Montana Law Week Subject Index- 2019

Montana Law Week Subject Index- 2019

*Appellate Procedure

Appendix: (appendix to brief ordered revised to satisfy MRAP and be user friendly… order) BNSF v. Asbestos Claims Court, 10/12:2

Argument: (Court takes no position on request by Amicus to participate in asbestos case, parties may allocate time at their discretion… order) Maryland Casualty v. Asbestos Claims Court, 7/20:4

Mediation: (parties ordered to go back to mediator to attempt to resolve sticking point in Mutual Release prepared following mediation… order) AWIN Real Estate v. Whitehead Homes, 7/20:3

Memorandum opinions: (petition for rehearing in $7.5 million foreign judgment case denied over claim of overlooked facts and caselaw in non-cite opinion… order) Steen v. Wolf Creek Investments, 12/7:2

Sanctions: (order denying appointment of GAL is not appealable final judgment… $1,500 sanctions imposed for causing Appellee to incur fees & expenses in complying with mediation requirements… order) Querfurth v. Childs, 12/14:3

Supervisory control: (vexatious litigant’s request for leave to file petition for supervisory control to vacate Rule 11 orders by Manley and seek his disqualification for alleged collusion in $20 million estate denied… order) McCann v. Manley, 12/21:4

*Arbitration

Arbitrability: (financial advisor’s post-termination claims mandatorily arbitrable… Larson reversed) Bucy v. Edward Jones, 8/3:1; (agreement to arbitrate indemnification/contribution of home security failure erroneously held invalid due to lack of mutuality or equitable unconscionability, does not contravene §703 single-case rule… R. McElyea reversed) Stowe v. Big Sky Vacation Rentals, 12/21:1

Contract defenses: (not applicable to an arbitration agreement… arbitration improperly denied insurer based on breach of duty to defend… Christensen reversed (memorandum)) American Trucking & Transportation Ins. v. Westchester Surplus Lines Ins., 6/8:7

Nonsignatories: (nonsignatories to agreement not bound to arbitrate FLSA claims under equitable principles… Cavan affirmed (memorandum)) Arnold v. Irongate Services, 2/23:6

*Asbestos Claims Court

Lead case against Grace’s comp insurer: (fact issues preclude summary as to when Plaintiff knew or should have discovered that he had ARD… MCC owed a duty of care to warn Zonolite and Grace of the hidden hazard of asbestos exposure, but fact issues exist as to whether it breached this duty to Plaintiff… Plaintiff who filed no comp claim has no common law insurance bad faith claim against MCC… MCC’s non-party (State, Grace) defenses precluded… other in limine rulings… Eddy) Hutt v. Maryland Casualty Co., 1/19:2

Railroad in limine rulings: Asbestos Litigation (applicable to Barnes), 2/9:4

Railroad liability: (BNSF strictly liable for abnormally dangerous activity vis-à-vis hauling amphibole asbestos in Libby… evidence of Grace’s conduct admissible for background and context but not to negate liability… Eddy) Asbestos Litigation (applicable to Barnes), 1/26:1

Settlement ($7,310,785.42 to 336 MHSL Libby Mine asbestos Claimants against State with contingent $2,030,936.19 dependent on result of litigation between State and its insurer… $1,250,000 to 49 KS Libby Mine Claimants with contingent $400,000… $250,000 for individual claimant with no insurer contingency… 33% and 33-1/3% contingent attorney fees approved… Eddy) Asbestos Litigation v. State, 1/12:4

*Attorney Fees, Costs

Insurance: (prior implicit extension of insurance exception to nontaxable costs made explicit… fees correctly awarded pursuant to insurance exception in UIM case, taxable costs correctly denied as untimely, nontaxable costs incorrectly denied… Laird affirmed, reversed) King v. State Farm Mutual Auto Ins., 9/7:1

Intertwined claims: (all of home subcontractor’s $120,981.05 fees improperly assessed against owner’s construction lien bond following $1,838,000 verdict against general contractor on contract claims… Manley reversed) TCH Builders & Remodeling v. Elements of Construction, 3/30:2

Sex discrimination: ($349,831.23 attorney fees (of $873,920 requested), $8,000 paralegal fees, $10,241.42 costs awarded for successful ($75,000) retaliation claim but unsuccessful sex discrimination claim by male university employee claiming unwanted touching by female supervisor… Reynolds) Montana State University – Northern v. Bachmeier,10/19:4

Splitting: (fees/costs arrangement properly resolved against lead counsel following settlement of med-mal legal malpractice case… McLean affirmed (IOR I-3(c))) Morin v. Labair, 3/30:3

Wrongful death: ($667,250 fees, $35,800.08 costs, awarded following $2 million gross verdict for death of child crushed by speeding driver in trailer park… Christopher) Shourds v. Northwood Community Inc., 9/14:10

*Attorney Practice

Discipline: (Tina Morin suspended for for guardianship misconduct… order) Morin, 3/2:2, rehearing denied, 3/30:5; (George Best’s tendered admission to rules violations in relation to Flathead Lake mansion representation in exchange for maintaining “resigned” status for 5 years accepted… order) Best, 3/30:4; (Mary Zemyan to receive written public admonition on conditional admission for delay in refunding probate retainer… order) Zemyon, 5/11:3; (Ian Christopherson ordered 2nd time to resign license based on Nevada tax convictions and Conditional Admission… order) Christopherson, 5/18:4; (Lisa Bazant to receive private admonition for refunding unused portion of retainer to unauthorized person, pay costs of proceeding… order) Bazant, 6/8:2; (Ronald Lords disbarred for enticing elderly clients to “invest” in or loan money to his construction company and using most of the funds for his personal expenses in a “Ponzi scheme,” ordered to pay $1,069,970.83 restitution plus interest… order) Lords, 6/22:1; (David Freedman disbarred for client neglect in default proceeding in which he failed to respond or appear… order) Freedman, 6/22:2; (Douglas Marshall to receive public admonition by COP for lack of diligence, charging unreasonable fees & expenses, failure to provide written fee communication to wrongful discharge client… order) Marshall, 8/3:3; (Washington attorney Jon Cushman “disbarred” from obtaining pro hac vice status in Montana based on representation in Shelter Island mansion cases… order) Cushman, 8/24:1; (Richard Layne, pro hac vice in suit against accounting firm, to receive written public admonition from COP for failing to properly inform client of ramifications of local counsel’s simultaneous representation of 5 other claimants… order) Layne, 9/7:1; (Brian Miller to receive public admonition from COP for motion to recuse Judge Lovell in insurance bad faith case by asserting that he altered testimony and created affirmative defenses for the insurers with reckless disregard as to the truth or falsity concerning his qualifications or integrity… COP’s recommendation to impose costs of disciplinary proceeding rejected based on manner in which ODC pursued the case… order); Miller, 11/23:3; (Linda Deola suspended for 90 days, to be publicly censured, stemming from simultaneous representation of 6 clients in failed investments cases… order) Deola, 4; (ODC’s full statement of costs accepted over objections… order) Cushman, 11/30:5

Disqualification: (no grounds to disqualify attorney who was formerly member of firm that represented partnership and now represents the partnership and one partner being sued by the other partner… supervisory control of Menahan denied) Dahl v. Menahan, 2/9:2

*Banking, Commercial Paper

Collection & foreclosure: (properly granted to wife’s LLC for loans to husband in annulled marriage with pre-nup referencing joint business venture… Allison affirmed (IOR I-3(c)))

Lending breach: (contract and tort claims stemming from tax confusion and bank’s payment of taxes for all of lot and increasing mortgage obligation to protect sub-lot collateral from tax lien sale properly dismissed on summary judgment… McElyea affirmed) Graham-Rogers v. Wells Fargo Bank, 9/28:2

UCC: (defaulting mobile home purchaser not precluded by Full Release of Contract from pursuing surplus purportedly realized upon resale… Souza reversed) Kapor v. RJC Investments, 2/23:1

Wrongful stock transfer: (order restoring converted stock constituted award of compensatory damages for purposes of determining punitives… institution acted with actual malice in allowing stock owner to unilaterally terminate co-tenant’s interest… $1.1 million punitives properly awarded… Larson affirmed) John Cote Jr. v. Farmers State Financial, 1/19:1

*Bankruptcy

Involuntary bankruptcy: (MDOR’s claim against Yellowstone Club co-founder was subject of bona fide dispute as to amount (9th Circuit joining 1st & 5th as to plain-meaning inclusion of “amount” in §303(b)(1) to bar all claims disputed as to amount even if part of claim is undisputed), precluding MDOR from serving as petitioning creditor for involuntary bankruptcy to leverage $200,000 concession to collect millions in additional disputed liability… Nevada Bankruptcy & District Courts affirmed) MDOR v. Blexseth, 12/7:5

Ranch sale: (Ch. 13 Petition an improper attempt to defeat State Court rulings upholding auction sale of $2.1 million ranch for $495,000, Petition dismissed… Myers) Barstad, 6/15:5

*Bench Judgments

Breach of forbearance agreement: ($10,595,514.16 seized from start-up international office products facility causing its demise awarded as damages for breach of bank’s forbearance agreement… trial on contract damages under Michigan law on remand from reversal of $52,037,593 verdict which was improperly based on Montana law… Dayton) Masters Group International v. Comerica Bank, 11/16:4

Home construction: (defense as to claims of $6,363,597 plus attorney fees & interest against luxury home contractor… $262,922.03 to contractor on construction lien… Todd) SMSH LLC v. Jones, 1/5:3

Sexual assault: ($800,000 default award to stepdaughter affirmed… Best affirmed (IOR I-3(c))) Tuttle v. Benedict, 7/6:1

*Civil Procedure

Class certification: (2 classes asserting claims related to UM student loan disbursements improperly certified, 1 class properly certified… Wheelis reversed, affirmed) Knudsen v. UM, 8/3:2

Confessed judgment: (of $12 million ($17 million with interest at 12%) against insurer that refused to defend properly found unreasonable and product of collusion between real estate developer’s 2 entities engaged in construction of his luxury home on Flathead Lake island, but collusion so egregious that proper remedy is dismissal in entirety rather than reduction to “reasonable amount” of $2,432,010… $925,619.87 attorney fees & costs improperly awarded under “inherent powers,” but awardable under UDJA… Eddy affirmed, reversed) Abbey/Land v. James River Ins.

Default judgment: (and summary judgment in convoluted $7.5 million foreign judgments case wrongly set aside based on excusable neglect despite proper service to registered agent… McMahon reversed (IOR I-3(c))) Steen v. Wolf Creek Investments, 11/2:1

Discovery: (supervisory control of Bidegaray denied on liability/causation sanctions default in bad faith case following $1.7 million FELA verdict… Court declines to revisit FELA preemption issue… order) BNSF v. Bidegaray, 3/23:1; (motion by former owner of aluminum smelter to compel discovery responses including tax returns by current owner in CERCLA contribution case granted… $16,095.10 attorney fees awarded… Molloy) Columbia Falls Aluminum v. Atlantic Richfield, 8/24:12

Expert disclosure: (inadequate disclosure precludes expert testimony at trial, but she is permitted to testify as a fact witness… Molloy) Apex Abrasives v. WGI Heavy Minerals, 4/6:9

Failure to prosecute: (campaign violations complaint for 2010-12 election cycles dismissed for lack of diligent prosecution… Sherlock) COPP v. Montana Citizens for Right to Work, 11/16:

Foreign judgments: (Arizona divorce judgment filed in Montana is subject to Montana’s 10-year statute, not Arizona’s 5 years… McMahon reversed) Tammy Boudette nka Oskerson v. Daniel Boudette, 11/16:2

Joinder: (allegations against Montana representative of herbicide manufacturer sufficient to meet joinder standard, rep’s general denial of responsibility insufficient to establish fraudulent joinder… suit alleging non-Hodgkin Lymphoma from use of Roundup remanded to State Court, mooting Plaintiffs from MDL Panel set to rule on some 400 other cases… Morris) Knox v. Monsanto, 7/20:5

Judicial estoppel: (house damage claim against City precluded by judicial estoppel based on failure to list in bankruptcy schedules and by nuisance statute of limitations… Souza) Kucera v. Billings, 5/4:4

