Montana Law Week Subject Index – 2021
*Administrative Law
Judicial review: (pain doctor’s petition for judicial review of discipline properly dismissed as untimely, not entitled to equitable tolling, mandamus inapplicable… Abbott affirmed (memorandum)) Ibsen v. Board of Medical Examiners, 11/20:1
*Appellate Procedure
Appealability: (appeal from parenting dispute contempt & sanctions order premature as amounts not yet determined by Gilbert, but rather than dismiss, notice of appeal will be treated as filed on date of order determining amounts… Opinion & Order) Marriage of Weigand and Cattaneo, 5/22:6
Briefs: (word count in petition for rehearing improperly fudged with hyphens… order) Davenport v. Lincoln Co., 1/9:2
Confrontation: (video testimony from Washington payor in bad check case violated Defendant’s right to face-to-face confrontation but the error was harmless as the jury was fully & fairly instructed on the law and presented with admissible evidence that proved the same facts as the tainted evidence proved… conviction affirmed… Deschamps affirmed) Martell, 12/25:4
Disqualification: (challenge to SB 140 to be heard by the 6 Associate Justices (response to Governor’s motion to disqualify judges who participated in SB 140 poll, Justices did not participate in poll)… order) Bradley v. Gianforte, 4/10:1; (Rule of Necessity invoked to deny Legislature’s motion to disqualify Supreme Court Justices in test of Legislature’s power to issue investigative subpoenas in connection with alleged misconduct by Judiciary involving MJA poll relating to SB 140… disqualification would apply to every judge and justice in Montana, leaving no judge to adjudicate… opinion & order) McLaughlin v. Legislature, 5/15:4
Jurisdiction: (lacking over Rule 60(b) motion following notice of appeal) Moore v. Frost, 4/3:1
Mediation: (how Tank Release Board chooses to comply with Rule 7 vis-à-vis its concerns that sending a quorum with full settlement authority would implicate public meeting requirements is up to the Board, motion for clarification or waiver of self-executing Rule denied… order) Cascade Co. v. Montana Petroleum Tank Release Compensation Board, 11/20:2
Memorandum opinion: (entire record, briefs, arguments considered but analysis kept brief as Memorandum Opinion relied on existing law, did not establish precedent… rehearing of landlord/tenant Opinion denied… order) Aiking-Taylor v. Serang, 7/10:4; (unpublished opinions do not necessary contain detailed analysis of all issues but that does not mean the Court overlooked an argument or issue… petition for rehearing denied… order) Rose, 8/28:7
Supervisory control: (of John Brown to vacate over-length TRO halting challenged construction of residence denied as likely only further delaying resolution… order) Shepard v. Brown, 12/11:3
*Arbitration
Assent: (Plaintiff did not assent to arbitration agreement expressly or impliedly, by failure to opt out, or by continuing to work for Defendant… order compelling arbitration reversed… Haddon reversed (memorandum)) Hamilton v. GlaxoSmithKline, 2/13:6
Employment contract: (arbitration agreement in employment contract of discharged Montana pilot employed by Arizona company to transport deported illegals valid and enforceable, with arbitration in Arizona under Arizona or federal law… Berger) Tidler v. iAero Airways dba Swift Air, 7/10:6
Health care sharing ministry: Member Guide is an insurance contract… Montana law prohibits arbitration clauses in insurance contracts and the McCarren-Ferguson Act reverse-preempts the FAA… HCSM providers’ motions to compel arbitration denied…. Haddon) Moeller v. The Aliera Companies, 7/10:10
*Attorney Fees, Costs
(Control F search of entire Index for numerous fees/costs references)
Breach of forbearance: ($26,374,576.13 judgment for wrongful seizure of funds from start-up office products business affirmed EXCEPT $7,535,593.18 attorney fees awarded under Montana law when Michigan law does not allow contract reciprocity fees… Dayton affirmed, reversed) Masters Group International v. Comerica Bank, 7/10:1
Sexual harassment/retaliation: ($519,837 fees, $48,258.44 costs, awarded sexual harassment/retaliation Plaintiff who obtained $1,631,834.60 judgment… Defendant’s attorney sanctioned for “underhanded tactics” as to Plaintiff’s cost memorandums, hearing set to determine whether $2,200 voluntarily paid for fees incurred as result of vexatious conduct is adequate… Laird) Lawson v. NorVal Electric Cooperative, 11/20:5
Spoliation: (first-impression issues in context of settled parties involving an excavator bucket falling on worker in trench and inspections without notice to sewer contractor and removal of machinery resolved by finding of negligent — not intentional — spoliation and payment of expenses including attorney fees for contractor to conduct its own inspection… $33,277 awarded of $83,190 requested… Marks) Palafox v. Langlas & Associates, 7/31:2
*Attorney Practice
