*Administrative Law
Judicial review: (of TRS Board decision premature) Zabrockie v. TRS, 6/18:2
* Appellate Procedure
Appealability: (denial of motion to dismiss COPP case against party not named in complaint not immediately appealable as issues are statutory/rule interpretation, not subject jurisdiction) COPP v. Wittich, 3/26:1
Attorney fees: (not warranted regardless of conduct below) McCartney v. Barnekoff, 1/23:2; (denied) Wohl v. Missoula, 3/19:1; (denied) Marriage of Lee, 11/26:5
COA: (Rule 60(B) motion is actually unauthorized 2nd or successive habeas petition, COA denied below and on appeal) Lynch, 2/27:4
Failure to preserve: (claims by pro se RN who was discharged because of latex allergy not preserved for appeal) Ridgeway v. DPHHS, 6/25:1; (sanctions in floodplain case became part of final judgment, waived by failure to raise in prior appeal) Robak v. Ravalli Co., 11/19:6
Handwritten briefs: (permitted in appeal of civil case by MSP inmate with “extremely limited” access to computer) Belankus v. Gallagher, 2/27:2
Municipal court appeal: (jurisdiction on “interests of justice” grounds properly declined over disorderly conduct conviction with $100 fine and $235 surcharges/fees (fine not considered enough to meet amount in controversy threshold)) King, 11/26:6
Overlength brief: (allowed in appeal of homicide of exchange student) State v. Kaarma, 1/2:3
Rehearing: (rehearing of denials of petitions for out-of-time appeals granted) State v. Nez Perce, 1/2:3; (rehearing denied as to Opinion upholding most of 2011 Medical Marijuana Act including 3-person limit on patients, but effective date postponed to 8/31/16 to provide transition period, request to postpone to next Legislature denied) Montana Cannabis Industry Association v. State, 4/30:2
Sanctions: (appeal sanctions denied) Runkle v. Allen, 3/19:3
Supervisory control: (of Manley denied in parties’ dispute over jury v. bench trial) Anderson v. Manley, 4/23:2; (eviction halted on supervisory control of JP Anderson pending hearing on motion to set aside default judgment and quash writ of assistance) Houde v. Anderson, 11/5:1
Timeliness: (appeal untimely as issues all relate to summary judgment, none to order discharging Trustee, but appeal fees not warranted regardless of conduct below) McCartney v. Barnekoff, 1/23:2; (appeal from notice of entry of order closing estate untimely, filed to harass PR sibling… fees/costs imposed as sanction) Estate of White, 6/18:3
*Arbitration
Arbitrability of arbitration/enforcement: (arbitrability of 1-sided debt relief services arbitration clause properly determined by Court, clause properly found unconscionable, unenforceable) Global Client Solutions v. Ossello, 3/5:1
Residential lease: (award properly confirmed) Andersen v. Sack, 9/17:3
Stay: (essence of stay motion was not relief under FAA, no §16(a) appellate jurisdiction over denial (1st impression)) Western Security Bank v. Winzenreid, 3/19:3
*Attorney Fees, Costs
Declaratory judgment: ($127,660.80 attorney fees improperly awarded under erroneous interpretation of Svee) Montana Immigrant Justice Alliance v. State, 5/14:2
Declaratory trial: (fees/costs denied to Plaintiff following verdict finding MVA liability reasonably clear in declaratory trial where she had received 80% of medicals/wages prior to dec action, remaining amounts thereafter without trial… unreasonable to pursue through trial to get a determination of reasonably clear liability for the purpose of seeking discretionary fees) McAlister v. Lohof, 1/16:5
Hospital rates challenge: ($29,005.50 awarded hospital attorneys for defense of complaint challenging uninsured v. insured rates, dispute over surgical implants) Prendergast v. Bozeman Deaconess Hospital, 4/9:3
Offer of judgment: (fees not awarded to County because it failed to prove the property in the quiet title complaint was worth less than $50,000 (not because its offer of a lump of coal was not more favorable than final judgment)) Bergum v. Musselshell Co., 3/5:3; (Defendants awarded fees/costs under §25-7-105) Low v. Reick, 7/23:1
*Attorney Practice
Bar admission: (temporary admission to out-of-state lawyers intending to seek admission by motion terminated now that new rules in effect) Petition of Gosch, 3/19:1; (waiver of ABA school requirement for admission on motion denied, but leave granted to take bar exam) Petition of Bentley,4/23:2
Bar exam: (committee formed to address Dean’s concerns about low passage rates) Rules for Admission to the Bar of Montana, 1/30:3: (passing score reduced from 270 to 266 retroactive 3 years) Rules for Admission to the Bar of Montana, 6/11:4
Discipline: (consent to Arizona disbarment based on ethical violations requires preclusive effect in Montana whether or not conduct admitted, but conduct not type for which disbarment typically ordered in Montana, warrants “substantially different discipline” under exception to Rule) Matter of Moriarity, 2/13:2; (suspension for failure to properly represent DUI client) Matter of Kohn, 7/9:2
Disqualification: (rifle manufacturer’s national counsel improperly used fact that Plaintiffs had been turned down by local counsel to intimidate and create impression they had bad case… national and local firms properly disqualified) Keuffer v. Mossberg, 6/4:2
Fees/costs: ($101,867.50 fees, $35,322.88 costs incurred in cancer policy appeal and in post-trial period to appeal and certain costs incurred prior to or during trial that were inadvertently excluded in initial motion awarded, in addition to $242,050 fees and $35,046 costs previously awarded)Estate of Gleason v. Central United Life Ins., 1/2:4
Legal malpractice: (jury improperly instructed to decide whether Plaintiffs would have actually settled med-mal claim stemming from C-section loss of child had claim not been lost by statute of limitations, when MSC required only whether it was probable that they would have recovered a settlement… experts established that they probably would have recovered a settlement, remanded for new trial on likely value of a settlement… defense verdict reversed) Labair v. Carey, 10/29:1
Non-lawyer: (may not appear for corporation) Flathead Bank of Bigfork v. Masonry by Muller, 10/29:3
*Auto Dealership
Overlapping dealers: (§747 defense by protesting Billings Chrysler dealer waived by settlement in Michigan federal case, jurisdiction properly retained over Montana challenge to overlapping dealers… judicial review improperly dismissed as nonjusticiable as terminated dealer could still obtain relief from DMV ruling that additional dealership not authorized) Rimrock Chrysler v. Chrysler Group, 7/23:3; (limitation of remedies provision bars Plaintiff’s claim for consequential damages for breach of contract but not for “loss resulting in the ordinary course of events from the seller’s breach”… Montana law at the time correctly applied to tort claims (3-year statute), but subsequent Masters mandates applying choice-of-law provision to tort claims arising out of performance of contract as well as contract claims, provision stipulates Texas law (4-year statute)) Montana Trucks v. UD Trucks North America, 7/30:4
*Banking, Commercial Paper
ATM services: (unjust enrichment claim against SD bar owner for $35,520 uncollected from $285,520 misdirected deposit during transfer of processing services for Montana ATM properly dismissed as time-barred… claims against processing entity for breach of written/oral contracts, implied covenant, actual/constructive fraud, negligent/intentional misrepresentation, general negligence properly dismissed on summary judgment… $21,500 fees properly awarded) Grizzly Security Armored Express v. Bancard Services, 11/19:2
Debt collection: (loan servicer’s unfair & deceptive practices in attempting to collect mortgage debt properly found to have violated FDCPA and MCPA, damages properly awarded although house not foreclosed on or sold: $172,615.20 for interest, $1,792.94 late charges, $50,000 emotional distress, $2,000 statutory, $60,000 for communication directly with represented parties, $31,020 fees/costs for violation of orders… appeal fees/costs to be awarded… argument that conduct related to foreclosure by loan originator not debt collection activity under FDCPA not addressed because of change in theory on appeal) Jacobson v. Bayview Loan Servicing, 5/7:2; (IRS 1099-C is not prima facie evidence of intent to discharge a debt, summary judgment for bank on collection claim proper) Flathead Bank of Bigfork v. Masonry by Muller), 10/29:3
Escrow malpractice: (bank breached fiduciary duty and contract by “scheme” to lend farm buyers $693,214 in order to make unauthorized withdrawal of $176,000 from seller’s savings account and unauthorized payoff of contract for deed to original seller resulting in loss of interest payments to subsequent seller, to benefit bank as lender… tortious breach of implied covenant of good faith fails as farm sale had profit motive… damages trial set) Lund v. Independence Bank, 7/9:3
Lending breach: (condo contractor’s estate’s claims against Bank barred by claim preclusion based on judgment on merits in foreclosure… judicial notice properly taken of previous actions… motion to vacate summary judgment properly denied as essentially a request that Court change its mind… venue properly changed from Gallatin Co. where Estate’s probate was filed to L&C Co. where Bank resided and condo contracts were to be performed) Estate of Kinnaman v. Mountain West Bank, 2/6:1
Loan modification: (bait & switch negligence claims time-barred… trespass and invasion of privacy by entry onto the property survive) Prather v. Bank of America, 9/10:5
*Bankruptcy
Barton doctrine: (Barton doctrine requiring permission to sue in District Court applies to UCC members in official capacities… pre-petition tort/contract/fraud claims against UCC chairman (Debtor’s former attorney) do not require Barton permission… Barton motion properly denied as to post-petition claims… UCC chairman not entitled to judicial immunity as to all actions as chairman, remanded for consideration of immunity for post-petition claims) Yellowstone Mountain Club, 12/3:4
Exemptions: (certified question accepted as to exemption in health savings account) In re Giacometto, 12/17:1
Preliminary injunction: (properly issued against assets transfer) Yellowstone Mountain Club, 4/9:5
Proof of claim: (Ch. 13 creditors must file timely proof of claim to participate in distribution of assets even if the debt was listed in the debtor’s schedules) Barker, 12/3:6
Yellowstone Mountain Club: (Debtor’s intervention constituted consent to jurisdiction… divorce releases constituted fraudulent transfer, do not shield Debtor from liabilities to Yellowstone Club Liquidating Trust… Yellowstone Mountain Club’s fiduciary claims not time-barred… Debtor breached fiduciary duties to Club even though Club technically owned by alter ego… Debtor’s loan from Club was constructively fraudulent transfer… in pari delicto erroneously applied to reduce damages to liquidating trust) Yellowstone Mountain Club, 7/30:5
*Bench Judgments
Liquor stores compensation: ($14,722,297.88 for liquor stores that were under-compensated for discounts for unbroken cases) Kohoutek v. State, 8/6:4
Police wages: ($2,738,145, failure to properly account for longevity in Billings police wages) Watters v. Billings, 9/17:4
Road: (road over private property public road for all lawful purposes, no prescriptive easement) MacKenzie v. Titeca, 6/18:4
*Civil Procedure
Claim preclusion: (condo contractor’s estate’s claims against Bank barred by claim preclusion based on judgment on merits in foreclosure) Estate of Kinnaman v. Mountain West Bank, 2/6:1; (bars 2nd petition for de-annexation from City) Schweitzer v. Whitefish, 10/15:1
Collateral estoppel: (summary judgment in coffee kiosk case proper based on litigation through trial and appeal of other case) Garcia v. Mountain Manufacturing, 1/2:1; (argument that new gold mine pit must be fully reclaimed barred by unappealed ruling as to another pit, plan properly selected) MEIC v. DEQ, 1/23:2
Consent judgment: (State not obligated to defend/ indemnify Judge accused of sexual harassment of court reporter or pay unconsented $744,371 settlement… reporter may have claim under HRA proceeding) State v. Huss, 1/16:4
