indirect contact with petitioner’s daughter at restaurant which disturbed her peace) Heuer, 11/21:3

Public defender cost: ($36,920 properly imposed on double homicide Defendant) Gable, 7/18:4

Rape/sexual assault: (delving into Defendant’s private sex habits in “not overwhelmingly strong” case of alleged touching of 9-year-old improperly allowed over State’s position that door was opened by counsel’s opening remarks about active sex life with girlfriend and thus no reason to molest child, likely contributed to conviction, conviction reversed) Nichols, 1/3:3; (instruction that Defendant must know that woman did not consent properly rejected) Shearer, 1/31:4; (untimely motion for new trial based on woman’s impost-trial statements that she remembered urinating on herself and could not feel below waist contradicting trial testimony that fluid was vaginal should have been granted because of reasonable probability of different outcome of trial of alleged digital massage rape, not left to postconviction consideration) Morse, 2/28:3; (uncharged sexual assault properly admitted to show timeline of report of charged assault… evidence suggesting physical abuse by husband of one alleged victim years after alleged sexual assault properly excluded… written/oral sentencing inconsistencies remanded for correction) Pulst, 7/11:5

Representative of State: (detective may act as both representative of State and witness at trial) Nichols, 1/3:3

Restitution: (counseling costs for sex abuse accuser improperly imposed for violation of order of protection) Thorpe, 1/24:1; (properly ordered for initial theft claim which insurer paid although only disputing supplemental replacement value claim which it refused to pay) Henderson, 2/28:5; (properly required for future counseling/treatment of assault victim despite payments by state programs) Jenkins, 3/21:4; (claim for wages/income lost attending proceedings and assisting in prosecution of Defendant accused of killing family dog improperly awarded… restitution properly awarded for stress-related medicals) Barrick, 4/4:3; ($22,250 value of jewels properly ordered) Kemmer, 4/25:4; (claims as to forged checks waived by untimely assertion) Berg, 5/23:4; ($618,816.41 properly awarded to motorcycle accident victims) Passwater, 6/20:4; (privacy/disclosure interests of PFMA victim’s mental treatment form should be balanced to determine if Defendant is entitled to review counseling costsa) McClelland 10/3:5; (general one-word objections inadequate to preserve for appeal arguments that victims failed to file affidavits or testify and Judge relied on replacement value and failed to consider ability to pay… $888 “car-hopping” restitution properly imposed on youth) DGJ, 12/26:2

Revocation: (14 new sex offender conditions imposed at 2012 revocation under 1991 amendment as made retroactive by 2001 amendment and applied to 1988 offense are not punitive in nature, not ex post facto) Piller, 1/3:5; (suspended sentence properly revoked before suspension began… Defendant who escaped shortly after sentencing not denied due process by not being given probation conditions… unauthenticated out-of-state documents offered to show that Montana knew of whereabouts improperly excluded, but error harmless… MSP sentence improperly imposed upon revocation when original sentence imposed DOC commitment… Defendant should be credited for 17 months served between release by Oregon and extradition by Montana) Graves, 9/12:5;

Right to remain silent: (Defendant who submitted affidavit challenging prior DUI properly subjected to cross (1st impression)) Johnson, 8/15:5

Robbery: (“criminal purpose” of robbery not completed when shoplifted goods were abandoned outside store after being confronted, ripened into felony robbery when he injured or threatened to injure pursuers) RSA, 7/25:5

Robbery accountability: (jury properly instructed on accountability of Defendant who drove car to store where friend shot clerk, then drove car away… sufficient evidence to go to jury… amount of restitution for clerk’s future medicals improperly referred to Parole/Probation… Judge not required to explain greater sentence after trial than he said he would impose before trial when he rejected plea agreement… accountability Defendant properly required to register as violent offender) Hanna, 1/3:4

Security fraud: (contention that remaining conviction should be vacated or limited to $500 fine exceeded remand mandate in reversal of 2 counts, properly rejected in resentencing to 10 years) Parks, 2/7:2; (sufficient evidence that churchman failed to register as securities salesperson and failed to register a security in connection with solar panel scheme that fleeced disabled vet of $150,000… fraudulent practices conviction reversed because of instruction based on definition not in effect at the time… instruction on “willfully” did not create strict liability offense, 10 years all but 90 days suspended proper… $150,000 restitution proper despite acquittal of theft) Himes, 3/28:4

Sentencing: (release conditions for failure to register as sex offender affirmed, vacated) Stewart, 1/10:5; (sufficient evidence of force in sexual assault to support enhancement) Four Star, 1/10:5; (time in treatment facility not “incarceration,” properly not credited against sentence… $500 counsel costs in oral pronouncement prevails over $800 in written judgment) Byrd, 1/31:3; (prescription drug conditions proper) Foote, 3/21:4; (sentences for no insurance or registration exceeded statutory mandates) Speer, 3/28:5; (habeas review of 1984 100-year homicide sentence of 17-year-old under Miller guidelines precluded by rule of nonretroactivity) Beach, 5/9:2; (Defendant improperly sentenced for both DUI and PFO, remanded for resentencing only as PFO, but request for release following expiration of DUI sentence denied) Smaage, 5/9:3; (girlfriend’s meth at jail properly included in quantity attributable to Defendant… remanded for application of 3rd level reduction amendment) Barrow, 5/16:7; (reduction of 405 months sentence for accepting responsibility for DUI deaths rejected) Eagleman, 6/6:7; (written/oral sentencing inconsistencies remanded for correction) Pulst, 7/11:5; (discharge date that falls year or more after end date of original 15 years for SIWC was due to Defendant’s conduct in repeatedly violating probation) Usrey, 7/25:7; (suspended sentence conditions of sex offender properly modified following discharge from prison)Glick, 9/5:4; (suspended sentence properly revoked before suspension began… Defendant who escaped shortly after sentencing not denied due process by not being given probation conditions… unauthenticated out-of-state documents offered to show that Montana knew of whereabouts improperly excluded, but error harmless… MSP sentence improperly imposed upon revocation when original sentence imposed DOC commitment… Defendant should be credited for 17 months served between release by Oregon and extradition by Montana) Graves, 9/12:5; (firearms improperly ordered sold to pay jail costs) Lee, 9/12:6; (no contact with children properly imposed on father convicted of assaulting mother) Robertson, 9/12:6; (impossible Treatment Court condition must be stricken) Parrish, 10/17:4; (“sophisticated means” enhancement properly applied to coordinated/repetitive transfer of money from charity to personal account) Augare, 10/24:7; (endangerment sentence in excess of 5-year DOC commitment remanded for correction or resentencing) Yearout, 12/12:2

Sex abuse: (sufficient evidence of “sexual act”) JWC, 6/6:8

Sex abuse of children: (Respondent to Craigslist sting seeking legal encounter was diverted by “chatter” into seeking under-age encounter, charge dismissed based on entrapment) Adams, 12/5:5

Sex offender address: (claim of ineffective assistance for not challenging for cause panelist who was concerned about Defendant not testifying more amenable to postconviction… jury query as to whether detective actually went to motel room or just checked at office when looking for Defendant properly responded to with partial trial transcript… fines/fees illegally imposed in judgment when not in pronouncement… sex offender designation illegally imposed on failure to notify of change of address) Greene, 1/10:3

Sexual assault: (evidentiary rulings) Given, 9/26:2

Speedy trial: (right to trial within 6 months for misdemeanor DUI waived by postponement on motion of Defendant, but constitutional speedy trial claim remains, improperly summarily rejected… 375 days sufficient to trigger analysis, remanded for analysis under Ariegwe) Heppner, 1/24:1; (constitutional right does not extend from conviction to sentencing, Mooney contrary holding overruled, although Defendant has due process right to be sentenced without unreasonable delay as well as statutory right (not asserted here) (1st impression)… 14 months delay from guilty plea to sentencing for bail jumping unacceptable but any prejudice speculative and not substantial) Betterman, 2/14:2; (claim in misdemeanor DUI case properly denied due to continuances granted for Defendant and evidence of willingness to postpone trial based on attorney’s representation that she planned to file speedy trial waiver) Walmsley, 7/25:7; (speedy trial, speedy sentencing claims properly denied, although analysis was rendered incorrect by Betterman) Maloney, 8/1:3

Tax evasion: (jury should have been instructed on willful failure to pay as lesser-included… vacated and remanded) Fisher, 5/16:6; (no error in $1 million+ tax loss analysis…“sophisticated means” enhancement properly applied to reach 40 months prison) Zander, 12/19:3

