Montana Law Week Subject Index- 2020
*Administrative Law
FWP grievance: (FWP employee whose promotion to Enforcement Division Chief was rescinded in favor of competitor failed to exhaust grievance remedies required for judicial review… Reynolds affirmed) Flowers v. Board of Personnel Appeals, 6/13:2
*Appellate Procedure
Briefing schedule: (State’s request to halve briefing schedule in appeal of arbitration denial in light of alleged (and denied) delay tactics denied, but no routine extensions to be granted… order) State v. Philip Morris, 7/25:3
Municipal Court appeal: (of cell phone conviction properly dismissed for failure of jurisdictional amount of fine… Parker affirmed (IOR I-3(c))) Sandoval, 9/5:5
Original jurisdiction: (declaratory judgment regarding impact on PERS unfunded actuarial liability by county’s decision to privatize health center denied… order) Public Employees’ Retirement Board v. L&C Co., 4/25:3
*Arbitration
Insurance: (insurance policy requiring arbitration of “any dispute” arising out of policy and “service-of-suit” clause allowing direct suit in Federal Court for failure to pay any amount claimed reconciled in favor of requiring arbitration of claims for reimbursement of wrongful imprisonment and wrongful conviction settlements… Christensen) MACo v. Certain Underwriters at Lloyds, 11/14:10
*Asbestos Claims Court
Case management order assigning judges: Asbestos Litigation, 8/15:12
*Attorney Fees, Costs
CJA reimbursement: (order is a final order not dependent on deceased’s conviction, is beyond application of the abatement ab initio rule… first impression… Molloy affirmed) Robertson, 11/21:4
Discovery sanctions: ($19,950.25 fees/costs awarded Plaintiff for Defendants’ failure to produce requested financial information prior to summary judgment on punitives claims in UTV child death case, with deductions recommended by Plaintiffs’ expert and over objection by Defendants that if the law requires fees when punitives claim was subsequently dismissed then “the law is a ass.”… Gilbert) Smith as PR of Kunnemann v. Burke, 6/13:3
Duplicate fees: ($17,450 duplicate fees improperly awarded between 2 judges in related cases… $625 fees-for-fees improperly awarded… Larson reversed (IOR I-3(c))) Two Rivers Apartments v. Aultco Const., 6/20:2
Right to know: ($10,052.70 properly awarded to newspaper and TV station for role in disclosure of officers disciplined for sex with City clerk… fees-for-fees and appeal fees denied… Harris affirmed) Unidentified Police Officers 1, 2, and 3 v. Billings, 1/4:2; ($511,463.40 properly awarded to 2 Class Counsel following settlement of University System employee benefits class action, over requested $3,610,386… Plaintiffs entitled to post-judgment interest despite refusing to accept pending appeal… R. McElyea affirmed)
*Attorney Practice
Bar admission: (temporary rules for provisional admission adopted to accommodate candidates unable or unwilling to sit for the July exam due to COVID-19… order) Rules for Admission to the Bar of Montana, 6/20:4; (petition for COVID diploma admission or additional safety measures during July exam denied… order) Rules for Admission to the Bar of Montana, 7/18:7; (comments invited on Temporary Rules amendment to remove requirement for supervising lawyer… order) Rules for Admission to the Bar of Montana, 7/25:4
Discipline: (supervisory control to bar COP from new complaint while attorney is on suspension denied… order) Morin, 1/11:3; (Linda Harris to be publicly censured by Supreme Court for failing to keep clients informed… order) Harris, 2/1:1; (Tara Rose-Miller disbarred for misappropriating IOLTA funds… order) Rose-Miller, 2/1:1; (Patrick Begley suspended for entering an appearance while on inactive status and making false statement to Supreme Court… order) Begley, 3/7:2; (proceedings against Brandon Hartford deferred during disability status… order) Hartford, 3/7:2; (Tina Morin disbarred for soliciting false testimony from a trial witness, failing to promptly inform clients about their costs, charging clients for legal research and appellate brief writing… “vitriolic and outrageous” communications with other attorneys not a violation of RPC but aggravating factor in disbarment recommendation… conduct perpetuated in Objections by baselessly accusing COP Chairman of “reign of terror,” “enraged beyond the capacity for rational or logical thought”… order) Morin, 4/4:6; (Patrick Begley suspended for not less than 7 months concurrent with prior suspension for failure to comply with terms & conditions of prior suspension, failure to again comply with conditions holding this matter in abeyance… order) Begley, 4/11:5; (Tina Morin’s petition for rehearing of disbarment time-barred… order) Morin, 5/9:4; (Casey Nixon suspended for minimum of 1 year… order) Nixon, 8/8:5; (Jennifer Webber suspended… order) Webber, 11/21:1; (Patrick Sandefur disciplined by COP admonition for delays in responding to client grievances (which were dismissed), not suspended for 30 days as recommended by COP… order) Sandefur, 11/21:1
*Banking, Commercial Paper
Hospital patient refunds: (claims against hospital for issuing patient refunds via prepaid debit cards properly rejected on summary judgment… Todd affirmed) Bratton v. Sisters of Charity of Leavenworth Health System, 4/18:1
Medical records fees: (Montana limits on charges for medical records applicable to paper copies requested by patients, not their attorneys, and not to electronic records… putative class action alleging overcharges dismissed… Molloy) Deming et al v. Ciox Health et al, 8/1:7
*Bankruptcy
Exception from discharge: (proper for false representations to lender… Morris affirmed (memorandum)) Duffie v. Gotcher, 4/18:5
Exculpation Clause: (Yellowstone Club founder’s challenge to Exculpation Clause releasing certain non-debtors from liability for acts or omissions arising out of Ch. 11 proceedings improperly dismissed as equitably moot contrary to law of the case, but Clause — reviewed on the merits by Panel — nevertheless held valid… appeal not dismissed for failure to fully respond to order to show why appeal should persist in wake of purported global settlement… Haddon affirmed (other grounds) Blixseth v. Credit Suisse, 6/20:8
*Civil Procedure
Attorney withdrawal: (no error in proceeding with divorce trial without requiring husband’s lawyer to provide §37-61-405/Rule 10 notice where wife’s conduct required her attorney’s withdrawal… Harris affirmed (IOR I-3(c))) Marriage of Hoffman, 2/8:1
Class action: (properly certified in challenge of City “franchise fees” for water, wastewater, sold waste disposal… Pinski affirmed) Houser v. Billings, 3/7:1; (certified in short-term medical insurance case alleging use of Data iSight software to discount medical charges to an amount below what was promised in the policies… Cavan/Watters) Butler v. Unified Life Ins., 3/14:9; (2nd motion to certify a class by Plaintiff suing background checks firm for “obsolete” information again fails for lack of showing of superiority… Halligan affirmed (IOR I-3(c))) Ascencio v. Orion International, 6/6:1; (certification granted for wrongful premium overcharge claims relating to “Chamber Choices” health insurance program… Halligan) The Depot v. Caring for Montanans, 7/4:7; (Libby asbestos class action properly remanded to State Court based on “local controversy” exception to Class Action Fairness Act jurisdiction… Morris affirmed (memorandum)) Aarstad v. BNSF, 11/7:7
Damages: (certified to Montana Supreme Court whether emotional distress damages are available for personal property damages or loss, following $62,750 verdict for unspecified non-property damages for theft of vehicle from repair facility) Childress v. Costco, 10/24:3
Default: ($3,457,920 default properly entered against prisoner for bar altercation causing brain damage… drawing of penis with inflammatory comments on Acknowledgment purported to be “solid denial in any language” does not meet pleading requirements… J. Brown affirmed (IOR I-3(c))) Overby v. Kingman, 1/11:2; ($237,659.60 wrongful discharge judgment properly not set aside based on excusable neglect where registered agent received summons but HR Director initiated internal investigation rather than company filing appearance or answer… Townsend affirmed) Frye v. Rosebud Forest Products, 1/25:1; (default judgment for $375,000 properly entered against Canadian mining company over claim of surprise abandonment by Montana attorney… $128,758.57 prejudgment interest award properly rescinded because factual dispute would exist at trial as whether stocks in Montana venture were truly worthless at time of purchase given Canadian Cease Trade Order… Berger affirmed (IOR I-3(c))) Litwin v. OT Mining, 3/28:4
Discovery: (motion to compel Defendants’ financial information in discovery stage of ATV death case granted, with protective order governing who may access it… Gilbert) Collette Smith as PR of Estate of Nevaeh Kunnemann v. Dennis Burke, 1/11:5; (attorney fees/costs awarded for failure to produce requested financial information prior to summary judgment on punitives claims in UTV child death case… fact issues preclude summary on punitives as to 2 Defendants, granted as to 1… claim that distribution of Trust assets following death of Trustee was fraudulent transfer rejected… request that assets be held by Court pending resolution of case rejected… Gilbert) Smith as PR of Kunnemann v. Burke, 5/2:9; (suit to halt sewer system dismissed (without prejudice) as sanction for prejudicial dilatory discovery abuse… any re-filing will be subject to a surety bond… Halligan) Larson v. Seeley Lake Sewer Dist., 5/30:7; (vehicle rental company compelled to produce thoroughly educated & prepared 30(b)(6) designees to address topics listed in wrongful death Plaintiffs’ notices (all topics, not just topics specifically identified in Order, to avoid further pettifogging and taking a mile when given an inch), failure to provide knowledgeable designees shall be contempt of court… given Plaintiffs’ failure to specifically request what they now seek and that the materials were ultimately disclosed, sanctions under 37(c) are not appropriate, any other result would value the discovery motion more than the discovery… Molloy) Guinnane v. Dobbins and Enterprise Rent-A-Car, 8/22:7; (investigative report and email relating to surveillance of MVA Plaintiff prepared for Defendants’ insurer discoverable under Rule 26(b)(1)… other requested documents not relevant to claims or defenses… Johnston) Yakomow v. Crapo Trucking, 10/17:8; (wrongful discharge Plaintiff required to provide complete computation of damages requested, tax returns under protective order, information relating to his business… Defendant awarded full $5,555.50 fee request… Molloy) Milanovich v. Quantpost, 10/31:10
Intervention: (in quiet title action properly denied creditor who docketed judgment after Plaintiff’s $11 million judgment was docketed… Souza affirmed (IOR I-3(c))) Three Blind Mice v. Price, 11/28:1
Judicial estoppel: (burst City waterline damage claims barred by failure to disclose potential claims in Ch. 13 case, not saved by re-opening/amending 2 years later… Souza affirmed) Kucera v. Billings, 2/15:1
Necessary party: (supervisory control of Bidegaray denied as to refusal to dismiss Board of Environmental Review from mining permit case) Montana Board of Environmental Review v. Bidegaray, 7/18:6
Order of protection: (properly entered for store cashier against customer… Walker/Harris affirmed (IOR I-3(c))) Herrington v. Rogers, 5/30:3
Pleadings: (ranchers’ amendments to Answer in opposition to neighbors’ challenge to wind farm properly denied as untimely but counterclaims alleging abuse of process improperly dismissed with prejudice as compulsory, may be asserted in independent action… Oldenburg affirmed, reversed) Diana’s Great Idea v. Jarrett, 8/15:1
Post-judgment interest: (continued to accrue on paid $223,485.12 employment contract judgment during stay pending appeal regardless of who appealed first or who requested stay or cross-appealed… Kutzman reversed) Warrington v. Great Falls Clinic, 7/11:1; (on $5 million settlement judgment in State liquor store breach of contract claim should be awarded pursuant to Montana law as stipulated, not federal law as determined by Judge, and at 10% as contended Plaintiff, not 0% as contended by State… Haddon reversed (memorandum)) LL Liquor dba Lolo Liquor v. Montana, 11/28:5