Default: ($964,931.63 including $380,875 punitives to seller in ranch sale in which buyer alleged misrepresentation of spring flow) Loftis v. Truelson, 1/2:6; (default judgment ordering return of $100,000 investment properly granted for refusal to mediate… prejudgment interest properly awarded (damages ascertainable despite dispute over fraud claim), properly dated from funds transfer per facts alleged in complaint deemed admitted by default judgment) Stafford v. Fockaert, 2/13:1; ($4.6 million against bar for death caused by intoxicated patron) Dana v. Hanson’s Five Spot Bar, 9/3:5
Exemptions: (Health Savings Accounts subject to execution) Morgan Stanley Smith Barney v. Stafford, 7/30:4
Interest: (prejudgment interest in State Health Plan benefits coordination/made-whole class action properly found to first accrue 30 days following BCBS, not when bills were incurred) Diaz v. State, 10/29:3
Interpleader: (“race to judgment” by 2 wildfire claimants to obtain limited policy proceeds available for payment to 30+ claimants headed off by interpleader… $1 million CGL policy not subject to attachment/execution because interpleader commenced before Plaintiffs attempted to serve writs, priority of claims must be determined by interpleader court) Behlmer v. Fitte, 1/23:5; (intended to equitably distribute all insurance proceeds notwithstanding 2 judgments against insured and execution writs against $1 million CGL proceeds stemming from wildfire affecting 35 neighbors… deposit of proceeds not required at time interpleader was commenced, proceeds deposited after Federal Court found coverage were part of res) Behlmer and DeTienne, 12/31:1
JML: (improperly denied for City based on uncontested evidence that Police Chief sexually harassed dispatcher… $300,000 verdict reversed) Reinlasoder v. Colstrip, 7/23:2
Joint/several liability: (supervisory control of Gilbert granted ordering enforcement of $30,000 HRD retaliation judgment against individual, vacating joinder of City as necessary party, notwithstanding City’s pending judicial review action) Carlin v. Gilbert, 11/19:5
Justiciability: (challenge of sexual orientation housing ordinance properly dismissed as not presenting case or controversy) Arnone v. Bozeman, 8/6:1
Laches: properly applied to bar claims stemming from trail destruction by easement road construction) Algee v. Hren, 7/23:1
New trial: (granted following hospital malpractice defense verdict based on failure to excuse spouses of hospital employees for cause prior to voir dire, failure to clarify at jury’s request loss-of-chance instruction which mentioned only “doctors” and not health providers generally) Beebe v. Bozeman Deaconess Health Services, 12/24:4
Ratification: (properly applied to determine that HOA was valid with enforcement authority despite being created in non-compliance with amendment provisions of 1997 covenants) Harbor Village HOA, 1/23:1
Relation-back: (to bring insurance bad faith claims within statutes of limitations denied where Plaintiff knew of added Defendant’s identity but was unaware of claims handling) Tempel v. ACE American Ins., 12/10:5
Sanctions: ($12,513.30 Rule 11 fees properly assessed despite some claims being “arguably judicable”… appeal sanctions denied) Runkle v. Allen, 3/19:3; (improperly imposed for “frivolous” counterclaim against Yellowstone Club bankruptcy trustee in personal capacity) Glasser v. Blixseth,5/7:5; (properly imposed on attorney-child) Guardianship of AMM, 9/3:1; (supervisory control of H. Brown as to sanctions against med-mal Defendant denied) Bozeman Deaconess Health Services v. Brown, 9/3:3; (cert/supervisory control as to sanctions against med-mal Defendant’s attorneys denied) Lichte v. Brown, 9/3:3; ($156,651.75 attorney fees, $5,416.47 costs, against defense counsel for untimely PTO response in hospital malpractice case) Beebe v. Bozeman Deaconess Health Services, 12/24:5
Scheduling order: (good cause/extraordinary circumstances not shown for modifying agreed scheduling order to extend trial date) DeBuff v. Walgreen, 9/24:5
Standing: (immigrant association which includes Mexicans with permanent residence has standing to challenge LR 121 which requires denial of state-funded services to “illegal aliens”… LR 121 properly found preempted by federal law) Montana Immigrant Justice Alliance v. State, 5/14:2
Vexatious litigant: (attempt to relitigate TOP after it had already been challenged and upheld on appeal, then appeal to this Court again, along with multiple frivolous filings, merits vexatious litigant designation, $1,000 sanction, restrictions on filings) Boushie v. Windsor, 7/23:4
*Commerce
UCC: (lender entitled to recover $53,210.03 due on note plus $10,364.97 fees/costs from proceeds of sale by implement dealer of equipment/collateral it took as trade-in from borrower) Farm Credit Services of North Dakota v. Bergstrom, 4/23:3
*Conservatorship
Removal: (properly denied, no prima facie good cause) AHE, 12/10:1
TOD modification: (brothers lack standing to challenge TOD modification by wife/conservator made while husband was alive) GO, 11/26:3
*Constitutional Law
§1983: (claims by fired police chief properly rejected) Reinsaloder v. Colstrip, 10/1:5
Excessive force: (even if a jury could find officer shooting suspect fleeing in patrol car was not objectively reasonable because he was not a threat at the time he was shot and killed, Supreme Court law compels conclusion that the law on deadly force against fleeing vehicles was not clearly established, officer entitled to qualified immunity… “In my view, this case should be tried to a jury. However, in light of our Supreme Court cases on deadly force in car chases it won’t be”… summary judgment for officer and City) Brawley v. Punt, 5/14:6; (state law claims against officer and City relating to investigation of motorcyclists/motorist confrontation dismissed on summary judgment following 9th Circuit disposition of federal claims) Ratcliff v. Red Lodge, 10/29:7
Open meetings: (open meetings, public participation, §1983, policies/public policy claims of terminated County HR Director properly dismissed on summary judgment) Moe v. BSB Co., 5/14:2
Police shooting: (claims dismissed on summary judgment from bench) Temple v. Callahan, 11/5:5
Public participation: (open meetings, public participation, §1983, policies/public policy claims of terminated County HR Director properly dismissed on summary judgment) Moe v. BSB Co., 5/14:2
Right to know: (fees from union objecting to disclosure of jailer termination settlement properly denied because it is not public body or governmental agency) Shockley v. Teamsters, 2/20:2, (rehearing denied) 4/2:1; (UM rape investigation records to be reviewed to determine which if any can be released to Colorado journalist) Krakauer v. Commissioner of Higher Education, 9/24:4
Wrongful arrest/excessive force: (claims by assault Defendant against officer and City dismissed on summary judgment) Oram v. Dillon, 12/31:7
*Contracts
Indemnity agreements: (summary judgment properly granted on limited issue of whether insurer may seek indemnification from contractor for “appropriate expenses” incurred in payment litigation by subcontractor, issue of damages to be decided by trier of fact including whether fees which contractor alleges were incurred by insurer defending against bad faith claim in underlying litigation are covered) Ohio Farmers Ins. v. JEM Contracting, 12/31:3
Non-compete covenant: (preliminary injunction properly granted barring seller of archery business from working in expanded archery department of competing sporting goods store) Friedman v. Lasco, 5/21:2
Oral contract: (between remanufactured brakes entities not barred by statute of fraud, promissory estoppel properly submitted to jury which awarded Plaintiff $344,532 contract damages and Defendant $63,990.48 for inventory… Defendant properly denied costs for prevailing on counterclaim)S&P Brake Supply v. STEMCO, 12/24:1
Residential construction: (equitable relief in quantum meruit proper for architectural services despite void oral construction contract… attorney fees improperly awarded for entire case rather than just architectural part of lien, improperly awarded on quantum meruit claim) Mandell v. Ward,8/27:1
*Courts
Bifurcation: (liability and damages as to lake dam operation properly considered by separate juries… supervisory control of Curtis denied) PPL Montana v. Curtis, 7/23:3; (Plaintiff’s request for single trial of questioned hit & run UIM claim and bad faith claim properly denied, but seriatim trials to be before same jury, not separate juries as ordered by Menahan) McKinley v. Menahan, 7/23:3
Dismissal: (real estate claims properly dismissed on summary judgment and for failure to prosecute) Hall v. Walker, 6/18:2; (“romance scam” suit properly dismissed for failure to appear at pretrial conferences) Helvey v. Thompson, 6/25:1; (dismissal with prejudice of dewatering system claims following $1,733,887.40 verdict and settlement with Defendant’s insurer renders appeal moot over request that dismissal be at least conditioned on indemnity from recoupment of settlement amount and for fees/costs as prevailing party) Ova v. Oakland Home Builders, 11/26:3
Judicial notice (properly taken of previous actions) Estate of Kinnaman v. Mountain West Bank, 2/6:1; (of State Court proceedings resulting in $268,435.94 MVA verdict to supplement Complaint information) Tempel v. ACE American Ins., 12/10:5
Judge disqualification: (Judge presiding over insurer’s challenge to reasonableness of $10 million accounting malpractice consent judgment should have disclosed his own insurer’s challenge of reasonableness of sexual harassment consent judgment with court reporter (first impression)… remanded for findings & conclusions by new judge) Draggin’ Y Cattle v. Addink, 5/7:1
Judgment clarification: (Flathead Lake property partition properly clarified to reflect intent as to septic easement) Britton v. Brown, 6/25:1
Judgment on verdict: (Judge improperly went beyond contract verdict which awarded $238,241 to Defendant contractor by entering judgment for Plaintiff of $236,139 after crediting $474,625 down payment which was not a trial issue) Pacific Steel & Recycling v. Emineth Custom Homes,5/21:1
Jurisdiction: (denial of motion to dismiss COPP case against party not named in complaint not immediately appealable as issues are statutory/rule interpretation, not subject jurisdiction) COPP v. Wittich, 3/26:1; (first-to-file rule properly applied to dismiss Montana case in favor of Pennsylvania case) Montana Opticom v. Holsinger PC, 5/21:3
Justice Court: (due process not violated by DUI trial before non-lawyer JP in court of record without trial de novo in District Court) State v. Davis, 5/14:4; (findings & conclusions improperly entered by District Court rather than reviewing JP’s decision) Crabtreee v. Czech, 12/31:3
Recusal: (properly denied) Guardianship of AMM, 9/3:1
Removal: (remand of bad faith suit against insurer and adjuster on the basis of asserted defects in removal notice denied under 1988 amendments to Title 28, but granted on basis that Complaint alleged sufficient facts to state claim of unfair settlement practices by adjuster, Defendants’ failure to show that joinder should be deemed fraudulent) Leaphart (GAL for Vangsnes) v. National Union Fire Ins., 1/16:7
Summary judgment: (motion to vacate summary judgment properly denied as essentially a request that Court change its mind) Estate of Kinnaman v. Mountain West Bank, 2/6:1
Venue: (properly changed from Gallatin Co. where Estate’s probate was filed to L&C Co. where Bank resided and condo contracts were to be performed) Esdtate of Kinnaman v. Mountain West Bank, 2/6:1
*Crime, Criminal Procedure
Accomplice liability: (instruction properly refused as to testimony by girlfriend’s uncle & aunt in case against boyfriend for injuries to girlfriend’s child) Charlo-Whitworth, 7/2:1
Aggravated sex abuse: (sufficient evidence to convict Defendant of rape years earlier when girls were 12 or 13… bill of particulars properly denied following disclosure of entire file) Doney, 7/30:7