Traffic stop: (Miranda not required by inquisitive Trooper, length of stop not measurably prolonged, driver consented to all inquiries unrelated to speeding… part of delay justified by reasonable suspicion including prior drug arrest, inconsistencies about travel plans, appearance of vehicle and luggage… driver free to leave prior to dog sniff… suppression in drug bust denied) Iturbe-Gonzalez, 5/2:6; (officer had particularized suspicion to stop driver suspected of suspended license based on recognition of vehicle and driver’s body from previous encounters, confirmed by Dispatch)Wiley, 7/18:6

Trespass: (subcontractor was “authorized person” to deny entry of copper scavenger to demolition site) Janousek, 10/10:5

Wire fraud: (conviction in Indian Days scam affirmed) Spoonhunter, 1/17:6

 

*Discrimination

Age: (auto dealership office manager, 66, demonstrated prima facia case of age discrimination when demoted with pay cut and replaced with 31-year-old, but legitimate business reasons shown) Cooney v. Missoula Spartan, 8/29:8

Appeal time: (sexual favoritism/retaliation claims subject to HRA, time-barred) Lay v. Dept. of Military Affairs, 6/13:1

Disability: (claims against officers for “aiding & abetting” hotel’s refusal to register disabled vet with seizure dog properly rejected on summary judgment… untimely motion to add negligent training/supervision of officers properly denied) Hansen v. Bozeman PD, 5/30:4

HRC procedures: ($1,350,000 emotional distress award to Estate of Indian jail inmate who died of alcohol withdrawal reversed due to unlawful procedure by HRC, arbitrary/capricious rejection of HO’s findings… HO Spear’s original 0 order reinstated as final order… “unusual window” into HRC’s internal operations) Blaine Co. and Hill Co. v. Stricker (PR of Longsoldier), 12/12:3

Race: (African-American inmate’s employment, medical, discipline claims properly rejected) Edmundson v. DOC, 4/25:1

Sex: (no reasonable cause to believe unlawful discrimination in termination of transgender server) Walden v. Silver Star Steak Co., 9/26:8

Sexual harassment: (“improved or unimproved property” in HRA includes commercial real estate including complainant’s commercial lease, not just housing (1st impression)) Bates v. Neva, 1/3:1

 

*Elections

Political contributions: (wrong standard applied for permanently enjoining enforcement of Montana’s restrictions on contributions, must be tested under more restrictive Citizens United test) Lair v. AG, 6/6:6, (en banc hearing denied) 9/5:7

Political practices: (action seeking declaration that sufficiency decision should be filed in candidate’s county rather than L&C nonjusticiable in light of subsequent enforcement action in L&C) Murray v. COPP, 8/1:2

Recall: (petition rendered invalid by false Statement declarations alleging Commissioner misconduct) Underdal v. Lager, 1/24:3

 

*Employees

Wages: (sufficient evidence on remand that log truck driver was not orally guaranteed $60,000/yr… fault improperly attributed to trucker for employer’s failure to keep time records, trucker produced sufficient evidence to shift burden to employer, remanded for determination of overtime)Arlington v. Miller’s Trucking, 3/7:1

 

*Environment

Wastewater mixing zone: (issues related to proposed wastewater mixing zone under subdivision deferred pending remand for EIS… private AG fees properly denied

Wilderness helicopter: (appeal of summary rejection of challenge to helicopter flights to dam in wilderness area dismissed as moot) Wilderness Watch v. FS, 2/7:3

 

*Evidence, Civil

Experts: (retained neurologist with specific expertise in ALS improperly precluded from opining as to relationship between MVA and decedent’s ALS despite admission that exact cause of ALS is unknown… treating neurologist’s “could have” opinion insufficiently definite for causation testimony… dismissal for lack of experts reversed) McClue v. Safeco Ins., 8/8:2

Spoliation: (default judgment for failure to preserve workplace video properly denied, but some meaningful sanction should be imposed in new trial of injury claim following defense verdict) Spotted Horse v. BNSF, 6/6:2; (sanction for spoliation of video at festival is to instruct that driver of vehicle had been served alcohol by employees resulting in DUI crash) Gamble v. Rock Creek Investments, 6/20:5

 

*Evidence, Criminal

DNA: (new tests that make previously useless DNA capable of identification amount to “newly discovered DNA evidence” under Innocence Protection Act, even though the underwear and semen are not, thereby rebutting the presumption of untimeliness 7 years after conviction of sexual assault of intoxicated teen… motion for DNA testing under new tests improperly denied) Watson, 7/18:7

Late-discovered material witness: (permitted to testify) Bowen, 8/29:4

Search & seizure: (suppression of evidence seized during stop of suspected casino robber properly denied… meth/firearm guilty plea convictions affirmed) Zabroski, 4/11:5; (mother lacked authority to consent to search of adult daughter’s bedroom which daughter shared with boyfriend who possessed guns, boyfriend’s probation status not basis for search as he had been kicked out day before, evidence suppressed as to daughter’s charge of possession of stolen firearms… boyfriend had no expectation of privacy, evidence not suppressed as to his charge of felon in possession and possession of stolen firearms) Brown, 6/13:7; (suppression of pills found in bottle in pants cuff with other name on bottle during pat-down of driver stopped for suspected license properly denied) McKeever, 6/27:5; (passenger detained during investigation of ATL vehicle was seized without objective facts, confession/consent to search purse obtained as result of illegal seizure, drugs/paraphernalia should be suppressed) Emerson, 9/5:2

Theft: (instruction lacking statutory “purpose of depriving the owner of the property” was defective but instructions as a whole included the element and evidence was overwhelming that guardian raided ward’s inheritance for own benefit, plain error review denied, ineffective assistance claim rejected) Williams, 8/29:5

 

*Family Law

Abuse & neglect: (cohabitant who acted as father to child not entitled to appear as party in child’s proceeding, but may be allowed to give input as “person interested”) JB, 12/19:1

Adoption: (Montana Court properly required to give full faith & credit to California order setting child support at “zero,” adoption based on failure to pay support properly denied) PTH, 11/14:2

Attorney fees: (properly awarded to wife for defending against husband’s post-decree custody modification motion) Weibert, 2/7:2; (properly awarded) Kerutis, 8/1:3

Economic restraining order: (husband properly sanctioned for removal of 4-wheeler in violation of ERO) Kerutis, 8/1:3

Grandparent contact: (petition for greatly expanded visitation properly denied) Glueckert, 4/25:2

Jurisdiction: (any jurisdictional defect of wife not being domiciled in Montana for 90 days preceding her petition was cured when she established domicile for 90 days and filed a “supplemental pleading” alleging such (1st impression)) Buck, 1/3:2

Maintenance: (Master erred in lessening homemaker contributions because of husband’s retirement and finding that payment of part of wife’s debt was appropriate in lieu of maintenance… consideration of post-trial motions and corrections of errors of law will significantly impact award of maintenance and division which gave wife $82,866 of $1,078,005 estate after 14-year marriage… Master correctly excluded husband’s alleged role in causing physical/emotional limitations when determining maintenance) Patton, 1/17:3; (property in lieu of) Wallace, 1/17:5; (sanction striking maintenance too harsh, other sanctions affirmed) Tripp, 4/4:1; Axelberg, 4/25:2; (rejection of maintenance involving lawyer husband and wife with large ranch interests proper) LaBeau, 7/18:3; (properly awarded) Kerutis, 8/1:3; (amount improperly based on conclusion that wife’s expenses should be same as husband’s… termination of maintenance properly keyed to husband being no longer “gainfully employed”) Smith, 9/12:2; (wife with oil trusts, impecunious husband) Barton, 9/12:3; (maintenance in Decree and QDRO properly modified based on mistake, changed circumstances… maintenance arrearages erroneously calculated) Carr, 10/10:2

Parental rights: (transfer to Tribal Court properly denied as untimely… parental rights properly terminated) SBC, 1/10:3; (withdrawal of relinquishment properly denied for failure to establish “duress” under any definition) DS, 1/31:3; (father’s failure to “be nice” properly considered in termination) JD, 3/21:3; (Father’s rights to children properly terminated) AK, 5/9:2; (whether every child is entitled to independent counsel in YINC case not reached… termination of mother’s rights affirmed) TDH, 8/22:2