Preliminary injunction: (stay in road access dispute pending resolution of suit against title insurer improperly issued without a hearing… Gilbert reversed) Flying T Ranch v. Catlin Ranch, 5/2:2
Receivership pendente lite: (improperly appointed in challenge to Glacier Co. Commissioners’ and Treasurer’s alleged mismanagement… Pinski reversed
Settlement: (formalized agreement based on signed handwritten agreement between MSP prisoner and parents of his granddaughter whom he was convicted of sexually assaulting properly declared enforceable… Rieger affirmed (IOR I-3(c))) BD and Jason & Kelly Deming v. Mark Deming, 8/22:3
Statutes of limitation: (MTLA request to toll for pandemic denied… order) MTLA, Petitioner, 6/6:1; (properly held to bar claims against 2 latest possessors of Camaro stolen in 2003… $16,000 default against first 2 possessors… Townsend and Marks affirmed (IOR I-3(c))) Margitan v. McAfee, 12/26:4
*Constitutional Law
False arrest: (JP who called Deputy to arrest witness in protective order case whom object of protective order asserted was “not a legal citizen” and the Deputy who effected the arrest not entitled to immunity from §1983 suit because it was well-established that unlike illegal entry into the US, illegal presence is not a crime… Watters affirmed) Miguel Angel Reynaga Hernandez v. Pedro Hernandez and Skinner, 8/15:7
Officer shootings: (§1983 claims against City Officers who shot son holding AR-15 who was responding to cries of mother being detained for mental evaluation in warrantless entry survive summary judgment in part, rejected in part… claims against City survive in part, rejected in part… claims against County investigators and County rejected… Christensen) Pengelly v. Zimmerman, 4/4:11
Prisoner pat-down sexual assault: (model instruction on excessive force misstated elements of 8th-Amendment violation arising from sexual assault… defense verdict on claim of sexual assault during pat-down search reversed, remanded for new trial… no abuse of discretion in not continuing trial sua sponte to allow Plaintiff to subpoena a witness… Christensen reversed, affirmed) Bearchild v. Pasha, 1/25:5
*Contracts
Existence: (Judge incorrectly found that no contract existed contrary to assertions of both parties… Harris reversed (IOR I-3(c))) Kalfell v. ABC Seamless of Billings, 4/25:1
Forbearance agreement: ($7,535,593.18 attorney fees, $8,067,405.60 prejudgment interest, $176,063.19 costs awarded on previous $10,595,414.16 judgment for breach of bank’s Forbearance Agreement with office products entity, applying Montana reciprocity law for fees (with 40% contingency), Michigan law for interest, Montana law for costs, plus post-judgment interest at 10% per 2005 statute… Dayton) Masters Group International v. Comerica Bank, 6/20:6; (Judgment for $26,374,576.13 with 10% post-judgment interest under 2005 statute for breach of bank’s Forbearance Agreement with office products entity reaffirmed… appeal bond set at 130% of amount of Judgment for appeal through Montana Supreme Court (not beyond)… Dayton) Masters Group International v. Comerica Bank, 8/1:5
Gravel pit sublease: (LLC lacked standing to sue over gravel pit sublease because 6 years exceeded reasonable time to wind up, new entity with same name created during litigation did not revive original… sole member lacked standing to sue in individual capacity as he was not a party or 3rd-party beneficiary to the disputed contract… tort claims relating to failure to pay royalties or reclaim site to minimize tax exposure properly dismissed for failure to show duty of care distinct from contract… Best affirmed) Deschamps v. Farwest Rock LTD, 10/31:1
Hacked phone charges: (unjust enrichment improperly found in favor of phone provider and against church for $47,977 charges for calls to Africa by hacker… Eddy reversed) Montana Digital v. Trinity Lutheran Church, 10/10:1
House construction: ($135,000 verdict for breach of contract with builder affirmed… Gilbert affirmed (IOR I-3(c))) Lutman v. Ames, 5/23:4
Investment agreement: ($136,867.92 judgment properly awarded Plaintiff in dispute over ambiguous investment agreement but no basis for award of $55,000 to Defendant… remanded for further consideration of fees for Defendant prevailing on claim that Plaintiff denied access to financial information… Eddy affirmed, reversed) AWIN Real Estate v. Whitehead Homes, 9/12:1
Noncompete covenant: ($2,353,463 damages properly awarded against CPAs who left with client list to start new firm, jointly & severally rather than individually (thinly-veiled attempt to invalidate Covenant as grossly unreasonable)… prejudgment interest properly awarded except 1 month too soon… discovery sanctions properly denied… Eddy affirmed) Junkermier, Clark, Campanella, Stevens v. Alborn, Uithoven, Riekenberg, Bateson, and Veltkamp, 7/18:1
Oral car parts contract: (dispute properly resolved in favor of Defendant in bench trial… Harris affirmed (IOR I-3(c))) Kuchera v. Brady, 2/1:3
Prepayment: (purchaser properly held not to have fully performed under note or indenture by sellers’ acceptance of full prepayment amount while additional tax liability remained in dispute, but ambiguous prepayment clause improperly construed in favor of sellers resulting in damage award 8 times the stipulated federal tax liability… Wilson affirmed, reversed) First National Properties v. Hillstead Trusts, 8/22:1
Trailer park lease: (fact issues as to whether lessee was acting as lessor’s property management agent as to spaces rented to 3rd parties preclude summary judgment on whether late-discovered lease was valid or properly terminated pursuant to Mobile Home Lot Rental Act… lessee permitted to add unjust enrichment counterclaim following lessor’s summary judgment motion… Recht) Unified Industries v. Bitterroot C Corp., 9/12:3
*Corporations
LLC: (LLC lacked standing to sue over gravel pit sublease because 6 years exceeded reasonable time to wind up, new entity with same name created during litigation did not revive original… sole member lacked standing to sue in individual capacity as he was not a party or 3rd-party beneficiary to the disputed contract… tort claims relating to failure to pay royalties or reclaim site to minimize tax exposure properly dismissed for failure to show duty of care distinct from contract… Best affirmed) Deschamps v. Farwest Rock LTD, 10/31:1
*Courts
Admiralty jurisdiction: (properly rejected for complaint for exoneration/limitation of liability for boating accident on Holter Lake… Haddon affirmed) Hill v. LLR Inc., 12/5:8
Choice of law: (Montana law properly held to govern claims involving death of Montanan in ND oil field, federal decisions distinguishable… Rieger affirmed) Buckles v. BH Flowtest, 11/28:1
Contempt: (telling Judge he is “on thin ice” does not constitute contempt, record does not support conclusion that attorney’s actions were disorderly, contemptuous, and insolent such that they disrupted the judge substitution hearing… Pinski reversed (order)) LaFountain v. Pinski, 5/9:2
Dismissal: (of 2 felony cases with prejudice on basis that State was unprepared for trials after defendant in 1st case in stacking priority failed to timely appear was abuse of discretion… Christopher reversed (IOR I-3(c))) Mueller, 6/6:5; (class action claims against used car collection agency properly dismissed… Whelan affirmed (IOR I-3(c)))
Judge disqualification: (proceeding allowed as to alleged bias in rifle discharge death case on reconsideration of order denying it as untimely… order) State v. Trude, 1/18:1
Judge substitution: (time suspended during removal to federal court (1st impression)… Defendant had 10 days remaining of 30-day period following remand, motion improperly held untimely… Bidegaray reversed) Sage Financial Properties v. Fireman’s Fund Ins., 2/29:1; (motion untimely in scenario with 2 orders calling retired Judge after retirement of presiding Judge and purported recusal of successor… McLean affirmed (IOR I-3(c))) Shea v. Babb, 7/25:1
Jurisdiction: (whether Oklahoma corporation is subject to Montana specific jurisdiction in suit stemming from ND oil well death of Montanan depends on whether Plaintiff can prove at trial liability for torts of independent contractors… Rieger reversed) Buckles v. Continental Resources, 5/2:1; (personal jurisdiction properly found over Pennsylvania insurer that refused to defend/indemnify Ohio hotel management company and Montana hotels in hotel employees’ service charge class action which settled for $4,031,519… contested appealability of denial of motion to dismiss for lack of personal jurisdiction resolved by deeming it a petition for supervisory control… Vannatta affirmed) Gateway Hospitality Group v. Philadelphia Indemnity Ins., 5/23:1; (supervisory control over Reynolds denied as to jurisdiction over Volkswagen parent companies in air pollution tampering case… order) Volkswagen AG v. Reynolds, 8/29:1; (personal jurisdiction defense by New York lawyer in legal malpractice case waived by failing to assert it before moving to set aside default… Christopher reversed (IOR I-3(c))) Juris v. Cantrell, 9/5:1
Trial continuance: (supervisory control summarily granted in support of request to continue jury trial due to counsel’s high risk of COVID exposure and contraction… order) Burden v. Kutzman, 7/11:7
Trial public access: (supervisory control of Larson denied as to limiting public in-person access to rape trial due to COVID… order) Strommen v. Larson, 7/11:6
Venue: (forum selection clause in employment contract is enforceable, suit transferred to employer’s home state of Georgia… Molloy) Fayle v. TSYS Merchant Solutions, 7/4:12
Vexatious litigant: (wrongful lien judgment affirmed… Defendant declared vexatious litigant, 1984 order prohibiting filings without leave reinstated… Krueger affirmed (IOR I-3(c))) Dahood v. Lussy, 5/9:4; (intervenor County’s error in denominating request for vexatious litigant declaration a cross claim instead of counterclaim did not invalidate the request as it was sufficiently stated and understood, denial of Plaintiff’s motion to dismiss vexatious litigant declaration affirmed… but Plaintiff improperly subjected to Rule 11 sanctions for challenging the cross claim issue… Cybulski affirmed, reversed (IOR I-3(c))) Sayers v. Worral, 7/25:2; (Claims stemming from guardianship/conservatorship disputes properly rejected, Plaintiff properly declared vexatious litigant… Johnston/Morris affirmed (memorandum)) McCann v. Taleff, 11/7:7
*Crime, Criminal Procedure
Attorney substitution: (properly denied for assault with weapon Defendant… Manley affirmed) Khongwiset, 8/29:3
Assault: (right to self-representation not denied at omnibus hearing… new trial properly denied based on girlfriend’s post-trial recantations… assault with weapons/aggravated assault convictions affirmed… Deschamps affirmed) Jones, 1/18:2
Assault on officer: (broken BB gun pointed at officer was not a “weapon” capable of producing death or serious injury… conviction reversed… Best reversed) Stillsmoking, 6/20:4
Assault with weapon: (Prosecutor’s “musings” about first aggressor instruction was not misconduct in overall context of closing, nothing to which attorney needed to object… McMahon affirmed (IOR I-3(c))) Warren, 5/2:7
Attempted deliberate homicide/tampering: (stabbing and disposing of knife convictions affirmed… Kutzman affirmed) Trujillo, 5/23:5; (conviction in asserted justifiable stabbing of friend affirmed over challenges to “purposely or knowingly” instruction and Prosecutor’s credibility comments… Boucher affirmed) St. Marks, 7/4:4
Banishment: (convicted rapist’s banishment from 7 counties stricken by concession… Cybulski reversed… order) Jeffords, 12/19:3
Bond: (constitutional challenges to $31,019.60 bond in animal cruelty case waived by failure to raise below… Pinski affirmed (IOR I-3(c))) Polejewski, 11/14:9
Competency: (involuntary medication properly ordered to bring delusional homicide defendant to fitness to proceed… petition for supervisory control considered as petition for injunction in light of both factual and legal issues… Seeley affirmed) Barrus v. Seeley, 1/25:4
Cumulative errors: (priming/exploiting jurors’ attitudes about domestic violence despite dismissal of PFMA/stalking and extraneous evidence portraying Defendant as a stalking liar before he testified require reversal of solicitation-to-tamper conviction, remand for retrial… McMahon reversed) Smith, 12/12:3