Nuisance: (injunction properly granted on basis that feeding birds constituted nuisance to neighbors, but enjoining feeding within 100 feet of boundary and water in winter overly broad… Swingley/Reynolds affirmed, reversed) Simpkins v. Speck, 6/1:1

Order of protection: (TOP improperly denied alleged victims of stalking despite concurrent criminal proceeding… Menahan reversed (IOR I-3(c))) Carter v. DRE, 2/23:3; (permanent order properly entered against landowners association members and in favor of Board members based on stalking and threatening behavior… Gilbert affirmed (IOR I-3(c))) Board of Directors for Glastonbury Landowners Association v. O’Connell, 6/1:2

Preliminary injunction: (no abuse of discretion denying preliminary injunction against proposed assisted living facility in residence pending determination of merits … Larson affirmed (IOR I-3(c))) Burke v. Rolle, 1/12:3; (properly granted in access dispute without finding of “great or irreparable injury” (reconciling prior cases)… Berger affirmed) BAM Ventures v. Schifferman, 3/23:3; (preliminary injunction properly granted allowing APRNs to perform early-term abortions pending challenge of statute restricting abortions to physicians and PAs… Menahan affirmed) Weems v. State, 5/4:2; (in community housing organizations’ Board membership dispute affirmed in part, reversed in part… Newman affirmed, reversed (IOR I-3(c))) Knights of Columbus Council 668 v. Columbus Plaza, 9/7:2; (properly issued enjoining dissipation of marital assets to protect alleged child sexual abuse victim’s potential monetary recovery… Lint affirmed (IOR I-3(c)) AC v. Borkholder, 9/21:1; (in cattle breeding dispute properly issued on remand for findings & conclusions, although some findings & conclusions went beyond the appropriate inquiry… Larson affirmed (IOR I-3(c))) Gould Ranch v. Irish Black Cattle Association, 11/16:3; (against implementation of emergency rule banning flavored vape products denied, TRO dissolved… Lint) Montana Smokefree Association v. DPHHS, 12/21:7

Rule 11 sanctions: (debt collection law firm violated 11(b)(3) by ex parte motion, affidavit, and proposed judgment for $52,931.84 student loan debt based on counsel’s “inadvertent” conflation of loan files when sum specified in settlement agreement at issue was $32,850.35… settlement enforcement procedure of dismissal with prejudice, no-notice “reopening,” and ex parte judgment on affidavit not advisable but not in violation of 11(b)(2), firm improperly enjoined from further use of procedure… Harris affirmed, reversed (IOR I-3(c))) National Collegiate Student Loan Trust v. Hanson, 4/20:2; (sanctions request by Defendants against Plaintiff in intellectual property case denied, both sides rapped for dog fight and questionable tactics… Molloy) Weinberger v. 911 Datamaster, 9/28:6

Sanctions: (default judgment denied on wrongful discharge claims by allegedly disabled psychiatric therapist trainee due to spoliation of training documents and discovery abuses, but sanctions ordered to place her in position she would have been in with extended discovery and adverse inference instruction as to spoliated documents… Christensen) Webster v. Psychiatric Medical Care, 6/8:8

Settlement breach: ($23,273.83 fees/costs awarded for breach of settlement agreement by Plaintiff in 8-plex defects case filing new proceeding raising similar if not identical claims… Larson) Two Rivers Apartments LLLP v. Aultco Const., 9/28:5

Stipulated judgment: (proposal against insurer in sexual assault case dismissed as lacking live case or controversy following settlement (federal v. state practice)… Molloy) Wigton v. Murphy, 10/26:4

Transcript: (attorney properly ordered to pay court reporter $1,168.20 for copy of transcript ($1,168.20) over dispute as to whether he requested it… Larson affirmed (IOR I-3(c))) Martin-Lake & Associates v. Potts, 8/31:1

*Commerce

Aircraft sale agreement: (judgment on pleadings for Seller properly granted based on Buyers backing out without conducting inspection… Seller’s motion to deem RFAs admitted properly denied because Buyers’ offer to extend discovery was conditioned on early settlement conference which never occurred, Seller properly sanctioned for misrepresenting otherwise… pre-judgment interest properly denied because amount of judgment was uncertain until sanction fees awarded despite stipulated damages (loss from subsequent sale)… Ulbricht affirmed) Kalispell Aircraft Co. V. Paterson, 6/29:1

Banking: (Estate’s claims against surviving brother of improper withdrawals from joint mineral trust account properly dismissed on summary judgment including loan signatory/ratification and numerous statute of limitations issues… Rule 11 sanctions properly imposed… Bidegaray affirmed (IOR I-3(c))) Estate of Robert Severson v. Lyn Severson, 6/29:3

CPA: (equitable relief in form of injunction compelling marina to provide boat slips and attorney fees denied following verdict finding that marina operator violated CPA in terminating sailboat slip rental but the violation did not cause damages… Menahan) Kubicka v. Frazier Industries dba Yacht Basin Marina, 5/4:5

Mobile home sale: (summary judgment that buyer not entitled to surplus from re-sale improperly granted on grounds that UCC Art. 9 no longer applied after Release was signed without first determining whether buyer was in default, improperly granted that Release satisfied strict foreclosure elements… Todd reversed) Hutzenbiler v. RJC Investment, 4/13:1; (sale of defaulted home without notice of how sellers intended to dispose of it and accounting for surplus violated UCC, summary judgment for buyers improperly denied on grounds that Art. 9 no longer applied to Agreement after buyers vacated, resulting in verdict that Agreement terminated when buyers moved out… sellers may assert equitable estoppel but summary judgment on estoppel improper… Souza reversed) Christman v. Clause, 6/15:2; (no private right of action under 2007 RISA, but purchaser entitled to declaratory judgment as to rights & obligations under Installment Sales Contract… Moses affirmed, reversed) Strauser v. RJC Investment, 7/27:2

Modular home sale: (buyer accepted home, did not timely revoke acceptance (16 months after delivery in counterclaims)… Watters affirmed (memorandum)) Magestic Homes v. Hurt, 4/6:6

RISA: (2009 version does not confer private cause of action for challenge of mobile home contract… Todd affirmed) Somers v. Cherry Creek Development, 5/4:1

*Conservatorship

Capacity: (mother correctly found incapacitated as of 10/16, lacked capacity to transfer property to Trust… Montana has jurisdiction despite mother being taken to Washington… Christopher affirmed (IOR I-3(c))) PAR, 2/9:2

*Constitutional Law

1st Amendment: (Montana statute restricting political speech is both underinclusive and overinclusive, not tailored to address State’s compelling privacy interests, does not survive strict scrutiny… Lovell reversed) Victory Processing v. Fox, 9/14:11

Excessive force death: (shooting of suspected robbery or drug shooter in stop of vehicle for alleged unlit plate light in which suspect was backseat passenger survives summary judgment as to whether deadly force was constitutional and — until facts can be established — whether officer violated clearly established law… summary judgment for City and PD granted on §1983 claims… summary judgment granted and denied on state law claims… Molloy) Estate of Ramirez v. Billings, 2/9:9

Right to know: (disciplinary details about high-profile university athlete’s alleged sexual assault not disclosable… Menahan reversed) Krakauer v. Commissioner of Higher Education, 7/6:3, (rehearing denied), 8/10:4

*Contracts

Auto dealership sale: (sellers’ proposed schedules of terms drafted for right of first refusal manufacturer and assignee and substantially greater than for initial proposed buyer not enforceable… motion to declare schedules unenforceable as sanction for destroying hard-drive from computer utilized to draft schedules rendered moot… Special Master Blair Jones) Columbus Spartan v. Beartooth Ford, 10/5:5

Bail bond business sale: (Defendants’ exhibit of bail bond business Sales Agreement purported underwriting terms attachment properly rejected as rebuttal evidence since it was not offered to counter new evidence… Sales Agreement properly found unambiguous, judgment properly entered for Plaintiff… Oldenburg affirmed (IOR I-3(c))) Satterfield v. Macial (Central Montana Bail Bonds), 9/14:2

Farm contract: (sublessee’s contract claims against original lessor properly rejected for lack of privity, no support for separate tort liability… Bidegaray affirmed (IOR I-3(c))) Patrick Hackley v. William Hackley, 4/27:5

Home remediation/replacement: (contract for remediation and replacement of home destroyed by fire was not for construction of new residence, statutory general contractor requirements did not apply as to void contract… $191,876 expectancy damages properly awarded to remediation/reconstruction “manager” for owner’s termination of contract… Manley affirmed) Flathead Management Partners v. Jystad, 12/21:3

Wind energy: (fact issues preclude (sua sponte) summary judgment on wind energy contract/fraud claims… Haddon reversed (memorandum)) WEH Magic Valley Holdings v. EIH Parent, 6/8:6

*Corporations

Ranch: (bylaws properly amended by written agreement between brothers for shares to go to their respective families upon death… surviving brother’s challenge to deceased brother’s widow’s claim of ownership properly rejected… Murnion affirmed) Needham v. Kluver, 8/10:3

Receiver: (properly appointed to manage commercial landlord LLC in dispute between members… Larson affirmed (IOR I-3(c))) Pummill v. Patterson, 2/9:1

*Courts

Default judgment: (against Trustee/Seller bank as to underground tank leak contamination liability and fees/costs to ranch Buyers under buy-sell set aside… motion to hold bank in contempt for failing to comply with default judgment denied… bank’s motion to file answer out of time granted… Best) Kantorowicz v. Wells Fargo Bank, 1/5:2

Judge disqualification: (unfounded “suggestions” of bias by Judge properly found frivolous warranting monetary sanctions against Co-PR and his attorney and removal of Co-PR… fees/costs also awarded for frivolous appeal which perpetuated baseless allegations against Judge… Pinski affirmed) Estate of Boland, 10/5:1; (post-sentencing motion alleging improper remarks and disclosures in accidental rifle discharge death case with motion for new trial void as not timely raised… order) Trude, 12/7:2

Personal jurisdiction: (properly exercised over Ford under “stream of commerce plus” theory as to design defect, failure to warn, negligence claims when fatal rollover from tire failure occurred in Montana but vehicle was not designed, manufactured, or first sold by Ford in Montana… Best affirmed on supervisory control (to “clarify” jurisdiction issue)) Ford Motor v. Best, 5/25:2; (discovery allowed into whether Defendants acted in “strategic joint venture” with retailer of railing which resulted in fall from balcony specifically targeted the Montana home-improvement market to satisfy purposeful availment prong of minimum contacts requirement… Christensen) Rodoni v. Royal Outdoor Products, 6/1:7

Pretrial order: (properly read more broadly than asserted by Town… McElyea affirmed) CLAIMANT: Corps of Engineers; City of Fort Peck, 8/3:2

Res judicata: (general partners of apartment complex LLLP precluded by LLLP’s settlement of mold claims against builder from indemnity/contribution claims against builder in suit by tenants against apartment entities… exception for alleged agreement to split claims rejected… Deschamps affirmed) Adams v. Two Rivers Apartments LLLP, 1

Settlement enforcement: (no enforceable agreement as to disposition of abandoned RR right of way, not necessary to further interpret agreement… parties had standing to bring quiet title actions… Jones reversed) Jarussi v. Farber, 8/10:1

Venue: (of suit by PR of MVA rollover decedent against Ford Motor proper in PR’s county… Best affirmed) Lucero as PR for Gullett v. Ford Motor, 7/6:1; (of tort claims against former trustee proper in Missoula Co. pursuant to Uniform Trust Code as the Trust’s new principal place of business, even though Flathead Co. could also be a proper venue based on torts allegedly committed there… Halligan affirmed) Betts v. Gunlikson, 8/10:3

*Crime, Criminal Procedure

Aggravated assault/aggravated kidnap/tampering/assault: (convictions of Black Defendant who met Caucasian/Indian woman on dating site affirmed over challenges to admission of Defendant’s prior conduct, racial slurs allegedly exploited by Prosecutor, extraction of Defendant’s cell phone contents… Menahan affirmed) Haithcox, 8/24:7

Aggravated kidnap: (allowing jurors unsupervised access to testimonial videos during deliberation reversible trial error… remanded for new trial… Dayton reversed) Nordholm, 7/27:4

Alford pleas: (Alford pleas to sex charges were guilty pleas, not nolo pleas, Judge not prohibited by §46-12-204(4) from accepting them… Haynes affirmed.