Parenting: (2009 parenting plan properly amended in 2013 to switch primary custody to father in Colorado) Atkinson, 1/10:2; (venue for parenting plan motion by grandmother proper in Flathead where child “found,” improperly changed to Hill where unmarried minor mother resides) SCB,1/31:2; (Ohio mother’s right to travel not violated by order to return child to Montana where child was born and father lives) MC, 2/28:3; (totality of circumstances adopted for determining if a child’s absence from Montana renders the community integration assumption unreasonable… child who lived in Washington, Canada, Montana, back in Canada “lived in” Montana less than the 6 months required for jurisdiction over parenting/custody) Sampley, 5/9:1; (parenting plan with mother who moved to Nevada affirmed) SEL, 8/15:4; (primary home parenting plan properly adopted)Virga, 10/17:3; (custody properly switched from Master’s designation upon rehearing by Judge due to defective recording of hearing) Linn, 10/17:4

Property: (Divisive Reorganization of grocery store & ranch supported by wife’s expert testimony over husband’s, no basis for Rule 59 amendment, modification could be requested if IRS rules adversely… store properly valued) Edwards, 1/17:2; (division of estate with lumber business and considerable pre-acquired/inherited property… no nonmonetary contributions) Wallace, 1/17:5; (pension division properly based on time rule per settlement agreement, although other methods could be utilized absent an agreement… wife entitled to appeal fees as prevailing party, not to fees below because she did not cross-appeal) Cadena, 3/28:3; (PI settlement divided only as to increased value… estate equitably divided despite failure to consider homemaker contributions) Tripp, 4/4:1; Axelberg, 4/25:2; (distributions involving lawyer husband and wife with large ranch interests proper) LaBeau, 7/18:3; (estate generally properly apportioned, but 2-year delay in issuing decree resulted in inequitable division of 401(k), 5 acres purchased with disabled son’s SS but held in parties’ names should be distributed) Kerutis, 8/1:3; (majority rule adopted that SS not allowed as basis for an offsetting award but may be considered when dividing property) Smith, 9/12:2; (up-front equalization properly ordered with potential of forced sale of ranch as incentive… tax consequences of ranch sale should be considered… ranch properly valued) Clark, 9/12:3; (wife with oil trusts, impecunious husband) Barton, 9/12:3; (Master equitably apportioned estate with substantial PI settlement) Kostelnik, 10/3:4; (property rulings affirmed, reversed… 45-day deadline for correcting equalization payment to bring proceedings to swift conclusion after indefensible 29-month delay) Troutman, 10/10:2; (ranch estate not equitably distributed, particularly absent maintenance) Richards/Trusler, 11/7:2

Settlement conference: (waiver of Rule 16(a) conference on wife’s motion before husband had chance to respond within Judge’s discretion) Kerutis, 8/1:3

Standing Master: (Judge should have ruled on wife’s post-decree motions or recommitted them to Standing Master… lack of citation to transcript subjected wife’s objections to adverse summary ruling under Charter Order) Patton, 1/17:3

Support: Axelberg, 4/25:2; Troutman, 10/10:2; (divorce decree improvidently entered before determining child support… supervisory control of Gilbert granted) Bidegaray, 11/7:3

TRO: (because husband did not serve wife with divorce TRO within 3 years, the TRO, although never dismissed, was rendered ineffective and he was not prohibited from amending his IRA to remove wife as beneficiary and name children as primary beneficiaries) Corrigan, 1/3:1;

 

*Guardianship

Guardianship: (no standing by son to assert mother’s due process rights including private counsel, Judge within discretion to appoint OPD… opposing party not bound to notice requirements when son removed his counsel 2 days before trial… no abuse of discretion in appointing non-relative guardian… distrust among siblings justified 3 conservators including attorney without statutory priority… no abuse of discretion to preclude conservators acting in mother’s elected corporate roles… attorney/conservator properly awarded fees for administration of complex, multi-million-dollar estate, sanctions properly assessed against dissenting conservator for objecting to fees… attorney misconduct allegations not properly before MSC) Guardianship & Conservatorship of AMM, 8/29:2

Jurisdiction: (cert/prohibition challenging Montana contempt/arrest orders in California trust whose trustee/protected person moved to Montana denied) Christie v. Haynes, 1/10:1

 

*Health Care Providers

Hospitals: (uninsured patient has standing to challenge unequal charges vis-à-vis PPAs… summary judgment based on rejection of uninsured status as “social condition” premature before addressing disparate treatment) Gazelka v. St. Peter’s Hospital, 5/16:2; (challenges to rates charged uninsured patients v. insureds dismissed for failure to state claim… dispute over number of surgical implants dismissed on summary judgment… fees/costs awarded for frivolous complaint) Credit Associates v. Prendergast, 10/24:5

 

*Homeowners Association

Covenants: (covenants properly interpreted to require special assessment rather than maintenance funds for new trail construction… Association properly awarded fees/costs on counterclaim for unpaid dues & assessments… homeowner improperly awarded reciprocal fees/costs, properly denied fees/costs under UDJA) Beebe v. Board of Directors of Bridger Creek Subdivision Community Association, 7/4:5

 

*Indians

Comity: (particularized suspicion to stop truck because of broken tail light properly found by District Court despite Tribal Court’s contrary finding) Moulton, 4/4:3

Jurisdiction: (transfer to Tribal Court properly denied as untimely… parental rights properly terminated) SBC, 1/10:3

Sovereign immunity: (Tribal Housing Authority and other entities and individuals shielded by Tribal sovereign immunity from $20 million explosion suit) Eagleman v. Rocky Boys Chippewa-Cree Tribal Business Committee, 12/5:8

Tribal courts: (tribal convictions may be used in subsequent prosecutions only if right to counsel guaranteed… petition for rehearing of Panel reversal of Cebull denied) US v. Bryant, 7/25:8

Tribal housing: (Tribe not improperly denied hearing in HUD overpayment recovery) Crow Tribal Housing Authority v. HUD, 4/4:4

 

*Insurance

Assisted living: (eligibility provision of assisted-living policy required only that provider certify that person needed services because she was “Chronically Ill,” insurer’s “needs and receives” interpretation of ambiguous provision rejected… eligibility satisfied when doctor said person was cognitively impaired and needed supervision, policy breached when insurer represented otherwise, whether breach caused damages for jury to resolve… insurer’s refusal to even consider doctor’s letter certifying that person was cognitively impaired and needed assisted living violated §33-18-201(4) requirement to consider “all available information,” whether violation caused damages for jury to resolve… contra proferentum precludes summary judgment for insurer’s reasonable basis defense… promise by insurer years ago to sell policy that would cover all needs if person had to move into assisted living facility not necessarily fraud

Attorney fees: (insufficient record to determine if Plaintiff’s request for fees under insurance exception was properly denied following $200,000 UIM verdict… both parties’ actions during entire process must be considered, not merely that insurer did not deny UIM coverage and Plaintiff sued before evidence sufficiently developed) Mlekush v. Farmers Ins. Exchange, 10/24:1

Bad faith: (bad faith “fishing expedition that yielded no catch”… insurer delivered $4 million policy limits to Plaintiff’s attorney and 6 others to settle prior case against CPA firm… Plaintiff not informed that others would share in settlement, now sues insurer for bad faith failure to timely settle, leverage her into global settlement… Plaintiff’s counsel disqualified so she could testify as necessary witness to facts in prior case, co-counsel took over case, moved to disqualify insurer’s counsel… discovery violations and other bad faith by Plaintiff’s counsel… Judge recusal based on alleged bias against Plaintiff’s counsel and reliance on “extrajudicial source” (private practice experience) and outdated understanding of the law denied… summary judgment for insurer on bad faith claims… insurer awarded $107,867/54 fees/costs payable by Plaintiff’s counsel for retaliatory motion to disqualify Defendants’ counsel and expenses incurred by Defendants in compelling additional discovery… 104-page order) Redding v. New York Marine Ins., 3/7:5; (jury improperly instructed that it must first find UTPA damages beyond $539,717.90 directed verdict for failure to pay benefits under cancer policy before considering malice/punitives, remanded for new trial on malice/punitives… jury properly allowed to determine whether insurer had “reasonable basis in law” for contesting claim) Estate of Gleason v. Central United Life Ins., 5/30:1; (insurer’s conditioning MVA settlement on TRICARE as co-payee not required by any applicable or analogous law, no reasonable basis in law for delaying payment 6 months until Plaintiff obtained TRICARE waiver, liable for $1,464,000 consent judgment) West (GAL for Lee) v. USAA, 11/14:2