Deferred prosecution: (Town provided justification for $25 administration fee as a “reasonable condition” of a DPA… Christopher affirmed (IOR I-3(c))) Coleman, 6/13:2
Deliberate homicide: (Defendant’s lawyer may have had good reason not to object to evidence of abuse of wife but in any event no prejudice as evidence was overwhelming that he threw victim off bridge as opposed to victim falling… Wilson affirmed (IOR I-3(c))) Rice, 1/18:4; (deliberate homicide and PFMA convictions affirmed over challenges to joinder of counts and exclusion of victim’s meth use and out-of-court statements (some erroneously admitted but harmless error)… Townsend affirmed) Gomez, 4/11:5; (no abuse of discretion in denying challenge of panelist for cause in triple homicide case… Jones affirmed (IOR I-3(c))) LeCou, 8/1:3
Deposition of witness: (who declines interview by PFMA Defendant properly denied… Jenks affirmed) Daenzer, 6/6:4
Dog endangering livestock: (conviction of owning dog that killed ewe and order that it be euthanized affirmed… Cantin/Gilbert affirmed (IOR I-3(c))) Cross, 5/9:9
Double jeopardy: (not violated by assault resulting in serious bodily injury in Indian Country after guilty plea to felony child abuse… Morris affirmed (memorandum)) Garcia, 11/28:7
Drugs: (meth distribution conspiracy sentence affirmed… Watters affirmed (memorandum)) Rivera-Munoz, 1/11:6; (probative value of prior DUIs introduced to show that Defendant lied to trooper and lacked credibility substantially outweighed by risk of unfair prejudice… conviction reversed, remanded for new trial… no need for plain error review of vouching of co-Defendant/State’s witness) Clausen, 5/2:3; (exigent circumstances supported kicking in suspected dealer’s hotel room door… Wilson affirmed) Vegas, 5/16:2; (sufficient particularized suspicion to stop person walking in vicinity of stolen vehicle… Menahan affirmed (IOR I-3(c))) Frankforter, 8/1:4; (identity of CI in drug buy improperly withheld, must be disclosed or charges dismissed… Gilbert reversed) Walston, 8/15:6; (summary rejection of meth informant disclosure not grounds for reversal where Defendant pled guilty before balancing could be done and only speculated as to potential for entrapment argument… Eddy affirmed) Soto, 10/24:2
DUI: (sufficient particularized suspicion for DUI investigation from seeing vehicle that had slid off snowy road near a damaged guardrail and a report that the driver found in a golf club clubhouse had been drinking… Hileman/Wilson affirmed (IOR I-3(c))) Pettey, 2/1:5; (requirement of white plate light not satisfied by illumination from red taillights… absence of white plate light sufficient for stop… Mantooth/Oldenburg affirmed (IOR I-3(c))) Murphy, 2/8:4; (Alaska statute sufficient similar to Montana’s to provide predicate for felony enhancement… Newman affirmed) Lund, 3/7:4; (Texas DWI listed in NCIC record as “convicted” competent for felony enhancement despite no information about a sentence or judgment… R. McElyea affirmed) Holder, 3/21:4; (what officer “determined” from phone conversation with person whom Defendant suggested was the driver of stuck vehicle was inadmissible hearsay but harmless in light of significant circumstantial evidence that Defendant was the driver… conviction affirmed… H. Brown affirmed (IOR I-3(c))) Dale, 4/4:10; (Defendant failed to show that he was not convicted of 2004 felony predicate DUI or that the conviction was obtained in violation of his rights… Deschamps affirmed (IOR I-3(c))) Frey, 5/9:8; (Trooper’s observation of vehicle going through yellow to red light sufficient particularized suspicion for investigative stop where onboard video was inconclusive… DUI conviction affirmed… Wood/Reynolds affirmed (IOR I-3(c))) Schmaus, 5/23:6; (vehicle stuck in mud alongside railroad tracks did not “materialize out of thin air,” properly found by circumstantial evidence to have been driven from road quarter mile away… Justice Court trial record reconstructed on appeal due to failed recording… jail/suspended time in written judgment inverted from oral pronouncement… Hummel/Allison affirmed, reversed (IOR I-3(c))) Conner, 5/23:7; (2007 VOA language that defendant would be required to pay for a public defender regardless of indigence not sufficient irregularity to render prior DUIs infirm as felony predicates… J. Brown affirmed (IOR I-3(c))) Mealer, 9/12:2; (overwhelming evidence that Defendant drove into house gas line over claim of accidental rolling by failing to put car in “park,” even if counsel was ineffective (he was found effective)… Eddy affirmed (IOR I-3(c))) Churmage, 9/26:7; (license reinstatement properly denied over challenges to grounds to arrest and require breath test, alleged hearsay testimony by officer, 4-day discrepancy in citation date… Deschamps affirmed (IOR I-3(c))) Vallejo, 11/14:8; (sufficient evidence that Defendant in parked pickup was in actual physical control while under influence… 4th DUI sentence should be credited with 311 days of pretrial incarceration… Olson affirmed, reversed (IOR I-3(c))) Vandenbos, 12/5:6; (sufficient circumstantial evidence of DUI over claim that intoxicated Defendant in parked vehicle had not been driving and a co-worker had driven and left with the key and challenge to “actual physical control” instruction… H. Brown affirmed (IOR I-3(c))) Mendoza, 12/12:6
Embezzlement: (judicial review of evidence from restitution hearing improperly taken at bench trial following nolo plea withdrawal.. conviction reversed, remanded for assignment to different judge… Deschamps reversed… order) Harris, 3/7:3; (conviction for death of motorcyclist affirmed over substantive due process and equal protection challenges to THC per se amount… Todd affirmed) Jensen, 12/19:6; (North Carolina’s “appreciable impairment” sufficiently similar to Montana’s “diminished” to allow DUI enhancement… Cantin/Gilbert affirmed (IOR I-3(c))) Loveless, 12/19:6
Exploitation of older person: (2017 version of statute is unconstitutionally vague for allowing one to be charged if he or she accepts a gift from a parent older than 65… charge against daughter dismissed… H. Brown) Meade, 6/6:7
Failure to yield: (Prosecutor not required to call other driver or MVA witnesses to satisfy Defendant’s confrontation right, officer’s testimony sufficient for conviction… Happe/Gilbert affirmed (IOR I-3(c))) McAdam, 8/22:5
Firearms: (sufficient evidence for jury to find that Defendant “possessed” guns, properly instructed on “possession”… Watters affirmed (memorandum)) Wigmore, 5/16:4; (“easily accessible” gun in drug possessor’s vehicle warranted 4-level enhancement… Watters affirmed (memorandum)) Milton, 10/17:7; (evidence suppression properly denied… Christensen affirmed (memorandum)) Crawford, 11/7:9
House shooting: (convictions for shooting into house with bullet lodged in wall near neighbor child’s bed and another grazing baby’s head on neighboring porch affirmed over hearsay and witness disclosure issues… Manley affirmed (IOR I-3(c))) Mahseelah, 11/7:4
Hunting: (crossing private land to access public land constituted “hunting”… conviction of hunting without landowner permission affirmed… Cantin/Gilbert affirmed) Cherry, 2/8:3
Immigration: (burglar arrestee’s challenge of Border Patrol detainer request not moot after release from jail and into DHS custody… the detainer and jail’s actions in refusing release on bond constituted unauthorized arrest for civil immigration violation… Cuffe affirmed, reversed) Ramon, 3/28:5
Incest: (no prejudice by counsel’s failure to preserve mother as witness as outcome would not have been different… no indication that sentence was largely based on refusal to admit guilt… Deschamps affirmed (IOR I-3(c))) Hansen, 2/29:6; (sufficient evidence to convict of incest with daughter even if counsel was deficient for giving away on eve of trial “confidential strategy” that child’s conduct was uncharacteristic of incest which caused the State to secure an expert on child sex abuse… Souza affirmed (IOR I-3(c))) Jones, 5/9:6; (convictions affirmed over challenge to alleged witness coaching by spectator and preclusion of therapist’s notes containing no allegations by accuser… Moses affirmed (IOR I-3(c))) Keyes, 5/9:6; (incest and solicitation of incest with stepdaughters convictions affirmed… sentence affirmed over alleged augmentation for maintenance of innocence… Harris affirmed) Burley, 5/30:4; (claims of prosecutorial misconduct in vouching for accusers, burden shifting, appeal to emotion, improper consideration of claimed innocence in sentencing rejected… conviction affirmed… Pinski affirmed (IOR I-3(c))) Komoeotis, 10/3:3; (plain error review declined in challenge of failure by since-deceased attorney and Judge to remove panelist who acknowledged that his nephew’s sexual assault conviction would make it hard to be impartial… Berger affirmed (IOR I-3(c))) Lewis, 11/21:3
Indian person: (counsel not ineffective for stipulating to “Indian person” status of sex abuse Defendant… Morris affirmed (memorandum)) Buckles, 5/16:3
Ineffective assistance: (concerns adequately addressed in protracted status conference discussion, nothing “seemingly substantial” that would require a formal inquiry… continuance of trial properly denied… rape conviction affirmed… H. Brown affirmed) Dillingham, 12/19:3
Intimidation: (materials offered in support of claim of wrongful conviction of sexual assault in 1995 properly excluded as irrelevant to charge of intimidation via 2016 letter to Marshals Service threatening mass murder if it failed to intervene… PFO enhancement improperly imposed based on concurrent failure to register prosecution… Ulbricht affirmed, reversed (IOR I-3(c))) Hanson, 6/20:5
Jail strip searches: (L&C Co. policy of suspicionless strip searches of everyone detained for traffic or minor offenses and placed in general population not violative of Art. II §§ 10 or 11, but violates plain language of §46-5-105 (2013), remanded for summary judgment on this issue for the 92 Plaintiff/Appellants… McMahon affirmed, reversed) Rogers v. L&C Co., 9/19:3
Jury: (child sexual assault Defendant’s counsel not ineffective for not examining Border Patrol agent’s earlier statement of potential bias against criminal defendants or at least peremptorily striking him… Olson affirmed (IOR I-3(c))) Champagne, 6/27:6; (no abuse of discretion in denying challenge for cause of panelist in child rape case… Souza affirmed) Morales, 8/1:1; (no abuse of discretion in denying challenge of panelist for cause in triple homicide case… Jones affirmed (IOR I-3(c))) LeCou, 8/1:3; (DUI Defendant properly found to have waived right to jury trial… Bolstad/Parker affirmed (IOR I-3(c))) Synder, 11/7:6
Medical marijuana: (hash oil conviction affirmed over McIntosh claim… Christensen affirmed (memorandum)) Campbell, 9/12:7
Mitigated deliberate homicide: (striking wrong person in head with hammer not basis for negligent homicide conviction, no actual innocence to excuse untimeliness of plea withdrawal motion… Christopher affirmed (IOR I-3(c))) Mackay, 5/30:7
Multiple charges: (house-flipping investments operator properly convicted and sentenced on 5 counts including Ponzi scheme but embezzlement violative of multiple charges statute… Hayworth affirmed, reversed) Brandt, 4/11:6
Pain prescriptions: (doctor properly convicted of criminal drug distribution as to 11 patients and criminal endangerment as to 9 patients, wrongly convicted of negligent homicide for overdose deaths of 2 patients… Langton affirmed, reversed) Christensen, 9/19:2
PFMA: (claim of ineffective assistance for not objecting to Defendant’s probation status not appropriate for direct appeal… not established on appeal that police interview recordings (purported testimonial material) actually went into the jury room… Menahan affirmed) Ward, 2/15:2; (justifiable force defense as to wife properly rejected, charges as to wife and daughter both supported by sufficient evidence despite their inconsistent version to officers and recantations at trial… Swingley/Menahan affirmed (IOR I-3(c))) McNew, 10/31:5
PFMA strangulation: (sufficient evidence that Defendant purposely or knowingly impeded girlfriend’s breathing by blocking air to her nose and mouth… attorney’s mistake in opening door to testimony of prior domestic violence not prejudicial… conviction affirmed… Knisely affirmed) Dineen, 8/8:5; (convictions affirmed over alibi claim and improper admission of jail phone recordings purportedly precipitated by attorney’s “dumb mistake” as to alibi timeline… Harada affirmed (IOR I-3(c))) Glenn, 12/26:5