Animal cruelty: (administrative inspections of commercial kennel met the warrant exception… objection to State’s peremptory strike of Hispanic panelist properly overruled but for wrong reason (that Defendant was not Spanish)… $67,432.42 restitution properly awarded to County for costs of seizing animals… Cuffe affirmed) Warren, 3/2:4

Assault on officer: (conviction affirmed over challenge to Norquay instruction to deadlocked jury… Gustafson affirmed (IOR I-3(c))) Nolan, 8/3:6

Assault with weapon: (jury properly instructed on justifiable force without including “forcible felony”… conviction affirmed… Salvagni affirmed (IOR I-3(c))) Ostrander, 2/23:5; (POs’ claim of fear of injury from seeing holster under probationer’s coat and him sweeping back the side of his coat sufficient to convict, not necessary that gun be drawn… Information affidavit met less stringent probable cause standard… Newman affirmed (IOR I-3(c))) Berrington, 10/19:3; (Prosecutor’s cross and comments on Defendant’s newly disclosed claim of self-defense, although inadvisable, not an infringement on right to pretrial silence… Todd affirmed (IOR I-3(c))) Abella, 11/2:3; (conviction affirmed over claim of “contingent” or future rather than present threat of force… McMahon affirmed (IOR I-3(c))) Cazier, 11/2:4

Attempted deliberate homicide: (typo on verdict form as to alternative lesser includeds not prejudicial… sufficient evidence of tampering by disposing of gun used in confrontation with cabin owners during disrupted burglary… convictions affirmed… McMahon affirmed) Daniels, 9/14:4

Attempted rape: (Rape Shield Law improperly applied to exclude unidentified sperm that remained on underwear after laundering which Defendant sought to rebut State’s explanation that laundering accounted for absence of his DNA… conviction reversed… Townsend reversed) Lake, 8/3:4

Bail bond forfeiture: (objection properly denied for failure of bondsman to appear within 90 days of the forfeiture (civil 3 days for notice by mail not applicable) and failure to satisfactorily excuse bail-jumper’s failure to appear… Spaulding (IOR I-3(c))) ASAP Bonds, 3/30:7

CCJI: (murder victim’s PR properly denied release of 8-year investigative file without in camera review to balance right to know against privacy because it would jeopardize investigation, although such review not prohibited by statute… McMahon affirmed (other grounds)) Connie Crites as PR of Michael Crites v. L&C Co., 7/20:1

Child pornography: (sufficient evidence to convict over claim that Defendant was framed by ex-wife’s boyfriend… Watters affirmed (memorandum)) Olson, 3/9:4; (2nd warrantless search of probationer’s home was reasonable… Watters affirmed (memorandum) Hardesty, 6/13:4

Citizen’s arrest: (motorist who blocked pursued motorcycle entitled to assert citizen’s arrest statute as defense to negligent endangerment and reckless driving… Wood/Seeley reversed) Parsons, 3/9:2

Counsel substitution: (properly denied for indigent whose complaints were not seemingly substantial to justify a hearing… aggravated assault conviction affirmed… Todd affirmed) Johnson, 2/16:3

Criminal defamation: (Montana statute unconstitutionally overbroad for lack of specific “actual malice” mens rea, contrary to Lynch’s implied reading… sua sponte summary judgment for disbarred attorney charged with criminal defamation of judicial election opponent… Molloy) Myers v. Ravalli Co., 3/23:7

Criminal endangerment: (lesser-included negligent endangerment properly denied driver in high speed pursuit… Berger affirmed) Jensen, 3/23:4; (judgment of acquittal properly denied because jury could have concluded that Defendant knew there was substantial risk in purchasing half-gallon of whiskey for 18-year-old who chugged it and was hospitalized and air-flighted with .584 BAC, but admission of 2002 endangerment conviction for purchasing alcohol for 15-year-olds resulting in death of one and serious injury to other insufficiently probative and overly prejudicial… conviction reversed, remanded for new trial… Dayton affirmed/reversed) Fleming, 10/12:3

Criminal mental commitment: (Release of deliberate homicide defendant from MSH to group home improperly denied… Gilbert reversed) Capser, 9/14:5

Deliberate homicide: (warrantless no-knock entry justified by exigent circumstances despite erroneous finding that officers knocked & announced… computers properly searched pursuant to warrant obtained 2 years after seizure… jury properly instructed on circumstantial evidence… conviction affirmed… Todd affirmed (other grounds) Neiss, 6/8:2; (deceased pathologist’s comments during autopsy of drowned woman that bruises around neck were “troubling” improperly admitted through testimony of FBI agent who heard them, husband’s conviction of deliberate homicide reversed, remanded… Hayworth reversed) Laird, 8/24:6; (claim of ineffective assistance for objecting to accomplice instruction because it would confuse the jury about who was on trial insufficiently developed for direct appeal… conviction affirmed… Allison affirmed) Wittal, 9/7:5

Discovery abuse: (financial sanction in form of County Attorney’s Office reimbursing OPD properly ordered rather than new trial for State’s refusal to timely disclose video of girlfriend recanting statement that Defendant did not hit her with van… Haynes affirmed) Pope, 8/24:7

Dismissal with prejudice: (of health/campground charges following oral settlement precluded vacating or amending dismissal, no authority to order contract damages/attorney fees in criminal case… claim that dismissal should have been based on vindictive prosecution nonjusticiable… Langton reversed (IOR I-3(c))) Burt, 1/26:3

Double jeopardy: (not violated by charging dizzy MVA driver with DUI following toxicology report indicating meds in blood after driver had pled guilty and been sentenced 4 months earlier for careless driving… McMahon affirmed (other grounds)) O’Connell, 3/30:6

Drugs: (particularized suspicion properly found to make contact with motorcyclist standing by his motorcycle at pub based on road rage report, drugs found in pocket in search incident to arrest on outstanding warrant properly seized… Ulbricht affirmed (IOR I-3(c))) Mahlen, 1/12:6; (person hiding in bushes and bobbing up & down across from courthouse at 6 a.m. as deputy was preparing to make prisoner transfer provided particularized suspicion for Terry investigation… handcuffing for safety during investigation did not constitute arrest, but probable cause existed for arrest when person volunteered that he had meth… suppression properly denied… Cuffe affirmed) Stevens, 2/16:4; (passenger in drug vehicle properly retried on amended charge of meth possession following hung jury on possession with intent to distribute, not necessary to analyze double jeopardy… “mere presence” instruction properly rejected… officers’ testimony as to conflicting statements of others in vehicle as to relationship of person they visited in Washington not hearsay… conviction affirmed… J. Brown affirmed) Ellerbee, 2/16:5; (marijuana paraphernalia Defendant had burden of proving that she fit under exception of MMA by having registry card and being in compliance with MMA… she failed to do so, and Judges properly found that pipes in purse contained marijuana residue… convictions affirmed… Jenks/Larson affirmed) Shumway, 2/23:3; (probable cause to search out-of-gas pickup driven by Mexican who had been in US since 7 months old but had no ID, no basis for profiling claim… suppression of drugs found in pickup properly denied… Swingley/McMahon affirmed (IOR I-3(c))) Arias-Mirenda, 2/23:5; (probable cause to arrest driver of vehicle involved in meth sting… Haddon affirmed (memorandum)) Ruiz, 3/16:4; (4th Amendment not violated by search of probationer’s home where meth Defendant was staying… Watters affirmed (memorandum)) Prien-Pinto, 3/16:4; (Iowa “under the influence” conviction not substantially similar to Montana’s for felony enhancement… Davies) Manashirov, 4/20:6; (medical marijuana to alleviate pain while on probation from possession with intent to distribute properly denied over “as applied” constitutional challenge… Oldenburg affirmed (IOR I-3(c))) Pein, 7/27:4; (speeding stop not unlawfully prolonged after Trooper said “free to go” followed by “I noticed a little bit of a smell” and passenger admitting having a joint… suppression properly denied… Halligan affirmed (IOR I-3(c))) Ralston, 12/14:4; (card holder properly precluded from medical marijuana as condition of suspended sentence… constitutional challenges rejected… Cuffe affirmed (IOR I-3(c))) Orsborn, 12/28:3

Drugs/DUI: (arresting officer not precluded from testifying by alleged certification deficiencies… warrant to search truck supported by probable cause starting with scent of marijuana… accidental erasure of jail processing video insufficient to dismiss DUI… Laird affirmed) Robertson, 5/4:3; (speeding stop properly expanded to DUI investigation with dog sniff and search warrant which yielded paraphernalia and meth… motions to suppress and dismiss properly denied…. Laird affirmed (IOR I-3(c))) Espinoza, 10/19:3

Drug paraphernalia: Monroe, 9/28:4

DUI: (17 days late responding to motion to dismiss not sufficiently prejudicial to warrant Defendant’s motion well-taken… Defendant’s sketchy recollection as to whether he was advised of and waived right to counsel in prior DUI insufficient to rebut presumption of regularity… 4th DUI affirmed… Townsend affirmed (IOR I-3(c))) Chesterfield, 1/5:1; (presumption of regularity of prior DUIs insufficiently rebutted based on court records… Reynolds affirmed (IOR I-3(c))) Schlepp, 1/12:6; (motion to exclude blood test properly denied where Defendant could have obtained it from Lab but insisted on Prosecution getting it for him… Defendant precluded from arguing that the State had not fulfilled its discovery obligation when Judge had ruled that it had… adding DUI per se less than 5 days before trial not prejudicial because jury did not reach subject of amendment… redacted version of investigation video provided to Defendant morning of trial properly admitted… conviction affirmed… Langton affirmed) Hudon, 2/9:5; (stop justified by failure to signal despite Deputy not customarily stopping for no signal, properly ripened into DUI arrest… allowing driver to move vehicle off the road did not establish fitness to drive… license reinstatement properly denied… Boucher affirmed (IOR I-3(c))) Britt, 2/9:6; (challenge to prior DUI as infirm properly rejected… H. Brown affirmed (IOR I-3(c))) Ingman, 2/23:4; (civil license reinstatement finding of “no reasonable grounds” to believe Defendant was DUI does not collaterally estop criminal DUI proceeding based on “particularized suspicion”… Swingley/Reynolds affirmed (IOR I-3(c))) Marks, 4/6:3; (officer’s claim of seeing improper right turn properly accepted over forensic engineer’s testimony… Seel/J. Brown affirmed (IOR I-3(c))) Tharin, 4/6:4; (welfare check of possibly disabled vehicle proper, properly ripened into DUI investigation… Townsend affirmed) Grmoljez, 4/13:5; (approaching Defendant at gas station while responding to a tip of a driver who smelled of alcohol was routine police encounter that did not require particularized suspicion… particularized suspicion acquired upon driver’s participation in questioning and testing… motion to suppress properly denied although improperly based on particularized suspicion… Oldenburg affirmed (other grounds)) Questo, 5/18:5; (insufficient documentation of North Dakota DUIs for felony enhancement where misdemeanor records are destroyed after 10 years… Fehr) Kastner, 5/18:6; (prior DUIs should be admitted in aggravated DUI trial only after jury determines guilt of “standard” DUI… remanded for new trial… Swingley/McMahon reversed) Holland, 6/8:5; (officer must lawfully arrest a person for DUI before requesting him to submit to a blood or breath test for purposes of a test refusal license suspension… Defendant was lawfully arrested based on anonymous 911 call coupled with officer’s observations… Townsend affirmed) Indreland, 6/22:2; (particularized suspicion not supported by leaving brewery, delayed turn signal, “deer-in-headlights” look… conviction reversed… Andersen affirmed, Larson reversed) Reeves, 7/6:4; (felony enhancement based on national park DUI reversed… J. Brown reversed… order) Blair, 8/10:5; (non-specific reference to PBT in Municipal Court trial improperly allowed to impeach claim of increased BAC between PBT and Intoxylizer without reliability foundation but error was harmless… conviction affirmed… Luth reversed, Best affirmed (IOR I-3(c))) McVay, 9/14:7; (officer’s chat with Defendant on way to investigate allegation that he deflated ex-wife’s tires properly escalated into DUI investigation and subsequent DUI and pill charges… Langton affirmed (IOR I-3(c))) Hadley, 9/21:4; (“welfare check” on driver reported in 911 call as not moving with engine running in legally parked car terminated when driver was found moving and engine not running and assured that he was not in need of assistance, no particularized suspicion to extend stop to DUI investigation… officer’s testimony and lower Courts’ and Dissent’s findings contradicted by body cam video which Supreme Court is not required to disregard… misdemeanor DUI conviction reversed… Warren/Deschamps reversed) Metz, 2/9:1