Bar admission: (petitions for acceptance of remote-exam score for admission by score transfer are denied, but Temporary Admission Rules will be revised to accommodate remote-exam applicants… order) Petitions of Venegas and Post, 1/2:1
Discipline: (request for interim suspension for failure to respond to requests from ODC denied for failure to give adequate notice… order) Reader, 5/1:3; (James McCormack placed on interim suspension following criminal endangerment guilty plea, held in abeyance pending submissions as to good cause to set aside or modify… order) McCormack, 8/7:4
Snide briefing: (motion to dismiss because pleadings were incomplete or illegible dismissed as moot following updated service but counsel admonished that there are simpler ways to deal with problems in a collegial bar than filing snide briefing or unnecessary although technically correct motions… Molloy) Montana Democratic Party v. SOS Jacobsen, 11/20:14
*Banking, Commercial Paper
Breach of forbearance: ($26,374,576.13 judgment for wrongful seizure of funds from start-up office products business affirmed EXCEPT $7,535,593.18 attorney fees awarded under Montana law when Michigan law does not allow contract reciprocity fees… Dayton affirmed, reversed) Masters Group International v. Comerica Bank, 7/10:1
*Bankruptcy
Avoidance (claims involving preference & usury claims arising from merchant cash advance financing of restaurants resolved in favor of Trustee… Trustee entitled to recover money in segregated account plus attorney fees for total judgment of $2,998,962.51 subject to conditional reduction of any imputed interest included in preference judgment… Holt) Shoot the Moon, 9/25:13
*Bench Judgments
Breach of forbearance: ($26,374,576.13 judgment for wrongful seizure of funds from start-up office products business affirmed EXCEPT $7,535,593.18 attorney fees awarded under Montana law when Michigan law does not allow contract reciprocity fees… Dayton affirmed, reversed) Masters Group International v. Comerica Bank, 7/10:1
Dog death: ($5,364.50 default judgment, death of dog in illegal trap… Halligan) Dalpes v. Bruno, 4/10:7
Snowplow/auto: $12,410,016.11 for 32-year-old suffering TBI from County snowplow running stop sign and slicing into her vehicle… Rienne McElyea Daniels v. Gallatin Co., 3/20:4
*Civil Procedure
Charitable care write-off: (questions certified to Montana Supreme Court as to hospital and ambulance write-offs related to $578,248 FTCA heart attack death judgment by Morris… order) Gibson v. US, 6/26:7, question accepted, 7/3:2, (a plaintiff in a pre-2021 survival action may not recover the value of medical care when the costs are wholly written off as charitable care… certified 9th Circuit questions as to $165,661.50 hospital/ambulance write-offs related to $578,248 FTCA heart death judgment by Morris answered “no.”) 12/11:1
Class certification: (supervisory control of Wilson denied as to dismissal of made-whole individual and class claims as unripe and thus currently unjusticiable… order) Johnson v. Wilson, 11/6:3; (properly denied at early stage in landlord/tenant litigation, could be revisited depending on disposition of dismissed claims that are not yet appealable… Seeley affirmed) Vulles v. Thies & Talle Management, 11/6:4
Construction lien: (properly given priority over lender’s mortgage but only up to the $88,860 part of the loan allocated for construction) ACI Const. v. Elevated Property Investments, 10/2:1
Discovery: (motorcycle/auto suit dismissed with prejudice as sanction for California pro hac vice’s dilatory discovery responses… attorney fees denied in light of significance of dismissal… Souza) Butler v. Swanson, 2/6:8
Emotional distress: (parasitic emotional distress damages not available for negligence claim for personal property damage or loss… certified question answered for 9th Circuit… $62,750 verdict for “unspecified, non-property damages” stemming from theft from tire shop of vehicle containing gun, ammunition, documents with home address, house keys “reversed”… Molloy “reversed”) Childress v. Costco, 8/7:1, rehearing denied, 9/4:2, 9th Circuit vacation of $62,750, 10/30:6, Rule 59 motions by both sides following rejection of $62,750 emotional damages stemming from theft of vehicle from tire shop untimely, Plaintiffs’ motion for new trial to resurrect tactically dismissed NIED claim denied… Defendant’s motion converted to 60(b)(6) to allow amendment of judgment to only $2,278.43 bailment damages… Molloy, 12/25:9
Estoppel by entrapment: (defense not applicable to revocation of roadside menagerie permit over claim that operator should have been given chance to correct violations… McMahon affirmed) Animals of Montana v. FWP, 5/29:2
Indemnification: (not allowed by Defendant home contractor against flooring subcontractor who is not liable to Plaintiffs who never purchased the home in hardwood flooring case… Larson) Roberts v. Darrell Lee Const., 10/9:10