Alcohol: (defense verdict, providing alcohol to intoxicated person (passed out but not driving), criminal/negligent endangerment, tampering) State v. Hansen, 9/3:6
Assault by strangulation: (is general intent crime (as opposed to specific), aimed at protecting Native American women from increasing domestic abuse, jury properly instructed to disregard Defendant’s intoxication) Lamott, 8/6:4
Assault with weapon: (no evidence that would support lesser-included of misdemeanor assault) Bruce, 4/23:3
Attempted deliberate homicide: (lesser-included assault instruction properly rejected as to throwing pipe bombs into paths of pursuing officers… conviction of 7 counts of attempted deliberate homicide and 7 life sentences affirmed) Stewart, 1/9:1
Burglary: (suppression of physical items and admissions properly denied) Kasparek, 7/23:6
Case file production: (County Attorney made case file available to an agent of prisoner, not obligated to deliver the materials) Belanus, 8/6:3
Child pornography: (Defendants acted “in concert with” at least 3 others in sharing child porn on message board, properly convicted of participating in exploitation enterprise… sharing with closed community of 40-45 constituted advertisements under §2251(d) (1st impression in 9th Circuit)… victim’s losses caused by original abuse should be disaggregated from losses attributable to continued viewing consistent with subsequent Galan rule) Grovo and Peterson, 7/2:2; (attempted possession supported by computer search terms) Colburn, 10/8:3
Collateral attack: (of 1979 default divorce and sheriff’s sale of ranch properly precluded from in absentia trial of intimidation/stalking/trespass/order of protection charges stemming from 2014 visit to ranch after 28 years in prison stemming from previous ranch ownership challenges… convictions, 75-year sentence, affirmed) Lance, 4/30:3
Confession: (statement to Trooper that “I don’t have insurance” was admission, not confession, corroboration not required for charge of driving with no insurance… conviction affirmed) Davis, 8/27:8
Cooperating witnesses: (Defendant improperly precluded from questioning cooperating witnesses about potential leniency) Nickle, 3/26:4
Criminal endangerment: (instruction on lesser-included negligent endangerment properly refused for high-speed pursuit Defendant) Russell, 10/29:5
Counsel substitution: (properly denied at sentencing hearing following child sex abuse trial at which medical exam report of intact hymen had not been introduced… related IAC claim more amenable to postconviction) Cheetham, 6/18:3
Double jeopardy: (insufficient evidence that Prosecution goaded Defense into seeking mistrial, dismissal properly denied) Strizich, 2/20:2; (not implicated by Montana and New York child porn offenses) Woods, 7/2:4; (elder abuse and aggravated burglary not multiple convictions, attorney not ineffective for failing to object) Hooper, 9/24:5
Driving with suspended license: (is strict liability offense, does not require culpable mens rea… MVD notice letters properly admitted as public administrative records) Omyer, 3/19:2
Drugs: (wiretap voice ID sufficient to support meth conviction) Sanchez-Chavez, 1/2:7; (Amtrak meth stop convictions affirmed) Buchanan, 2/20:4; (rulings on 2011 Montana Marijuana Act affirmed, reversed) Montana Cannabis Industry Association v. State, 2/27:1; (search warrant application based on CI tip sufficiently corroborated, provided substantial basis for finding probability of criminal marijuana activity, suppression/dismissal properly denied) Kant, 2/27:3; (plea-agreement guilty plea should have been accepted, Defendant should not have gone to trial… Defendant improperly precluded from questioning cooperating witnesses about potential leniency… remanded for plea withdrawal or trial before a different judge) Nickle, 3/26:4; (stop of suspected meth traffickers not invalidated by officer lying about reason for stop… motion to suppress properly denied)Magallon-Lopez, 4/9:5; (meth found on parole violator properly not suppressed… arraignment not required for amended information… discovery request properly denied… complaints about attorney adequately addressed) Crawford, 4/30:4; (sufficient particularized suspicion for warrantless dog sniff of car stopped for lights/plates violations) Marino, 9/10:3; (warrant application informants reliable, information not stale, suppression of house search properly denied) Stevenson, 9/10:2; (jury properly instructed on accountability for marijuana grow despite Defendant not being charged with accountability… Prosecutor’s closing statements not misconduct… Defendant’s request for surrebuttal to get in last word properly denied) Dobrowski, 10/22:3; (evidence of meth in urine properly not suppressed based on common sense assessment of evanescence/staleness) McDanal,10/29:5; (convictions and life sentence for meth trafficking and firearms by illegal alien affirmed) Ocegueda-Ruiz, 11/5:4; (jury adequately instructed on “ultimate user” defense where Defendant crushed Oxycodone that was prescribed with instructions to take by mouth… possession conviction affirmed) Temple, 11/12:4
DUI: (medical technologist at medical center which is supervised by offsite MD qualified to draw blood… 5th DUI affirmed) Allport, 1/2:3; (claim of infirm 1999 DUI properly rejected) Hancock, 3; (BAC suppression properly appealable to District Court… 6-months speedy trial rule not violated… Defendant properly allowed blood test because of distrust of Intoxilyzer) Johnson, 2/6:2; (particularized suspicion for stop based on crossing centerline) Maier, 3/19:5; (duress exception for mandatory minimum not clearly applicable to felony DUI, counsel not ineffective for not urging it) Moog, 4/9:2; (stop properly based on failure to signal over claim of pretext by officers who may have been “targeting” Defendant) Brunette, 6/4:5; (911 caller provided sufficient information to justify investigating driver in parking lot even though officer later learned that caller had lied about caller’s location) Tye, 6/25:3; (sufficient probable cause to arrest obviously intoxicated driver whom officers first encountered stumbling next to her horse for threat to public safety, field tests not required) Ellis-Peterson, 7/9:2; (“unavailability” of officer on leave for investigation of off-duty conduct was “good cause” to delay trial 9 days past 6-month deadline, Defendant not denied speedy trial… Defendant not denied fair trial by refusal to let him cross-examine officer as to reason for leave… officer properly allowed to testify as HGN expert) Krenning, 8/27:4; (State had burden to prove ND DUI qualified for felony enhancement, “inadequate record” as to whether it was BAC or “under influence” not competent proof) Krebs, 11/19:6; (Defendant gave express consent to blood test and never withdrew consent… failure to sign hospital’s consent form irrelevant)Shepp, 12/3:2; (RN’s testimony that she prepared blood draw site with Betadine satisfied ARM even though she did not expressly use words “thoroughly cleansed and disinfected”) Hofer, 12/31:5
Endangered species: (shooting 3 grizzlies only petty offenses, no right to jury… defense of self or others properly rejected under objective standard… even under subjective standard, evidence showed lack of good faith belief that it was necessary to shoot bears… $5,000 per bear restitution proper… over-length brief allowed… judgment/sentence by Lynch affirmed) Wallen, 1/23:7
Ex post facto: (not violated by 2013 aggravated DUI conviction based on 2007 refusal to submit to breath or blood test under 2011 law) Hislop, 6/4:6
Felony murder: (charge stemming from assault & murder spree in small area and very short time properly addressed at trial and on appeal, counsel not ineffective in dealing with it) Russell, 3/26:3
Filing restrictions: (summary denial of motion to vacate sex conviction affirmed, restrictions placed on filings by pro se Defendant with history of petitions and appeals) Montgomery, 7/23:7
Forfeiture: (statute precluding jury trial violative of Art. II §26, is also penalty purposed and therefore not in equity… remanded for jury trial in drug-related real property forfeiture proceeding) Chilinski, 11/5:2
Improper influence: (lawyer not ineffective for failing to bring facial overbreadth challenge to improper influence statute… sufficient evidence that Defendant threatened officer with purpose to influence charging criminal trespass) Spottedbear, 10/8:2
Incest: (17-year-old who had consensual sex with father not legally accountable for father’s incest, distrust instruction properly refused… corroborating evidence still required, and was offered… conviction affirmed) Kline, 7/30:3; (new trial required for failure to disclose records showing evidence of psychosis by 5-year-old, tendency to lie, tumultuous living conditions, reduced meds, prior false accusation… even inadmissible evidence under Rape Shield should be disclosed) Weisbarth, 8/27:5
Indian thefts: (sentence for thefts from tribal entities properly enhanced by theft from individual… $19,735.77 restitution proper) Sunchild, 2/20:4; (convictions of theft from tribal healthcare facility affirmed) Morsette, 7/9:5
Ineffective assistance: (hearing required to determine whether Defendant instructed attorney to appeal) Scott, 1/30:6; (claims of “revolving door” of OPD attorneys, failure to present evidence of murder victim’s history of violence, failure to prepare Defendant for testifying properly rejected)Heavygun, 3/26:2; (felony murder charge stemming from assault & murder spree in small area and very short time properly addressed at trial and on appeal, counsel not ineffective in dealing with it) Russell, 3/26:3; (counsel failed to lay proper foundation that missing plasma cutter was worth less than $1,500 felony amount… Bidegaray affirmed as to evidentiary rulings, but felony conviction reversed due to ineffective assistance, remanded for new trial) Weber, 6/11:4
Investigatory stop: (officer had particularized suspicion to stop persons walking toward vacant house under suspicious circumstances, meth later found in patrol car properly not suppressed) Ballinger, 2/13:3
Jury: (federal judges have inherent power to recall a jury to correct verdict error, within limitations… jurors properly recalled following $0 verdict in light of $10,136 stipulated MVA damages ($15,000 verdict in subsequent deliberations)) Dietz, 6/18:5
Justifiable force: (jJury properly instructed on duty to retreat in light of conflicting claims as to who was aggressor… assault with weapon conviction affirmed) King, 12/24:3
Order of protection: (State not precluded from charging 35 violations for messages sent within 2 hours over claim of single transaction) Allen, 8/6:3
PFMA: (counsel not ineffective for not asserting claim that PFMA violates equal protection by subjecting heterosexuals to more severe penalties than homosexuals) Hauer, 1/30:3; (other acts of yelling and taking car properly admitted under transaction and continuing series rules… leading questions properly allowed of developmentally disabled victim) Sayler, 9/10:3; (2011 “opposite sex” violates equal protection, but statute stands with provision severed, conviction affirmed) Theeler, 12/10:3; (Defendant waived by plea agreement the right to challenge constitutionality of 2003 PFMA statute to get his felony conviction reduced to misdemeanor, Lenihan not appropriate for challenge of conviction (as opposed to sentence) Watts, 12/31:5
Plain error: (review of Judge’s response to spectator outburst in incest/rape/sexual assault trial declined) Griffin, 9/24:5
Plea agreement: (ambiguity to be construed in favor of Defendant… agreement could be interpreted as either §211(1)(b) or (c), ambiguity construed in favor of (b) allowing withdrawal of nolo arson plea upon rejection of agreement by Judge) Langley, 3/26:2; (guilty plea should have been accepted, Defendant should not have gone to trial) Nickle, 3/26:4; (reducing firearms export/mailing from 46-57 months to 1-6 months too lenient as not reflecting seriousness) Isles, 6/4:8