Elder exploitation: (conviction affirmed over hearsay and summary evidence challenges… Townsend affirmed (IOR I-3(c))) Snyder, 4/20:4

Embezzlement: (conviction of softball team president for writing checks to himself upheld over challenge of limited cross of VP intended to show motive for allegations, unanimity instruction as to 12 checks, 328 days to trial… Best affirmed (IOR I-3(c))) Crabtree, 10/12:4

Evidence: (challenge of purse-snatcher photo lineup waived by failure to show good cause for untimely motion… Ulbricht affirmed (other grounds) (IOR I-3(c))) Hetrick, 4/20:4

Excessive fines: (mandatory 35% of market value fine facially unconstitutional for lack of consideration of financial resources and burden… Cybulski reversed) Yang, 11/16:4

Harboring fugitive: (challenge to warrantless searches of home where fugitive was found in crawlspace improperly rejected, consent not shown in light of threat to kick door in with drawn weapons and failure to inform Defendant that she could refuse consent… evidence obtained during both searches suppressed under exclusionary rule… new ruling on rehearing of prior affirmance… Morris reversed (memorandum)) LittleDog, 2/23:7

Hung jury: (mistrial properly declared in murder case after jury deadlocked at 11-1 for acquittal and requests for “clarification” of instructions were declined… retrial rather than dismissal properly ordered… supervisory control of Allison denied) Lamb, 11/23:5

Incest: (removal for cause of panelist who knew alleged victim’s father properly denied in case against stepfather… conviction affirmed… Pinski affirmed) Block, 8/10:5; (jury inappropriately allowed to watch in jury room unspecified parts of interview of 10-year-old without isolating the specific area giving difficulty… conviction reversed, remanded… Berger reversed) Hayes, 10/5:4

Incest/attempted incest/surreptitious recordation: (convictions as to granddaughter, daughter, son affirmed… under-desk videoing of adopted daughter properly allowed to go to jury (which acquitted as time-barred) to prove motive & identity as to incest… Kutzman affirmed (IOR I-3(c))) Wallace, 1/19:6; (conviction of sexual contact with 11-year-old daughter affirmed over claim of mistakenly thinking in semi-conscious state that she was his ex-wife… Gilbert affirmed (IOR I-3(c))) Standley, 8/31:3

Indians: (assault victim’s Indian status properly decided by jury… conviction affirmed… Morris affirmed (memorandum)) Torres, 6/22:3

Ineffective assistance: (failure to object to evidence of past criminal conduct by homicide Defendant more amenable to postconviction… Newman affirmed) Sawyer, 4/27:6; (counsel not ineffective for failing to pursue medical report as to condition of child’s hymen or for strongly advising against testifying… postconviction petition properly denied… Berger affirmed) Cheetham, 12/21:4

Information amendment: Morning of trial amendment changing date of failure to give notice of sex offender’s change of address by 7 months was substantive, not mere correction of “scrivener’s error,” improperly allowed, conviction reversed… McKeon reversed) Hardground, 1/26:2

Initial appearance: (overlap of probation violations hold, fitness treatment, and aggravated assault charge resulted in “unnecessary delay” in appearance on assault charge, but no prejudice that would require dismissal with prejudice…. remanded to dismiss assault charge without prejudice… Cuffe reversed) Norvell, 5/11:4

Interfering with forest officer: (“hyperbolic” statements about having AR-15 and knowing how to use it to “trespassing” officers constituted “true threats”… conviction affirmed… Morris affirmed (memorandum)) Havens, 2/9:6

Judge substitution: (substitution of retired/called-back McLean properly denied in postconviction proceeding of deliberate homicide Defendant where McLean had presided over trial and sentencing… supervisory control denied … order) Kaarma, 1/12:5

Jury: (seating alternate out of order was harmless error, new PFMA trial properly denied… Knisely affirmed) Oschmann, 2/16:2; (panelist with strong reservations about acquitting PFMA Defendant merely because of a failure to prove “partner” relationship should have been excused for cause… conviction reversed, remanded for new trial… Todd reversed) Johnson, 3/23:4; (right to jury on PFMA not waived by failure to appear at omnibus hearing) Adams/Ortley reversed, affirmed) Salsgiver, 6/8:4; (removal for cause of panelist who knew alleged incest victim’s father properly denied in case against stepfather… conviction affirmed… Pinski affirmed) Block, 8/10:5; (panelist with troubling pattern of comments about “leaning” toward guilt should have been disqualified for cause despite ultimate assurances of impartiality… convictions reversed, remanded… Dayton reversed) Anderson, 9/17:4; (inappropriately allowed to watch in jury room unspecified parts of interview of 10-year-old without isolating the specific area giving difficulty… conviction reversed, remanded… Berger reversed) Hayes, 10/5:4

Lacey Act: (outfitter who failed to obtain special-use permit violated Act by client’s taking of mountain lion notwithstanding that client had permits to hunt on FS land… Lovell affirmed (memorandum)) Jablonsky, 9/14:12

Medical marijuana: (provider properly charged with federal possession with intent to distribute notwithstanding appropriations rider because he was not in strict compliance with state law requiring a landlord permission form… probable cause for search warrant based on informant’s statements corroborated with power records… Christensen affirmed (memorandum)) Campbell, 2/16:8

Negligent homicide: (counsel was ineffective in not securing appearance of relocated trooper or preservation of his report that would support Defendant’s claim that he drove in reverse over decedent to escape his choking and did not again drive over him in forward… conviction vacated, remanded for new trial… payouts to injured victims by Defendant’s insurer should be deducted from their restitution payments… Haynes reversed) Santoro, 8/17:2

“Ping” warrant: (for cell phone location of suspected meth dealer’s trip to California and back to Montana properly issued by State Court Judge John Brown despite application by FBI member of Task Force and ultimate federal prosecution… any error would not implicate exclusionary rule… Christensen) Ortega-Yescas, 6/22:5

PFMA: (un-Mirandized but voluntary statements regarding “our children” sufficient to establish partner or familial relationship with uncooperative alleged victim… Pinski affirmed (IOR I-3(c))) Taggart, 4/6:2; (State — not Defendant — should have discovered automatic jail photos showing black eye which tended to corroborate self-defense claim… remanded for new trial… Knisely reversed) Chavis, 5/11:5; (right to jury on PFMA not waived by failure to appear at omnibus hearing (was waived as to criminal mischief, a “petty” offense)… conditions for installment payment of mischief fines, fees, surcharges not statutorily authorized, improperly imposed despite Defendant’s acquiescence, Micklon overruled as to acquiescence… Adams/Ortley reversed, affirmed) Salsgiver, 6/8:4

Plea withdrawal: (actual innocence exception to 1-year statute for withdrawing plea not met by privacy/stalking Defendant… Kolar/Souza affirmed (IOR I-3(c))) Gilham, 3/9:3; (based on claimed misunderstanding about obligation to complete sex offender evaluation as part of plea agreement reducing rape to endangerment properly denied… Cuffe affirmed (IOR I-3(c))) Walbridge, 6/1:6

Postconviction: (petition time-barred under either out-of-time or regular appeal times… claims of timely unreceived petition and newly discovered evidence rejected… Gustafson affirmed) Mascarena, 4/6:3; (petition of Defendant who claims he accidentally touched vagina of 10-year-old while “playing game” by throwing her onto a couch properly denied… Judge referring to Defendant as “street thug” not perjurious or evidence of personal bias… plea-bargained criminal endangerment (with underlying incest facts) supported by actions of throwing the child… Pinski affirmed (IOR I-3(c))) Paranteau, 9/14:8

Prisoners: (civil damages and criminal punishment only remedies available for warrantless recording of jail phone calls, not exclusion of evidence obtained… Lovell affirmed (unpublished)) Cox, 3/9:5; (§1983 dangerous work environment, medical indifference, retaliation claims improperly dismissed for failure to state claim, allegations sufficient to warrant answer… Christensen reversed (memorandum)) Hall, 5/11:7; (claims of “horrific treatment” of mentally ill MSP inmates improperly dismissed for failure to state claim under 8th Amendment and §1983… refusal to revisit ruling when advised that it was based on the wrong case requires reassignment to different judge on remand… Haddon reversed) Disability Rights Montana v. Batista, 7/20:4

Prosecution abatement: ($1,550 in assessments/restitution paid into Court by pollutant discharge Defendant payable to reimburse CJA for appointed counsel despite abatement of case following death, not refundable to Estate… 1st impression… Molloy) Robertson, 10/12:5

Public defender: (1st-offense misdemeanor theft defendant not subject to incarceration under 2017 statute, not entitled to appointed counsel… Fagenstrom reversed on supervisory control) Office of State Public Defender v. Fagenstrom, 5/11:6

Rape: (conviction of sex with intoxicated 15-year-old at “horny-fest” affirmed… Pinski affirmed (IOR I-3(c))) Martinez, 7/27:5; (evidence that father was intensely angry because daughter disclosed she was bisexual properly excluded over Defendant’s argument that it would show motive to fabricate sexual abuse to deflect father’s wrath… letting daughter read her Facebook explanation to divided family written after the allegations improperly allowed as prior consistent statement but not prejudicial as to warrant reversal… conviction affirmed… Kutzman affirmed (IOR I-3(c))) Mitchell, 9/14:3; (Judge abused discretion by not continuing sentencing hearing to accommodate psychosexual evaluator… remanded for sentencing by new Judge in light of unusual circumstances including repeated disparagement of evaluator who was not present to respond… Pinski reversed) Webber, 9/14:6; (counsel not ineffective for failing to pursue medical report as to condition of child’s hymen or for strongly advising against testifying… postconviction petition properly denied… Berger affirmed) Cheetham, 12/21:4

Rape/burglary/sexual assault: (panelist with troubling pattern of comments about “leaning” toward guilt should have been disqualified for cause despite ultimate assurances of impartiality… convictions reversed, remanded… Dayton reversed).