Binder/policy dates: (no enforceable binder until insured chose premium/deductible, 6-month policy started from time of enforceable binder, not date of application 6 days earlier, extended 6 days past MVA… confusing cancellation notices construed against insurer, final notice not just for non-payment of premium but also related to renewal for next 6-month period, did not clearly state that payment was to replenish reserve account required for renewal of policy… premiums for policy period paid in full when crediting service charges for installment payment plan… insured covered for MVA by UIM, entitled to fees/costs) Johnson v. State Farm Fire & Casualty, 5/9:3

Cancelation: (auto policy properly canceled for nonpayment of renewal premium, no coverage for loss of new truck) Finn v. Dakota Fire Ins., 8/29:1

Confessed judgment: (insurer entitled to contest reasonableness of $12 million confessed judgment in house construction dispute… final judgment reversed) Abbey/Land v. Interstate Mechanical, 3/21:1

Coverage: (employee exclusion in truck company’s policy valid under Montana law where NJ shipper allegedly improperly loaded truck which caused it to overturn in NC, resulting in death of driver… Tibi dicta cannot withstand scrutiny in light of Reading, which is still good law despite subsequent MLPA… Tibi public policy concerns not at issue since driver’s estate received $132,627 in work comp and coverage is available under shipper’s policy for any liability by shipper) American Trucking & Transportation Ins. v. Travelers Property Casualty, 5/9:7; (landowner not covered by logging company’s policy for employee’s injury) Stoltze Land & Lumber v. American States Ins., 6/27:1; (decision not to treat logs with insecticide was not covered “occurrence”… insurer not liable for $328,825 consent judgment) Northland Casualty v. Mulroy dba Yorlum Ranch,8/8:7; (student injured in bicycle crash not covered by UIM/MP in parents’ corporate policy) American States Ins. v. Flathead Janitorial & Rug Service, 8/15:2; (no coverage under CGL policy for cosmetics students’ bodily injuries (physical manifestations of emotional distress) from boorish behavior by instructors and expulsion after filing complaints because they stem from purposeful acts… insurer previously held not bound by $4 million consent judgment entered after it accepted defense under reservation) Walden v. Maryland Casualty, 10/17:7

Defend/indemnify: (letter from Ch. 7 counsel notifying insurer of proof of claim was not sent by a “policy insured,” insurer has no duty to defend) In re Blixseth, 2/14:3; (fact issues as to whether grizzly maul decedent was “temporary worker” or “employee” preclude summary judgment on duty to indemnify animal facility… because there is potential for coverage if victim is found to have been temporary worker, insurer has duty to defend against tort claims… findings & recommendation) Liberty Corporate Capital v. Animals of Montana, 5/16:7; ($29 million settlement by 35 ESOP participants and grocery chain executives found reasonable following reasonableness hearing on remand from Supreme Court holding that insurer breached duty to defend and was estopped from denying coverage and no evidence of collusion but reasonableness hearing required… $29 million judgment against insurer) Tidyman’s Management Services v. Davis, 5/23:4; (CGL insurer did not breach duty to defend or settle beetle infestation claims against log home builder) Northland Casualty v. Mulroy dba Yorlum Ranch, 8/8:7; (insurer breached duty to defend contractor against home defect claims, liable for $192,500 settlement… Court declines to extend insurance exception or DJA to assignee of indemnity right under insurance contract for attorney fees… assignee has standing to bring coverage action, sue under UTPA, despite insurer not consenting to insured assigning rights… insurer’s coverage argument a non-issue following breach of duty to defend… risk retention group irrefutably subject to liability for any proven violations of UTPA, Court disheartened by representations otherwise… amendment by Plaintiff to fix typo granted over insurer’s request for summary judgment for citation to wrong statute) Wood v. Preferred Contractors Ins. Co. Risk Retention Group, 11/21:6

ERISA: (Claims Administrator acted legally but perhaps not morally in denying preapproval of stem cell transplant for systemic sclerosis pursuant to Plan’s experimental/investigational exclusion despite claim by doctors that it is medically necessary to prevent death) Robertson v. BCBS of Texas, 4/18:7

Exclusive agency: (claim by exclusive insurance agency upon termination for fraud viable under contract rather than secured transactions law under Allstate’s alternate universe governing agency relationships) Allstate Ins. v. Posnien, 6/20:1

Group health plan: (class properly certified in made-whole challenge of exclusion requiring auto liability to be exhausted prior to processing health plan claims… 1 known member but others certain to be found or class may be decertified) Roose v. Employee Benefit Management Services,11/21:1

Multiple claimants: (Court declines to recognize first in time for multiple wildfire claimants, adopts public policy approach that protects interests of all claimants in insurance proceeds pro rata, to be determined by a court in equity… $500,000 commercial auto limits to be deposited in interpleader for benefit of all claimants) Associated Dermatology & Skin Cancer Clinic of Helena, profit sharing plan & trust for the benefit of Stephen Behlmer v. Mountain West Farm Bureau Mutual Ins., 6/27:6

Non-party insurer: ($400,000 MVA verdict upheld, but Plaintiff who did not name insurer precluded from executing against tortfeasor’s estate for any amount in excess of $100,000 policy limits because of failure to timely assert creditor’s claim… offset of $16,306 advanced medicals improperly denied… erroneous determinations as to non-party insurer’s alleged misconduct precluded on remand) Locke v. Estate of Davis, 5/30:3

Notice-prejudice rule: (properly applied, formally adopted) Estate of Gleason v. Central United Life Ins., 5/30:1; (insurer who does not receive timely notice pursuant to policy terms must demonstrate prejudice to avoid defense/indemnification… notice-prejudice rule in 3rd-party case… certified question by 9th Circuit) Atlantic Casualty Ins. v. Greytak, 6/6:1

Real Estate E&O policy: (“claim” per claims-made-and-reported Real Estate E&O Policy must be made within policy period, not extended reporting period… claim was made when Realtor received notice of suit following expiration of policy period, not 7 months earlier when suit was filed, was untimely, insurer not required to defend or indemnify $2,191,828.90 consent judgment) Schleusner v. Continental Casualty, 4/18:6

Stacking: (anti-stacking provision upheld, certification denied) Lowe v. Trinity Universal Ins., 7/25:7

Statute of limitations: (improperly applied from date claim was submitted rather than date declaratory action was filed) Estate of Gleason v. Central United Life Ins., 5/30:1; (improperly decided on pleadings) MIDRS v. St. Peter’s Hospital, 9/5:2; (properly applied by jury to bar security guard’s claim that neck injury resulted from altercation with trespasser) Siebken v. Voderberg, 10/17:3

Title insurance: (borrower is not 3rd-party beneficiary of title policy prepared for lender, 3rd-party complaint against title insurer alleging failure to disclose 1st wife’s interest in property dismissed) Beierle v. Shelton, 2/28:6; (insurer issued separate policies on lots that had been separated only for providing security for mortgages and thus did not exist as separate lots, deed not marketable, contract breached) Huggins v. First American Title, 11/28:3

 

*Landlord/Tenant

Rental agreements: (class challenge of rental agreements properly certified… motions to strike material submitted with reply brief properly denied) Worledge v. Riverstone Residential Group, 5/30:5

 

*Local Government

City negligence: (public duty doctrine improperly applied to bar claims against City in skateboarder death on steep hill on subdivision-owned but City-approved walking path) Kent v. Columbia Falls, 5/30:2

Clean indoor air: (smoking structures attached to casinos are “enclosed public places” subject to CIAA notwithstanding “vents,” enforcement not precluded by purported judicial admission, estoppel… fees improperly awarded to owners who prevailed at preliminary injunction stage but lost on merits) MC Inc. v. Cascade City-County Board of Health, 2/28:1

Floodplain regulation: (regulatory issues resolved by stipulation for declaratory judgment… claim for sanctions for County’s “deceitful representations” in obtaining $116,459 sanctions against Plaintiffs rejected as attempt to circumvent stipulation) Robak v. Ravalli Co., 5/16:3

Municipal water: (preliminary condemnation order issued allowing Missoula’s condemnation of private water system to proceed) Missoula v. Mountain Water, 6/20:6

Public road: (lower branch properly found to have been statutorily created… any public prescriptive easement to upper branch extinguished by reverse adverse possession) Lettica Land v. Anaconda-Deer Lodge Co., 11/21:2, (rehearing denied) 12/26:2

Subdivision: (denial of application reversed, remanded for approval with conditions, $650,000 for delay resulting from denial without substantial supporting evidence… JML at conclusion of advisory jury trial) Gateway Village v. Gallatin Co., 10/17:6

 

*Mental Commitment

Defective order (cured by more detailed order) MP-L, 12/12:1

Findings: BD, 12/12:1

Overt act: (testimony of professional that person wanted to harm people with machete and disjoined perseveration about machete sufficient overt acts to warrant commitment regardless of any erroneous reliance on petition allegations) EAL, 7/25:3; BD, 12/12:1