Interest: (prejudgment interest at 8% from 10/22/19 awarded on sexual harassment/retaliation awards totaling $1,631,834.60… Laird) Lawson v. NorVal Electric Cooperative, 10/2:7
Intervention: (by shooting association properly denied in Regents’ challenge to HB 102 regulating firearms on university campuses… supervisory control of McMahon denied… order) Montana Shooting Sports Association v. McMahon, 5
Preliminary injunction: (requiring oil/gas operator to maintain fencing around well sites pending trial of suit by Landowners not supported by sufficient findings & conclusions… Ruiz reversed (memorandum)) Bye v. Somont Oil, 10/23:1
Receivership: Special Master correctly concluded that a court-appointed receiver is protected by judicial immunity, Master acted within his authority in determining that it was unnecessary for Receiver to require release or indemnification agreement to return disputed personal property, but Master exceeded his authority in determining that Receiver acted in good faith and within scope of his authority in obtaining & retaining the property… Special Master Kevin Jones affirmed, reversed) PF2 Leasing v. Galipeau, 12/4:1
Rule 62.1: (indicative motion properly denied as “new evidence” in boat shooting was inadmissible hearsay and not obtained with reasonable diligence… Recht affirmed) Moore v. Frost, 4/3:1
Spoliation: (first-impression issues in context of settled parties involving an excavator bucket falling on worker in trench and inspections without notice to sewer contractor and removal of machinery resolved by finding of negligent — not intentional — spoliation and payment of expenses including attorney fees for contractor to conduct its own inspection… $33,277 awarded of $83,190 requested… Marks) Palafox v. Langlas & Associates, 7/31:2
Unjust enrichment: ($93,650 properly awarded contractor against lender upon foreclosure sale… Allison affirmed) ACI Const. v. Elevated Property Investments, 10/2:1
*Conservatorship
Son v. daughter distributions: (Estate with numerous rental properties properly distributed 60% to son and 40% to daughter over challenges by son seeking bigger share… Vannatta affirmed) HDK, 10/9:1
*Constitutional Law
False arrest: (claims against officer, City,and Prosecutor stemming from dismissed DUI arrest of traffic stop “spectator” dismissed on summary judgment… Cavan) Rawlings v. Kunnath, 10/9:11
Officers shooting: (§1983 claim against City officers who killed erratic, aggressive, threatening person barred by qualified immunity… state law tort claims barred by MCA 2-9-305(5) immunity from individual liability… Cavan/Watters) Estate of O’Brien v. City of Livingston, 8/28:10
*Contracts
Vehicle purchase agreement: (buyer who made no payments properly ordered to return vehicle and pay $10,200 plus interest/fees/costs over claim that contract was promissory note subject to condition of presentment of original documents… Spaulding affirmed (memorandum)) Jorgensen v. Crazy Carls dba Auto Resource, 6/12:3
*Courts
Case delay: (supervisory control of Cuffe not warranted to address case delay… order) Richards v. Cuffe, 3/6:2
Clarification: (bird feeding injunction clarification not “broader than necessary” to cure harm from nuisance birds… Reynolds affirmed (memorandum)) Simkins v. Speck, 9/18:3
Default judgment/laches: (default judgment in quiet title action based on 1-day mistake in service of Answer properly denied… challenge to RFD’s title to property 27 years after donation by Plaintiff’s parents properly found barred by laches… Allison affirmed) Carter v. Badrock RFD, 11/6:2
Failure to prosecute: (2007 horse injury suit properly dismissed for inaction… Menahan affirmed (memorandum)) Hummert v. Christison, 5/1:2
Judge disqualification: (Judge Christopher listed as witness in bail jumping case may not preside over that or related burglary cases unless withdrawn as a witness… order) Ross, 1/16:2; (no support for “friends of family” claim… dissatisfaction with rulings not grounds for disqualification… order) Baxter Waters v. Ashley Waters, 8/28:5; (not available for disagreement with rulings… order) Opitz v. Reed, 9/4:5
Judge substitution: (supervisory control of Christopher not warranted to overturn denial of motion to substitute on ground that it was untimely in accordance with filing fee requirement) Lesage v. Christopher, 3/27:6; (municipal water condemnees improperly denied right of substitution upon reversal of summary judgment… Townsend reversed) Missoula v. Mountain Water, 5/22:5; (a plaintiff must file a substitution motion within 30 days of service of the summons or of an adverse party’s appearance, whichever is first… motion filed more than 30 days after service was void and Whelan improperly transferred case to Krueger… because Krueger never had jurisdiction, his denial of Plaintiff’s motion to change venue is vacated) Holms v. Bretz, 8/14:1; (postconviction review of justice, municipal, or city court sentence not limited to district judge who heard underlying appeal in multi-judge districts, motion to substitute improperly denied… Larson reversed (memorandum)) Sullivan, 10/9:8; (“official capacity” suit against the SOS is a suit against “the State” such that service was not complete until AG was served (not just notified via Rule 5.1) in suit challenging HB 325, SOS’s motion to substitute judge was timely… Krueger reversed) McDonald v. SOS Jacobsen, 11/6:1; (grant of withdrawal of mid-trial guilty or nolo plea constitutes grant of new trial entitling Defendant to new judge… Harada reversed on supervisory control… opinion & order) Kasem v. Harada, 12/18:1