Plea validity: (challenge of validity (as opposed to plea withdrawal) of nolo plea to negligent homicide of grandson from oxycodone rejected) Harless, 7/9:3
Plea withdrawal: (Defendant failed to demonstrate that plea agreement was involuntary, not entitled to commit new offense and thereby negate the agreement) Shull, 10/29:6; (properly denied for sexual assault Defendant claiming 11-year-old had misrepresented age) Coulter, 12/10:4
Postconviction: (petition claiming new evidence by sex assault/deviant sex MSP inmate properly dismissed with prejudice for failure to personally attend 3 depositions in CA Office over claim that State was seeking to lure him to where he could be arrested on failure-to-register warrant)Hanson, 6/25:3; (3rd petition by sheriff’s office shooter claiming new evidence properly denied) Kenfield, 8/20:3; (counsel adequately advised of offered plea agreements, rejection of which resulted in 30 years for rape) Zindell, 9/17:4; (8 IAC claims by child rape Defendant rejected as raised 1st time on appeal, 5 rejected for failure to establish alleged facts) Aker, 10/15:4; (MRCivP not available to avoid postconviction bar under guise of “void judgment” in PFMA plea challenge) Duffy, 10/29:6
Prisoners: (preliminary injunction denied in MSP copy charges challenge) Chyatte, 11/5:3
Prosecutorial discretion: (up to County Attorney whether to prosecute for alleged criminally negligent maintenance of truck exhaust… mandamus properly denied) Guymon, 1/9:2
Rape: (purported threat by wife to fabricate claim of molestation of daughters properly precluded due to failure to provide offer of proof… Defendant improperly ordered to pay for pre-charge forensic interview) Follette, 1/23:3; (sufficient evidence to convict despite child’s inconsistencies/fantastical statements) McAlister, 1/23:4; (expert on leading questions of children improperly excluded based on lack of specific training in NICHD protocol… Rape Shield Law improperly mechanistically applied to exclude proffered evidence that child was abused by her father as opposed to Defendant) Colburn, 2/27:2; (alleged prior sexual abuse properly excluded under Rape Shield Law) Awbery, 3/5:5; (sufficient totality of evidence to convict serial rapist despite inherently unreliable single-person voice ID, venue change for pre-trial publicity properly denied… convictions affirmed) Griego, 8/27:6; (Mazurek hearing on prior child accusations properly closed… Defendant properly precluded from questioning accuser about prior allegations) Hoff, 10/8:3; (continuance due to late disclosure properly denied… mistrial properly denied as to Prosecutor’s comments about necessity of jury trial… Defense Counsel rapped for suggesting that male jurors would appreciate how impossible it is to undress a woman who is resisting) Pierce, 12/3:2
Reckless driving: (in-court ID of Black accused of road-rage assault was impermissibly/unnecessarily suggestive, but did not create substantial likelihood of misidentification… convictions affirmed) Nolan, 10/29:4
Restitution: (for vehicle thefts properly imposed on youth) TAD, 2/13:3; ($25,000 properly ordered for lost wages of grandmother caring for twins resulting from teen sex) Brave, 7/30:3; (value of wrecked car properly based on NADA rather than Kelley Blue Book) Hill, 9/10:2; ($213,163.25 properly ordered for insurance fraud) Didier, 9/17:4; (remission of restitution for hardship properly denied) Krause, 10/15:4; ($5,039.94 properly awarded for searching for and damage to stolen firearms in addition to $23,762 stipulated) Patterson, 11/19:6
Revocation: (under 2011 amendment not violative of ex post facto) Ankney, 7/23:6; (field warrant faxed 36 hours before arrest complied with requirement of “within 12 hours of the probationer’s arrest”) Rossback, 8/13:3
Right to be present: (Defendant not prejudiced by absence from emergency procedural conference) Blake,9/10:1
Search & seizure: (car at overlook not “seized” by officers pulling behind, checking on occupants… suppression of drugs properly denied) McFee, 12/10:4
Sentencing: (Defendant on fair notice that he will violate supervised release if he draws minor in sexual conduct… appeal waiver enforced as sentence does not violate the law) Bronson, 1/2:8; (because Judge not required to accept every recommendation of non-binding plea agreement, oral pronouncement and written judgment consistent in reflecting intent not to run new sentences concurrent with existing) Segna, 1/9:1; (credit properly applied for supervised release) White, 3/19:6; (3 counts stemming from kicking victim to death properly not merged for sentencing pursuant to double jeopardy… adjustment for post-trial acceptance of responsibility properly denied) Decoteau, 3/19:4; (loss amount from check washing scheme properly calculated for 6-level wire fraud enhancement) Rankin, 4/16:4; (high-level position, organizer or leader, enhancements properly applied to tribal theft convictions, restitution properly calculated) Belcourt, 4/30:5; (gratuity guideline properly applied to tribal theft convictions) Sunchild, 4/30:5; (no evidence of vindictiveness in increasing weapon enhancement upon resentencing following remand due to illegal separate PFO sentence… Defendant had duty to provide transcript) State v. Reimer, 5/7:5; (release condition that extends to non-porn sex materials involving adults improper) Cossey, 5/7:6; (Judge improperly found 4.536 kg of meth for sentencing purposes when jury found less than 50 grams… organizer enhancement relied on unreliable hearsay) Pimentel-Lopez, 7/23:7; ($25,000 restitution properly ordered for lost wages of grandmother caring for twins resulting from teen sex… oral modification of some probation conditions not reflected in written judgment where Defendant was charged with SIWC but pled to endangerment) Brave, 7/30:3; (56 months for complex loan scheme causing $3,741,047.82 actual loss to victims affirmed) Brown, 7/30:7; (34 months consecutive to undischarged state sentence for firearms conviction affirmed) Runsabove, 7/30:7; (no reduction for imminent deportation) Martinez, 8/6:5; (further reduction due to prior drug felony being reclassified as misdemeanor in California properly denied) Ogburn, 8/6:6; (reduction under 782 properly denied for Defendant with drug cartel ties) Alvarado, 8/6:6; (limitations on access to sexual materials and computers connected to Internet properly imposed) Merchberger, 8/20:4; (plea/sentence invalid for failure to rule on motion to sever) Lawrence, 9/10:4; (illegal parole eligibility on DOC commitment stricken… public defender fee that was waived in oral pronouncement improperly included in judgment stricken… remainder of rape appeal dismissed by stipulation) Laroque, 10/22:4; (500-mile residency restriction not reasonably related to rehab and protection of society, remanded for re-sentencing) Mahoney, 10/29:6; (lifetime ban on hunting, fishing, trapping a penalty, not condition of suspended sentence, judgment allowing for early termination of “condition” conflicted with pronouncement… lifetime ban on accompaniment privileges not penalty, early termination of condition in judgment improperly modified pronouncement) Harrison, 11/5:2; (life sentence for meth trafficking and firearms by illegal alien affirmed) Ocegueda-Ruiz, 11/5:4; (no reduction below amended Guidelines) Durbin, 11/5:5; (Defendant waived right to appeal $2,731.17 restitution for bad checks despite “$00.00” in plea agreement) Fernandez, 12/10:5
Sex abuse of minor: (warrantless search of basement with missing teen girls, adult males, alcohol justified by nonverbal consent of Defendant’s mother, exigent circumstances) Cly, 4/23:6; (no dating/socializing condition overbroad) Schaeffer, 7/2:4
Sexual assault: (2009 assault properly admitted in charged case to show propensity and similarity, evidence was necessary
Speedy trial: (Speedy Trial Clause not applicable to delay between conviction and sentencing (14 months in this case)… Due Process Clause may be implicated, but was not argued by Defendant) Betterman, 6/18:6; (not violated as new trial date was within 6 months of mistrial, charges need not be refiled within the 6 months) Jorgenson, 7/30:4; (time between dismissal and refiling when accused is under no official restraint not counted per USSC ruling… no due process violation where dismissal was for venue reasons and accused was incarcerated due to separate conviction) Butterfly,8/20:2; (violated by 309 oppressive days in jail because of drug test delay, remanded for dismissal of meth possession) Velasquez, 9/3:4; (violated by failure to submit evidence to Lab for 102 days during which defendant was deprived of rehab opportunities… meth possession conviction reversed) Mayes, 12/3:2; (6-months trial right waived by Defendant’s motion to continue and vacate trial date) Pepper, 12/10:4; (Constitutional claim by misdemeanor Defendant who avoided trial for 6 years properly rejected, although Ariegwe analysis should have been applied rather than statutory 6 months) Kampf, 12/17:2
Stalking: (order of protection properly granted against neighbor with Alzheimer’s for stalking behavior) Lankford v. Muhar, 7/2:1
SVOR: (sufficient evidence that Defendant knowingly failed to register proper address, no prejudice by circumstantial instruction) Wright, 11/12:4
Theft: (counsel failed to lay proper foundation that missing plasma cutter was worth less than $1,500 felony amount… Bidegaray affirmed as to evidentiary rulings, but felony conviction reversed due to ineffective assistance, remanded for new trial) Weber, 6/11:4
Traffic stop: (particularized suspicion to stop vehicle with stencil covers on tail lights based on need to establish whether lights were visible at 1,000 feet… drug suppression properly denied) Massey, 12/10:3
Trial security: (failure to apply Herrick test before denying removal of under-pants leg brace during trial of Defendant charged with kidnap, burglary, intimidation, escape harmless error, request to remove brace properly denied) Rickett, 7/23:5
Trespass: (insufficient evidence to convict of trespass in store as unruly Defendant left upon being ordered to… prior confrontation with officer properly admitted) Spottedbear, 10/8:2
Vehicle lights: (green LEDs around headlights giving green tint not prohibited… conviction by Orzech reversed) Upky, 1/16:5
Vehicle search: (sufficient probable cause in affidavit for drug search after excising false information about prior convictions) Banks, 3/19:2
Venue: (of paycheck double-cashing proper in Ravalli where employer maintained account from which funds were electronically extracted, over claim of Missoula where checks were physically cashed) Deshazer, 1/23:4
Wire fraud/false claims/government property theft: (convictions related to subordinate filing false time sheets affirmed) Lyon, 9/17:5
*Discrimination
Age: (fact issues preclude summary judgment as to agency relationship between Defendant and Apprentice Training Committee whose members’ statements form basis of claim) Missoula Electric co-op v. Cruson, 10/29:2
Obesity discrimination: MSC’s “dicta” as to EEOC interpretation of “physical or mental impairment” under ADA properly relied on in upholding HRC’s rejection of conductor trainee’s obesity impairment claim) BNSF v. Feit, 10/1:6
Service animal: ($2,500 for emotional distress by disabled Viet vet being denied hotel room because of lack of certification of service dog) Emel v. Days Inn & Suites, 3/19:5; (blind Viet vet reasonably not allowed to bring seeing eye dog on ambulance… earlier claims against hospital time-barred by withdrawal rather than amendment of original complaint) Hay v. St. Peter’s Hospital, 4/16:5
Sex discrimination: (HO abused discretion by failing to hold employer to scheduling order, allowing improperly disclosed witnesses, permitting witnesses on direct to provide irrelevant prior bad acts evidence as to how co-Petitioner treated women and improperly relied on such testimony in finding that his alleged poor moral character reflects upon his and co-Petitioner girlfriend’s credibility… HRC reversed, remanded for new hearing before new HO) Delhagen v. Montana Regional Imaging Center, 10/1:2