Rape/kidnap: (“dog-whistle racism” in prosecution of black Amtrak attendant for attack of “southern ladies” not established for plain error review… trial counsel not ineffective… costs improperly imposed… Cybulski affirmed, reversed (IOR I-3(c))) Pinner, 3/9:2; (insufficient nexus to impose probation restrictions on contact with minors… Kutzman reversed) Mehan, 5/4:3

Resisting arrest: (officers’ pre-incident personnel records properly excluded over Defendant’s assertions of excessive force arrest… physician testimony regarding nature & extent of arrest injuries properly excluded… sufficient evidence of obstruction of officer to preclude plain error review… convictions affirmed… Herrington/Salvagni affirmed) McCarthy, 9/7:3

Restitution: (by software engineer convicted of stealing laptop properly awarded as to some claims, improperly awarded as to others… J. Brown affirmed, reversed) Lowry, 8/17:4; (2005 order for restitution of tricked SIWC victims failed to include affidavits describing pecuniary loss, Judge Mizner failed to specify total amount of restitution obligation under 2003 statute… remanded for hearing… habeas granted… order) Henry, 10/19:4; (embezzler failed to preserve objections to $9,313.75 claimed by Bank for investigating and assisting in prosecution (n addition to $7,103 stolen), not denied due process by lack of evidentiary hearing… Larson affirmed) Johns, 12/21:6; (no jurisdiction to “clarify” final judgment to add $51,000 compound interest pursuant to DOC interpretation… Larson reversed (IOR I-3(c))) Charles, 12/28:2

Revocation: (Defendant who was released from MSP to begin serving time on deferred sentence for criminal mischief and suspended part of intimidation sentence was on supervision when he committed non-compliance violations in jail in violation of terms of supervision, sentences properly revoked… Souza affirmed (IOR I-3(c))) Chalupa, 10/12:5

Robbery: (evidence found in residence and truck while in custody and after release from custody properly admitted… cell phone location records admitted in case-in-chief without phone company foundation harmless error… conviction affirmed… H. Brown affirmed) Burchill, 12/14:3

Sentencing: (brief mention of lack of remorse by Defendant who maintained innocence of sex abuse of daughter offset by extensive other reasons including video showing him placing camera in shower… Murnion affirmed (IOR 3(c))) Crosby, 1/26:4; (repeat PFO sentence properly imposed… Souza affirmed) Martin, 2/23:4; (deferral precluded for felony drugs based on Arizona felony escape even though Arizona only sentenced to 17 days in jail… Cuffe affirmed) Nelson, 3/23:5; (conditions for installment payment of mischief fines, fees, surcharges not statutorily authorized, improperly imposed despite Defendant’s acquiescence, Micklon overruled as to acquiescence… Adams/Ortley reversed, affirmed) Salsgiver, 6/8:4; (overtime for testifying officers improperly imposed as “costs of prosecution”… other sentencing errors for damage of car wash… Bolstad/Pinski reversed… order) Loch, 6/8:5; (Defendant properly sentenced under 2015 PFO statute in effect at time of felony DUI rather than 2017 statute in effect at time of sentencing despite lack of explicit “savings clause”… Knisely affirmed) Hernandez, 7/13:3; (claim that State undermined plea agreement at sentencing hearing rejected, sentence of 10 years, 2 suspended for Defendant charged with rape who plea bargained to intimidation and 3 years deferred affirmed except for tier level designation as intimidation is not a sex offense… Kutzman affirmed, reversed (IOR I-3(c))) Johnson, 8/31:4; (Defendant arrested for DUI in 2/17 properly designated PFO under 2015 statute rather than 2017 amendment requiring sexual or violent predicate… Krueger affirmed (IOR I-3(c))) Sproles, 9/14:9

Severance: (of tampering from underlying assault/restraint properly denied… Cuffe affirmed (IOR I-3(c))) Clift, 9/14:9

Sex abuse: (claims of ineffective assistance relating to victim intoxication rejected… Morris affirmed (memorandum)) Stamper, 11/23:8

Sex offender registration: (child porn Defendant who completed federal sentence after obtaining reduction for “clean record” no longer required to register under federal law, but termination of State registration requires separate petition… Molloy) Templin, 2/23:7

Sexual assault: (SIWC consent age of 16 improperly applied to sexual assault in trial involving 14-year-old, counsel ineffective for not offering instruction with consent age of 14 for sexual contact… conviction reversed, remanded for new trial… Cuffe reversed) Resh, 9/21:2; (sufficient evidence that Defendant violated sex treatment condition of release, revocation affirmed… Allison affirmed (IOR I-3(c))) Johnson, 11/30:3

Speedy trial: (violated by 422-day delay of felony DUI case including incarceration longer than maximum sentence… Souza reversed) Kurtz, 6/8:5

Traffic stop: (of felon in possession of firearm affirmed… Christensen affirmed (memorandum)) Brooks, 7/13:4; (and arrest of passenger for drugs based on tip not improperly prolonged to probe another passenger’s eyeglass case spotted in purse which turned out to contain meth pipe (meth in baggie was later found in jail search of clothes)… suppression properly denied… Dayton affirmed (IOR I-3(c))) Fowler, 9/7:6; (challenge to “following too closely” properly rejected… Watters affirmed (memorandum)) Gaspar, Calderon, 2/9:7

*Discrimination

Age/sex: (claims by art teacher applicant rejected on summary judgment… Dayton) Brothers v. Anaconda School Dist., 9/21:4

Disability: (Clinic justified in firing RN for lying about disseminating confidential surgery schedule which she had taken to bolster claim of being overworked as retaliation for a previous HR complaint, regardless of whether prior discipline and investigative interactions or removal of the schedule were protected activities… no abuse of discretion in not compelling discovery of 600 emails even if not privileged… $9,370.59 costs properly awarded over Plaintiff’s argument that it could dissuade others from meritorious HR suits… Spear/HRC/Jones affirmed) Bollinger v. Billings Clinic, 2/16:1

Race: ($38,357.70 properly awarded for supervisor’s “nigger” slurs (as opposed to Petitioner’s “my nigga” as term of endearment)… Scrimm/Dayton affirmed) KB Enterprises dba Snappitz v. Bright, 6/15:2; ($91,180.16, offensive slurs by Indian’s supervisor, termination in retaliation for complaining… Holien and HRC affirmed… Harris) Pierce Companies v. Healy, 11/2:5

Sex: ($141,899.40, sexual harassment of insurance agent but no retaliation… administrative decision… Caroline Holien) McEachern v. Treasure State Associates, 8/17:9; ($50,000 for emotional distress suffered by gay female due to harassing comments by manager… $0 for emotional distress from layoff which was not in retaliation for complaining about harassment… Administrative Decision, Caroline Holien) Lowery v. Sarens, 10/5:9; ($671,806.46, harassment by electric co-op male GM of female Office Manager/CFO who was not fired but whose employment status on extended medical leave was in limbo… Administrative Decision… Caroline Holien) Lawson v. NorVal Electric Cooperative, 11/2:7

*Elections

Attorney fees: (successful sheriff candidate improperly denied private AG fees for challenge to recount procedures stipulated to by County and opponent… Bidegaray reversed) Burns v. Musselshell Co., 12/21:2

Green Party removal: (full opinion explaining prior affirmance of removal of Green Party from 2018 ballot… pro hac vice admission for 8th time improperly summarily granted, but not reversible error… Reynolds) Larson v. SOS, 2/2:6

Jail bond election: (no subject jurisdiction over citizen challenge after claims were rejected by COPP and City Ethics board… Gilbert) Koopman v. Bozeman, 4/13:5

Referendum: (challenge to AG’s ballot statement for LR-130 rejected… order) MFPA et al v. AG, 8/31:3

*Employees

Employment contract: ($220,000 verdict for nurse whose contract for new job was pulled based on opinion of former co-worker that she would not be a good fit affirmed over appeal issues by both sides… Kutzman affirmed) Warrington v. Great Falls Clinic, 5/18:1

Respondeat superior: (does not impute to City a supervisor’s acts of giving false negative information to former City employee’s new employer… tortious interference with business relations and negligent misrepresentation claims dismissed on summary judgment… Todd) Brenden v. Billings, 1/19:7

Wages: (claimed $69,589.17 bonus and supervision rejected… Logan Jackson) Claim of Owen and Dermatology Associates, 6/8:10; (duration and periods of exotic dancer’s on-and-off employment properly determined by WHU to allow claim for latest period only… Best affirmed) Wage Claim of Mays and Sagebrush Sam’s, 9/21:1

*Environment

Preliminary injunction: (properly dismissed for lack of jurisdiction… Christensen affirmed (memorandum)) Cottonwood Environmental Law Center, 2/23:6

*Family Law

Attorney fees: (fees properly awarded to husband under terms of divorce settlement agreement for defending against wife’s 3rd-party complaint in separate action, but amount improperly based on billing records and summaries admitted without expert’s personal knowledge of truth or accuracy… $18,684.93 prejudgment interest properly awarded on $20,000 marital property settlement where wife was not prevented by stays from paying it for 9 years… Parker affirmed, reversed) Fossen, 6/1:3

Challenge to original decree (waived by mediated settlement on appeal… attempt to relitigate protective order precluded by previous appeal… Gilbert affirmed (IOR I-3(c)) Stone, 10/12:2

Common law marriage: (Petitioner failed to establish that she and “life partner” established common law marriage… Berger affirmed) Hansen and Roffe, 12/14:1; (common law marriage properly found between same-sex couple with accompanying maintenance, child support, property division… part of Petitioner’s fees properly awarded despite no reasonableness hearing… Halligan affirmed) Adami and Nelson, 12/14:2; (common law marriage found between 2 women from 1999 when their 1st child was conceived with donated sperm… biological mother awarded child support, maintenance, $100,000 plus $110,000 attorney fees… Halligan) DA v. KN, 3/9:4

Contempt: ($5,572.73 properly awarded father for mother’s contempt for obstructing visitation order… Ulbricht affirmed (IOR I-3(c))) Brockington, 3/16:2

Indemnification: (husband’s claim for indemnification from wife under property settlement agreement for $467,208.71 fees & costs defending against federal suit by wife’s divorce funding company properly denied… Bowen/H. Brown affirmed (IOR I-3(c))) Scrantom, 6/29:4

Maintenance: (maintenance of $750,000 over 5 years properly awarded v. requested $21 million over 35 years… Larson affirmed) Frank, 6/8:1

Parental rights: (Father not notified of right to counsel in adoption proceeding brought by step-father, did not waive right… paternal great-grandparents’ interests not addressed… Harris reversed) Adoption of LFR, 1/12:4; (rights of parents properly terminated, but attorney CASA improperly allowed to subpoena notes from Father’s therapist, examine witnesses at termination hearing where youth also had attorney… Deschamps) Matter of JD, 3/23:3; (termination of Mother improperly based on conditional relinquishment which never became effective… Deschamps reversed) KB, 3/30:5; (rights to adopted Ukrainian children properly terminated… Father’s 5th Amendment right against self-incrimination not violated by being required to admit that he physically abused the children in order to complete treatment plan… Menahan affirmed (IOR I-3(c))) TN and ON, 4/6:1; (claim that child was conceived from nonconsensual sex properly rejected… Deschamps affirmed (IOR I-3(c))) Disney v. Staat, 5/11:3; (CFS failed to provide reasonable efforts to reunify Mother and Child… Knisely reversed) RJF, 5/18:5; (termination of Father’s rights based on Mother’s claim of intoxicated conception properly denied… Manley affirmed (IOR I-3(c))) SFRT, 6/15:4; (DPHHS failed to engage in active efforts to prevent breakup of Indian family, Father’s rights improperly terminated… Best reversed) KL, 11/2:3

Property: (Court had jurisdiction to order husband’s debts paid out of $2,727,587 California PI verdict, but wife’s request for half of verdict properly implicitly denied… Lympus/Eddy affirmed) Hardman and Moore, 7/6:3

Property, maintenance, fees: (challenge by husband injured in work-related MVA as to property division, denial of maintenance, attorney fees rejected… Deschamps affirmed (IOR I-3(c))) Malloy, 10/12:1

Settlement agreement: (set-aside of settlement agreement entered into by incarcerated husband’s POA properly denied… Manley affirmed (IOR I-3(c))) Sheehan/Frazier, 4/13:4

*Indians

Sovereign immunity: (college entitled to tribal sovereign immunity as to employee’s Title VII and MHRA claims… Christensen affirmed (memorandum)) McCoy v. Salish Kootenai College, 11/23:7

Tribal criminal authority: (Tribal officer exceeded authority when he detained driver parked on federal highway on Reservation without having ascertained if he was an Indian (cannot presume that one is non-Indian (“seemed to be non-Native” — or Indian — based on appearance, status is political, not racial or ethnic)… meth/firearms properly suppressed based on exclusionary rule as applied to ICRA’s 4th Amendment counterpart… Watters affirmed (other grounds)) US v. Cooley, 4/6:6

*Insurance

Additional insured: (endorsements to well contractor’s CGL policy did not extend additional insured status to owner seeking coverage for death of flow tester, no duty to defend/indemnify… Laird reversed) Employers Mutual Casualty v. Estate of Buckles, 6/15:1

Bad faith: (pretrial rulings in condo building wind damage UTPA case… Johnston) Park Plaza Condo Association v. Travelers Companies, 4/6:8; (motions to compel by both sides in case challenging insurer’s valuation of underlying MVA case that settled for $4.275 million without release of Defendant granted over claims of attorney client and work-product privileges in advice of counsel defense… fees on either motion denied as parties are of a mind that they are both right and they are both wrong… Molloy) High Country Paving v. United Fire & Casualty, 2/9:5

Claim timeliness: (claim untimely reported or made under claims-made-and-reported policy… “notice-prejudice” rule not applicable to claims-made-and-reported policies… Cavan affirmed (memorandum)) Banjosa Hospitality v. Hiscox, 12/21:7