Judicial appointments: (SB 140 direct appointment by Governor does not violate Art. VII §8(2)… original proceeding) Brown v. Gianforte, 6/12:1
Judicial immunity: (tort claims alleging Supreme Court Justices and law clerks improperly viewed sealed pornographic emails on fired Police Chief’s computer during City’s appeal of his $300,000 wrongful discharge verdict properly dismissed based on judicial immunity… Davies affirmed (memorandum)) Reinlasoder v. Colstrip, 5/22:4
Jurisdiction: (cert declined over Montana Supreme Court’s ruling that 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… order) Continental Resources v. Buckles, 3/13:5; (personal jurisdiction properly exercised over Ford in fatal rollover from tire failure in Montana… Best/Montana Supreme Court affirmed on cert) Ford Motor v. Best, 4/3:6; (personal jurisdiction not exercised over Pennsylvania/Tennessee LLC that manufactured heater that allegedly caused fire in National Guard shelter assembled by Montana corporation using HVACs created by Florida corporation… Christensen) Nomad Global Communications Solutions v. Hoseline, 4/17:9
Medical licensing: (challenge of license restriction for overprescribing narcotics rejected pursuant to Younger, 11th Amendment immunity… Molloy) Ibsen v. Diaz, 4/10:10
Mistrial: (improvidently granted sua sponte on 3rd day of incest/bail jumping trial by Judge distraught over reporter’s heart attack or stroke and inability to get replacement… double jeopardy violated by retrial on amended charge of SIWC due to uncle/niece sex not “incest”… convictions reversed with prejudice… Pinski reversed) Newrobe, 5/8:2
Mootness: (condo homeowners’ suit challenging split of the Association properly dismissed as moot after developer revoked split amendment, voluntary cessation exception to mootness properly not applied… neither party prevailing for attorney fees… Rienne McElyea affirmed) Heringer v. Barnegat Development Group, 5/1:1
Vexatious litigant: (Plaintiff corporation properly declared vexatious litigant with filing restriction on corporation and shareholders… Allison affirmed (memorandum)) Thorco Inc. v. Whitefish Credit Union, 8/28:2; (suspended attorney properly declared vexatious litigant and sanctioned with District pre-filing order, extended statewide… Menahan affirmed (memorandum) Wallace v. Spencer Law Offices, 10/9:3
*Crime, Criminal Procedure
5th Amendment privilege: (blanket privilege properly allowed co-defendant in robbery case… Molloy (memorandum)) Cowser, 12/11:5
Aggravated assault: (response to jury’s request for clarification of “reasonable apprehension” with “subjective standard of the ‘reasonable man'” proper but might have been better to consult Montana caselaw than USLegal website… Murnion affirmed (memorandum)) Larson, 6/5:4
Aggravated burglary: (evidence of high-speed chase flight from rehab facility properly allowed as evidence of consciousness of guilt for burglary offenses 3 weeks earlier… jury properly instructed on mens rea elements… convictions affirmed… McMahon affirmed) Strizich, 12/4:5
Aggravated kidnap: (overwhelming evidence that girlfriend was not “voluntarily released,” plain error review declined over Apprendi challenge to 40-year sentence… Parker affirmed (memorandum)) Parisian, 8/21:4
Attempted deliberate homicide: (counsel not ineffective for retaining panelist who stated that he would not hesitate to shoot an abuser since counsel wanted jurors comfortable with use of firearms in self-defense… Cuffe affirmed (memorandum)) Ilk, 7/24:8; (Prosecutor’s opening and closing comments about local drug culture not misconduct in light of underlying drug issues involving Defendant and eyewitness… some ineffective assistance claims rejected, others more proper for postconviction… conviction affirmed… Souza affirmed) Polak, 12/4:3
Arson: (2 of 3 counts involved same elements, State concedes that 1 should have been dismissed… claims of ineffective assistance for telling the jury that the truth is between the State’s version and Defendant’s version and for failing to introduce testimony as statement against interest more appropriate for postconviction… untimely PFO notice not prejudicial… conviction on 2 counts of torching trailer and consecutive 20-year terms affirmed… Parker affirmed, reversed (memorandum)) Webb, 4/24:5