Sexual harassment: (State not obligated to defend/ indemnify Judge accused of sexual harassment of court reporter or pay unconsented $744,371 settlement… reporter may have claim under HRA proceeding) State v. Huss, 1/16:4
*Elections
Initiative: (original jurisdiction of pre-election challenge to I-181 declined) Montana AFL-CIO v. SOS, 8/20:2
Judicial elections: (judicial candidate unlikely to succeed on merits of claim that professional/judicial conduct rules prohibiting false statements violate Free Speech and Equal Protection Clauses, preliminary injunction denied) Myers v. Thompson, 7/2:4
*Employees
Noncompete covenant: (employment agreement not unenforceable agreement to agree, not contract of adhesion, covenant should be analyzed for enforceability against CPAs who left and started new firm… Defendants except one correctly found not to have breached fiduciary duties, damages by the one to be re-analyzed on remand) Junkermier, Clark, Campanella, Stevens v. Alborn, Uithoven, Riekenberg, 9/10:1
Severance agreement: (with Military Affairs employee properly upheld on summary judgment) Fenwick v. Dept. of Military Affairs, 4/9:1
*Environment
Reclamation: (argument that new gold mine pit must be fully reclaimed barred by unappealed ruling as to another pit, plan properly selected) MEIC v. DEQ, 1/23:2
*Evidence, Criminal
Exculpatory: (attempted deliberate homicide properly dismissed due to State’s failure to retain vehicle in which victim was seated when shot) Colvin, 6/4:4
Hearsay: (stabbing account not admissible as prior consistent statement, but trial error harmless in light of sufficient evidence to convict of assault with weapon) Killsontop, 10/1:3
*False Claims Act
Violation: (no evidence of violation to justify amending to add 2nd COPP expert witness services contract) Skattum v. Motl, 8/27:3
*Family Law
Adoption: (good cause must be found to treat grandfather as “stepparent”) Adoption of AMS, 1/30:2; (adoption of children properly granted to stepmother over objections of mother and appointed counsel’s self-claimed incompetence) AWS, 8/20:2
Ante-nup: (valid & enforceable over claim of fraud) Bliss, 3/19:4
Attorney fees: (husband properly required to pay 75% of wife’s fees based on disparity in resources and disregard for Agreement and Order, except $1,300 double-billed) Murphy, 5/21:4; (improperly awarded to husband without consideration of resources) Wagenman, 7/23:4
Conversion/res judicata: (suit claiming pre-divorce conversion of $6,500 check barred by res judicata failure to order wife to repay in marital contempt proceeding) Sagami v. Johns, 9/17:3
Imputed income: ($100,000/yr income properly imputed to husband, but $75,000 improperly imputed for support/maintenance purposes based on past gifts from mother (1st impression)) Paschen, 1/2:2
Maintenance: (support/maintenance rulings on remand from prior appeal affirmed, reversed) Paschen, 11/26:4
Misconduct: (findings properly entered as to disparaging remarks and conduct of husband, mother’s parenting plan properly adopted… appeal sanctions denied) Plotner, 1/30:2
Non-parent interest: (Montana inconvenient forum to determine interest as to child whose mother moved to Oklahoma) MMK, 4/9:2; (properly denied for failure to find that mother acted contrary to child-parent relationship) NMV, 12/24:3
Parental termination: (order directing service by publication of petition to terminate father’s rights and for grandfather to adopt child improperly entered by Clerk rather than Judge, failed to put father on notice that parental rights would be terminated) Adoption of AMS, 2; (Father’s conduct/condition unlikely to change) KA, 2/6:2; (rights of “non-offending” father properly terminated over claims of lack of jurisdiction, ineffective assistance) KB, 4/2:4; (incarcerated father’s right’s properly terminated) JB Jr., 4/2:4
Parenting plan: (mother’s plan properly adopted) Plotner, 1/30:2; (custody properly based on communication issues, not father’s religious preference) Davis, 3/19:5; (prior ex-wife properly allowed to testify to husband’s allegedly abusive conduct over hearsay/relevancy objections… wife’s pastor properly allowed to testify as to husband’s alleged anger… supervised visitation properly ordered… attorney fees improperly allowed in future parenting modifications without consideration of resources) Wall, 4/2:3; (mother properly allowed to relocate to Vermont with daughter) CJ, 4/23:3; (modification supported by mother’s multiple moves and school relocations for child… fees/costs properly denied to mother over claim of “vexatious” conduct by father) ZDL-B, 7/23:3; (modification of support/parenting provisions of separation agreement properly denied without hearing)Brown, 11/26:5; (proper standard of review employed in reversing Standing Master’s parenting report) BW, 12/31:4
Property: (tax liability properly considered marital debt despite wife’s “innocent spouse” designation by IRS and DOR) Rose, 1/23:2; (186 firearms properly allocated including guns husband could not possess due to felony) Evans, 3/19:4; (challenges re misconduct, valuations, “lost” firearms, support for soon-to-be emancipated child, fees, verbatim adoption of findings, pre-acquired/inherited property rejected) Stearns, 5/21:5; (property settlement requiring husband to assume liability for debts properly enforced without contempt finding) Harrison-Simmons, 6/18:3; (decree improperly entered without incorporating property settlement exhibit resulting in award of 100% of home to husband, wife’s motion to amend 2½ years later upon discovery of error improperly denied) Wagenman, 7/23:4
Support: (properly increased from $74/mo to $935 based on combining Marine’s base pay and housing/subsistence allowances) Shelhamer, 2/13:3; (statutory jurisdiction to review CSED support modification… modification properly based on pay stubs rather than husband’s testimony that he would no longer have overtime, but retroactive date improperly determined… statutory interest properly imposed on both parties for payments to delinquently established College Trust) Healy, 6/25:2; (“person with most significant disability” designation insufficient to modify support in light of employment/income potential) Scanlon, 8/13:2; (support/maintenance rulings on remand from prior appeal affirmed, reversed) Paschen, 11/26:4; (modification of support/parenting provisions of separation agreement properly denied without hearing) Brown, 11/26:5; (support modification retroactive to date of motion properly denied based on finding that wife agreed to waive support only to avoid further custody battles) Lee, 11/26:6; (modification denied) Jardine and Schwartz, 12/17:1
SS: (husband’s challenge of order to repay wife’s SS received while she was incarcerated rejected for failure to present evidence showing error or abuse of discretion) Spence, /32
Telephone appearance: (husband properly denied appearance by phone from LA) Jardine and Schwartz, 12/17:1
TRO: (term life beneficiaries improperly changed from wife & business to sister while economic TRO in effect even though changes could have been made between divorce and death, must be set aside under equitable power to order return to status quo when TRO violator has died… sister, although surprised to be named beneficiary of 2 policies (one not disclosed in divorce), unjustly enriched by $2,306,103.13 proceeds which she invested in real estate, constructive trust imposed in favor of decedent’s son & daughter per MSA and parenting agreement, to be resolved in equity on remand) Pamela Volk v. Co-PRs of Estate of Roy Volk, 3/19:1
Visitation: (modification denied) Jardine and Schwartz, 12/17:1
*Guardianship
Guardian/conservator: (permanent appointment properly made over siblings’ objections) HO, 6/18:1; (preliminary injunction properly granted restricting 2 children’s contact with incapacitated mother… recusal properly denied… Rule 11 sanctions properly imposed on attorney-child) AMM, 9/3:1
*Homeowners Association
Bridge reconstruction: (articles do not mandate reconstruction of destroyed bridge when other bridges provide access, cost estimate far in excess of $1,500, and majority of members object… supervisory control of Gilbert granted ordering summary judgment for HOA) Western Ranch Estates Unit II HOA v. Gilbert, 7/23:2
Claims against Board: (numerous claims including improper assessments and libel properly rejected on summary judgment… $32,021.11 fees/costs properly awarded HOA under CPA and as sanction… appeal fees based on Covenants denied as not having been sought on that basis below) Fink v. Meadow Lake Estate HOA, 5/21:3
Ratification: (properly applied to determine that HOA was valid with enforcement authority despite being created in non-compliance with amendment provisions of 1997 covenants) Harbor Village HOA, 1/23:1
*Indians
Domestic assault: (uncounseled Tribal Court domestic assault convictions proper predicates for domestic assault by habitual offender) Bryan, 8/20:3
Jurisdiction: (suit alleging improper conduct by tribal officer properly dismissed for lack of jurisdiction, tribal sovereignty) Crawford v. Couture, 11/19:2
Status: (sufficient evidence that murder Defendant was “Indian”) US v. Matuck, 3/19:4
*Insurance
Advance medical payments: (under Ridley not amenable to declaratory action where material facts are disputed as to negligence and comparative negligence in bicycle/auto collision) Johnson v. Safeco Ins., 1/9:2
Attorney fees: (denied where insurer did not deny UIM coverage, Plaintiff chose to sue as insurer continued in good faith to evaluate claim and dispute value, jury’s ultimate $450,000 valuation does not mean lower offers unreasonable) Mlekush v. Farmers Ins. Exchange, 11/12:5
Bad faith: (JML for insurer on bad faith claims following settlement of Tenants-in-Common investments suit by ranch) Sauerbier Ranch v. Catlin Specialty Ins., 3/26:6; (bad faith, class action claims stemming from collateral source challenge properly dismissed) Winstead v. State Farm Mutual Auto Ins., 10/29:7; (insurer had reasonable basis in law to condition payment on resolution of TRICARE liens, liability improperly imposed for $1,464,000 consent judgment) West (GAL for Lee) v. USAA, 11/12:1
Beneficiary: (term life beneficiaries improperly changed from wife & business to sister while economic TRO in effect even though changes could have been made between divorce and death, must be set aside under equitable power to order return to status quo when TRO violator has died… sister, although surprised to be named beneficiary of 2 policies (one not disclosed in divorce), unjustly enriched by $2,306,103.13 proceeds which she invested in real estate, constructive trust imposed in favor of decedent’s son & daughter per MSA and parenting agreement, to be resolved in equity on remand) Pamela Volk v. Co-PRs of Estate of Roy Volk, 3/19:1
Coverage: (Professional Liability Policy construed to cover massive stroke by prospective firefighter following physical ability test) Zahara v. Montana Firefighter Testing Consortium, 3/5:7; (guest ranch cook injured during theft of her pickup not covered by corporate UM policy, but use of personal vehicle for task that ranch vehicle would have performed had it not been out for repairs satisfies “same use” test for temporary substitute vehicle under ranch policy (1st impression)) Stonehocker v. Travelers Indemnity, 4/2:1; (MSC inconsistencies clarified, “accidents” may include intentional acts if damages not objectively intended or expected by the insured… fact issues as to collapse of lake house during remodel preclude summary judgment as to CGL coverage) Employers Mutual Casualty v. Fisher Builders, 4/23:1; (elder abuse not covered by homeowner policy under “personal injury” false imprisonment or “bodily injury”) Fire Ins. Exchange v. Weitzel, 5/21:1; (boulder fall onto cabin properly excluded under “earth movement” exclusion… no basis for UTPA claim) Parker v. Safeco Ins., 7/23:1; Employers Mutual changes coverage analysis but does not result in coverage of beetle infestation claims against log home builder, reconsideration denied… homeowner’s counterclaims against insurer, 3rd-party claims against agent, rejected) Northland Casualty v. Mulroy, 9/3:6; (ambiguous premises endorsements correctly construed as covering Montana suicide flowing out of use of behavior program’s Utah premises, insurer breached duty to defend, liable for $3 million consent judgment) Newman v. United Fire & Casualty, 10/1:5; (Director & Officers Policy’s personal profit exclusion applies to $14,264.17 conversion claim against officer which was resolved on summary judgment in State Court, does not apply to other claims, insurer still under duty to advance defense costs as incurred as to remaining claims) Johnson v. Federated Rural Electric Ins. Exchange, 12/17:6