Professional report: (psychologist’s failure to file statutorily required report not prejudicial in this case, plain error review declined) MKS, 6/6:3

 

*Oil/Gas

“At the well” rule: (“at the well” rule defeats royalty contract/fraud claims) S Bar B Ranch v. Omimex Canada, 5/16:6

 

*Minerals

Waste removal: (trespass/conversion claims relating to removal of waste with now-viable gold deposits improperly rejected on summary judgment) TAGS Realty v. Runkle, 6/27:2

 

*Probate

Ademption: (proceeds of lots named in Will but sold prior to death not intended to be adeemed, proceeds to be distributed to named beneficiaries rather than held by PR/residuary beneficiary… CDs named in Will but sold prior to death adeemed) Schreiber, 10/3:1

Will: (daughter of testator’s predeceased sibling who would take in intestacy has standing to contest will which did not name the sibling, but not to petition for removal of PR for cause because she has no property interest in the $5 million ranch estate (“person interested in the estate” synonymous with “interested person”)) Lawlor, 2/28:2; (objection to informal probate of will, claim of lack of capacity, properly rejected based on laches) Hannum, 3/21:3; (testamentary capacity of mother who disinherited daughters supported by substantial evidence under proper test)Quirin, 5/23:1; (pro se will contestant showed good cause to set aside entry of default) Mills, 8/22:1

Time-bar: (probate 14 years after death to confirm title to mineral interests per 1997 will not barred by general 3-year bar) Harris, 7/4:4

Undue influence/testamentary capacity: (properly rejected on summary judgment) Harris, 7/4:4

 

*Property

Conservation restriction: (in deed created easement in gross enforceable against successor grantee, rule against perpetuities not violated) Scott v. Metcalf Charitable Trust, 9/12:1

Easement: (contiguous estates not necessary for prescriptive easement… easement supported by adverse use at least since 1979, conveyed with subsequent users so not necessary to show tacking or privity, accommodation properly rejected… width/scope supported by evidence) Meine v. Hren Ranches, 1/31:1; (easement originating in deed is express grant allowing ingress/egress to neighbor’s lot without regard to whether it originally was necessary and that other access is now available) Woods v. Shannon, 3/21:1; (water pipeline agreement created easement in gross, not appurtenant, valid requirement for consent to assign, grantors had right to reasonably withhold consent to agribusiness… no prescriptive easement based on claimed adverse use of ditch) Bos Terra v. Beers, 7/25:1; (settlement agreement for “termination of all historical easements between the parties” upheld over claim that one easement was not intended) Konopatzke v. Bauch, 9/26:1; (advisory jury’s verdict of $375,000 properly adopted as supplemental declaratory relief for “restoration” of public access bridge that had been moved from canal crossing… fees/costs properly awarded PLWA, but improperly ordered taken out of $375,000 restoration fund, remanded for separate award) Public Land/Water Access Association v. Jones, 10/24:2; (amendment of injunction complaint to add new easement theories and property owner as Defendant properly denied, summary judgment properly granted based on original complaint, equitable attorney fees properly awarded Plaintiffs) Bardsley v. Pluger, 10/24:3; (any public prescriptive easement extinguished by reverse adverse possession) Lettica Land v. Anaconda-Deer Lodge Co., 11/21:2

Foreclosure: (hearing not required as matter of law to value property to determine deficiency, but properly held as matter of equity… standard for determining market value elucidated… evidentiary errors as to appraisals require remand of finding of 0 deficiency over requested $745,366)Whitefish Credit Union v. Prindiville, 11/28:1

Home defects: (summary judgment rulings as to claims of defects in subdivision home resulting from expansive clay soils) Black v. O’Leary Builders, 1/31:4

Ownership transfer: (MUCC controls transfer of ownership of boat & trailer, not title (not signed by purchasers)… as identification happened before seizure by judgment assignee, purchasers’ rights are superior, injunctive relief for return properly granted) Wheeler v. Webber (Judgment Recovery Enterprise), 3/21:2

Partition: (summary judgment as to 1/2 interest claimed by 1st wife in property 35 years after divorce and following death of ex-husband precluded by fact issues as to extent of unequal contributions, claim that ex intended her to have 1/2… summary judgment as to 2nd wife’s claim of adverse possession also precluded by fact issues… 2nd wife borrower is not 3rd-party beneficiary of title policy prepared for lender, 3rd-party complaint against title insurer alleging failure to disclose 1st wife’s interest in property dismissed) Beierle v. Shelton, 2/28:6

Real estate negligence: (seller’s agent did not owe buyers a duty to inspect or discover mold or inform that sellers had attempted to remediate water damage themselves, properly dismissed on summary judgment… 1st impression construction of statutes that replaced common law duties)Watterud v. Gilbraith, 10/10:1

Spite fence: (fact issues as to trash/trespassers from adjacent lots preclude summary judgment for golf course on spite fence/nuisance claims… ACC approval not waived) Bennett v. Hill, 2/7:1

Tax deed: (Treasurer’s failure to file affidavit of publication did not render tax deed void… attempt to distinguish prior opinion inconsistent with position below) Zinvest v. Voth, 3/21:3; (void for failure to provide adequate notice to all parties listed on a property title guarantee pursuant to 2009 amendment… constitutional challenge to amendment not preserved for appeal… redemption amount properly determined, no legal entitlement to insurance or attorney fees) Catherine Hansen Trust v. Ward, 5/23:1; (homestead exemption not applicable to tax lien sales… claims of irregular assessment not timely or properly asserted… quiet title summary judgment properly entered without hearing) RN & DB v. Stewart, 11/28:2

 

*Railroads

FELA: (supervisory control of Macek denied as to grant of FELA release rescission) BNSF v. Macek, 1/31:2; (supervisory control of Menahan as to denial of post-injury termination evidence denied) Krumenacker v. Menahan, 4/4:1; (default judgment for failure to preserve workplace video properly denied, but some meaningful sanction should be imposed in new trial of injury claim following defense verdict) Spotted Horse v. BNSF, 6/6:2; (sufficient conflicting evidence for LIA claim of ice & snow on locomotive steps causing slip and ACL injury to go to jury… evidence of installation of heated platform by non-party Amtrak as subsequent remedial measure improperly denied… conductor’s non-RR income improperly admitted… defense verdict reversed, remanded for new trial) Martin v. BNSF, 6/27:1; (jury improperly instructed on statute of limitations in cumulative trauma case (when injury was discovered correctly held to be fact question for jury)… disparagement of case on cross and in closing as get-rich scheme by unscrupulous attorneys, dishonest co-workers, mercenary doctors requires new trial following defense verdict) Anderson v. BNSF, 8/15:1

 

*Schools

Establishment: (school sufficiently established as public school despite no vote by Commissioners or formal approval by State Superintendent… territory transfer precluded by being within 3 miles of school) Petition to Transfer Territory from Vaughn Elementary School Dist. to Power Elementary School Dist., 11/7:2

Territory transfer: (District failed to preserve statutory issue as to necessity of sworn statements in territory transfer hearing, claim did not warrant plain error review, merits improperly reached) Petition to Transfer Territory from Poplar Elementary School Dist. to Froid Elementary School Dist., 10/3:4

 

*Securities

Mining scheme: (Investors timely sued failed mining scheme under Securities Act’s 2-year statute… added investors claims relate back to original complaint… seller established no material fact demonstrating reasonable care… assay company improperly dismissed for lack of personal jurisdiction) Garza v. Forquest Ventures, 10/3:3

 

*Settlements

MVA: ($27 million, vehicle rollover, college student missionary, quadriplegia) Vangsnes v. Minear and North American Mission Board of the Southern Baptist Convention, 7/18:

Canal drowning: ($1,650,000, FTCA/negligence, 2 children drowned in Flathead irrigation canal) Beauchamp v. Flathead Indian Irrigation Project, 2/7:4

 

*State Government

Child abuse investigation: (mother failed to establish material fact issue to support claim that child protection employees investigating her were grossly negligent or knowingly provided false information, State entitled to summary judgment on immunity) Weber v. State,

Legislature: (motion to hold House GOP Caucus in contempt for unannounced meeting denied because 1998 judgment that caucuses are subject to Art. II §9 did not include notice requirement) AP v. House Republican Caucus, 1/31:5