Assault on officer: (unlawful force by jailer in struggle not self-evident from State’s case such that Defendant’s justifiable force instructions should have been given… Seeley affirmed) Marquez, 10/16:5
Assault with weapon: (conviction in altercation involving disputed small knife affirmed… Newman affirmed (IOR I-3(c))) Deutsch, 2/20:6
Attorney withdrawal: (denied on finding by Supreme Court of nonfrivolous issues in parental termination case… order) Matter of LH, 2/13:2
Brady: (claims relating to failure to disclose impeachment evidence rejected for failure to show prejudice… Watters affirmed (memorandum)) Maldonado, 12/4:12
Career offender (enhancement improperly applied to meth distribution Defendant because Montana cocaine conviction is not a “controlled substance offense” under Guidelines… Watters reversed (memorandum)) Holliday, 5/1:5
Charging documents: (although truncated and not supported by affidavit, misdemeanor citations for criminal trespass to vehicles and theft were sufficient that “a person of common understanding” could know what is intended to be charged… Seel/Rienne McElyea affirmed (memorandum)) Dumas, 8/28:5
Child endangerment: (continuances properly denied for indigent to obtain private attorney or experts as to “wispy” relationship of eye/liver conditions to DUI… juror obtaining Prosecutor’s notes for examining Trooper not grounds for mistrial… Dayton affirmed (IOR I-3(c))) Collins, 3/13:3
Child pornography: (multiple convictions permissible for possession of multiple images discovered on the same computer on same day… 3 counts are not included within offense charged in Count 1, 4 separate convictions affirmed… Newman affirmed) Felde, 1/9:2; (40-year prison term properly imposed out of concern that statutory amendments would “short-circuit” Judge’s goal of long-term supervision… Jones affirmed (IOR I-3(c))) Marsh, 2/6:7; (connection to interstate commerce not required for production charge… Morris reversed (memorandum)) Bremner, 4/3:8
Child sex abuse: (claim of ineffective assistance for not sufficiently challenging panelist who subsequently served as foreman regarding bias more amenable for postconviction… sex abuse expert’s “educational” testimony does not warrant plain error review of claim that it undermined Defendant’s presumption of innocence… Judge’s answer to jury’s query as to what to do if jurors cannot come to unanimous decision on 3 counts without consulting the parties was not prejudicial or was harmless… convictions affirmed… Seeley affirmed) Sinz, 7/10:4; (near contemporaneous sexual abuse via identical “truth or dare” between 13-year-old and 40-year-old “boyfriend” improperly precluded under rape shield statute at trial of mother’s 61-year-old friend and drug supplier… convictions reversed, remanded for new trial… Haynes reversed, affirmed as to limiting boyfriend’s CCJI file) Twardoski, 7/24:3; (attorneys were ineffective by failing to challenge the statutory basis for indecent exposure to minor when the statute did not go into effect until after one of the alleged incidents occurred… ex post facto application of statute for sexual abuse of children also requires reversal, remand for new trial… Spaulding reversed) Tipton, 11/6:4
Community decay/zoning: (convictions against “auto sales/repairs businessman” for junk items and vehicles in Business District affirmed… Seykora/Wald affirmed (memorandum)) Aceves, 5/15:11
Criminal endangerment: (sufficient facts provided to support probable cause of criminal endangerment for firing shotgun through hotel window into parking lot… de novo standard of review applied to mixed questions of fact and law involved in motion to dismiss for lack of probable cause… Information improperly dismissed… Eddy reversed) Giffin, 7/31:1; (placing barbed wire and obstructions in easement constituted stalking regardless of no verbal or written “communication”… railroad tie fence post properly admitted despite weather deterioration between first trial with hung jury and second trial which diminished visibility of dirt line vis-à-vis Defense argument that screw was visible to chainsaw cutter… convictions affirmed… Berger affirmed) Hren/Nelson, 10/16:2
Deliberate homicide: (conviction in trial that turned on who shot victim affirmed over challenges to evidence derived from warrants for residence, vehicles, phone, computer… Cuffe affirmed (memorandum)) Carpenter, 5/15:7; (postconviction claims by garage burglar shooter properly denied… McLean affirmed (memorandum)) Kaarma, 6/12:7; (100 years at MSP no parole for 35 years properly imposed in resentencing following striking illegal PFO… plea to felony murder based on deliberate homicide of 8-year-old while committing deviate sexual conduct in 1987 defective but challenge waived by failure to object or appeal… plea withdrawal based on “negated” hair evidence and “crazy” transient who actually committed the murder and assaultive coercion by detectives properly denied without a hearing… Larson affirmed (memorandum)) Hornback, 7/24:7; (conviction of son of murder of father affirmed over son’s suggestion that a sheriff’s deputy did it to obtain inheritance as secondary beneficiary in will, deputy’s cleaning of scene after release by investigators, Prosecutor’s comments impugning fingerprint expert’s failure to produce comparisons… $25,250 costs improperly imposed without ability to pay… Hayworth affirmed, reversed) Fisher, 10/9:5