Defend/indemnify: (ambiguous “general aggregate” limit in excess liability policy construed to provide additional $4 million for Homeowners for damages from gasoline tanker spill, Homeowners properly awarded attorney fees for insurer’s breach of duty to indemnify to proper limits… insurer did not breach duty to defend by withdrawing from defense and subsequently reinitiating defense (applying Independent Milk to breach of assumed duty to defend), not liable for $13,066,474 stipulated judgment entered 8 months later) Westchester Surplus Lines Ins. v. Keller Transport,1/16:2; (insurer breached duty to defend by denying coverage and deferring to co-insurer which defended construction defects claims under reservation, but $5,650,000 consent judgment improper without reasonableness hearing) Moodie Properties v. Scottsdale Ins., 11/26:1
Interpleader: (“race to judgment” by 2 wildfire claimants to obtain limited policy proceeds available for payment to 30+ claimants headed off by interpleader… $1 million CGL policy not subject to attachment/execution because interpleader commenced before Plaintiffs attempted to serve writs, priority of claims must be determined by interpleader court) Behlmer v. Fitte, 1/23:5
Liability stacking: (insurer met requirements to prevent stacking of liability policies in this case under §33-23-203, which it stipulated applies to its policies) Swan-Roberts v. Stringer, 10/8:4
Medical reviewers: (personal jurisdiction found over out-of-state medical reviewers who recommended denial of health coverage for Montanan… 12(b)(6) dismissal of aiding & abetting, UTPA, contractual interference, punitives claims against doctors and medical review entity denied) Fisher v. Jackson, 12/31:5
Med-pay: (class certification as to med-pay cost containment scheme premature, additional discovery required) Byorth v. USAA Casualty Ins., 11/26:2
Stacking: (slblings of MVA decedent not entitled to stacked coverages under other driver’s policy because they are not “insured person” regardless of consent judgment for stacked amount) Morris v. Estate of Bishop, 11/5:5; (no UM stacking of 5 vehicles with 1 premium and anti-stacking language) Gates v. Bourgeau, 11/12:7
Stipulated judgment: (reasonableness of $29 million stipulated judgment for breach of duty to defend improperly considered solely from perspective of uninsured Defendants, remanded for 2nd hearing and objective consideration of merits of underlying case and value to a prudent uninsured of confessing judgment… ESOP payouts not required to be deducted from $29 million but may be considered in reasonableness of settlement… Plaintiffs will be entitled to postjudgment interest if settlement approved following 2nd hearing, but not to prejudgment interest) Tidyman’s Management Services, 8/27:2
UIM: (defense verdict, red-light MVA, verdict form) Welscott v. Allstate Fire & Casualty, 4/9:1
UTPA: (no private right of action under §§ 208 (rebate of premiums) & 212 (excessive premiums)) Ibsen (Urgent Care Plus) v. Caring for Montanans, 5/14:3
*Local Government
County growth policy: (alleged shortcomings in updating process do not rise to statutory or constitutional violation… “property rights trump card” lacks force of law, not unconstitutional) Citizens for a Better Flathead v. Flathead Co. Commission, 10/22:2
Municipal water: (Missoula proved that its contemplated use of a water system is “more necessary” than the current use as a privately owned for-profit enterprise, preliminary condemnation order affirmed) Missoula v. Mountain Water, 8/6:2
Pursuit death: (original limitation period tolled for claims against County until Estate received notice of denial, 6-month claim period never began because County never responded, suit timely commenced… Rouse and Stratemeyer reconciled) Estate if Woody v. Big Horn Co., 7/30:1
Recall: (permanent injunction against recall of Whitehall Mayor and Aldermen due to deficient/nonconforming petitions and circulation sheets) Davis v. Ramey, 12/17:5
Sewer/water: (expert valuation testimony properly excluded for untimely disclosure despite untimely motions to exclude… jury properly instructed as to unjust enrichment… award for election of contract damages (versus negligence) proper in one respect, improper in another… amount of fees awarded ($140,980) unreasonable in light of minimal recovery/demand) Folsom v. Livingston, 9/24:1
Subdivisions: (HOA not allowed to intervene in gate controversy between City and other HOA… summary judgment properly granted to HOA as to vested right to gate private road v. Resolution prohibiting gates, justiciable controversy) Estates Homeowners Association (Grouse Mountain) v. Whitefish and Proposed Intervenor Grouse Mountain Homeowners, 4/16:1
Zoning: (challenge to denial of anti-fracking petition based on formal protests properly denied because of Commissioners’ improper waiver of 2009 resolution adopting procedures for Part 1 petitions… constitutional challenge of §76-2-101(5) citizen vetos not addressed) Martinell v. Carbon Co. Commissioners, 6/11:3; (Map Amendment properly invalidated, Text Amendment not also invalidated… UDJA fees improperly awarded) Citizens for a Better Flathead v. Flathead Co. Commission, 12/24:2
*Mental Commitment
Friend: (plain-error review declined over claim that person was not given notice of right to a friend) SK, 11/12:3
Homelessness: (inability to find housing due to mental disorder, person not committed merely because she was homeless) RH, 12/24:2
Involuntary medication: (improperly authorized based on finding that it “may be necessary”) RH, 12/24:2
Sufficiency of evidence: (sufficient evidence to commit 18-year-old, hearsay argument not preserved for appeal) JF, 1/23:3; (written recommitment order, considered as whole and with oral findings, “minimally sufficient” “detailed statement” on which conclusions based) SGR, 4/2:2; (homeless woman) PH, 4/2:3; (sufficient evidence that bipolar person living in van was unable to care for her needs or was a threat to others, not denied effective assistance) SH, 6/11:3; (pre-prepared order signed at conclusion of hearing insufficient for commitment, Court declines to expand implied facts doctrine to affirm order that is beyond “bare-bones” and “spartan”… commitment reversed) CC, 7/30:1; (sufficient evidence of imminent threat of harm by harassing phone calls and stalking behavior… automatic re-commitment improperly provided for failure to comply with discharge recommendations following release) CV, 12/3:1
*Oil/Gas
Fracking: (Plaintiffs’ right-to-participate claim as to potential fracking not unripe, but participated in hearing on initial permit to drill and promised further participation if fracking pursued) CCRC v. BOGC, 10/1:1
Surface damages: (surface owner not required to exhaust administrative remedy under Surface Damage Act before litigating damage claim in court) Interstate Explorations v. Morgen Farm & Ranch, 1/30:1
*Minerals
Dinosaur fossils: (fossils not in ordinary & natural definition of “mineral” in general mineral deed, highly valuable Dueling Dinosaurs, Murray T. Rex, Triceratops fossils found on ranch not part of mineral estate, surface owners are sole owners) Murray v. Severson, 6/11:6
Royalty reservation: (English professor improperly allowed to interpret 3/5th royalty reservation… ambiguity improperly resolved in Defendants’ favor… laches improperly applied) Wicklund v. Sundheim, 3/19:2
*Probate
Childhood sex abuse: (claim against brother’s estate time-barred) Johnson, 11/5:1
PR removal:L (Co-PR properly removed due to delays caused by failure to respond or sign documents relating to sale of house) Brock, 11/26:4
Term life insurance: (beneficiaries improperly changed from wife & business to sister while economic TRO in effect even though changes could have been made between divorce and death, must be set aside under equitable power to order return to status quo when TRO violator has died… sister, although surprised to be named beneficiary of 2 policies (one not disclosed in divorce), unjustly enriched by $2,306,103.13 proceeds which she invested in real estate, constructive trust imposed in favor of decedent’s son & daughter per MSA and parenting agreement, to be resolved in equity on remand) Pamela Volk v. Co-PRs of Estate of Roy Volk, 3/19:1
Will: (probate of purported 1998 holographic will barred by 3-year statute, exceptions not applicable, recently discovered mineral interests must proceed in intestacy) Kurth, 8/13:1
*Property
Easement: (1995 express easement purportedly intended for access to a bridge not invalidated by “changed circumstances” of bridge never being built… use for recreation consistent with stated “roadway and utility purposes”) Reed v. Indigo Faith Properties, 3/5:3; (scope of secondary pipeline maintenance easement properly defined… fees properly denied to partially prevailing Plaintiffs whose conduct was also improper) Canyon View Farms v. Ainslie and Scott, 7/9:1; (laches properly applied to bar claims stemming from trail destruction by easement road construction) Algee v. Hren, 7/23:1; (Plaintiffs have single easement over existing lake road, not co-existing express, implied, prescriptive, or necessity easements for elevating road to accommodate flooding… Plaintiffs had no authority to apply for lakeshore improvement permit on Defendants’ land… cost-sharing by Defendants constitutes sufficient consideration for maintenance agreement, agreement not breached by Defendants… Plaintiffs breached detour agreement as to removal of fill and restoration of Defendants’ property, assessed $5,300 costs… claim of conversion of fill rejected… Defendants awarded fees/costs under §25-7-105) Low v. Reick, 7/23:1; (clause correctly interpreted as a restriction on use of easement, not on right to develop property) Bevill LP v. Sandberg, 10/22:2; (preliminary injunction properly granted on prescriptive easement theory (does not preclude express public easement theory), but improperly limited to passenger vehicles) Flora v. Clearman, 11/19:2; (claims across absentee owner’s land based on prescription, implication, estoppel properly rejected on JML) McCrorie v. Franz, 12/10:1; (60-foot express easements by implication created by reference to surveys of record, not limited to 10-foot roadbed pursuant to implied or prescriptive easements, extinguishment, or abandonment) Phillips v. Waldruff, 12/17:4
Encroachment: (cabin encroachment claims properly rejected on summary judgment… $12,513.30 Rule 11 fees properly assessed despite some claims being “arguably judicable”… appeal sanctions denied) Runkle v. Allen, 3/19:3
Foreclosure: (claim that owners quitclaimed property to their personal trusts prior to trustee’s sale resulting in fraudulent foreclosure rejected) Davis v. Montana Patriot, 2/13:2; (homeowner’s motion to set aside default and for sanctions against Board of Housing denied, Board entitled to possession) Rapp v. Montana Board of Housing, 4/9:4; (ordered over claim of unclean hands by bank… loan modification misrepresentation claims under CPA rejected) PNC Bank v. Wilson, 6/4:7; (homeowners have standing to challenge foreclosure because they were original grantors of beneficial interest created by MSTFA, but claim for declaration that banks hold no beneficial interest in the property and have no right to act as servicer of their loan or foreclose on it barred under 3-year statute for conversion of instrument (the Note)) Knight v. Wells Fargo Bank, 10/8:5; (fraudulent chain of title claim fails for insufficient particularity to give notice to note holder) Wiggins v. Residential Credit Solutions, 12/10:2