Confessed judgment: (of $12 million ($17 million with interest at 12%) against insurer that refused to defend properly found unreasonable and product of collusion between real estate developer’s 2 entities engaged in construction of his luxury home on Flathead Lake island, but collusion so egregious that proper remedy is dismissal in entirety rather than reduction to “reasonable amount” of $2,432,010… $925,619.87 attorney fees & costs improperly awarded under “inherent powers,” but awardable under UDJA… Eddy affirmed, reversed) Abbey/Land v. James River Ins., 2/2:1, (correction, “A District Court” referenced in the Supreme Court’s Abbey/Land opinion was misconstrued in the 2/2/19 MLW summary as Judge Eddy when it was her predecessor Judge Ortley) 2/9:4; ($10 million consent judgment in favor of ranchers and against CPA firm improperly given presumption of reasonableness where insurer was providing a defense and had not “abandoned” the insured… remanded for separate breach of contract or UTPA claims with insured having to prove all elements including damages… Eddy reversed) Draggin’ Y Cattle and Peters v. Junkermier, Clark, Campanella, Stevens, and New York Marine & General Ins., 4/27:1

Corporate deposition: (supervisory control of Parker’s denial of MVA insurer’s request for a protective order to prevent Plaintiff from taking a 30(b)(6) corporate deposition on issues allegedly not relevant to the declaratory action denied) USAA Casualty Ins. v. Parker, 4/27:5

Coverage: (suits against home and well inspector not covered by Homeowner or Personal Umbrella policies despite alleged assurances by agent and “Certificate of Insurance”… Knisely) Farmers Ins. Exchange v. Green (Cornerstone Inspection Services), 2/9:6; (fall from heights exclusion precludes coverage for ladder fall regardless of whether the person fell from or with the ladder or whether 10-15 foot fall measured from head or foot qualifies as “from heights”… no duty to defend roofing contractor vis-à-vis $4.7 million consent judgment… Cavan) Porch v. Preferred Contractors Ins. Co., 3/23:6; (FWS scuba officer’s sexual contact with sleeping employee correctly found to not be an “occurrence” and therefore not covered… instruction to tell colleagues that contact was consensual incorrectly found to be covered “occurrence”… Christensen affirmed, reversed (memorandum)) American Reliable Ins. v. Lockard, 12/7:3

Defend/indemnify: (insurer has duty to defend contractor against all claims in complaint by luxury home owners, but does not have duty to indemnify for $2.6 million+ liquidated damages, breach of warranty, MCPA, unjust enrichment, emotional distress claims, and fact issues preclude summary judgment on duty to indemnify for other claims… Molloy) Atlantic Casualty Ins. v. Quinn, 6/22:4

Duty to pay policy limits: (certified question from Molloy accepted as to insurer’s duty to pay policy limits to MVA 3rd-party without release of insured where claimed specials are below policy limits but total damages exceed limits… order) High Country Paving v. United Fire & Casualty, 5/25:2

Insurance agency: (agency correctly found to be 3rd-party beneficiary to agreement between independent contractor and insurance company, agreement correctly found ambiguous requiring extrinsic evidence, but error to not consider extrinsic evidence demonstrating company’s intent in entering the agreement and to rely on hearsay and a letter not of record to support judgment for agency… Todd affirmed, reversed (IOR I-3(c))) Jay Cochran FBFS v. Fauth dba Fauth Agency, 4/27:4

Insurance exception: (prior implicit extension of insurance exception to nontaxable costs made explicit… fees correctly awarded pursuant to insurance exception in UIM case, taxable costs correctly denied as untimely, nontaxable costs incorrectly denied… Laird affirmed, reversed) King v. State Farm Mutual Auto Ins., 9/7:1

Duty to defend/indemnify: (fact issues preclude summary judgment that CGL insurer has no duty to indemnify contractor for $441,770.83 judgment for damages to condos from failure of T-panel systems intended to melt roof snow & ice… Christensen) Western Heritage Ins. v. Slopeside Condominium Association, 3/9:5; (uncertainty and unresolved facts & claims in sewer line damage suit make this declaratory action as to defend/indemnify duties unripe for summary judgment… Gilbert) MACo Joint Powers Ins. Authority v. Gardiner-Park Co. Water & Sewer Dist., 3/16:2

Health insurance: (claims against “Chamber Choices” health insurance program for assessing surcharges that were kicked back to Chamber of Commerce and charges for insurance products without consent of small businesses properly rejected as not subject to ERISA… state law claims improperly dismissed without opportunity to amend to state fraud allegations with greater particularity or file in State Court… Christensen affirmed, reversed) The Depot v. Caring for Montanans, 2/16:7

Second bite at apple: (MVA Plaintiff who won $10,000 verdict and then settled with tortfeasor’s insurer for $50,000 liability limit with stipulation to vacate and dismiss with prejudice not entitled to 2nd bite at apple on damages, but may pursue UTPA claims to the extent they do not require relitigation of underlying damages, UIM only triggered if damages exceed $50,000… Menahan) Reisbeck v. Farmers Ins. Exchange, 2/2:6

Stacking: (summary judgment properly granted that 4 separate vehicle liability coverages are not stackable… Jones affirmed) Cross v. Warren, 3/9:1; (Estate of decedent airplane passenger not entitled to stack 3 aircraft liability policies… certified question answered for Christensen) US Specialty Ins. v. Estate of Ward, 3/30:1; (vehicle liability stacking claim properly denied notwithstanding assignment of policy rights to decedent’s siblings… Haddon affirmed (memorandum)) Morris v. Progressive Northwestern Ins., 9/7:8

UIM reducing clause: (UIM limit paid to injured motorcyclist after challenge to insurer’s reducing clause vis-à-vis separate recovery from tortfeasor’s employer) Claim of Bakke, 6/15:6

*Local Government

Dispatcher timecard investigation: (abuse of process, defamation, Anti-Intimidation Act, spoliation, negligence claims of dispatch supervisor who was investigated but not prosecuted for timecard fraud properly dismissed on judgment on pleadings and summary judgment… Hayworth affirmed (IOR I-3(c))) Roos v. Miles City, 5/11:2

Gun control: (Missoula background check Ordinance overruled by AG Opinion… issue justiciable even no though enforcement yet… Deschamps affirmed as to justiciability, reversed as to merits) Missoula v. AG, 10/26:2

Lakeshore Protection Act: (permit for bridge from high-water island to lakeshore improperly granted, bridge properly ordered removed and lakeshore restored… community association had standing to challenge permit but not entitled to fees under private AG or bad faith doctrines… Allison affirmed) Community Association for North Shore Conservation v. Flathead Co., 7/6:2

Police pay: (Judge Rieger correctly determined on remand after applying extrinsic evidence to ambiguous CBAS that Billings does not owe Officers unpaid longevity, but erred in dismissing without consideration other wage claims and related potential penalties/fees/costs… Rieger affirmed, reversed) Watters v. Billings, 11/2:2

Sewer district: (all claims except declaratory action by property owners challenging formation of district dismissed for failure to state claim… parties schooled on how to frame allegations and defenses… Halligan) Larson v. Seeley Lake Sewer Dist., Missoula Co., 2/9:5

Smoking shelters: (abatement action against bar’s shelter not violative of Clean Indoor Air Act or DPHHS regulations, summary judgment improperly granted to bar and denied to Health Board, but bar’s selective enforcement “class of one” equal protection claim asserts sufficient facts for jury consideration, improperly dismissed… Olson reversed) Totem Beverages dba The Do Bar v. Great Falls-Cascade Co. Board of Health, 11/23:2

Storm sewer discharge: (general municipal permit properly issued… R. McElyea affirmed) Upper Missouri Waterkeeper, 4/13:3

*Mental Commitment

Appealability: (issue of right to be present at pre-commitment hearing moot since no reasonable expectation that person could again be subjected to detention at MSH pending trial following a proceeding at which she is absent (unlike appeals from actual commitments following release from MSH)… McElyea affirmed (IOR I-3(c))) GM, 2/23:2

Findings: (oral and written findings together sufficient to justify commitment… Seeley affirmed (IOR I-3(c))) DS, 6/15:4

Right to be present: (issue of right to be present at pre-commitment hearing moot since no reasonable expectation that person could again be subjected to detention at MSH pending trial following a proceeding at which she is absent (unlike appeals from actual commitments following release from MSH)… McElyea affirmed (IOR I-3(c))) GM, 2/23:2

Sufficiency of evidence: (commitment of person with Intermittent Explosive Disorder supported by medical history independent of hearsay about why he was taken from nursing home to mental clinic… Souza affirmed (IOR I-3(c))) DS, 2/9:3

Waiver of rights: (a hearing requested only to stipulate to extension of commitment does not require obtaining waiver of rights as for original commitment… Oldenburg affirmed) BAF, 3/16:1

*Partnerships

Valuation: (departing ranch partner’s interest properly valued pursuant to Partnership Agreement at $1,421,863, over experts’ valuations of $463,000 and $1,190,400… Hayworth affirmed (IOR I-3(c))) Ballou v. Walker, 7/27:3

*Probate

Accounts freeze: (Probate Court had subject jurisdiction for emergency order freezing decedent’s bank accounts in name of grandson (personal v. real property), but not to transfer the funds directly to the Estate without a determination that grandson was not entitled because of undue influence… Gilbert affirmed, reversed (IOR I-3(c))) Bates, 11/30:2

Assets recovery, PR removal, Judge bias: (Ruling on Petition for Order to Recover Assets properly made based on pleadings & documentation without a hearing… unfounded “suggestions” of bias by Judge properly found frivolous warranting monetary sanctions against Co-PR and his attorney and removal of Co-PR… fees/costs also awarded for frivolous appeal which perpetuated baseless allegations against Judge… Pinski affirmed) Boland, 10/5:1

Jurisdiction: (Probate Court lacks jurisdiction to adjudicate rights under a divorce succession contract but Petitioners have civil contract claim against PR… breach of settlement agreement by bequeathing ranch in contravention of separation agreement would be fraud by decedent, not fraud upon the Court… Spaulding affirmed) Cooney, 12/28:1

Will: (handwritten codicil properly interpreted as wish that son would get control of trucking company rather than specific devise of company shares to him… Moses affirmed) Ankrum, 9/28:1

*Property

Cattle guards: (settlement agreement properly construed to preclude “cabling”… Laird affirmed (IOR I-3(c))) Stanley and Keffeler v. Hotes, 9/14:1, (attorney correction, 9/21:2)

Copyright: (photo of Democrat Congressional Candidate shot by hired photographer at Party event and downloaded from Facebook by Republicans for use in mailer supporting Congressman’s reelection campaign was “fair use, not copyright infringement… Christensen) Peterman v. Republic National Committee, 3/2:5

County road: (County’s use of road not a constitutional taking since it acted under claim of right in removing berm, owner not entitled to compensation under US or Montana Constitution… owner not entitled to litigation expenses since owner and County both prevailed and lost… trial costs awarded prior to earlier appeal improperly continued in remand proceeding… Spaulding affirmed, reversed) Letica Land v. Anaconda-Deer Lodge Co., 2/9:1; (writ of review challenging rejection of petition to abandon part of road blocked by gate properly denied… Langton affirmed) Bugli and Cox v. Ravalli Co., 7/13:2

Dinosaur fossils: (whether fossils constitute “minerals” for purpose of mineral reservation under Montana law certified to Montana Supreme Court… order) Murray v. BEJ Minerals, 5/25:6; (certified question accepted) Murray v. BEJ Minerals, 6/8:2

Easement: (across neighbors’ property properly rescinded for hunting without permission in violation of Easement Agreement’s conditions… no private or public easement… nuisance/negligence/punitives claims for blocking access rejected… Berger) Peters v. Hubbard, 8/24:10; (access to church across neighbor’s property properly determined by resort to extrinsic evidence in light of ambiguous “Access” in “Access & Utility Easement Certificate” and plat diagram… attorney fees properly denied church… Allison affirmed) Whitefish Congregation of Jehovah’s Witnesses, 9/28:3; (ranch neighbors properly found to each hold an express easement over the other’s property… Olson affirmed) Wiegele v. West Dry Creek Ranch, 10/26:2