Deliberate homicide/tampering: (foundational expert for phone found at death scene improperly allowed to testify via videoconference from Colorado to avoid travel expense, error harmless as to deliberate homicide but not as to tampering with phone… Prosecutor’s “ad hominem attack on Defense Counsel” for grocery analogies did not undermine right to fair trial… Cuffe affirmed, reversed) Mercier, 1/30:4
Discovery: (supervisory control of Larson denied as to denial of motion to interview or depose rape accuser… order) Hopper, 4/17:8
Domestic abuse: (doctors’ testimony that wife said her husband was the one who attacked her erroneously admitted but harmless error… Morris affirmed (memorandum)) Wing, 5/29:10
Drugs: (DOC commitment properly imposed for first-offense meth possession in deviation from statutory presumption of deferred imposition for Defendant involved in large bust, but 35% market rate fine improperly imposed based on lack of special verdict quantity determination… Dayton affirmed, reversed) Wilkes, 2/13:3; (proposed instruction on uncharged paraphernalia properly refused to support claim that charge of meth residue in tubing was in reality “a paraphernalia case charged as a drug case”… Rienne McElyea affirmed (IOR I-3(c))) Robertson, 2/13:4; (vehicle probation search proper based on officer’s suspicion of connection to nearby “drug house” even if PO only referenced out-headlight basis for stop… Berger affirmed (IOR I-3(c))) Woody, 2/20:7; (cross of Crime Lab chemist as to involvement of predecessor who was discharged for stealing meth would have been proper under hearsay exception, but mere speculation about possible contamination under chain of custody law insufficient to require it… meth conviction affirmed… Kutzman affirmed) Brasda, 5/22:7; (Defense properly precluded from arguing that officer’s testimony about observing Defendant maneuvering handcuffed hands to drop drugs was inconsistent with not-admitted report… conviction affirmed… Vannatta affirmed (memorandum)) Reinbolt, 8/7:8; (sufficient particularized suspicion for dog sniff… possession conviction affirmed… Marks affirmed (memorandum)) Webb, 8/7:9; (pipe with meth residue illegally seized in pat-down after community caretaker investigation of known drug-related car stuck in snow in high-crime area, but meth properly seized in subsequent consented vehicle search, not invalidated by exclusionary rule vis-à-vis illegal pat-down… but unclear factual basis for plea-agreement requires remand for trial or new plea… Fehr affirmed, reversed) Laster, 10/23:4; (officer’s “cordial conversation” with Vietnamese at gas station on drug corridor who was staring at MHP van stuffed with marijuana constituted seizure which was not justified by particular suspicion… motion to suppress marijuana found in consented search of car improperly denied… Hayworth reversed) Pham, 10/23:6; (orders authorizing installation of pen registers and trace devices and to obtain cell site location valid under 4th Amendment even if questionable under Montana law… request for new counsel considered withdrawn based on counsel’s representation that Defendant had changed his mind… meth convictions affirmed… Watters affirmed (memorandum)) Fregia, 11/6:9; (sufficient evidence for jury to find that untested substance provided to teen was meth… Defendant’s right to opportunity for allocution properly satisfied… convictions affirmed… Parker affirmed) McCoy, 11/27:2
DUI: (mandatory felony DUI fine properly imposed on Defendant whose only income is SSD but related surcharge improperly imposed without assessment of ability to pay… ability to pay cost of imprisonment, probation, alcohol treatment properly deferred to DOC… Cuffe affirmed, reversed) Ingram, 1/2:3; (Defendant not “unreasonably impeded” from obtaining independent blood test… Ulbricht affirmed (IOR I-3(c))) Weber, 1/2:3; (officer justified in stopping vehicle based on “paced” speeding despite vehicle not being the one reported by a citizen as possible DUI… Walker/Todd affirmed (IOR I-3(c))) Mahan, 1/9:4; (sufficient evidence that intoxicated person sleeping in car in public housing parking lot was in “way of this state open to the public” and had ability to start car with key fob found on seat… mistrial properly found not warranted by Prosecutor’s attempt to admit hearsay evidence from Nissan website to suggest perjury by Defendant’s marital partner that she unlocked car with another key fob from inside apartment to let Defendant sleep