Inverse condemnation: (“further relief” declaration that retracement survey is void and City prepare landowner plats properly denied and case ordered closed after years of street widening litigation) Wohl v. Missoula, 3/19:1
Note/deed: (chain of title claims precluded by Bankruptcy Court jurisdiction) Tipton v. American Brokers Conduit, 10/22:4
Quitclaim: (summary judgment as to validity of unrecorded quitclaim executed by decedent who continued living on property precluded by disputed issue of intent to deliver deed at time of execution) Estate of Heigis, 2/27:1
Tax deed: (properly voided for statutory violations by County… $37,497.48 court-ordered deposit properly awarded as redemption amount, over $79,421.39 claimed by purchaser… redemption equation clarified) Johnson v. Hansen Trust, 3/5:2; (challenge of County’s purchase of coal rights in 1946 barred by 1-year statute under 1889 Constitution and 1935 statute allowing redemption of subsurface separate from surface) Bergum v. Mussellshell Co., 3/5:3
Trustee’s sale: (properly voided for failure to comply with STFA notice requirements… 2nd sale required… equity favors refund of purchase funds, but issue not properly raised below or on appeal) JAS v. Eisele, 2/20:1
Wrongful occupation/unlawful detainer: ($261,000 damages for failure to vacate radio property affirmed, following prior $112,397.23 damages and $19,600 fees/costs and order to vacate) Evans v. Dow, 6/11:3
*Railroads
FELA: (Montana courts have general personal jurisdiction over BNSF “doing business in Montana” under FELA and Montana law) Tyrrell v. BNSF, 6/4:1
* Real Estate
Buy-sell: (JML properly granted on prospective buyer’s claim of intentional interference with buy-sell… summary judgment on realtor malpractice claim improperly granted for lack of expert… JML improperly granted for dual-agent realtor on breach of contract/covenant/damage claims)Wagner v. MSE Technology Applications, 9/3:2
Commission: (Realtor seeking to collect commission “reasonably” complied with “exhaust all remedies” clause in some respects… reasonablness of failure to execute on California bank account not amenable to summary judgment) Foss v. Melton, 9/24:3
*Securities
Injunction: (challenge of injunction against fictitious Dinar transactions rejected) Securities Commissioner v. Converse, 1/30:1
*Settlements
Asbestos: ($650,000, courthouse janitor mesothelioma death) DuPuis v. Yellowstone Co., 1/2:7
Auto: ($1 million policy limit, rollover allegedly due to hydroplaning from placement of new tires on front rather than rear, 4 Missouri Plaintiffs) Duff v. Bohannon’s Inc., 12/31:7
Dog bite: ($104,000, police dog bite, leg lacerations/punctures, back) Demaline v. Meece, 2/6:3
Forklift jig fall on head: ($5.1 million, multiple injuries, paraplegia) Marmon v. Mountain West Holding, 1/30:4
Land access dispute death: ($1,001,000) Newman v. Campbell, 5/21:6
Rental agreements: ($2,375,000, class action, residential rental agreements with allegedly illegal provisions) Worledge v. Riverstone Residential Group, 7/23:8
State employee benefits: ($950,000, class action, state employee benefits plan beneficiaries denied benefits under “experimental for research” exclusion, approved by Neill) Sangwin v. State, 4/2:5
*Social Security
Pain: (ALJ failed to provide sufficient reasons for rejecting pain Claimant’s testimony, as well as opinions of treating physician, nurse, counselor… remanded for award of benefits) Haagenson, 7/30:6
Rejection of medical opinions: (ALJ did not err in finding Claimant’s testimony not credible, but failed to provide specific & legitimate reasons for rejecting 3 doctors’ opinions, remanded for reweighing evidence) Buchanan, 1/30:5
Reopen: (argument that decision not to reopen prior application violated due process untimely raised in reply brief, does not raise colorable constitutional claim or implicate manifest injustice) Schiel-Leodoro, 4/9:6
SSD/SSI: (denial affirmed) Lake, 2/6:3; (CTS properly found not severe impairment, but insufficient weight given to treating physician as to back impairments… credibility, lay testimony should also be reevaluated) Singleton, 4/9:6; (application improperly denied without consideration of psychologist’s diagnosis of depressive disorder in addition to pain disorder, remanded for further proceedings rather than immediate payment) Schiel-Leodoro, 4/9:6
*State Government
Driver’s license: (properly denied for failure of “not a U.S. person” to establish lawful presence in US) Terry-Lee, Sovereign Being, State Citizen v. DOJ, 10/29:4
Illegal aliens: (immigrant association which includes Mexicans with permanent residence has standing to challenge LR 121 which requires denial of state-funded services to “illegal aliens”… LR 121 properly found preempted by federal law) Montana Immigrant Justice Alliance v. State, 5/14:2
Public employees: (employees in 2 plans not denied equal protection/due process vis-à-vis 3rd plan) Srzesien v. PERA, 10/1:2
SNAP: (properly reduced to account for VA benefits, erasure of recording of 1st hearing remedied by 2nd hearing) Carrico v. Board of Public Assistance, 7/9:2
State employee demotion: (any error by HO in admitting full investigative report with hearsay was harmless… BOPA exercised unwarranted discretion in rejecting findings & conclusions without considering other evidence in record) MDOT v. DLI, 11/12:2
State pay plan: (internal equity is a factor in Compliance Specialists’ pay, not preemptive of collective bargaining) Mashek v. DPHHS, 4/16:3
Unemployment Insurance: (fired employee unqualified for benefits… UI Appeals Board reversed) Laser On Products v. UIAB, 10/15:5
*Taxes
Property: (Judge improperly re-weighed evidence, re-determined witness credibility to overturn STAB’s rejection of lakefront valuation challenge) Peretti v. DOR, 5/14:3; (“scheduled airline” definitions for central assessment) DOR v. Alpine Aviation, 11/12:3
*Torts
Childhood sex abuse: (claim against brother’s estate time-barred) Estate of Johnson, 11/5:1
Defamation: (claims against newspaper as to child support/alimony debt properly dismissed on summary judgment for failure to prove falsity) Jonas v. Richardson, 4/9:6; (statement alleging theft which was averred in hearer’s affidavit to be defamatory but later characterized in deposition as joke, critical statements in City Council meetings, properly dismissed on summary judgment) Ray v. Connell, 4/30:1; (articles on rest area vandalism “essentially truthful,” claims properly dismissed on summary judgment) Lee v. Traxler, 11/19:1
Fire liability: (relationship between property owner and scrap metal collector was not joint venture… use of cutting torch which started fire not inherently dangerous activity which would impute vicarious liability to property owner) Pearson v. McPhillips, 10/22:1
Flooring damages: (claims by homeowners dismissed as belonging solely to their LLC, lack of toxic poisoning expert) Boyce & Sayer v. Carpet Plus, 10/29:3
Hospital malpractice: ($435,518 verdict for failure to timely remove IVC filter implanted to prevent clots in lungs vacated for lack of expert testimony as to standard of care… amounts also shock conscience of Court) Horn v. St. Peter’s Hospital, 11/26:6
Medical malpractice: (claims properly dismissed for lack of expert) Smith v. Anderson, 8/13:2; (rulings on expert/rebuttal disclosures in heart attack case against hospital involving issues of oxygen saturation, unnamed hospital doctors… fact issues as to breach of standard of care precludes summary judgment for Plaintiff on liability… hospital’s motion for summary judgment based on “judicial admissions” by Plaintiff’s counsel rejected) McCartor-Messmer v. Bozeman Deaconess Health Services, 8/13:3
Naturopath malpractice: (FDA warning against black salve as cancer cure properly excluded from non-cancer nose damage claim, naturopath allowed to testify as to standard of care despite non-expertise as to black salve, jury rejection of punitives while awarding $139,500 compensatory affirmed) McColl v. Lang, 10/15:1
Negligence: (rulings as to experts, directed verdict that rotator tear/shoulder arthritis not caused by MVA, Plaintiff may not recover damages sustained by sole corporation affirmed in $10,534 verdict) Cleveland v. Ward, 1/16:1; (mine operator owed no duty to water truck driver allegedly injured at well site on land owned by mine owner (well owned by farmer)) Stokke v. GK Const., 12/3:3; (claims by plumber allegedly hit on head by unsecured metal framing stud rejected on summary judgment) Young v. Eisinger Properties, 12/17:2
Public duty doctrine: (claim of negligent maintenance of hydrant that spewed mud at house fire barred by public duty doctrine Krone v. Roundup, 2/13:x; (no trial issue of claim of negligent maintenance of hydrant that spewed mud as evidence shows house could not have been saved by additional water… no need to reach public duty) Krone v. Roundup, 9/17:1
Wrongful discharge: (County HR Director is “sensitive managerial or confidential position” allowing greater deference in termination… Plaintiff failed to show that business reason for termination is pretextual… policy/retaliation claims also dismissed on summary judgment in supplemental order considering surreply after ace fell out of Defendant’s sleeve in reply) Bird v. Cascade Co., 1/2:6; (protective order granted against overbroad intrusion into company records for information about other employees and jobs in search of evidence to support claim of retaliatory discharge for refusing to violate public policy as to wage/hour laws) Peterson v. JZ Contracting, 3/5:6; (open meetings, public participation, §1983, policies/public policy claims of terminated County HR Director properly dismissed on summary judgment… fact issues preclude summary judgment on good cause) Moe v. BSB Co., 5/14:1; (claims by pro se RN who was discharged because of latex allergy not preserved for appeal) Ridgeway v. DPHHS, 6/25:1; (JML improperly denied for City based on uncontested evidence that Police Chief sexually harassed dispatcher… $300,000 verdict reversed)Reinlasoder v. Colstrip, 7/23:2; (employment offer was executory contract, no employment relationship at time it was rescinded, breach of contract applies, not WDA… Kutzman affirmed on supervisory control) Great Falls Clinic v. Kutzman, 10/8:1; (claims by at-will casino employee rejected on summary judgment in Blackfeet Tribal Court) Tatsey v. Siyeh Development, 10/22:6; (claims of County HR Director in “sensitive managerial or confidential position” properly rejected on summary judgment) Bird v. Cascade Co., 12/31:1
*Trusts
Breach: (breach of ranch trust agreement/fiduciary duty claims precluded by ratification, failure to establish prima facie fraud) Raths v. First Interstate Bank of Billings, 6/4:4
Interpretation: (ambiguous Trust Agreement as to Survivor’s Trust and Decedent’s Trust should be interpreted in light of extrinsic Trustee Instructions and Trust Summary, resulting in interest in assets by new wife… Siblings did not forfeit interest in Trust under no-contest provisions) Estate of McClure, 10/15:2
Trustee discharge: (appeal untimely as issues all relate to summary judgment, none to order discharging Trustee, but appeal fees not warranted regardless of conduct below) McCartney v. Barnekoff, 1/23:2
*Unions
CBA: (covers master electrician’s numerous claims which all derived from assertion that employer let unqualified employees do electrical work, CBA remedies including arbitration must be exhausted before suing, summary judgment improperly denied for employer) Cruson v. Missoula Electric Co-op, 6/4:3
Unit: (iron workers foremen excluded from certified unit because they have supervisory responsibilities) ADF International (Employer) and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Petitioner), 4/2:6
*Utilities
Electric: (claim for excess outage costs from generating station failure properly denied) NWE v. PSC, 10/1:1
*Verdicts
Assault & battery: (defense, provoked assault & battery) Wilson v. Bieber, 4/30:5