PFO: (2015 statute correctly applied at 2017 sentencing, but Defendant sentenced simultaneously for 4th and 5th DUIs improperly designated PFO under plain reading of statute requiring felony conviction before commission of the principal offense, prior Opinions to the contrary overruled… Todd affirmed, “reversed”) Running Wolf, 2/8:2; (1994 federal bank robbery not reasonably equivalent to 2014 Montana robbery to qualify as predicate violent offense for PFO enhancement… remanded for resentencing) Scott, 7/18:8
Plea withdrawal: (by aggravated assault/rape Defendant whose plea agreement contemplated acceptance into later-repealed boot camp properly denied… Larson affirmed) Newbary, 6/6:7; (properly denied Defendant who turned 18 during period of admitted SIWC with 4-year-old… Seeley affirmed (IOR I-3(c))) Conn, 7/11:2
Postconviction: (claims by prisoner properly found time-barred, federal “prison mailbox rule” not adopted… recusal of Justices who sat on direct appeal not warranted… R. McElyea affirmed (IOR I-3(c))) Bullock, 3/14:5; (assault with weapon Defendant’s ineffective assistance claim against trial counsel for giving bad PFO advice negated by rejection of State’s re-offer of original plea deal… claim against prior appellate counsel in “amended” petition violated scope of remand and constituted improper “second or subsequent” petition but nonetheless properly rejected on the merits… Deschamps affirmed (IOR I-3(c))) Chyatte, 5/2:8; (claims by killer of estranged husband and his girlfriend properly rejected… Seeley affirmed (IOR I-3(c))) Gable, 6/27:7
Prisoners: (petition to mandate immediate reduction of population of jails and prisons because of COVID-19 pandemic denied… order) Disability Rights Montana v. Judicial Districts 1-22, 4/18:3; (orders by Best for DOC to immediately transfer 8 defendants from jail to MSP and MWP vacated on supervisory control… order) Guyer v. Best, 7/4:6
Probation search: (improperly extended to outbuilding rented by Defendant from probationer… conviction of possession of relic opium bottle reversed… J. Brown reversed) Thomas, 9/5:3
Prosecutor vouching: (assault/disorderly conduct convictions reversed on concession of error on claims of improper vouching and testimony/argument on elements of intimidation, assault, disorderly conduct, remanded for retrial… Gilbert reversed (order)) Anderson, 12/12:5
Prostitution promotion: (convictions affirmed over challenge to exclusion of 19-year-old’s prostitution conduct at age 16… Moses and Souza affirmed) Thomas, 11/14:6
Public defender fees: (for contract attorneys properly found subject to cuts during pendency of representation due to budget shortfalls… Seeley affirmed) Brooke v. OPD, 8/1:5
Rape: (cell phone records, victim’s ER statements… conviction affirmed… Pinski affirmed (IOR I-3(c))) Boone, 2/15:4; (no abuse of discretion in denying challenge for cause of panelist in child rape case… Souza affirmed) Morales, 8/1:1; (expert testimony on statistics of false claims of rape improperly bolstered accuser’s credibility in “he said, she said” case… conviction reversed, remanded for new trial… Christopher reversed) Grimshaw, 8/15:4; (unsubstantiated 2003 allegation of SIWC by then 15-year-old improperly admitted to impeach now 30-year-old’s claim that he was not the kind of person who would engage in non-consensual sex, sufficiently prejudicial to require reversal of conviction… evidence of alleged victim’s marijuana use after alleged rape while intoxicated by liquor and prior to reporting improperly precluded… remanded for new trial… Pinski reversed) Pelletier, 10/10:5
Rape/sexual assault: (day-of-trial amendment to Information to enlarge time of alleged offenses against child properly allowed as one of form and not substance… out-of-court statements by child in forensic interview and testified to by her counselor properly admitted due to difficulty parsing mixed inconsistent and consistent statements (but not under Judge’s hearsay exception concepts of “declarant testified earlier” or “link it up later”)… Haynes affirmed (IOR I-3(c))) Tyer, 10/31:7
Restitution: (Defendant convicted of burglary of guest house wrongly ordered to pay for all losses resulting from burglaries of main house and garage/barn by associates jointly & severally… Christopher reversed) Pierre, 6/27:5; ($46,975 properly imposed for theft of tools based on Alford plea, Information alleging value in excess of $5,000, and State’s offer of proof of $49,090… Rienne McElyea affirmed (IOR I-3(c))) Porras, 9/19:5; ($31,902 restitution for meth decontamination improperly imposed on Defendant who merely possessed meth residue and a pipe… Reynolds reversed) Cole, 10/17:3; (properly based on victim’s reconstruction of values of stolen items… Best affirmed (IOR I-3(c))) White, 10/17:4; (restitution for hardware store burglaries properly awarded as requested over unpreserved issue of retail v. wholesale values… Eddy affirmed (IOR I-3(c)) Johnson, 10/24:2
Return of evidence: (further findings required to determine whether laptop and cellphone seized 7 years ago from daughter who accused father of sexual abuse should be returned to parents with data unaltered even though time for filing charges runs through 5/25… Reynolds reversed (IOR I-3(c)) Eakin v. State, 11/28:3
Revocation: (violation of at least one probation condition sufficient to revoke irrespective of what allegedly illegal home visit search uncovered… return to MSP more burdensome than 2001 DOC commitment under 1997 statute, remanded to reflect DOC commitment… Allison affirmed, reversed (IOR I-3(c))) Evans, 2/22:3; (Defendant wrongly revoked for failure to complete sex treatment while in custody when sentence only required completion of treatment with no time specified… R. McElyea reversed) Beam, 6/20:4; (3 consecutive sentences properly imposed for 2 meth violations of 1 term of supervised release… Lovell affirmed (memorandum)) Dean, 9/5:8; (drug Defendant properly found to have absconded by failing to report… Wilson affirmed) Fetveit, 10/24:2; (animal cruelty Defendant properly revoked for failing to timely reduce horse herd to 5… new suspended sentence with condition of no horses not harsher than original sentence… Harris affirmed (IOR I-3(c))) Laedeke, 10/31:5, (rehearing denied), 12/12:8; (sufficient evidence that Defendant committed “non-compliance” violation not subject to MIIG by engaging in a new offense (conviction not required) by having child pornography on phone… Judge properly concluded that photos were pornographic as opposed to artistic based on Detective’s description and testimony… Larson affirmed) Howard, 11/7:2; (Defendant properly found to have absconded by failing to maintain contact with PO, a non-compliance violation obviating need to exhaust MIIG procedures… Boucher affirmed) Fjelstad, 11/7:3
Right to be present/right to represent self: (not denied burglary/theft/order of protection Defendant… Phillips affirmed) Marquart, 1/11:3; (at discussion of potential substitution of alternate for absent juror not sufficiently prejudicial for plain error review… Cuffe affirmed) George, 3/14:4
Right to jury: (waived by DUI Defendant’s failure to appear despite repeated warnings… appeal of City Court conviction to District Court properly dismissed… Newman affirmed (IOR I-3(c))) Mitchell, 3/28:7
Robbery: (conviction and sentence upheld over challenges to trial delay, in-court eyewitness identification and ID instructions, use of MSH evaluation at sentencing, Prosecutors allegedly listening to privileged phone calls… Allison affirmed (IOR I-3(c))) Warner, 5/2:5
Search & seizure: (Officers had particularized suspicion to stop suspect seen on surveillance buying gas with stolen credit card… contrary Federal Court finding in firearms case result of different questions, witnesses, evidence, attorneys… Seeley affirmed (IOR I-3(c))) Burton, 7/11:3; (field test of residue in claimed diabetic’s syringe lawfully seized pursuant to a search incident to traffic stop arrest and which tested meth did not constitute a search necessitating a warrant… Pinski affirmed) Funkhouser, 7/11:5; (observations during unwarranted entry of residence did not prompt decision to seek a warrant… excising evidence found during initial search, remaining information in application was sufficient for a warrant… Watters affirmed (memorandum)) Richardson, 8/1:7
Seizure: (officer had right to reach into truck window to grab bag of meth that dropped from visor during traffic stop… Langton affirmed) Tenold, 10/24:1
Sentencing: ($50,000 fine for snowplow-pass negligent homicide Defendant waived for review by insufficient objection… alcohol/casino probation conditions reversed for insufficient nexus… Cybulski affirmed, reversed (IOR I-3(c))) Heidinger, 1/4:3; (plea agreement included a no parole restriction provision which was inadvertently omitted from written agreement, parole restriction on incest defendant improperly imposed… Hayworth reversed (IOR I-3(c))) Gotschall, 1/25:4; (no discretion under 2017 statute to deny credit for “street time” in revocation proceeding, time must be credited unless there is evidence in the record or recollection of the PO that the defendant committed a violation during the relevant period as correctly found… Murnion affirmed) Jardee, 4/11:7; (supervised release not just for “unnecessary” sex treatment, but also as sanction for breaches of Court’s trust and public protection… Morris affirmed (memorandum)) Hall, 4/18:5; (challenge to $30,000 fine with $3,000 surcharge for criminal child endangerment not preserved for appeal… Wilson affirmed (IOR I-3(c))) Chain, 5/9:8; (Defendant properly ordered to pay unspecified amount of costs of court-ordered mental evaluation… McLean affirmed (IOR I-3(c))) Vinecke, 9/5:4; (request for home confinement properly rejected… Christensen affirmed (memorandum)) Samaniego, 11/14:11
Sex trafficking: (convictions affirmed… Watters affirmed (memorandum)) Edwards, 12/12:9
Sexual assault: (panelist who expressed belief that child would testify truthfully should have been dismissed for cause… conviction reversed, remanded for new trial… Boucher reversed) Ghostbear, 3/21:4; (2017 definition of “consent” for both sexual assault and SIWC improperly given in instruction for incident involving accuser with physical disabilities in which pre-amendment “consent” had “ordinary meaning”… conviction reversed, remanded for new trial… Beal/Townsend reversed) Zerbst, 5/9:5; (unsolicited incriminating phone conversation between Defendant and ex-girlfriend recorded without warrant by officers at police station properly admitted… Berger affirmed) Wolfe, 10/17:2
Sexual assault of child: (conviction affirmed over challenges to territorial jurisdiction, prosecutorial conduct, 6-6 jury dynamite instruction… McMahon affirmed (IOR I-3(c))) Cook, 5/30:6; (probation conditions for Defendant who sexually assaulted 13-year-old overbroad in completely restricting access to internet, computer, and smart phone although monitoring of usage is appropriate, remanded for amendment… public defender fee improperly imposed without sufficient inquiry into ability to pay… Lint reversed) Hotchkiss, 10/31:3
Sexual assault of minor: (ineffective assistance claims properly rejected… Knisely affirmed (IOR I-3(c))) Given, 2/22:3
Speedy trial: (rights of sexual assault Defendant properly found denied without evidentiary hearing… Todd affirmed (IOR I-3(c))) Meeks, 3/28:5; (right violated by delay of 5 years for burglary/theft Defendant in prison on other charges, charges dismissed… Oldenburg reversed) Chambers, 10/31:4
Stalking: (despite erroneous omission of instruction defining “purposely” and “knowingly,” jury had compelling evidence that prison inmate’s letters would cause recipient to fear for her safety or suffer emotional distress… conviction affirmed… Manley affirmed (IOR I-3(c))) Bagnell, 9/19:6
Supervised release: (properly labeled “inactive” while Mexican is outside the US under deportation order… Haddon affirmed (memorandum)) Torres, 1/25:8; (restrictions on Blackfeet tribal member/meth Defendant from visiting Browning without PO approval not an illegal banishment or exclusion or infringement on tribal sovereignty, substantively reasonable in light of town being a magnet and trigger for violation of supervised release… Molloy affirmed) Many White Horses, 7/11:8; (properly precludes contact with gang members… Molloy affirmed (memorandum)) Camarena, 10/17:6