Liquor: (use of 1994 sales data per 1995 statute to calculate reimbursements for liquor store sales of unbroken cases was rational & reasonable in 1995 but not now, violates Class Plaintiffs’ substantive due process and equal protection under Montana Constitution and changed circumstances test (1st impression)

Medicaid: (exclusion from Montana Medicaid of gastric bypass not unreasonable or contrary to federal law) Bailey v. DPHHS, 2/14:2

MPERA: (properly paid retirement to terminated patrolman who insists he is injured trooper on leave since 1962) Spear v. MPERA, 10/24:4

*Taxes

Agriculture: (change from grazing to tillable land properly reclassified) Lucas Ranch v. DOR, 5/9:1

Oil/gas: (2011 tax classification challenge not precluded by Sherlock’s ruling as to 2004 classification which was reversed on appeal without addressing “single & continuous property” issue) Omimex Canada v. DOR, 4/25:1

Online travel companies: (not obligated to collect & remit taxes on OTC fees under the Lodging Facility Use Tax, are required to do so under the Sales Tax on accommodations, campgrounds, rental vehicles… decision applied retroactively to when DOR sued) DOC v. Priceline.com, 8/15:4

Tax deed: (properly invalidated due to document errors that violated statutes, created titling confusion) Zinvest v. Anderson, 7/25:2

 

*Torts

Child abuse investigation: (mother failed to establish material fact issue to support claim that child protection employees investigating her were grossly negligent or knowingly provided false information, State entitled to summary judgment on immunity) Weber v. State,

City negligence: (public duty doctrine improperly applied to bar claims against City in skateboarder death on steep hill on subdivision-owned but City-approved walking path) Kent v. Columbia Falls, 5/30:2

Contamination: (nuisance, trespass, tortious interference claims by subdivision developers against adjacent oil drilling company as to contamination from predecessor’s reserve pit rejected) Richland Partners v. Cowry Enterprises, 3/7:4; (smelter soil contamination summary judgment rulings affirmed, reversed) Christian et al v. ARCO, 9/5:1

Conversion: (claim properly rejected on summary judgment based on res judicata of prior identical claim… no basis for default judgment as no default had been entered) Plouffe v. Knudson, 1/10:2; (claim by exclusive insurance agency upon termination for fraud viable under contract rather than secured transactions law under Allstate’s alternate universe governing agency relationships) Allstate Ins. v. Posnien, 6/20:1

Defamation: (post-release claim against Remington for TV statements dismissed in light of similar pre-release TV statements) Barber v. Remington Arms, 6/6:5

Dog bite: (injury by animal and premises liability are separate common law theories, absence of liability under one does not necessarily preclude recovery under the other… negligence claim properly rejected on summary judgment on basis that landlady did not have “reason to know” that tenants’ dogs of pit bull ancestry had vicious propensities… strict liability properly rejected for lack of evidence that dogs were purebred pit bulls or that purebreds are inherently dangerous) Knapton v. Monk and Johnson, 5/2:1

Economic advantage: (comp insurer’s claims against competitors properly rejected on summary judgment for failure to establish quantifiable damages including to reputation) Victory Ins. v. Montana State Fund, 3/21:4

Equine negligence: (supervisory control of Neill denied as to denial of summary judgment for ranch on basis that Equine Activities Act controls horse throw by non-paying guest, not Recreational Use Statute) Bell Cross Ranch v. Neill, 3/7:2

FTCA: claims against US for tribal officers shooting BB guns at Plaintiff’s workplace resulting in BB striking Plaintiff in eye not amenable to dismissal for lack of subject jurisdiction under present circumstances) Marceau v. US, 6/13:6

Malicious prosecution: (and related claims stemming from Medicaid fraud acquittal properly dismissed for failure to state claim and on summary judgment) Vainio v. State, 3/28:2; (Game Warden did not instigate failed prosecution, entitled to summary judgment on §1983 malicious prosecution… Prosecutor did not offer probable cause evidence based on personal knowledge, but on information provided by others, entitled to immunity… MFWP entitled to summary judgment on state constitutional privacy, search & seizure, due process claims… claimed PTSD from appropriately conducted investigation foreseeable to operators of hunting lodge/outfitter service, no evidence of severity to support IIED claim) Fratzke v. MFWP, 8/22:6

Medical malpractice: (summary judgment in amount of $752,723.62 medical bills incurred for admitted liability bile duct severance, consistent with Rule 56 and Ridley, over contention that Plaintiffs can recover only $233,736.30 paid by Medicare and Medicaid… summary judgment for $76,723 undisputed home care, disputed amounts may be resolved at trial… pre-judgment interest on summary judgment amounts) Sembrano v. O’Connor, 8/1:4; (podiatrist properly precluded from testifying in suit against orthopedic surgeon relating to foot surgery which resulted in defense verdict… CPA claims properly dismissed as premised on professional negligence claims) Hastie v. Alpine Orthopedics & Sports Medicine, 12/26:1

Negligence: (§27-1-1102 duty of mental professionals to warn of actual threat of violence by specific means not triggered by patient’s admission of aggression to girlfriend when drinking, suit by parents of murdered girlfriend properly dismissed on summary judgment) Woods v. MSF, 1/17:1; (in limine, directed verdict, new trial rulings in left-turn intersection MVA defense verdict affirmed) Bracha v. Hanley, 2/14:1; (Hill Co. vicariously liable for any negligence attributable to Northern Montana Hospital as a cause of death of inmate from alcohol withdrawal… State not vicariously liable for any negligence for which Blaine, Hill, or NMH may be liable… Blaine not vicariously liable… summary judgment for NMH on 3rd-party contribution/indemnity claims asserted by Blaine & Hill… Plaintiff settled with NMH) Stricker (PR of Longsoldier) v. Blaine Co., 2/28:7; (claims stemming from passenger fall while existing vehicle transporter properly rejected on summary judgment) Eisner v. Northwest Autobody & Towing, 3/21:3; (no duty by County owner of bus depot to warn passenger of dangers of jaywalking across state-maintained road) Lopez v. Butte-Silver Bow Co., 4/11:1; (MOSHA not applicable to independent framing contractor injured while helping lift a wall which fell on him… testimony relating to “rules” at construction site properly excluded… dismissed party denied appeal fees/costs for claimed improper joinder to appeal… defense verdict affirmed) McDonald v. Ponderosa Enterprises, 6/20:2; (leaky roof negligence/negligent misrepresentation claims barred by statutes of limitations and repose… some CPA claims arising from 2001 construction and subsequent inspections & repairs time-barred, some not… expert not required for CPA claims as to contract and billing) Hein v. Scott, 7/18:1; (medical panel report improperly let MVA Defendant put doctors’ opinions that Plaintiff could return to job in record without calling them to testify, $59,500 verdict reversed, remanded for new trial… original medical bills should be allowed pursuant to Meek… parts of deposition based on post-disclosure medical records properly excluded) Reese v. Harlow’s School Bus Service, 10/17:1; (Plaintiff injured in crash over concrete barriers on steep road failed to establish breach of duties by City, County, or State to properly place, install, maintain barriers) Not Afraid v. State, 12/5:1

Negligent misrepresentation: (chalet seller did not negligently misrepresent that ski-out access would be built by developer or violate CPA because representation was as to a future event, true at time it was made, prevented only by developer’s bankruptcy… argument about negligent misrepresentation elements not waived by raising in reply brief in support of in limine motion when opponent raised it in response brief… $2,232,386 bench judgment reversed) WLW Realty Partners v. Continental Partners, 11/7:1

Product liability: (3-year tort statute not tolled by discovery/fraudulent concealment to prevent dismissal of Remington rifle accidental discharge claims) Humphrey v. Remington Arms, 2/14:3; (pre-trial rulings on experts & defenses in Mazda Protegé automatic shoulder belt/manual lap belt case with small-stature passenger suffering abdominal injuries in near head-on) Speaks v. Mazda, 8/15:5

Res ipsa: (instruction properly refused in light of equally plausible theories of cause of house fire… defense verdict affirmed) DeLacey v. Conant (Conant Cooling & Heating), 3/21:3

Skier responsibility: (skier who hit obscured rock in low snow conditions required to accept responsibility for injuries resulting from inherent dangers & risks… summary judgment for resort after previous denial of motion to dismiss) Kopeikin v. Moonlight Basin Resort, 2/14:4; (tree wells not “inherent danger or risk of skiing” under statutes at time of 2010 death as made clear by 2015 amendment specifically including tree wells… whether decedent was skiing within his ability at time of accident, whether operator exercised reasonable care to warn of tree wells, decedent’s awareness of tree wells, causation, whether malice existed to support punitives, all fact questions for jury) Waschle v. Winter Sports, 11/14:5