Foreclosure: (Trustee not required to give sale notice to party to Easement Agreement providing water from foreclosed parcel because address did not appear of record pursuant to STFA… Langton affirmed (IOR I-3(c))) Harmon v. Fink, 1/5:1; (bank owed no cognizable legal duty to homeowner… MCPA claims time-barred or not unfair/deceptive… Lovell affirmed (memorandum)) Bybee v. Bank of America, 4/20:6; (challenge by lessee to Fannie Mae’s interest in property via alleged bid rigging properly dismissed as moot after it sold the property to a 3rd-party and lessee effectively obtained relief requested by not vacating, voluntary cessation exception to mootness doctrine inapplicable… leave to amend counterclaim to add quiet title for a complete ownership interest and several defendants including the 3rd-party purchaser properly denied… Newman affirmed (IOR I-3(c))) Federal National Mortgage Association v. Stafford, 5/18:3; (foreclosure of developers’ property properly upheld on summary judgment over claim that lender’s failure to place documents into escrow prevented obtaining financing to exercise settlement purchase option… Wilson affirmed (IOR I-3(c))) Thornton v. Whitefish Credit Union, 6/15:3; (claim of statutory right to possession during redemption period barred by collateral estoppel of prior action in which purchaser at sheriff’s sale was granted possession 10 days after purchase… Eddy affirmed (IOR I-3(c))) Russell v. 360 Reclaim, 8/3:4

Intellectual: (software developer’s intellectual property appropriation and wrongful discharge/disability discrimination claims dismissed on summary judgment… Molloy) Weinberger v. 911 Datamaster, 9/7:8

Public highway: (non-use insufficient to prove intent to abandon… disputed road is public highway to beginning of landlocked river parcel… Seeley reversed) Skelton v. Gibson, 3/16:1

Quiet Title Act: (claim to land from river accretion and creek reliction properly rejected as time-barred… Watters affirmed (memorandum)) Hein v. US, 8/3:7

Real estate: (alleged bid and earnest money deposit irregularities properly rejected on summary judgment as basis for overturning sale of $2.1 million ranch for $495,000… Rule 56(f) “fishing expedition” into auctioneer “bid-rigging” properly denied… Dayton affirmed) Davidson v. Barstad, 3/2:1; (breach of boundary realignment stipulation claim not time-barred, specific performance properly ordered, trespass claim properly dismissed… R. McElyea affirmed) Miller v. Kleppen, 4/13:2; (remaining claims by would-be subdivision developers in failed ranch buy/sell properly disposed of on summary judgment… Haddon affirmed (memorandum)) Flagstone Development v. Joyner, 12/14:5

Subdivision: (water defect claims properly rejected as time-barred, accrual rulings as to 2 Defendants properly applied per law of case to 3 Defendants… Wilson affirmed) Norbeck v. Flathead Co., 4/13:3

Subdivision covenants: (no abuse of discretion denying preliminary injunction against proposed assisted living facility in residence pending determination of merits … Larson affirmed (IOR I-3(c))) Burke v. Rolle, 1/12:3

Trustee’s sale: (not lawful because of mutual mistake in legal description due to scrivener’s error cutting parcel in half and clouding neighbor’s title, Trustee and purchaser had authority to foreclose and right to rescind defective deed… Note remains unpaid and enforceable, deed of trust remains subject to judicial foreclosure… Eddy) Bank of New York Mellon v. Swindall, 5/25:4

*Railroads

FELA: (supervisory control of Bidegaray denied on liability/causation sanctions default in bad faith case following $1.7 million FELA verdict… Court declines to revisit FELA preemption issue… order) BNSF v. Bidegaray, 3/23:1

FELA/LIA/FRSA: ($2,171,154.50 verdict for termination of conductor who claimed injury in fall from locomotive over RR’s contention that he falsified report of off-work injury upheld… $42,732.47 prejudgment interest added to $500,000 emotional distress award plus $657,107 attorney fees, $81,713.22 expenses, $233,993.70 expert fees, $23,308.94 taxed costs… Christensen) Wooten v. BNSF, 5/4:6

FRSA: (jury improperly instructed that RR cannot be liable for termination of laborer if it was based on “honestly held belief” that he violated safety rules by fouling track and was nearly hit by train… defense verdict reversed, remanded for new trial… Molloy reversed) Frost v. BNSF, 2/16:6

*Settlements

5th-wheeler trailer misrepresentation: (“significant” amount in settlement of claim of misrepresentation by 5th-wheel trailer dealership on remand from Supreme Court ruling that complaint could be amended 2 years after original complaint to add misrepresentation and that judgment was improperly granted to dealership) Ally Financial v. Stevenson v. Big Sky RV, 9/21:6

Asbestos: ($7,310,785.42 to 336 MHSL Libby Mine asbestos Claimants against State with contingent $2,030,936.19 dependent on result of litigation between State and its insurer… $1,250,000 to 49 KS Libby Mine Claimants with contingent $400,000… $250,000 for individual claimant with no insurer contingency… 33% and 33-1/3% contingent attorney fees approved… Eddy) Asbestos Litigation v. State, 1/12:4

Dorwart: ($40,000, ex parte communications with doctor & pharmacists) Newsom v. Missoula Co., 1/26:4, 2/2:6

Excessive force death: ($550,000, traffic stop shooting death of suspected robber or drug shooter, eve of trial settlement following denial of summary judgment on whether deadly force was justified) Estate of Ramirez v. Billings, 3/23:7

Forest fire: (settlement proceeds properly allocated… Axelberg/Gilbert affirmed) Distribution of Pine Creek Fire Settlement Proceeds, 2/2:5

Pedestrian/auto: (total of $600,000 from 2 insurers plus confidential amounts from 2 others, shoulder fractures, claimed mild TBI/cognitive impairment) Paulick v. Roman Catholic Bishop of Great Falls, 10/26:3

Snowplow pass head-on MVA: ($4,985,000 interpleader disbursements, “Leadfoot Linda,” 1 death, 2 injuries) Ace American Ins. v. Vann, 12/28:4

Stipulated judgments: ($7.4 million for railroad worker to resolve bad faith FELA preemption claim, with appeal “ifs”… Bidegaray) Dannels v. BNSF, 5/25:5; $440,000, apartment complex mold) Adams v. TwoRivers Apartments, 5/25:6

*Social Security

SSD: (revised epilepsy Listing applies, not former Listing relied on by doctor, but a 2nd remand for further development of the record would serve no purpose where claim has been pending for 6 years and SSA can only find isolated pieces of arguably inconsistent evidence… remanded for immediate award of benefits pursuant to “credit as true” rule… Lynch) Jason S.N., 5/18:6; (obesity claim properly rejected… Morris affirmed (memorandum)) Shorter, 6/29:5; (finding of no “disability” affirmed… Lynch affirmed (memorandum)) Braun, 11/16:6; (claims properly rejected… Johnston affirmed (memorandum)) Napier, 11/23:8

*State Government

Board of Plumbers: (“minor repair” exception to plumbing work obviated need for permit, Board’s contrary ruling properly reversed… Gilbert affirmed (IOR I-3(c))) Hill v. Board of Plumbers, 6/29:4

Conservation easements: (Land Board approval not required for FWP acquisition of more than 100 acres/$100,000… AG Opinion overruled… opinion following expedited order) Bullock v. Fox, 3/2:4

Liquor licensing: (public convenience & necessity established for new truck stop/casino at Ramsay over 94 protests… HE Laura Cunningham) Love’s Casino 10/19:756, 10/19:7

Medical Examiners: (supervisory control denied as to Judge Krueger’s denial of Rule 12(b)(6) motion for dismissal from action alleging negligence and private & public nuisance for failing to deny or terminate license of psychiatrist who allegedly prescribed improper meds… public duty/quasi-judicial immunity arguments more properly first developed and argued below… order) Board of Medical Examiners v. Krueger, 11/16:1

*Taxes

Corporate income: (multinational corporation filing state income taxes under “water’s-edge” election entitled to 100% income exclusion for dividends under IRC 243, not just 80%… DOR/Reynolds reversed) Exxon Mobil v. DOR, 7/13:2

Property taxes: (communications network properly centrally assessed resulting in tripling taxes… Reynolds affirmed) Vision Net v. DOR, 8/31:2

Religious schools credit: (unconstitutionality ruling stayed 2018 tax year… order) Espinoza v. DOR, 1/26:1

*Torts

Defamation: (claims relating to letter to insurance agent’s clients erroneously stating that he was no longer appointed to represent insurer rejected on summary judgment for failure to show special damages for defamation or that the letter was defamation per se… Molloy) Salonen v. Jackson National Life Ins., 7/6:5

Fish pond breach: (4.5 million-gallon mountain pond constituted abnormally dangerous condition warranting strict liability, $313,230.40 verdict for downhill owners’ damages from breach upheld… Eddy affirmed) Covey v. Brishka, 7/27:1

Medical malpractice: (proposed expert properly found not qualified as to standard of care for Defendants as to failure to timely diagnose cancer… Rieger affirmed (IOR I-3(c))) Griffin v. Lewis and Nichols, 4/20:1; (tonsillectomy complications defense verdict affirmed over challenges to denial of summary judgment on liability, directed verdict on informed consent, denial of insurance disclosure… Newman affirmed (IOR I-3(c))) DeMoney v. Kaufman, 8/17:1; (verdict that neurosurgeon was not negligent in obtaining informed consent by failing to inform L5-S1 fusion patient that he had financial interest in OptiMesh or in the way he performed the surgery affirmed… Todd affirmed) Howard v. Replogle, 10/19:1

Mine trespass: (because there were no valuable mineral deposits on Subject Claims, Wheelis improperly granted summary judgment for trespass claimants in 2013 (summary judgment was basis of damages-only ruling by Cuffe in 2018 trial which resulted in $3,325,000 verdict for owners of unpatented mining claims crossed by tunnel constructed to access patented claims of proposed Montanore mine)… Wheelis/Cuffe reversed) Mines Management Inc. v. Estate of Bakie, 11/30:1

Trespass: (jury’s finding of trespass by daughter on mother’s land but that the trespass did not cause mother money damages and that mother was enriched at expense of daughter in amount of $35,000 did not preclude equitable relief of possession by mother and eviction of daughter… Krueger affirmed) Renz v. Everett-Martin, 10/26:1

Vehicle/cattle: (supervisory control of Bidegaray denied as to negligence rulings… order) Yellowstone Electric v. Bidegaray, 8/10:4

Vicarious liability: (county in which inmate died from DTs not liable for hospital’s negligence… Cuffe reversed) Stricker, PR of Longsoldier v. Blaine Co., 12/7:1

Wrongful discharge: (claim by Public Works Director precluded by $30,339.84 and resignation settlement agreement… Parker affirmed (IOR I-3(c))) Hirsch v. Choteau, 1/12:2; (fired policeman who has not exercised right to hearing before Police Commission to clear name of stigmatizing charges cannot claim violation of due process rights… Cavan affirmed (memorandum)) Caraway v. Columbus, 4/27:7; ($80,762 verdict for surgical technologist affirmed… invasion of privacy, defamation claims properly dismissed on summary judgment, JML… Olson affirmed (IOR I-3(c))) Jergens v. Marias Medical Center, 5/11:1; (good cause to terminate based on insubordination by failure to communicate with supervisor as instructed… Watters affirmed (memorandum)) Mickealson v. Cummins Inc., 11/23:7

 

*Trusts

Interpretation: (siblings’ dispute over apartment occupation claims properly resolved per District Judge’s interpretation of father’s trust agreement regardless of whether sister was denied due process in Justice Court… Seeley affirmed (IOR I-3(c))) Daniel & Stephanie Erving v. Mary Florence Erving, 7/20:2

*Utilities

Garbage: (PSC properly considered competition in determining public convenience & necessity, in contrast to prior practice of not considering competition until after finding public need… substantial evidence supported granting certificate… Krueger affirmed) McGree Corp. v. PSC and L&L Site Services, 4/6:1

PSC: (writ of prohibition properly issued barring PSC from propounding discovery requests in garbage collection case following ex parte communications between staff attorney and counsel for opponents, but writ of mandate improperly issued removing entire PSC from case and ordering independent hearing examiner… Reynolds affirmed, reversed) Allied Waste Services dba Republic Services v. Big Foot Dumpsters, 8/24:4