Surreptitious recording: (colloquy admission of surreptitiously photographing a 14-year-old girl in the bathroom sufficient factual basis to infer that Defendant was photographing someone engaged in “sexual conduct” including “defecation or urination for the purpose of the sexual stimulation of the viewer” and not merely conduct such as taking medication… postconviction petition properly denied without a hearing… Menahan affirmed (IOR I-3(c)) Sperle, 9/19:4
Theft: (sufficient probable cause for warrant to search vehicle for items stolen in car thefts… R. McElyea affirmed (IOR (I-3(c))) Grandchamp, 5/9:7; (insufficient evidence that computer’s market value exceeded $1,500… felony conviction reversed, remanded for entry of misdemeanor judgment… Cuffe reversed (IOR I-3(c))) Brooks, 5/30:4; (failure to refund purchase price of canceled cooler sale properly pursued as criminal rather than civil… Happe/Gilbert affirmed (IOR I-3(c))) McAdam, 8/22:6; (theft of motorcycle, VIN alteration convictions affirmed over challenges to not having the motorcycle at trial, citizen’s tip about suspicious motorcycle relayed by investigating officer as hearsay, failure to clarify jury query about altering stamped VIN v. altering title or bill of sale… J. Brown affirmed) Fillion, 11/14:7
Traffic stop: (color discrepancy between car and registration too thin to constitute particularized suspicion for stop (first impression)… marijuana evidence properly suppressed by Municipal Judge, suppression improperly reversed by District Judge… Kolar affirmed, Knisely reversed) Rodriguez, 1/25:3; (speeding stop properly extended to drug investigation… mandatory $97,125 fine with all but $5,000 suspended based on 35% of marijuana value improperly imposed… Hayworth affirmed, reversed (IOR I-3(c))) Wilson, 8/29:3; (stop which began with running plate of unsuspicious vehicle that disclosed expired registration and driver with learner’s permit and other occupants unlicensed and culminating in driver voluntarily “spilling her guts” that passenger had gun was both professional and constitutional… motion by passenger charged with felon in possession to suppress based on unlawfully prolonged stop denied… Molloy) Thompson, 8/29:7; (pill bottles in door pocket with information blacked out and driver’s decrepit appearance supported reasonable suspicion to extend expired registration stop… Watters affirmed (memorandum)) Phillips, 11/14:9
Trespass/mischief: (common law defense of necessity properly rejected in pipeline climate change vandalism… employee expenses properly considered in addition to actual damage to establish felony and restitution amounts… Boucher affirmed) Higgins, 3/7:4; (1985/91 landowner posting legislation for raw land not intended to require residential posting, motion to dismiss by backyard trespasser properly denied… Seel/R. McElyea affirmed) Lehrer, 3/14:3
Vehicular homicide: (ineffective assistance, exculpatory evidence, newly discovered reconstruction evidence claims properly rejected in postconviction challenge of vehicle/pedestrian conviction… Larson affirmed) Garding, 6/27:3; (conviction for death of motorcyclist affirmed over substantive due process and equal protection challenges to THC per se amount… Todd affirmed) Jensen, 12/19:5
Violent offender registration: (requirement that offender subject to 10-year registration petition to be removed is unconstitutional… conviction reversed… Cuffe reversed) Sedler, 10/10:4
Wire fraud: (Ponzi scheme conviction and sentencing affirmed except as to abuse of trust enhancement… Morris affirmed, reversed (memorandum)) Moore, 10/17:7
*Discrimination
Disability: (claim stemming from refusal to allow in bar without proof that dog is service animal dismissed for discovery disruption/obstruction… Caroline Holien) Crawford v. Fraternal Order of the Eagles, 11/21:6
Jury: (Claimant asserting state and federal claims entitled to jury trial in State Court on federal claims… Dayton reversed) Spillers v. Dayton, 1/25:2
Mental disability: ($25,000 for mental distress from school district’s failure to timely engage in interactive process to manage & accommodate anxiety and PTSD relating to high school teacher’s child being sexually molested by a student… Administrative Decision, Chad Vanisko) Jones v. Bridger Public Schools, 2/15:5
Retaliation: (supervisory control of Seeley’s dismissal of advocacy group’s retaliation claim against City for lack of standing denied… order) Maffit v. Seeley, 4/18:2; (claim by bar/restaurant manager rejected for failure to show that declining financial performance and “f-word” at bank were not legitimate reasons for discharge or causal link to alleged discrimination against African-American employees… Caroline Holien) Loppie v. GBR dba Smith’s Place, 11/28:9
Sexual harassment/retaliation: (administrative finding of harassment and retaliation by electric co-op GM of Office Manager/CFO affirmed… HO’s $671,806.46 award corrected to $758,454.52… HRC Final Agency Decision) Lawson v. NorVal Electric Cooperative, 5/16:8; ($3,000 for emotional distress, inmate subjected to retaliatory pat search, MSP’s failure to timely respond to Prison Rape Elimination Act grievance… Caroline Holien) Stewart v. DOC, 12/19:8
*Elections
Ballot: (Green Party properly excluded from general election… order with opinion to follow… Reynolds affirmed) Montana Democratic Party v. SOS Stapleton, 8/22:5; (Montana Green Party properly excluded from ballot because it was not associated with signature gathering by Republican Party… Reynolds affirmed (other grounds)) Montana Democratic Party v. SOS Stapleton, 9/26:5; (preliminary injunction properly granted against ballot-delivery restriction, improperly granted against election-day ballot deadline… Harris affirmed, reversed) Driscoll v. SOS, 10/3:2; (Harris’s order declaring unconstitutional the Election Day Ballot Deadline and Cure Deadline statutes and enjoining their enforcement for the 11/3 election is stayed… order) Driscoll v. SOS,l 10/3:2
Candidate eligibility: (challenge to Raphael Graybill’s AG candidacy law practice qualifications rejected as not meeting declaratory judgment “urgency or emergency” factors, also intervention not necessary to prevent error… order) Montana Republican Party v. Graybill, 8/15:3
Initiative: (petitions to mandate placement on ballot of initiatives to repeal sewer project denied, one for lack of clear legal duty by Election Administrator in administrative action or abuse of discretion by local attorney’s advisement, one by laches… Deschamps) Morris v. Missoula Co. Election Administrator, 6/13:5
Mail ballots: (order by Harris enjoining election-day receipt deadline for mail ballots stayed pending consideration of appeal on the merits… order) SOS Stapleton v. Harris, 5/30:1
Political practices: (supervisory control of McMahon denied as to ruling that MAPA rather than Campaign Practices statute gives CPP subpoena power… order) CPP Mangan v. McMahon, 2/1:1; (ethics complaint against former COPP Motl based on election-eve radio interview statements regarding allegedly illegal disclosure by Rep. Tschida of his ethics complaint against Gov. Bullock properly dismissed based on conclusion that one reasonable interpretation was that they were in defense of a statute rather than opposition to Tschida’s reelection… Stutz/Rienne McElyea affirmed) Monforton v. Motl, 8/15:2
*Employees
Employment contract: (fired soccer coach’s privacy and negligence claims stemming from alleged escort calls on university phone properly found to arise solely under contract, dismissed for failure to timely file… defamation and tortious interference claims independent of contract, improperly dismissed for failure to state claim… Larson affirmed, reversed) Plakorus v. UM, 12/19:1
ERISA: (terminated employee was notified of rights to convert group policy to individual policy and failed to timely do so… summary judgment in favor of employer and insurer on claim of failure to provide a Plan benefit… Christensen) Estate of Foster v. American Marine SVS Group Benefit Plan, 1/4:4
University professor: (contract termination claims properly rejected on summary judgment… J. Brown affirmed (IOR I-3(c))) Jones v. MSU, 11/28:2
Wages: (DLI not required to serve employer in accordance with Rule 4 when applying for enforcement of judgment pursuant to §39-3-212(1) but must give employer notice under a Rule 5(b) service alternative… petition for supervisory control treated as one for declaratory judgment) DLI ERD v. Harris, 6/27:2; (Rule 301(b)(2) “preponderance of evidence” standard properly applied notwithstanding DLI’s “clear & convincing” standard to find that wage claim Notice Letter was mailed, statutory presumption of delivery properly applied to find that employer received Notice Letter and Determination… $7,601.50 attorney fees properly awarded on recovery of $1,700 wages and $1,870 penalty… Vannatta affirmed) Griz One Firefighting v. DLI ERD, 11/14:5
*Environment
CERCLA: ($28,850,936 judgment as share of East Helena lead smelter Superfund Site response costs affirmed in part, reversed in part… Christensen affirmed, reversed) Asarco v. ARCO, 9/19:8
Grizzlies: (sheep/grizzly ROD properly upheld… Christensen affirmed (memorandum)) Cottonwood Environmental Law Center v. US Sheep Experiment Station, 11/7:9
Mine discharges: (expired 1992 BHES order erroneously relied on in 2017 renewal of mine discharges permit… Seeley affirmed) MEIC v. DEQ, 11/21:1
Mine exploration: (§75-1-201(6)(c)/(d) bar of equitable remedies for a MEPA violation properly held violative of constitutional mandate to provide remedies to prevent environmental harms… other rulings on request for mine exploration license in Yellowstone Ecosystem… Gilbert affirmed, reversed) Park Co. Environmental Council v. DEQ, 12/12:2
Restoration damages: (landowners affected by smelter contamination are “potentially responsible parties” under CERCLA, need EPA approval to take independent remedial action… Montana Supreme Court affirmed as to jurisdiction, reversed on the merits) Atlantic Richfield v. Christian, 4/25:5; (landowners’ claim for restoration damages relating to discharge of arsenic and lead remanded to District Court following US Supreme Court’s allowing claim with EPA approval… order) Atlantic Richfield v. Bidegaray, 6/27:1
Streambed preservation: (Conservation District properly found to have jurisdiction over creek drainage dredging… Eddy affirmed) Stalowy v. Flathead Conservation Dist., 6/20:3
Wilderness: (motorized/mechanized vehicle prohibitions in WSAs and RWAs properly upheld… Christensen affirmed (memorandum)) Bitterroot Ridge Runners Snowmobile Club v. FS, 11/7:8
*Evidence, Criminal
Exculpatory: (supervisory control of Menahan denied as to denial of rape Defendant’s motion for in camera review of alleged victim’s medical records… order) Thompson, 12/19:5
*Family Law
Adoption: (Step-grandmother with parental interest had standing to object to stepmother’s petition to adopt, petition blocked by her lack of consent… Best affirmed) NPM, 2/15:2
Common law marriage: (properly found to have commenced in 1977 in California, not 1989 upon move to Montana… Gilbert affirmed (IOR I-3(c))) McDonald, 3/7:1
Contempt: (no abuse of discretion in finding husband in contempt and ordering him to pay $28,813 child support and $3,710 attorney fees after years of disregarding allegedly inequitable and unenforceable stipulation and orders…. Gilbert affirmed (IOR I-3(c))) Williams, 10/24:1
Endodontist: (endodontist’s income, property division, maintenance, attorney fee rulings affirmed except as to repair costs for sale of home… Magdalena Bowen/John Brown affirmed, reversed) Hamling, 2/22:1
Parental rights: (rights of North Dakota father improperly terminated as result of counsel’s erroneous presumption that an ICPC process was required… Deschamps reversed) BH and GH, 1/18:2; (rights of Mother improperly terminated as to child residing with its father… Best reversed) DD, 5/23:4