Volunteer immunity: (host family immune from liability for exchange student’s death from falling into tree well) Waschle v. Whitefish Mountain Resort, 9/12:7

Wrongful discharge: (claim that success in prior WDA suit imposed legal duty to rehire properly rejected) Asper v. Costco, 2/7:3; (good cause for termination of DPHHS attorney) Davis v. DPHHS, 9/12:1; (hotel employee who quit to attend college entirely failed to mitigate, no damages, no need to address merits of constructive discharge claim) Chapel v. Gateway Hospitality Partners, 11/28:4; (probationary grocery executive’s wrongful discharge claims dismissed… breach of contractual promise of bonus, breach of implied covenant, defamation, IIED/NIED claims survive to extent they are not based on termination, dismissed to extent they are intertwined with termination) Jessup v. Lucky’s Market Holdings, 11/28:5; (summary judgment precluded by fact issues as to whether assistant store manager violated policies by drinking with subordinates on business trip, whether purported loss of trust constituted good cause, whether reason was pretextual) Pedersen v. TJX, 12/26:4

 

*Trusts

Ranch management: (no support for claim that bank mismanaged trust by letting aged mother manage ranch, but any such fiduciary breach ratified by beneficiary signing Receipt of Distribution, no support for claim that Receipt was based on fraudulently withheld information) Raths v. FIB Billings, 10/3:7

 

*Unions

Fair representation: (teacher’s claim against union in relation to termination barred by 2-year limitation for liability created by statute (NLRA duty of fair representation)) Helvey v. MEA-MFT,. 8/1:2

 

*Utilities

Wind energy: (long-term rate properly denied for failure to commit to project or establish obligation that could expose it to liability if abandoned) Whitehall Wind v. PSC, 5/9:1

 

*Verdicts

ATV crash: (defense, negligence/misrepresentations as to ATV tires but no cause of injuries, alleged improper tires/inflation resulting in ATV crash, C5-6 fusion) Shanholtzer v. Les Schwab Tire Centers of Montana, 5/9:6

Auto: (in limine, directed verdict, new trial rulings in left-turn intersection MVA defense verdict affirmed) Bracha v. Hanley, 2/14:1; (new trial granted following defense verdict that found admitted negligence was not cause of injury despite evidence that hand fracture was caused by MVA… jurors’ speculation that fracture was covered by insurance not reason to grant new trial) Reis v. Luckett, 3/21:5, (new trial properly granted following defense verdict that found admitted negligence was not cause of injury to Plaintiff despite evidence that hand fracture was caused by MVA) 12/5:1; (acceptance of $268,435.94 judgment on MVA verdict waived right to appeal denial of new trial on damages for emotional distress, enjoyment of life, and future medicals associated with prescription drug… admitting in deposition to conduct that constituted traffic violations did not merit 37(c)(2) sanctions for denying in discovery violation of statutory provisions) Tempel v. Benson, 3/21:2; ($3,250 net (65/35), intersection MVA, mental distress… previously paid $25,000 liability limits) Eljdid v. Holliday, 5/16:5; ($400,000 MVA verdict upheld, but Plaintiff who did not name insurer precluded from executing against tortfeasor’s estate for any amount in excess of $100,000 policy limits because of failure to timely assert creditor’s claim… offset of $16,306 advanced medicals improperly denied… erroneous determinations as to non-party insurer’s alleged misconduct precluded on remand) Locke v. Estate of Davis, 5/30:3; ($19,731.02, low-speed rear-end MVA, soft-tissue neck… dispute remains as to whether UIM benefits due after payment of $25,000 by at-fault driver’s insurer) Mundel v. Farmers Ins., 6/13:5; ($300,000 ($10,000 punitives), MVA, facial/orbit/heel fracture, knee, post-concussion, mild TBI, PTSD, uncontested liability/causation for orthopedic injuries) Kubik v. Banderob, 9/26:6; (medical panel report improperly let MVA Defendant put doctors’ opinions that Plaintiff could return to job in record without calling them to testify, $59,500 verdict reversed, remanded for new trial… original medical bills should be allowed pursuant to Meek… parts of deposition based on post-disclosure medical records properly excluded) Reese v. Harlow’s School Bus Service, 10/17:1; (MVA liability reasonably clear in declaratory trial, negligence claims to be tried later) McAlister v. Lohof, 11/14:4

Boulder house crush: (defense, State and City not liable for home crushed by large boulder falling from cliff) Deschner v. Billings, 9/26:7

Contract: ($75,348.18 for Defendant/Counter-Claimant logger/contractor against property owner for breach of oral logging/home construction contracts) Ryffel Family Partnership v. Alpine Country Const., 8/29:6, ($75,348.18 verdict for logger/contractor against property owner amended to reflect $50,348.18 as breach of contract damages rather than mutually exclusive unjust enrichment damages, and to vacate $25,000 for breach of implied covenant as double recovery) 12/5:4

Dog bite: (defense, no County liability for bite by dog that had previously bitten shelter worker) Grote v. Butte-Silver Bow Co., 3/28:6

FELA: (default judgment for failure to preserve workplace video properly denied, but some meaningful sanction should be imposed in new trial of injury claim following defense verdict) Spotted Horse v. BNSF, 6/6:2; ($400,000, carman, claimed low-back herniation from working on brakes around icy berm… defense verdict as to cumulative trauma) Nelson v. BNSF, 6/6:5; (sufficient conflicting evidence for LIA claim of ice & snow on locomotive steps causing slip and ACL injury to go to jury… evidence of installation of heated platform by non-party Amtrak as subsequent remedial measure improperly denied… conductor’s non-RR income improperly admitted… defense verdict reversed, remanded for new trial) Martin v. BNSF, 6/27:1; (jury improperly instructed on statute of limitations in cumulative trauma case (when injury was discovered correctly held to be fact question for jury)… disparagement of case on cross and in closing as get-rich scheme by unscrupulous attorneys, dishonest co-workers, mercenary doctors requires new trial following defense verdict) Anderson v. BNSF, 8/15:1

Gravel pit effects: (directed verdict, claimed effects of gravel pit on residence in subdivision) Putnam v. Jerlamar Associates, 1/10:5

Home inspection: ($300,000, Home Inspection Trade Practices Act, CPA) Mellem v. Complete Home Inspections Inc., 8/8:5

House dewatering: ($233,887.40 compensatory, $1.5 million punitives, negligent design or installation of dewatering system in home with basement below water table… principal liable for judgment for fraudulent transfer of assets) Ova v. Oakland Home Builders, 9/5:5

House fire: (res ipsa instruction properly refused in light of equally plausible theories of cause of house fire… defense verdict affirmed) DeLacey v. Conant (Conant Cooling & Heating), 3/21:3

Horse electrocution: (defense (50/50 negligence), horse electrocution, failure to install GFI on water trough heater power) Doan v. Asher, 12/19:2

Insurance: (notice-prejudice rule properly applied, formally adopted… jury improperly instructed that it must first find UTPA damages beyond $539,717.90 directed verdict for failure to pay benefits under cancer policy before considering malice/punitives, remanded for new trial on malice/punitives… jury properly allowed to determine whether insurer had “reasonable basis in law” for contesting claim… statute of limitations improperly applied from date claim was submitted rather than date declaratory action was filed) Estate of Gleason v. Central United Life Ins., 5/30:1

Insurance agent: $759,740.45 to insurance agent on counterclaim alleging breach of Agency Appointment Agreement by terminating for alleged switching and failing to pay contract value… insurance company’s claim of $34,711.45 for breach of agreement/non-compete rejected) Farmers Ins. Exchange v. Goldan, 5/9:5

Lending breach: (sufficient evidence of fraud in surreptitious conversion of 30-year residential condo loan application to 18-month commercial loan resulting in predictable foreclosure… successor bank liable for punitives arising out of predecessor’s pre-merger conduct… $1 million compensatory, $5 million punitives verdict affirmed… interest improperly awarded from punitives decision rather than verdict) McCulley v. US Bank of Montana, 4/18:1; ($16,760,000 punitives upheld on top of $286,550 compensatory verdict for bank’s wrongful set off/breach of contract with logging company… punitives cap unconstitutional… $7,500,482 fees based on 44% contingency, $90,820 costs) Kelly Logging v. First Interstate Bank, 5/2:3; (Montana law improperly applied over Michigan contract provision… under Michigan law constructive fraud, prospective economic advantage, and deceit would not have been permitted to go to jury as stand-alone tort, only remaining claims are contractual in nature, do not provide basis for punitives… improper evidence of failure to use TARP money for borrower irrelevant, prejudicial, could have influenced jury… $52,037,593 verdict for start-up international office products facility based in Butte that failed when accounts were swept reversed, remanded for new trial on contract claims… punitives cap vis-à-vis $10.5 million award not addressed) Masters Group International v. Comerica Bank, 7/4:1