it off… Parker affirmed) Krause, 2/6:5; (Miranda and statutory and constitutional speedy trial claims properly rejected in case of motorist who drove into snowbank when startled from sleep while stopped in driving lane… Swingley/Reynolds affirmed (IOR I-3(c))) Price, 2/13:5; (specific unanimity instruction as to having driven truck stopped in road and actual physical control properly declined… instruction that a witness is presumed to speak the truth properly declined… Prosecutor did not commit plain error in commenting on witness credibility in case of dispute over whether Defendant or passenger had been driving… 4th DUI conviction affirmed… H. Brown affirmed) Wells, 5/8:4; (rollover investigation properly ripened into DUI investigation and detention in back of patrol car did not amount to formal arrest requiring Miranda but Crime Lab toxicologist improperly allowed to testify via Skype contrary to Mercier… conviction reversed, remanded for new trial… Swingley/McMahon reversed) Bailey, 7/3:5; (officer had reasonable suspicion to stop vehicle with no front plate without first determining if it qualified for the body construction waiver, motion to suppress properly denied… J. Brown affirmed (memorandum)) Rux, 8/7:7; (Officer had particularized suspicion of DUI and probable cause for DUI arrest independent of challenged eluding being initial reason for stop… license reinstatement properly denied… Gilbert affirmed (memorandum)) Walberg, 10/16:6
Endangerment: (sufficient evidence to convict DUI driver who caused near miss with deputy on mountain road of criminal endangerment… Ulbricht affirmed (IOR I-3(c))) Sederdahl, 3/13:2; (proper circumstantial evidence instruction given at trial of intoxicated man found sleeping in vehicle in snowbank… 2004 DUI properly found constitutionally firm to support felony enhancement… Menahan affirmed (memorandum)) Wilke, 11/20:2
Endangerment/assault/attempts: (conduct-based instruction for criminal endangerment “knowingly” harmless error in light of overwhelming evidence that Defendant was aware that his wild driving risked serious injury or death… instructions for Attempts fully advised that jury must find the purpose to commit a specific offense… convictions affirmed… Dayton affirmed (IOR I-3(c))) Collins, 1/23:1
Expungement: (speeding is not a crime, thus Petitioner has not shown that he has a misdemeanor to expunge in 11th Judicial District, Petition to expunge all unspecified misdemeanors properly dismissed for improper venue… Eddy affirmed) Expungement of Misdemeanor Records of Dickey, 1/9:1; (of 2002 marijuana grow conviction under I-190 properly denied because landlord had not granted permission for the grow… Ulbricht affirmed) Rairdan, 10/2:6; (of 1989 conviction of possession of over 60 grams of marijuana from home grow properly denied… Todd affirmed) Maier, 11/20:3
Felon in possession: (evidence of drug activity properly admitted… Dist. of Wyoming Chief Judge Skavdahl affirmed (memorandum)) Gordon, 7/3:7
Firearms: (“creative” arguments to avoid being “prohibited person” in possession of firearm based on Montana felony rejected… Molloy) Sullivan, 3/6:3; (convictions of purchasing gun for juvenile son affirmed… Morris affirmed (memorandum)) Scott, 5/1:7
Grizzly killings: (sufficient evidence to convict, but legal error in treating adverse credibility finding as dispositive for rejecting good faith claim of self-defense requires reversal and remand for 3rd trial… Lynch/Christensen reversed (memorandum)) Wallen, 1/16:5
Incest: (Defendant improperly precluded from calling expert to testify regarding general information of false reports in child sex abuse cases… conviction reversed, remanded for new trial… Berger reversed) Reams, 1/2:1; (inquiries into accuser’s post-incident lies properly limited in credibility contest between father and 11-year-old daughter… Murnion affirmed) Quinlan, 1/30:6; (5-year-old’s statement that she saw her mother and mother’s boyfriend “playing horsey” properly rejected in Mazurek hearing as prior accusation of sexual misconduct… father’s conviction in re-trial affirmed… Kutzman affirmed) Weisbarth, 4/17:7; (claim of unusual duress exception to mandatory sentence based on Defendant’s own childhood sexual abuse properly rejected… Rieger affirmed (memorandum)) Anderson, 11/6:6
Incest/sexual assault: (sexual assault not lesser included of incest, convictions in relation to young son not violative of double jeopardy… contrary conclusion in Hall overruled, Sor-Lokken clarified, “without consent” applies in all sexual assaults regardless of age of victim… Berger affirmed) Valenzuela, 10/2:5; (evidence of 2012 juvenile molestation of half-sister and admission of sexual feelings only toward her properly admitted as evidence of “longstanding sexual fixation” providing motive for alleged rape in 2017, not outweighed by unfair prejudice… Wilson affirmed) Murphy, 10/23:2