Parenting: (50/50 plan properly ordered by Standing Master for 7-year-old… Westveer/Olson affirmed) DCNH, 5/16:2; (jurisdiction, parenting plan, order of protection, transcript alteration conspiracy claims rejected as frivolous… appeal fees/costs awarded but vexatious litigant designation declined at this time… Townsend affirmed (IOR I-3(c))) BK, 5/16:2: (6-year-old’s best interests properly found to remain in Montana with father on primary basis if Mother chooses to move to Indiana… McMahon affirmed) Solem, 6/6:3; (Wife properly allowed to move back to California with children, properly awarded maintenance, support, fees… Townsend affirmed (IOR I-3(c))) Kerr, 6/27:2
Prenup: (MPSA properly found valid and superseding prenup in high-end divorce… no abuse of discretion in not sua sponte continuing final hearing to accommodate husband’s Canadian doctor to bolster claim of incapacity in signing MPSA… Manley affirmed (IOR I-3(c))) Phillips/Bucknum, 12/5:3
Property: (equalization payment properly awarded wife in accordance with prior decree after husband was unable to refinance home, wife failed to exercise purchase option, and it sold for less than valued in the decree… Allison affirmed) Ruis, 4/25:2; (Sheriff’s Retirement System disability improperly divided as marital asset… Best reversed) Mahlum/Elder, 4/25:3; (pre-judgment and post-judgment interest determinations affirmed and reversed… $3,612 attorney fees properly assessed against husband personally for attempting to relitigate an issue… Allison affirmed, reversed (IOR I-3(c))) Iskiyan and Grommet, 5/2:2; (MSA properly interpreted in complex ag estate distribution, but Rule 11 fees improperly imposed on wife….. Cybulski affirmed, reversed (IOR I-3(c))) Swank, 9/19:1; (District Court has jurisdiction over contempt issues and continuing jurisdiction over property issues in protracted post-decree assets/debts allocation dispute… Eddy affirmed (IOR I-3(c))) Schmidt, 9/26:6
Property/maintenance: (ranch and inherited property properly distributed so ranch could remain in husband’s family with wife receiving sufficient assets and maintenance to maintain standard of living consistent with husband’s… Moses affirmed) Lewis, 2/29:5; (maintenance properly awarded, property properly apportioned in divorce of Montana husband and Ukrainian wife… Cuffe affirmed (IOR I-3(c))) Brivka and Navolynski, 4/11:4
Property/support/fees: (properly resolved on remand following 2 prior appeals… Ulbricht affirmed (IOR I-3(c))) Paschen, 2/29:6
UCCJEA: (Montana Mother’s temporary protective order against Father did not modify Florida parenting plan in violation of UCCJEA… Manley affirmed) Kirkman, 2/1:4
*Guardianship
Orders affirmed over objections by vexatious litigant… Manley affirmed (IOR I-3(c)) AMM, 10/10:4
*Indians
Road access: (County lacks jurisdiction to grant proposed RV park access over street in the former Big Arm townsite on Flathead Reservation… Christensen) Confederated Salish & Kootenai Tribes v. Lake Co. Board of Commissioners, 5/23:8
Sovereign immunity: (Reservation casino is arm of CSKT, enjoys immunity from trip & fall suit by Missoula residents… Bradley Pluff) Erlandson v. S&K Gaming dba Gray Wolf Peak Casino, 8/22:10
*Insurance
Attorney fees: (“equitable considerations” support award of fees for 12 hours prior to Defense’s acquiescence in demand for advance-pay of medicals that had been paid by Plaintiff’s insurer, not for 206 hours after Plaintiff rejected offer and filed declaratory action… Halligan affirmed (IOR I-3(c))) Uhlig v. Allied Property & Casualty Ins., 10/10:2
Bad faith: (an insurer does not breach duty to insured when it pays policy limits to 3rd-party without release for insured when liability for MVA and total damages are reasonably clear… certified question answered for Molloy) High Country Paving v. United Fire & Casualty, 1/4:1; (rulings in bad faith case in response to Montana Supreme Court’s certified question answer regarding insurer’s duty to settle without release for insured… Molloy) High Country Paving v. United Fire & Casualty, 1/4:6; (motion by Plaintiff alleging bad faith settlement of vehicle death case to exclude certain testimony & opinions of insurer’s hybrid and retained experts mostly denied… Molloy) High Country Paving v. United Fire & Casualty, 4/25:7; (supervisory control denied as to Deschamps’s summary dismissal of bad-faith claims… order) Jensen v. Deschamps, 5/16:1; (Vermont regulatory consent order relevant to UTPA/punitives claims… testimony of attorney in a similar case allowed to show identical pattern of conduct alleged in this case… Todd) Rose v. USAA, 12/5:6; (claim that statement in 2012 interpleader order that insureds’ liability was not reasonably clear in Hyundai death case properly given preclusive effect as to 2015 bad faith claim… Manley affirmed) Shepard v. Farmers Ins. Exchange, 12/26:2
Chamber Choices: claims relating to “Chamber Choices” health insurance program survive motion to dismiss based on alleged law of case vis-à-vis Federal Court disposition of ERISA theory, negligent misrepresentation pleading requirements… Halligan) The Depot v. Caring for Montanans, 3/21:5
Coverage: (policy correctly held not applicable to construction of beetle-infested log home… Christensen affirmed (memorandum)) Northland Casualty v. Mulroy (Yorlum Ranch), 1/4:4; (even assuming general contractor is additional insured under painting subcontractor’s policy (a close question), pollution exclusion bars coverage for alleged injury through exposure to chemicals in epoxy coatings that painters applied on wastewater plant, no duty to defend/indemnify… Molloy) Swank Enterprises v. United Fire & Casualty, 4/11:11; (property damage to YMCA caused by employee’s meth “drug den” covered by commercial policy with ambiguous or undefined pollution/criminal act exclusions and vandalism/smoke exceptions… Molloy) United Fire Ins. v. Greater Missoula Family YMCA, 4/18:6; (sole shareholders of corporation were not “insureds” under business auto policy when shareholder crashed his personal motorcycle, no UM/MP coverages where only evidence for claim of being run off road by unidentified driver was affidavit of motorcyclist who later died from injuries and wife who was not present… agent had no duty to procure coverage for individuals or inform them of limitations of corporate policy… J. Brown affirmed (IOR I-3(c))) Gunderson v. Liberty Mutual Ins., 8/8:2; (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 affirmed (memorandum)) Porch v. Preferred Contractors Ins., 9/12:5; (no coverage or duty to defend correctly found because insureds’ conduct in access dispute did not constitute “accident” or “occurrence”… duty to indemnify improperly found not ripe… insureds properly denied more time for discovery… McMahon affirmed, reversed) Farmers Ins. Exchange v. Wessel & Mehan, 12/26:2
Discovery: (house counsel who “assisted” adjuster waived attorney-client/work-product privileges, is subject to discovery and deposition… Todd) Rose v. USAA, 11/21:3
House repairs: (common questions of law including necessity of general contractor for house repairs sufficiently predominate to warrant class certification despite certain premature conclusions… Moses affirmed, reversed) Kramer v. Fergus Farm Mutual Ins., 10/17:1
Jurisdiction: (contract and declaratory claims against Iowa UM/UIM reinsurer relating to shooting death in Montana of South Dakota resident driving vehicle with business policy and shooter driving uninsured or underinsured vehicle dismissed for lack of personal jurisdiction… Cavan) FNB Sioux Falls v. Carlson, 4/11:9; (duty to indemnify in libel action not ripe for declaratory judgment, stayed pending disposition of libel action or resolution of duty to defend claim… amount in controversy basis for federal jurisdiction satisfied regardless of whether adjudication of indemnity claim is deferred… Cavan) American Bankers Ins. of Florida v. Cameron, 9/26:9
Liability cap: (supervisory control of McElyea’s ruling that County’s insurer in snowplow/auto MVA cannot rely on §2-9-108(1) $750,000 liability cap because policy contains limits in excess of cap denied… order) Atlantic Specialty Ins. v. McElyea, 11/14:4
Policy: (pedestrian’s request for ruling on auto insurer’s refusal to provide pre-demand copy of policy or disclose policy limits denied as moot after insured driver provided policy… Rienne McElyea) Wilkie v. Hartford Underwriters, 10/3:6
Safety program duty: (comp insurer with safety program owed duty of care under Restatement of Torts §324(b)-(c) to warn workers of risk of Libby asbestos exposure… summary judgment to worker on duty element of negligence claim against insurer erroneously granted without applying 324A, but correct result for wrong reason… ruling allows 800+ former Grace workers to continue claims against insurer… Eddy affirmed (other grounds, supervisory control)) Maryland Casualty v. Asbestos Claims Court, 3/28:1
Stacking: (stacking of 3rd-party liability limits for assignees of rights properly denied pursuant to policy terms… certification to Montana Supreme Court not abuse of discretion… Christensen affirmed (memorandum)) Durbin v. Mountain West Farm Bureau Mutual Ins., 1/11:5
Subrogation: (motion to dismiss putative class action challenging subrogation practices of GEICO and related entities granted in part including rejection of boilerplate allegations of personal jurisdiction over non-contracting entities based on a conspiracy theory… Molloy) James Lee Const. v. Government Employees Ins. Co., 8/15:9
UIM: (UIM claim not barred by $50,000 settlement of $10,000 verdict against tortfeasor’s insurer under issue or claim preclusion… Menahan reversed) Reisbeck v. Farmers Ins. Exchange, 7/4:2
*Landlord/Tenant
Eviction: (claims by Texas/Montana lawyer in residential lease dispute properly rejected… Townsend affirmed (IOR I-3(c))) Rideg v. Berleth, 9/5:2
*Local Government
Single Audit Act: (Plaintiffs alleging Browning mismanagement precluded from suing State for failure to enforce SAA, State cannot be held liable for debts or liabilities attributable to a local government… Reynolds)
Statute of limitations: (filing wrongful discharge Notice of Claim with City does not toll statute as for State, claim untimely filed, should have been dismissed… $75,612 verdict reversed… Krueger reversed) Turner v. Dillon, 4/11:3
Zoning: (§1983 claims against Town for approval and then disapproval of application for pole barn dismissed… Wald) Fromberg v. Mackenzie, 1/18:5; (“affected property owners” in citizen petition process limited to surface owners, not mineral interest owners… Wald) Beartooth Front Coalition v. Stillwater Co. Commissioners, 9/5:6
*Medicare
Secondary payer: (challenge of DHHS’s ability to recover Medicare conditional payments from wrongful death asbestos-related settlements rejected… Molloy) Hagerty v. DHHS, 9/26:9
*Mental Commitment
Involuntary medication: (properly authorized despite “cherry-picked” comment of empathy that it probably would not be necessary… Gilbert affirmed (IOR I-3(c))) CTD, 5/30:2
Medical v. mental condition: (issue of medical v. mental condition properly resolved by mental professional’s own diagnosis, not just reliance on other professionals… McMahon affirmed (IOR I-3(c))) RB, 7/18:4
Presence at hearing: (person who refused to attend hearing improperly found to have waived right to be present, commitment reversed… J. Brown reversed (IOR I-3(c))) MQ, 2/1:2
Sufficiency of evidence: (successful businesswoman with supportive family who was experiencing insomnia and other behavior changes and diagnosed as bipolar properly committed to MSH… Krueger affirmed) WK, 4/4:4
*Partnerships
Dissolution: (brothers’ farming partnership properly dissolved… Olson affirmed) Jackpot Farms v. Johns Farms, 12/19:2
*Probate
Will contest: (challenge to Will leaving farm to 1 of 3 daughters properly dismissed as time-barred… daughter successfully defending probate improperly denied fees/costs… Olson affirmed, reversed) Swanberg, 6/20:1; (girlfriend did not exceed POA when she transferred dying boyfriend’s money… boyfriend had capacity to enter valid deathbed marriage and to create and amend a valid unwitnessed will (placing burden to prove lack of intent or capacity on contestants harmless error)… Townsend affirmed) Cook, 9/26:1
*Property
COS mandamus: (no duty to record a COS bearing a certification of exemption from sanitary review for which subdivider was not approved, mandamus petition properly dismissed… Vannatta affirmed) Richards v. Missoula Co. Clerk & Recorder Gernant, 9/26:3