Logs falling from truck: (motion to vacate entry of default properly denied based on in-house attorney who was stipulated to receive service repeatedly ignoring service over claim of mistaken belief that outside counsel was handling… $3,970,899.56 verdict for driver injured by falling logs affirmed) Ginn v. Smurfit Stone, 3/21:1

Medical malpractice: (defense, alleged unnecessary hysterectomy without proper consent and with complications) Stephens v. Casper, 6/6:15; (podiatrist properly precluded from testifying in suit against orthopedic surgeon relating to foot surgery which resulted in defense verdict… CPA claims properly dismissed as premised on professional negligence claims) Hastie v. Alpine Orthopedics & Sports Medicine, 12/26:1

Negligent issuance of loan: ($138,195 (85/15), punitives liability, negligent issuance of loan based on forged resignation-of-trustee document… settled for undisclosed amount) Carl B. Stanley Trust v. Eastern Savings Bank, 5/2:5

Product liability: (defense, Mazda passive seat belt system) Speaks v. Mazda, 10/17:7

Slander of title: ($2,050,000, slander of title stemming from free & clear house in Billings being confused for 3 years with unrelated house foreclosure in Butte) Norman v. Deutsche Bank National Trust, 11/14:3

Slip & fall: ($126,000, cafe icy stairs slip & fall, summary judgment liability, arm/hip/tailbone) Osterman v. Hastings Entertainment, 7/11:8

Trust/Will: (documents purporting to be Restatement & Amendment of Living Trust and Will in $2.7 million estate result of undue influence, fraud, or duress… $903,468.56 fees/costs requested against proponents) Estate of Edwards, 12/5:4

UIM: (defense, multiple injury claims) Welscott v. Allstate Fire & Casualty Ins., 9/19:8

Wall fall: (MOSHA not applicable to independent framing contractor injured while helping lift a wall which fell on him… testimony relating to “rules” at construction site properly excluded… dismissed party denied appeal fees/costs for claimed improper joinder to appeal… defense verdict affirmed) McDonald v. Ponderosa Enterprises, 6/20:2

Work comp: ($200,841.75 (75/25) against HUB, summary judgment for MSF, constructive fraud/ negligence claims by Montana drilling company as to comp coverage for work in Alaska) T&J Enterprises v. HUB International Mountain States Ltd., 4/25:7; (defense, work comp bad faith, breach of duty but no loss or harm from delayed acceptance of claim that hip fracture surgery was necessitated by falls due to instability of knees from 1982 knee injury) Suzor v. International Paper, 4/25:8

Wrongful discharge: (defense, meat packager, disputed drug testing compliance) Curlin v. Seaboard Foods, 3/28:6; ($300,000, Colstrip Police Chief) Reinlasoder v. Colstrip, 5/30:6; (defense, wrongful discharge, medical physicist/radiation safety officer) Slate v. Bozeman Deaconess Health Services, 11/21:6, 11/28:5

 

*Water

Crow Water Compact: (Allottees’ objections properly rejected by Water Court) Crow Water Compact, 8/1:1

Diversion: (1913/1942 reservoirs did not increase amount diverted or period of diversion, reservoirs included in 1895/1897 rights) Teton Cooperative Reservoir Co. v. Farmers Cooperative Canal Co., 8/1:2

Eureka Reservoir: (off-stream storage in Eureka Reservoir not included in 1890 canal rights) Teton Co-op Canal Co. v. Teton Co-op Reservoir Co., 12/19:1

Wrongful diversion: (junior Teton River rights holder wrongfully ignored call for water from senior holders where source has not been fully adjudicated so no commissioner is regulating, enjoined from continuing out-of-order diversions after receiving calls from seniors) Kelly v. Teton Prairie LLC, 7/4:7

 

*Workers’ Compensation

Causation: (exposure to swimming pool chemicals not proven to be cause of peripheral neuropathy) Haines v. MUSSFWCP, 6/13:8

Course & scope: (Petitioner injured in MVA on way to work at wind farm in course & scope) Olson v. MSF, 2/7:4

Cy pres: (PR has standing to assert, WCC has jurisdiction over, claim that $95,846 asbestosis medicals paid by Libby Medical Plan for which neither Plan nor Grace will accept reimbursement from insurer should be paid pursuant to cy pres, not retained by insurer… remanded for merits of claim) Moreau v. Transportation Ins., 1/10:1

Discovery: (Facebook posts compelled) TB v. MSF, 10/3:8

Exclusivity: (corporate officer acting on behalf of corporation, not individually as owner, while supervising employee injured assembling carpet racks, immune from suit) George v. Bowler, 8/1:1

Injurious exposure: (Petitioner who left job before merger not injuriously exposed to asbestos while new company became insurer at risk) Wommack v. CHS, 4/18:8

Injury: (employer failed to prove injuries related to earlier motorcycle accident rather than work-related MVA) Car Werks v. UEF v. Gawronski, 12/12:5

Insured employer: (unnamed direct employer was additional insured under umbrella entity’s comp policy per intent of parties, entitled to exclusivity immunity from employee who received $207,147 comp) Stokes v. Golden Triangle, 7/18:1

Interim benefits: (ERD had jurisdiction to award interim benefits pending resolution of dispute as to videotaping of psychiatric IME… Claimant met all factors justifying entitlement to benefits) New Hampshire Ins. v. Matejovsky, 8/15:7

Joinder/intervention: (of Decedent’s employer claiming interest because it paid medicals via entity it funded and agreed to indemnify insurer for any OD benefits it pays denied) Moreau v. Transportation Ins., 9/5:8

Jurisdiction: (post-petition OD evaluation creates doubt as to continued jurisdiction, dismissed without prejudice) Wommack v. National Farmers Union Property & Casualty, 1/3:6

Lien: (Oklahoma comp lien asserted against $3.3 million tort settlement of Montana MVA subject to Montana’s made-whole doctrine under Oberson) Talbot v. WMK-Davis, 11/7:3

Mediation: (mandatory regardless of whether it is a “complete waste of time,” petition for hearing filed before completion of mediation dismissed without prejudice) Young v. New Hampshire Ins., 6/20:7

Non-use: (settlement agreement for lifetime coverage for knee/back valid notwithstanding 60-months non-use rule) Newlon v. Teck American, 11/14:1

OD: (Petitioner has not returned to baseline, myofascial pain syndrome compensable OD… denial of liability reasonable, no fees/penalty) Vonfeldt v. Costco, 11/21:8

Procedure: (motion by ARD Claimant to dismiss case or place in abeyance indefinitely denied) Larson v. MSF, 1/24:6; (fact issues preclude summary judgment as to compensable injury or aggravation from claimed fall at work where doctor and PA based opinions on what Petitioner told them) Cole v. MSF, 3/21:6; (2-year statute — not 90 days for appeal of UEF denial — applicable to dispute whether claimant was employee or independent contractor… UEF dismissed as not proper or necessary party) Emanuel v. MSF, 5/2:7; (Petitioner challenging former attorney’s fee lien had no obligation to produce documents at deposition because he was not personally served by a non-party, contempt/sanctions denied) Brown v. Morin, 6/13:7; (amendment to assert new statute of limitations defense allowed over claim of untimeliness and prejudice from “thousands of dollars” of expert expenditures… claim barred by 2-year statute at §2905(2)) Spencer v. MSGIA, 6/20:6; (interrogatory statement that Petitioner had “significant asbestos exposure” while working for 3rd employer (Libby) insufficient to support summary judgment for 2nd employer (Lincoln Co.)) Carlock v. Liberty NW Ins., 10/24:8

Prospect of employment: (Petitioner has no reasonable prospect of regular employment due to job injuries, therefore PTD) Kellegher v. MACoWCT, 8/22:7

UEF: (WCC has jurisdiction over employer’s contest of UEF determination to accept liability) Car Werks v. UEF, 6/20:7

 

*Youths

Probation: (“New” standard adult probation conditions which were not set forth in Youth Court disposition or transfer order improperly imposed upon transfer to District Court, but 17 adult conditions properly imposed following revocation hearing based on termination from sex treatment, a condition of underlying disposition) ADT, 7/11:7