Wind farm: (preliminary injunction granted halting proposed 79.9 MW project on farm land pending trial… $50,000 cash bond allowed over request for $181 million… Oldenburg) Dana’s Great Idea v. Crazy Mountain Wind, 4/6:5; (suit to halt proposed 79.9 MW project dismissed without prejudice following preliminary injunction and developers unable to obtain financing as a result dropped out… landowners’ counterclaims dismissed as untimely compulsive… Oldenburg) Dana’s Great Idea v. Crazy Mountain Wind, 9/21:5

*Verdicts

Auto: (defense, intersection ambulance/auto, fractured hip) Piper v. American Medical Response Ambulance Service, 1/19:8; (MVA Plaintiff who won $10,000 verdict and then settled with tortfeasor’s insurer for $50,000 liability limit with stipulation to vacate and dismiss with prejudice not entitled to 2nd bite at apple on damages, but may pursue UTPA claims to the extent they do not require relitigation of underlying damages, UIM only triggered if damages exceed $50,000… Menahan) Reisbeck v. Farmers Ins. Exchange, 2/2:6 ($750,342, motorcycle/pickup MVA, admitted liability, chiropractor’s lost income) Hudson v. Progressive Northwestern Ins., 5/4:6; ($15,000, rear-end MVA, admitted liability, contested causation/damages, cervical strain, pain) Edmiston v. Raney, 8/31:4; ($6,000, foot run over by pickup, admitted negligence, fractures/soft-tissue) Williams v. Landi, 11/23:6

Auto/pedestrian: (defense, UIM, auto/pedestrian, alleged brain injury) Wenger v. State Farm Mutual Auto Ins., 11/30:4

Contract: ($135,200,191.29 to Montana ISO Frontline Processing against Global Payments Direct for breach of contract and wrongful withholding of “merchant adjustments” under guise of indemnification for legal fees incurred in defending regulatory action) Frontline Processing Corp. v. Global Payments Direct, 10/5:8

Employment contract: ($220,000 verdict for nurse whose contract for new job was pulled based on opinion of former co-worker that she would not be a good fit affirmed over appeal issues by both sides… Kutzman affirmed) Warrington v. Great Falls Clinic, 5/18:1 FELA/LIA/FRSA: ($2,171,154.50 verdict for termination of conductor who claimed injury in fall from locomotive over RR’s contention that he falsified report of off-work injury upheld… $42,732.47 prejudgment interest added to $500,000 emotional distress award plus $657,107 attorney fees, $81,713.22 expenses, $233,993.70 expert fees, $23,308.94 taxed costs… Christensen) Wooten v. BNSF, 5/4:6

Fish pond breach: (4.5 million-gallon mountain pond constituted abnormally dangerous condition warranting strict liability, $313,230.40 verdict for downhill owners’ damages from breach upheld… Eddy affirmed) Covey v. Brishka, 7/27:1

Lending breach: (defense, alleged ag lending breach) Herden v. McCone Co. FCU, 8/24:11

Marina boat slip rental: (marina violated CPA in terminating boat slip rental but did not cause damages… Plaintiffs claim $500 statutory damages, equitable relief in form of slip rental, attorney fees) Kubicka v. Frazier Industries dba Yacht Basin Marina, 3/30:9; (equitable relief in form of injunction compelling marina to provide boat slips and attorney fees denied following verdict finding that marina operator violated CPA in terminating sailboat slip rental but the violation did not cause damages… Menahan) Kubicka v. Frazier Industries dba Yacht Basin Marina, 5/4:5

Medical malpractice: (tonsillectomy complications defense verdict affirmed over challenges to denial of summary judgment on liability, directed verdict on informed consent, denial of insurance disclosure… Newman affirmed (IOR I-3(c))) DeMoney v. Kaufman, 8/17:1; (ophthalmologist malpractice, $5,766 cost of surgery and 2 pairs of glasses, admitted error as to proper lens power in 2nd cataract surgery) Bonds v. Cosgrove, 9/28:6; (verdict that neurosurgeon was not negligent in obtaining informed consent by failing to inform L5-S1 fusion patient that he had financial interest in OptiMesh or in the way he performed the surgery affirmed… Todd affirmed) Howard v. Replogle, 10/19:1

Real estate: (defense, dispute over $440,000 earnest money following ranch sale failure) Covenant Investments v. Remington Road Flathead County Trust, 11/23:7

Sex abuse: ($300,000 ($200,000 for negligent supervision, $100,000 for negligent misrepresentation), sexual abuse of youth ranch resident/patient) Peterson v. Yellowstone Boys and Girls Ranch, 1/5:4

Slip & fall: (defense (25/75 negligence), train platform snow/ice, L2 fracture) Cantrell v. Amtrak, 5/18:7; (defense, ice/snow, fractured hip) Nolan v. Billings Clinic, 11/2:6

Trespass: (jury’s finding of trespass by daughter on mother’s land but that the trespass did not cause mother money damages and that mother was enriched at expense of daughter in amount of $35,000 did not preclude equitable relief of possession by mother and eviction of daughter… Krueger affirmed) Renz v. Everett-Martin, 10/26:1

Wellsite fence: ($697,671.45 after present-value reduction, cattle damages and emotional distress, illegal fence around oil wellsite, failure to maintain fence) Stene v. Somont Oil, 8/10:6

Wrongful death/survivorship: ($2 million gross (80%/15% fault by Defendants, 5% by Plaintiff), child crushed by speeding driver in trailer park) Shrouds v. Curley, 4/13:6

Wrongful discharge: ($80,762 verdict for surgical technologist affirmed… invasion of privacy, defamation claims properly dismissed on summary judgment, JML… Olson affirmed (IOR I-3(c))) Jergens v. Marias Medical Center, 5/11:1

Wrongful resuscitation: ($409,100.29) O’Donnell as PR of Estate of Knoepfle v. Harrison, 6/1:7

 

*Water

Abandonment: (claims of abandonment through irrigation nonuse or “illegal” use properly rejected… Fritsch/Ritter affirmed) Claimant: Gene Klamert, 5/18:2

Implied claims: (Court failed to properly apply its implied claims test in rejecting implied stockwater claims vis-à-vis irrigation rights… Ritter reversed (IOR I-3(c))) Claimants: Sampson et al, 5/25:4

Municipal: (presumption of non-abandonment properly found overcome in establishing volume for small town… PTO properly read more broadly than asserted by Town… McElyea affirmed) CLAIMANT: Corps of Engineers; City of Fort Peck, 8/3:2

Pollution: (fact issues preclude summary judgment upholding permit to discharge rain & snow water surrounding coal mine into Yellowstone River tributaries… Seeley reversed) MEIC v. DEQ and Western Energy, 9/14:2

Water Use Act: (does not provide private right of injunction, only entities and officials named in §85-2-114 may petition for judicial enforcement… R. McElyea affirmed) Lyman Creek LLC v. Bozeman, 10/19:2

 

*Workers’ Compensation

§703(2) impairment classifications: (constitutional) Hensley v. MSF, 8/24:14

Acceptance of liability: (fact issues preclude summary judgment as to whether current cervical DDD is same condition for which insurer accepted liability in early 2000s… Sandler) Brower v. Valor Ins./MIGA, 10/26:7

ARD: (logger timely filed ARD OD claim, ARD was OD for which insurer liable, Claimant entitled to medical/impairment award/PTD/costs but not attorney fees or penalty despite Court’s misgivings… Sandler) Rosling as PR of McMillan v. Associated Loggers Exchange, 3/23:10

Attorney fees: (claim that attorney has been paid enough resolved by stipulation… Wendy Cash, Standing Master) Olson v. Wallace, 8/31:5

Course & scope: (area of shared parking lot at mall was part of grocery’s worksite, baker’s injury while returning from break in car within course & scope… denial reasonable as issue was unsettled despite withdrawn 2006 WCC ruling… Sandler) Amundsen v. Albertsons, 2/2:9

CRPS: (Petitioner has CRPS caused by job accident… current treating physician’s diagnosis under Guidelines given more weight because it was supported by the other medical evidence while opinions of physicians who examined him under §605 and treating physician who agreed with them were not… Sandler) Ward v. Victory Ins., 8/17:6

CTS: (insurer properly unaccepted liability for CTS from 2008 rear-end MVA because initial acceptance was based on mutual mistake that Petitioner had both hands on wheel when in fact she was holding phone with one hand… Petitioner did not establish that she suffered from postconcussive syndrome 2015-present, is not TTD or PTD… Sandler) Leys v. Liberty Mutual Ins., 8/17:7

Disability: (Petitioner not entitled to TTD because he was MMI when benefits were terminated and has remained at MMI, but is entitled to PTD/medical from 1/15… Sandler) Schieber v. Liberty Northwest Ins., 9/21:6

Employment relationship: (Petitioner in Montana MVA in W. Virginia company vehicle did not have employment relationship with company, company not required to furnish comp, UEF not liable… Sandler) McKinley v. Pressure Washing Systems, 2/9:9

Filing time: (security guard’s claim of nose injury from altercation with psychiatric patient properly denied for failure to file written claim within the 3 years provided for lack of knowledge of disability… sketchy Daily Activity Report did not constitute notice… Sandler affirmed) Richardson v. INA, 7/20:1

IME: (open-ended order for neurologist/psychiatrist IME to assess possible conversion disorder denied… good cause not shown to vacate scheduling order to allow more time to schedule IME… Sandler) Carlson v. MSF, 6/22:7; (DLI order to attend 2-day psychiatric IME affirmed, but modified to require psychiatrist to disclose raw data & testing materials… Sandler) Neisinger v. New Hampshire Ins., 9/7:11; (§605 psychiatric exam properly denied because nothing suggests that anxiety/insomnia complaints are causally related to accepted leg claim (although Rule 35 “good cause” incorrectly imputed to §605 “relevant”/”appropriate”)… insurer not obligated to pay for exam/treatment of anxiety/insomnia before obtaining a §605 exam… Sandler affirmed (other grounds), reversed) Neisinger v. New Hampshire Ins., 11/23:1

Injury: (Petitioner injured shoulder in ladder fall, giving more weight to treating orthopedist than IME occupational medicine physician, but denial was still reasonable in light of other factors… Sandler) Pate v. MSF, 1/26:5

Notice: (whether 30-day notice requirement may be equitably tolled under latent injury doctrine depends on whether it was reasonable for Petitioner to believe she did not suffer an injury which would require treatment… Sandler) Better v. MHN, 5/18:8

Overuse syndrome: (left shoulder condition is a compensable overuse syndrome caused by inability to fully use right shoulder after compensable injury… Sandler) York v. MACoWCT, 1/19:9

Pain: (treating physician’s opinion that pain stems from job injury given more weight than IME physician’s… pain meds constitute primary medical services… Sandler) Hagberg v. Ace American, 4/20:7

Penalty: (liability for ice fall on employer’s leased parking lot properly initially denied because whether “premises rule” includes a leased, shared parking lot was not settled (will be decided when the issue is actually before the Court) and because of fact disputes at time of investigation as to where and when employee fell… Petitioner not entitled to penalty… Sandler) Stevens v. MSF, 10/26:5

Privacy: (no constitutional tort in communications by County employee comp adjuster and contract nurse with treating physician and pharmacist on which injured Deputy bases claim of privacy breach… feeling disappointed and upset at not having opportunity to participate in discussions not compensable detriment or injury… summary judgment for Defendants… settled for $40,000 in appellate mediation… Halligan) Newsom v. Missoula Co., 2/2:7

Ripeness: (PTD claim based on sequelae of 3 injuries is premature for lack of evidence of MMI… TTD claim premature absent mediation… Sandler) Loranger v. MSF, 12/21:8

Statute of limitations: (petition for hearing challenging UEF’s “employee” determination received by Court 1 day after limitations period had run is time-barred, equitable tolling not applicable as current §520 is not ambiguous and this is simply a case of neglect, time not extended by 3 days for mailing… UEF’s “employee” determination is final… Sandler) Hideaway Builders v. Rasmussen, 8/10:6

Stipulated judgments: (Rule 60 1-year limit applies to 2018 request to set aside 2014 stipulated judgment, not contract law for mere approval of compromise settlement… Sandler) Heath v. MSF, 3/16:4