Easement: (implied/prescriptive easements established over road through private river property for residential/recreation use for otherwise landlocked properties… Pinski) JRN holdings v. Dearborn Meadows Land Owners Association, 1/11:4; (encroachment of school access road was obvious even if survey provided first actual notice, satisfying prescriptive easement open/notorious element… Wald affirmed) Barrett Inc. v. Red Lodge, 2/8:1; (agreement breached by hunting violation, access of land outside easement… claims to private and public prescriptive easements properly rejected… fees properly awarded pursuant to agreement… unconscionability claim not preserved for appeal but undermined by arguments… Berger affirmed) Peters v. Hubbard, 11/14:1; (Rules 59-60 correctly found not to apply to 2018 motion for interpretation/clarification of 2014 judgment in ranches’ easement dispute… but 2014 judgment incorrectly found ambiguous on its face or effect… but judgment nonetheless imprecise/uncertain warranting interpretation/clarification… but judgment misinterpreted and thus erroneously altered/amended… remanded for amended judgment in accordance with Supreme Court’s interpretation/clarification… Wilson affirmed, reversed) Meine v. Hren, 11/14:2; (ditch easement properly found by prescription… jury demand untimely or waived… $256,790 fees properly awarded for vexatious multiplication… Gilbert affirmed (IOR I-3(c))) Murray v. Judd, 12/5:2
Foreclosure: (Rule 60 motion for relief from judgment properly denied, summary judgment for Lenders properly granted, on remand from law of case Opinion… Wilson affirmed (IOR I-3(c))) Puryer v. HSBC Bank, 2/1:2; (post-foreclosure claims of whether bank had right to possession of property through an enforceable security interest barred by res judicata by pre-foreclosure federal ruling that claims are time-barred under Montana law regardless of not reaching merits… Debtors’ 3rd-party complaint against bank in eviction action by foreclosure purchaser dismissed in judgment on pleadings… Halligan) Fennessy v. Knight; Knight v. HSBC Bank, 3/7:4; (verdict affirmed that loan servicer on lake house that it treated as abandoned breached deed of trust but owner suffered no damages… Ulbricht affirmed (IOR I-3(c))) Odom v. Bank of New York Mellon, 3/21:1; (2011 foreclosure order was a final judgment that was appealed twice, challenge to 2011 en masse sheriff’s sale should have been brought at that time, but in any event there was no abuse of discretion in en masse sale, present suit against County properly rejected… Cuffe affirmed (IOR I-3(c))) Davenport v. Lincoln Co., 12/26:3
HOA covenants: (use of property for fishing lodge short-term rentals not violative of “use for residence only” restriction… McMahon affirmed) Craig Tracts HOA v. Brown Drake LLC, 12/12:1
Mineral reservation: (dinosaur fossils do not constitute “minerals” for purpose of mineral reservation under Montana law… answer to 9th Circuit certified question) Murray v. BEJ Minerals, 5/23:2; (summary judgment that surface estate owners are sole owners of fossils affirmed in light of Montana Supreme Court’s certified question answer… Watters affirmed) Murray v. BEJ Minerals, 6/20:10
Real estate: (knowledge of seller’s disclosure of oil pit imputed to agent for statutes of limitations, claims time-barred… attempt to avoid performance of partnership purchase agreement properly rejected… Townsend affirmed) Payne v. Hall, 2/29:1; (occupants of property under unsigned buy-sell properly evicted, claim of unjust enrichment for improvements properly rejected… Vannatta affirmed (IOR I-3(c))) Burmaster v. Radford, 5/9:2
River access: (conveyance metes & bounds properly interpreted as intent by donor as meander line giving public access to Bitterroot River… Deschamps affirmed) Callsen v. Missoula Co., 7/18:4
Trespass/possession: (summary judgment for claims of trespass and possession properly granted, summary judgment for counterclaims of breach of contract and fraud involving alleged oral promise to return quitclaimed property properly denied… Berger affirmed (IOR I-3(c)) Maher v. Colombe, 5/30:2
*Railroads
FELA/LIA/FRSA: $2,171,154.50 net verdict for termination of conductor who claimed injury in fall from locomotive over RR’s contention that he falsified report of off-work injury properly upheld… Christensen affirmed (memorandum)) Wooten v. BNSF, 7/4:10
Unlawful termination under FRSA: (engineer properly terminated for speeding, not in retaliation for being outspoken advocate of predictive scheduling to alleviate fatigue… Christensen) Jones v. BNSF, 6/6:9; (engineer’s claim that he was terminated in retaliation for reports of crew fatigue, lack of PTC on train that was in a red block incident, and failure to adequately train conductors rejected on summary judgment… Christensen) Vasquez v. BNSF, 6/13:6
*Schools
Student loan: (state law claims against loan servicer alleging failure to accurately account for payments for purposes of Public Service Loan Forgiveness not preempted by Higher Education Act… McMahon reversed) Reavis v. Pennsylvania Higher Education Assistance Agency, 7/18:5
Territory transfer: (Poplar to Froid transfer affirmed… Mitchell/Cybulski affirmed) Poplar Elementary School Dist. v. Froid Elementary School Dist., 8/29:2
*Settlements
Arsenic contamination: ($1 million, arsenic contamination from Yellowstone Park coming into Gardiner-Park County’s sewage system) Gardiner-Park Co. Water & Sewer Dist. v. US, 4/11:13
Big Tobacco contract/tort claims: ($120 million+ to State from Big Tobacco for breach of contract and tort claims for allegedly intentionally evading obligations under 1998 Master Settlement Agreement) State v. Phillip Morris, 12/12:8
Boat contract: (boat dealer’s claims alleging “buyer’s remorse” breach of $67,438 boat purchase agreement and publication of defamatory statements about dealer on social media settled for $192,500… buyers’ counterclaims against dealer settled for $0) Bretz Inc. v. Gibson, 6/6:7
Motorcycles/autos: ($2,245,000, rear-end push of uninsured vehicle into 4 motorcycles with 6 riders… 5 insurers, $1,295,000 liability, $450,000 UIM, $450,000 UM, $45,000 property damage for motorcycles, $5,000 for auto) Bush, 5/23:10
Sex abuse: ($1.49 million, sex abuse by school basketball coach) Jane Doe v. Big Sky School Dist., 2/29:7
*Social Security
SSD: (properly rejected) Adams, 4/18:5; (myofascial pain, depression, anxiety not severe impairments additional to accepted DDD, asthma, obesity… Johnston affirmed (memorandum)) Abrahamson, 7/25:5; (credibility of mentally ill claimant who failed to comply with medication regimen purportedly for lack of funds but still gambled and spent on other things improperly discounted… application denial reversed, remanded… Kelley/Cavan reversed (memorandum)) Roberts, 10/17:5; (claims properly denied… no prejudice by SSA disregarding local briefs format rule… Lynch affirmed (memorandum)) Austin, 12/26:7
Windfall Elimination Provision: (SSA’s interpretation of ambiguous uniformed-services exception to Provision given deference as applied to reduce MANG dual-status technician’s SS retirement benefits… Johnston affirmed) Larson, 7/25:5
*State Government
Ethics code: (Regent is a public employee under Code but no CPP jurisdiction over Regents, Regent’s questions concerning 6-Mill Levy at Board meeting not violative of Code… Todd reversed, affirmed) Sheehy v. CPP, 2/15:1
State pay plan: (due process rights of attorneys challenging pay disparities violated by HO’s apparent perception of directive by BOPA in remand order, properly remanded for another hearing… Reynolds affirmed (IOR I-3(c))) Armstrong v. BOPA, 12/5:4
*Taxes
Income taxes: (actions speak louder than words in finding Montana residency over claimed Texas residency… DOR/MTAB/Reynolds affirmed) Greenwood v. DOR, 6/13:1
Private school tuition tax credit: (illegally denied religious schools… Ulbricht affirmed, DOR/Montana Supreme Court reversed) Espinoza v. Montana Dept. of Revenue, 7/4:9
Property: (condemned water company’s request for tax refund properly denied, but because proration did not occur in condemnation proceeding, not on grounds of unjust enrichment… Halligan affirmed (other grounds)) Elk Grove Development v. Four Corners County Water & Sewer Dist., 8/8:4; (claims by tax certificate enterprise based on erroneous classification by DOR of unbuildable property as residential properly rejected for lack of jurisdiction by Commissioners to make appraisal/assessment determinations… Ulbricht affirmed) K&J Investments v. Flathead Co. Commissioners, 11/7:1
*Torts
Abuse of process: (claim stemming from subpoena of judgment debtor’s son in effort to discover location of debtor or his assets rejected on summary judgment, suspended attorney Plaintiff declared vexatious litigant… Menahan) Wallace v. Law Office of Bruce Spencer, 10/31:9
Boat shooting (claims against marital rival properly dismissed on summary judgment… Recht affirmed (IOR I-3(c))) Moore v. Frost, 10/3:1
Chiropractic malpractice: (defense verdict affirmed over challenges to standard of care, habits & routine practice, perpetuated expert testimony responding to new theory, alternative cause evidence, impeachment by Panel application… McMahon affirmed) Howlett v. Chiropractic Center, 4/4:1
Fraud: ($1.724,000 verdict against purported former Marine officer for inducing Plaintiff to invest in failed oilfield cleaning venture intended to help veterans affirmed… Allison affirmed (IOR I-3(c))) Kaltschmidt v. Shannon, 5/9:1
Intentional interference: (claims against guardians who refused to let wards return to assisted living facility following reinstatement of license properly rejected on 12(c) judgment on pleadings… Deschamps affirmed) Wingfield v. DPHHS, 5/16:1
Legal malpractice: (claims properly dismissed for untimely failure to disclose expert… R. McElyea affirmed (IOR I-3(c))) Rafes v. Rate, 5/16:1
Libel: (claims relating to letter to insurance agent’s clients erroneously stating that he was no longer appointed to represent insurer properly rejected on summary judgment for failure to show defamation per se… Molloy affirmed (memorandum)) Salonen v. Jackson National Life Ins., 5/16:3
Libby asbestos: (claims against BN not preempted by FRSA or HMTA… BN subject to strict liability because handling of asbestos constitutes abnormally dangerous activity, but protected from liability under Restatement of Torts §521 for actions taken pursuant to statutory public duty, for those actions is subject only to ordinary negligence… BN may not refute causation by offering Grace’s conduct as a substantial factor or superseding intervening cause of injuries… Eddy affirmed, reversed on supervisory control) BNSF v. Eddy, 3/14:1
Malicious prosecution: (City and Prosecutor immune from claims stemming from failed dangerous animal prosecution… Harris affirmed (IOR I-3(c))) Reinlasoder v. Billings, 1/18:1; (and other claims against County stemming from unfounded complaint of operating as accountant without a license in racially charged situation properly dismissed for failure to state a claim… Oldenburg affirmed (IOR I-3(c))) Mitchell v. Glacier Co., Hall, and DesRosier, 7/18:3
Medical malpractice: (claim by MSP inmate properly dismissed for failure to timely file expert disclosure on summary judgment without a hearing… Dayton affirmed (IOR I-3(c))) Sliwinski v. State, 6/27:1
Negligence: (Jehovah’s Witnesses not mandatory child abuse reporters under church confidentiality exception, not negligent for handling abuse claims internally… $35 million verdict reversed, remanded for summary judgment for church… Manley reversed) Nunez and McGowan v. Watchtower Bible & Tract Society, 1/11:1; (slip & fall defense verdict affirmed in case involving snow & ice near Clinic entrance over challenges to inadequate sanctions for failure to preserve video, admission of weather report, preclusion of other falls, refusal of instructions on snow removal ordinance… Rieger affirmed) Nolan v. Billings Clinic, 7/4:1; (3rd-party claim against home inspector dismissed for failure to retain standard-of-care expert… Eddy) Whitefish Ventures v. Quinn Const., 7/11:8
Respondeat superior: (fact issues preclude summary judgment as to whether City supervisor’s negative disclosures to former employee’s new employer were incidental to authorized conduct and thus within the scope of his employment such that the City was liable for supervisor’s allegedly tortious conduct… Todd reversed) Brenden v. Billings, 4/4:3