Auto: (rulings as to experts, directed verdict that rotator tear/shoulder arthritis not caused by MVA, Plaintiff may not recover damages sustained by sole corporation affirmed in $10,534 verdict) Cleveland v. Ward, 1/16:1; (fees/costs denied to Plaintiff following verdict finding MVA liability reasonably clear in declaratory trial where she had received 80% of medicals/wages prior to dec action, remaining amounts thereafter without trial… unreasonable to pursue through trial to get a determination of reasonably clear liability for the purpose of seeking discretionary fees) McAlister v. Lohof, 1/16:5; (defense ($45,000 damages found but $115,000 needed for recovery), UIM, admitted liability MVA, TBI/PTSD/musculoskeletal) Mowles v. State Farm Mutual Auto Ins., 5/14:4; (defense, vehicle drove off road to avoid vehicle stopped for dog… ear/neck/back/shoulder) Demars v. Daniels, 11/5:3; (defense, rear-end auto, admitted liability, neck/back/knee) Corcoran v. Olson, 12/24:7
Auto/pedestrian: (defense, no negligence (disputed crossing in unmarked crosswalk), pedestrian/auto, multiple injuries) Maier v. Wilson, 4/2:4
City sewer/water: (expert valuation testimony properly excluded for untimely disclosure despite untimely motions to exclude… jury properly instructed as to unjust enrichment… award for election of contract damages (versus negligence) proper in one respect, improper in another… amount of fees awarded ($140,980) unreasonable in light of minimal recovery/demand) Folsom v. Livingston, 9/24:1
Contract: (oral contract between remanufactured brakes entities not barred by statute of fraud, promissory estoppel properly submitted to jury which awarded Plaintiff $344,532 contract damages and Defendant $63,990.48 for inventory… Defendant properly denied costs for prevailing on counterclaim) S&P Brake Supply v. STEMCO, 12/24:1
Fair representation: ($100,000 verdict for breach of fair representation for MPEA not pursuing age discrimination/retaliation grievance against County affirmed… claimed $100,975 fees properly denied) Petaja v. MPEA, 6/11:1
Fall down stairway: (defense, fall down stairway on new carpet in hotel under construction, C6-7 diskectomy/fusion) LeBoeuf v. JK Butte, 10/15:5
FELA: (jury found $650,000 damages for eye injury from shattered safety glasses in RR shop, deducted $50,000 for failure to mitigate, found 50/50 negligence… Plaintiff seeks to eliminate contributory negligence on basis that evidence proved RR violated safety statutes… RR seeks $96,553 offsets for wage loss/disability benefits, which it asserts would mean $203,447 net to Plaintiff) Jacobsen v. MRL, 4/23:3; (defense, foot injury while attempting to board moving car resulting in BK amputation) Helmink v. BNSF, 10/1:3
Highway construction: (rulings on claims of water runoff damage from highway widening, defense verdict) Klepper v. MDOT, 10/15:3
Hospital malpractice: ($435,518, hospital malpractice, failure to timely remove IVC filter which was implanted to prevent clots in lungs following roof-fall fractures) Horn v. St. Peter’s Hospital, 9/10:3; (negligence but no causation), hospital malpractice, death of patient with pre-existing hypertrophic cardiomyopathy) Beebe v. Bozeman Deaconess Health Services (Bozeman Deaconess Hospital), 11/19:7, (new trial granted following hospital malpractice defense verdict based on failure to excuse spouses of hospital employees for cause prior to voir dire, failure to clarify at jury’s request loss-of-chance instruction which mentioned only “doctors” and not health providers generally) 12/24:4; ($435,518 verdict for failure to timely remove IVC filter implanted to prevent clots in lungs vacated for lack of expert testimony as to standard of care… amounts also shock conscience of Court) Horn v. St. Peter’s Hospital, 11/26:6 (xkxkxkxkx fix)
Insurance: (UIM defense verdict, red-light MVA, verdict form) Welscott v. Allstate Fire & Casualty, 4/9:1; (defense, insurance bad faith claims stemming from failed TIC investments) Donovan v. Catrlin Specialty Ins., 8/6:6
Insurance agency termination: ($759,740.45 verdict to agent for termination of Agency Appointment for alleged switching affirmed) Farmers Ins. Exchange v. Goldan, 8/20:1
Legal malpractice: (jury improperly instructed to decide whether Plaintiffs would have actually settled med-mal claim stemming from C-section loss of child had claim not been lost by statute of limitations, when MSC required only whether it was probable that they would have recovered a settlement… experts established that they probably would have recovered a settlement, remanded for new trial on likely value of a settlement… defense verdict reversed) Labair v. Carey, 10/29:1
Medical malpractice: (defense, swine flu death) Norton (by PRs) v. Carter, 1/9:3; (defense, medical malpractice, claim that had Plaintiff known daughter would be born with cystic fibrosis she would have terminated pregnancy) Evans v. Scanson, 2/20:3; (defense, med-mal, claim that Defendant improperly evaluated & treated Plaintiff in ER, causing heart attack death 7 weeks later) Lawrence v. St. James Healthcare, 4/23:5; (defense, medical malpractice, Nissen fundoplication, gallbladder removal) Gould v. Raiser, 12/3:4
Motorcycle/semi tire: (defense, loss of foot, major trauma to chest and upper extremities, internal injuries) Holoyuk v. Rocky Mountain Transportation, 1/30:4
Naturopath malpractice: (FDA warning against black salve as cancer cure properly excluded from non-cancer nose damage claim, naturopath allowed to testify as to standard of care despite non-expertise as to black salve, jury rejection of punitives while awarding $139,500 compensatory affirmed) McColl v. Lang, 10/15:1 Oil/gas joint venture: (defense) Lonesome Dove Petroleum v. Holt, 4/16:4
Product liability: (defense, allegedly defective water truck resulting in brake failure) Schatz v. Bouma Truck Sales, 8/13:6
Road access: (quiet title granted to road used by express permission or neighborly accommodation, $1,000 damages for trespass) Roen v. Turley, 6/11:6
Skateboard death: (defense, no negligence by City as to skateboard death on steep subdivision trail) Kent v. Columbia Falls, 5/14:5
Trucking business: ($1,890,000 to Defendant/Counterclaimant in trucking company dispute… liability for punitives against Plaintiff found but waived… unjust enrichment claim to be decided by Judge) Kangrga v. Gjorev, 7/23:5
Wrongful discharge: (JML improperly denied for City based on uncontested evidence that Police Chief sexually harassed dispatcher… $300,000 verdict reversed) Reinlasoder v. Colstrip, 7/23:2
* Water
“Combined appropriation:” (1993 rule interpreting “combined appropriation” in WUA as “groundwater developments that are physically manifold into the same system” properly invalidated, 1987 rule that “groundwater developments need not be physically connected nor have a common distribution system to be considered a `combined appropriation”’ properly reinstated… DNRC improperly ordered to initiate rulemaking) Clark Fork Coalition v. DNRC, 9/17:1
Crow Water Compact: (final order affirmed over off-Reservation objections) Crow Water Compact, 1/2:2
Dam: (1906 Decree properly construed to require electric dam operator to release natural inflow of creek during irrigation season, but to not require release of stored water to downstream appropriator to supplement natural flows) Granite Co. v. McDonald, 11/12:2
Dissatisfied user complaint: (properly denied) Eldorado Co-op Canal v. Hoge, 6/18:3
Ditch easement: (dispute properly resolved on summary judgment, untimely affidavit properly not considered, abandonment issue not timely raised, Defendant had notice that 2 ditches at issue despite “ditch” in complaint… $25,173.21 fees/costs properly awarded for easement enforcement)Alvarez v. Geshell, 4/16:3
Diversion dispute: (preliminary injunction properly granted) Mack v. Anderson, 8/27:3
Implied claims: (for irrigation, stock, domestic properly rejected) Benson v. Hopseker, 9/17:2
Pondera rights: (rulings affirmed, reversed) Curry Cattle v. Pondera Co. Canal & Reservoir, 4/2:2
Prior Appropriation Doctrine: (properly applied to find that junior Teton River rights holder wrongfully ignored call for water from senior holders, enjoined from continuing out-of-order diversions after receiving calls) Kelly v. Teton Prairie, 7/30:2
Qualtified annual volumes: (properly adopted in light of longstanding hostilities) Benson v. Hopseker, 9/17:2
Review standards: (incorrect standard of review of Water Master Ritter’s findings by Water Court nonetheless produced proper water volume result) Eldorado Coop Canal, 4/30:3
Rights: (seepage rights properly determined on remand from prior appeal… appeal of Olson substitution untimely, but case will return to Olson upon remand as judge responsible for distribution) Fellows v. Saylor, 3/5:4; (claim of “vested” rights and uniform priority dates to use by ancestral free grazers properly rejected) Korman, 12/17:1
*Workers Compensation
Aggravation: (job injury permanently aggravated pre-existing neck condition based on IME-turned-primary-physician’s opinion over other IME opinion… insurer remains liable for ongoing care but may deny authorization for a particular treatment if it has legitimate grounds that it is maintenance or palliative) Barnhart v. Liberty Northwest Ins., 9/17:5
Course & scope: (travel exclusion) Estate of Greer, 2/6:4; (flight attendant’s motorcycle injuries during layover not within course & scope of employment) Holtz v. INA, 4/9:7; (EMT injured while running health fair obstacle course not within course of employment) Stephens v. MACo, 11/5:6
Death benefit: (rate properly set at decedent’s actual wage ($79.71), not the “minimum” of 50% of the State’s AWW ($354)… Court declines to rule on contention that $79.71 is insufficient to uphold the quid pro quo, which would bar employer from relying on exclusivity in tort suit, or to increase rate to $354 to uphold the quid pro quo) Hegg v. MSF, 10/15:8
IME: (DLI has authority to allow Claimant to video IME, but Claimant presented insufficient evidence to warrant videoing IME with Dr. Stratford) New Hampshire Ins. v. Matejovsky, 7/2:5; (DLI erred in ordering psychological IME as to reaction to glue because prior IME physician addressed causation, treating physician has not changed his opinion, and no evidence condition has changed) 10/15:7
Interim TTD: (Claimant does not qualify for interim TTD upon conversion of TTD to PPD) Brickman v. MSF, 7/30:7
Injury: (Petitioner not injured in slip & fall) Warburton v. Liberty Northwest Ins., 1/9:4; (claim of injury from alleged assault by employer not supported by evidence) Guymon v. MSF, 7/9:5; (fact issues preclude summary judgment for insurer as to whether Petitioner incurred work-related injury) Kirk v. MCCF, 7/9:6
Lump sum: (WCA does not allow Court to grant lump-sum of medical/domiciliary benefits on demand of Petitioner… Petitioner may pursue lump sum of PTD if he can establish more than that insurer treated him “arbitrarily and unfairly”) Jiminez v. Liberty Northwest Ins., 12/31:8
Mediation: (petition filed prior to mediator’s report dismissed for failure to show that mediator failed to comply with deadline where parties agreed to postpone report to submit supplemental information) Hall v. New Hampshire Ins., 7/23:8
MIGA: (no authority by MIGA to recover from employer payments to employee on behalf of insolvent insurer… no need to harmonize statutory conflicts because of unique nature of comp) Asurion Services v. MIGA, 9/3:5
Reopen: (Petitioner failed to prove lack of mental capacity to understand pro se settlement petition or that MSF exerted undue influence, reopen/rescind denied) Hartung v. MSF, 3/19:4; (petition to rescind not time-barred, but no viable grounds to rescind $4,000 settlement by Claimant who lost toe allegedly to oil rig frostbite) Handy v. MSF, 10/15:5
Subrogation: (Oklahoma employer precluded by Art. II §16 and Choice of Laws §90 (public policy) from comp lien against tort recovery of employee injured in Montana) Talbot v. WMK-Davis, 10/8:1
Wage loss: (no wage loss result of injury, no PPD/voc rehab) Rutecki v. First Liberty Ins., 6/18:6
*Youth
Transfer: (sex offender properly transferred to District Court after turning 18 to complete treatment after being expelled from Pine Hills program, polygraph not relied on) JW, 12/31:4