Slander: (claims improperly dismissed without factual record to determine Civil Service Reform Act preemption of state tort claims alleging false sexual assault assertions by VA union officials… Menahan reversed) Dickson v. Garding, 8/8:1
Tortious interference: (no evidence that aviation fuel tank farm owner acted intentionally to damage fuel truck driver’s employment by complaining about him urinating on ground while waiting for employees to arrive to unlock gate… H. Brown affirmed (IOR I-3(c))) Berberet v. Signature Flight Support, 1/25:2
Vicarious liability: (claims against State by victim of rape by Child Protection Specialist not viable under respondeat superior, but are viable under nondelegable duty exception… Christensen) Smith v. Ripley, 3/14:7
Wrongful death: (Magistrate’s recommended summary judgment rulings in MVA death case involving independent contractor distributor of bakery’s products whose driver was allegedly under influence of marijuana and issues of agency, subservant employment, joint venture, non-delegable duty under Federal Motor Carrier Safety Regulations, negligent selection of independent contractor, punitives… DeSoto) Kinn v. United States Bakery, 5/16:4; (fact issues preclude summary judgment on liability of ranch Defendants in child UTV death despite Defendants waving banner of parental responsibility and urging decision solely on that principle… summary judgment on liability of parents is granted to extent that they have acknowledged negligence and cause of death, liability to be apportioned among responsible parties… Gilbert) Smith as PR of Kunnemann v. Burke, 8/29:5
Wrongful discharge: (claims by probation Bureau Chief properly rejected on summary judgment… Seeley affirmed) Speer v. DOC, 2/29:3; (hospital In-Home Care Services Director properly terminated for failing to manage rising accounts receivables and submit timely employee evaluations despite repeated warnings… Oldenburg affirmed) Putnam v. Central Montana Medical Center, 3/28:3; (filing Notice of Claim with City does not toll statute as for State, claim untimely filed, should have been dismissed… $75,612 verdict reversed… Krueger reversed) Turner v. Dillon, 4/11:3; (fact issues preclude summary judgment as to whether cable manager who was fired after Facebook criticism of Governor was terminated for stated reasons of failing to meet purported 50% travel requirement and allowing an employee to perform unauthorized electrical work… recommendations by Cavan) Smith v. Charter Communications, 6/27:8; (mental health center had good cause to terminate Program Manager for concerns about her conduct and client care, claim dismissed on summary judgment… Eddy) Buckley v. Western Montana Mental Health Center, 7/25:4; (emotional distress properly dismissed as preempted by WDA… challenge to Rule 615 corporate rep’s presence in courtroom during constructive discharge trial properly rejected… Vannatta affirmed (IOR I-3(c))) Tomsu v. UM, 12/5:2
*Utilities
Solar energy: (PSC orders for small solar facilities properly vacated and modified… Manley affirmed) Vote Solar v. PSC, 8/29:2; (PSC’s determinations as to 80 MW solar project arbitrary & unlawful… Manley affirmed) MTSUN v. PSC, 9/26:5
*Verdicts
8th-Amendment: (defense, claim of deliberate indifference towards prisoner’s need for TMJ surgery) Wallace v. Hash, 7/11:10
Auto: ($5,000, rear-end, neck/back) Cherubini v. Watkins, 2/22:4; ($2,481,594.36, high-speed semi/pickup rear-ender, admitted liability, disputed low back/neck/head) Shuman v. Highmark Traffic Services, 9/26:8; (defense, head-on MVA death/injuries, dispute as to which vehicle crossed centerline… settlement with vehicle rental firm as to defective tires claim) Guinnane v. Dobbins, 10/17:9
Boat slip eviction: (injunction compelling marina to provide boat slips and request for attorney fees denied following verdict finding that marina violated CPA in terminating sailboat slip rental but the violation did not cause damages… $500 statutory damages properly awarded… Menahan affirmed (IOR I-3(c))) Kubicka v. Frazer Industries dba Yacht Basin Marina, 4/25:1
Child abuse reporting statute: (Jehovah’s Witnesses not mandatory reporters under church confidentiality exception, not negligent for handling abuse claims internally… $35 million verdict reversed, remanded for summary judgment for church… Manley reversed) Nunez and McGowan v. Watchtower Bible & Tract Society, 1/11:1
Dog shooting: (defense as to emotional distress claims from shooting shotgun into air and killing neighbor’s Rottweiler, $10,000 exemplary damages for killing dog) Grantier v. Babb, 11/28:4
Foreclosure: (verdict affirmed that loan servicer on lake house that it treated as abandoned breached deed of trust but owner suffered no damages… Ulbricht affirmed (IOR I-3(c))) Odom v. Bank of New York Mellon, 3/21:1
Fraud: ($1.724,000 verdict against purported former Marine officer for inducing Plaintiff to invest in failed oilfield cleaning venture intended to help veterans affirmed… Allison affirmed (IOR I-3(c))) Kaltschmidt v. Shannon, 5/9:1
FRSA: (defense, alleged retaliation stemming from track laborer’s near-miss and fouling track… 2nd trial following reversal of 1st defense verdict) Frost v. BNSF, 1/18:6
House construction: ($135,000 verdict for breach of contract with builder affirmed… Gilbert affirmed (IOR I-3(c))) Lutman v. Ames, 5/23:4
Industrial plant nuisance: (defense) Fillingham, Forgatch, Wenzel, and Cromwell v. Harold Michael Cook LLC, Cathleen Ann Cook LLC, and Intermountain Industrial Inc., 2/22:5
Medical malpractice: (defense, hysterectomy complication) Agnello v. Western Montana Clinic, 3/7:6
Officer shooting death: (defense) Estate of Frazier v. Miller, 2/1:6
Police shooting: (defense, alleged unconstitutional warrantless entry/negligence) Pengelly v. Kalispell, 9/19:7
Prisoner pat-down sexual assault: (model instruction on excessive force misstated elements of 8th-Amendment violation arising from sexual assault… defense verdict on claim of sexual assault during pat-down search reversed, remanded for new trial… no abuse of discretion in not continuing trial sua sponte to allow Plaintiff to subpoena a witness… Christensen reversed, affirmed) Bearchild v. Pasha, 1/25:5
Ranch lease: ($24,500, breach of ranch lease involving dispute as to reassignment of State leases after termination of ranch lease, plus $36,440 attorney fees) Zupanik Ranch v. Owens, 3/14:5
Slip & fall: (defense verdict affirmed in case involving snow & ice near Clinic entrance over challenges to inadequate sanctions for failure to preserve video, admission of weather report, preclusion of other falls, refusal of instructions on snow removal ordinance… Rieger affirmed) Nolan v. Billings Clinic, 7/4:1
Wrongful discharge: (filing Notice of Claim with City does not toll statute as for State, claim untimely filed, should have been dismissed… $75,612 verdict reversed… Krueger reversed) Turner v. Dillon, 4/11:3; (defense, wrongful discharge, City water reclamation facility supervisor, pollution discharge) Winkler v. Billings, 10/10:7
*Water
Abandonment: (one irrigation claim correctly found abandoned by non-use, evidence as to 2nd misapprehended as to effect of testimony as to historical use… Ritter affirmed, reversed) Twin Creeks Farm & Ranch v. Petrolia Irrigation Dist., 4/11:3
Big Warm Creek: (rights properly allocated… McElyea affirmed) Little Big Warm Ranch v. Doll, 8/15:4
Dearborn River irrigation ditch: (dispute properly resolved by Water Court… Ritter affirmed) Hoon v. Murphy, 3/7:1
Place of use: (City’s water facility plan not a protectable interest which would preclude private utility from changing its place of use… DNRC/Rienne McElyea affirmed) Bozeman v. DNRC, 8/29:2
*Workers’ Compensation
ARD: (obese Libby Petitioner failed to show currently diagnosable ARD… Sandler) Warboys v. Liberty Northwest Ins., 3/14:10
Causation: (job accident not proven to be cause of worsening lumbar spine condition… Sandler) Neisinger v. New Hampshire Ins., 2/29:8
Discovery: (mental records are discoverable in tort recovery subrogation case… Sandler) Hogan v. Federated Mutual Ins., 12/26:8
Failure to attend §605 exam: (TTD properly suspended for unreasonably failing to attend §605 exam on “no call, no show” basis… DLI affirmed… Sandler) Gordon v. Continental Western Ins., 7/11:10
Fire costs fee: (policyholders’ challenge to 3% fee to offset state fire costs not justiciable after scheme’s termination… proposed claims against MSF and BOI members properly denied based on immunity… Larson affirmed) Moody’s Market v. MSF, 8/29:2
IME: (insurer compelled to produce journal articles relied on by IME physician, raw data from IME, ads from company for which the physician performed the exam… Sandler) Krezelak v. Indemnity Ins. Co. of North America, 10/10:8
Impairment: (Legislature had rational basis for distinguishing between Class 1 and Class 2 or higher impairment claimants without actual wage loss, equal protection challenge properly rejected… Sandler affirmed) Hensley v. MSF, 12/19:1
Injury: (being slammed in snowplow cab when wing hit guardrail was primary cause of later pulmonary embolism and resulting death, widow entitled to death benefits… denial of liability was reasonable, no penalty or fees… Sandler) Mize v. MSF, 5/9:10; (summary judgment for insurer precluded by fact issue as to whether Petitioner with no memory suffered idiopathic fall onto level surface… Sandler) Dargin v. XL Ins., 5/30:10; (claim of compensable injury from inhaling crystallized mineral dust rejected… Sandler) Swan v. MSF, 9/12:7
Jurisdiction: (WCC has exclusive jurisdiction to consider claim of negligence per se in UEF’s denial of responsibility which allegedly caused Plaintiff harm… Vannatta) Momberg v. State, 4/25:4
Libby Medical Program: (cross motions for summary judgment on reimbursement issues denied, trial to be set… Sandler) Monroe v. MACO, 6/27:11
Penalty/fees: (Petitioner not entitled to penalty/fees for 11th hour acceptance of liability for lumbar condition in close case… Sandler) Winslow v. New Hampshire Ins., 5/16:6; (penalty granted for denial of lumbar injury after tricking Petitioner into seeing IME physician, denied for hip injury… no fees because Court did not adjudicate medical dispute… request for §2914 sanctions untimely and outside pretrial order… Sandler) Berry v. Mid Century Ins., 6/6:11
Proper party: (insurer is proper party to defend appeal of medical review panel denial of reopen… Sandler) Johnson v. Hartford Accident & Indemnity, 10/31:10
PTD: (Petitioner who is capable of performing 2 JAs is not PTD, not entitled to additional medical benefits under §704(1)(f)(ii)… Sandler) Maldonado v. Constitutional Casualty, 4/25:9
Rescission: (3rd petition to rescind 1988 settlement of head injury claim based on mistakes of fact and law denied based on res judicata… tort claims including that MSF lied to Petitioner dismissed for lack of jurisdiction… request to rescind 2001 settlement remains… Sandler) Miller v. MSF, 11/28:7
Statute of limitations: (fact issue as whether SI joint issue was mediated in first mediation precludes summary judgment on statute of limitations claim… Sandler) Andrews v. MSF, 2/22:5
Subrogation: (Petitioner may bring claim to invalidate subrogation lien before reaching MMI and while still receiving benefits… Sandler) Hogan v. Federated Mutual Ins., 9/5:10
Treating physician: (plus medical liability, Lockhart and §611 fees, §1101(2) constitutionality, jurisdiction issues resolved in favor of insurer… fact issues preclude summary judgment on penalty claim… Sandler) Herman v. MCCF, 9/5:9
TTD: (Petitioner who offered no good reason for refusing modified employment after employer mistakenly fired her for missing shifts but immediately rescinded the termination not entitled to TTD… Sandler) Walters v. Employers Ins. of Wausau, 8/1:9
Work product: (insurer’s attorney waived work-product privilege by disclosing his work product to rehab provider hired in regular course of comp claim and who is not the insurer’s retained expert, but a non-retained, hybrid witness… insurer required to disclose requested email from attorney to rehab provider… 1st impression… sanctions denied… Sandler) Conn v. AmTrust Ins., 2/29:8; (insurer’s attorney waived work-product privilege by disclosures to independent insurance agency… Petitioner entitled to emails between insurer’s attorney and agency now, not after Petitioner’s deposition… Sandler) Raines v. Technology Ins., 8/8:7