Indecent exposure to minor: (uncharged allegation of sexual misconduct toward daughters properly allowed to rebut Defendant’s assertion that they previously had an “awesome” relationship… conviction affirmed… Bidegaray affirmed) McGhee, 8/7:5
Ineffective assistance: (Defense counsel’s erroneous representation that Judge could not continue deferred sentence with additional treatment conditions constituted ineffective assistance requiring remand for resentencing… McMahon reversed (IOR I-3(c))) Kirkland, 2/20:6; (sufficient facts alleged for claim that counsel was ineffective for failing to file notice of appeal when requested to warrant evidentiary hearing… Christensen reversed (memorandum)) Shortman, 7/3:6; (counsel’s failure to make multiple prosecution arguments that were successful in subsequent similar case not ineffective assistance per Montana Supreme Court’s determination that later decision was significant departure from prior jurisprudence… habeas properly denied… Watters affirmed (memorandum)) Lacey, 8/28:9; (attorney was ineffective in failing to direct Judge to possible deferred drug sentence under ASA, remanded for new sentence hearing… Oldenburg reversed) Wright, 9/25:11); (not established by failure to move to suppress murder gun with untested possible blood spot on end of barrel… McMahon affirmed (memorandum)) Schneider, 9/25:12; (claims by murder/tampering Defendant as to search warrants properly rejected… Todd affirmed (memorandum)) Neiss, 10/2:7; (attorney for PFMA/criminal mischief cases properly allowed to testify for the State in Defendant’s bail jumping case after Defendant waived attorney-client privilege, did not constitute ineffective assistance… attorney not ineffective for failing to move to continue PFMA/mischief trials as it would have been futile with Defendant in California… bail conviction affirmed… Harris affirmed) Payne, 10/9:6; (claims relating to conviction for possessing Oxycodone purportedly obtained via valid prescriptions but taken in non-prescribed manner (crushed, heated, injected rather than by mouth) properly rejected… Reynolds affirmed (memorandum)) Temple, 12/25:1
Interstate transportation of stolen property/money laundering: (convictions affirmed… Haddon affirmed (memorandum)) Herrin, 8/7:11
Joint counsel: (supervisory control of Berger to remove husband & wife medical marijuana Defendants’ joint counsel denied… order) Hill and Bissette, 9/4:5
Jury: (juror who admitted knowledge of Defendant’s criminal history 2nd day of trial not grounds to overturn meth convictions… Christensen affirmed (memorandum)) Venditti, 5/1:6; (oral representation of counsel insufficient basis for waiver of jury… courthouse vandalism conviction reversed, remanded for new trial… Eddy reversed (memorandum)) Weimer, 10/16:4
Negligent homicide: (Defendant in side-by-side motorcycle collision not denied fair trial by removal of pannier and denial of jury view of reattached pannier… Olson affirmed (memorandum)) Gossard, 9/4:6
Obstruction: (jury given improper conduct-based “knowingly” instruction as to obstruction of officer for refusing blood test, counsel ineffective for not seeking results-based instruction, not cured by State’s closing argument stating correct burden… obstruction conviction reversed, remanded for new trial… Reynolds reversed) Secrease, 8/21:5
Patronizing prostitution: (no reasonable expectation of privacy in texts sent to federal agent in response to internet sting ad… Rienne McElyea affirmed) Staker, 6/26:4
PFMA: (mental disease/defect defense waived by failure to properly raise over claim that its significant did not become apparent until trial… Hileman/Eddy affirmed (IOR I-3(c)) Klink, 1/16:2; (conviction affirmed over challenge to sufficiency of evidence as to alleged wine throwing and dynamite instruction… J. Brown affirmed (IOR I-3(c))) Bliss, 2/27:6; (sufficient evidence to convict Defendant of injuring live-in girlfriend… restitution properly imposed for girlfriend’s expenses to move out… Herrington/H. Brown affirmed (memorandum)) Smith, 6/12:9; (replays of videos of incriminating statements to the deliberating jury without notice to the parties constituted reversible error… felony conviction reversed, remanded for new trial… Cuffe reversed) Hoover, 10/30:4; (Prosecutor engaged in “sharp practice” to “set the trap” to bring in undisclosed former girlfriend who was sitting in courtroom as rebuttal to professional band member’s denial of ever strangling anyone… testimony was error but jury saw through State’s tactics and not grounds for reversal as it did not arouse the jury’s hostility such that there is a possibility that Defendant was convicted on anything other than the permissible evidence… conviction affirmed… Vannatta affirmed) Torres, 11/27:3
Plea agreement: (regardless of whether either party breached non-binding agreement for suspended sentence for felony PFMA, no error in independently imposing incarceration rather than strict performance of agreement… Pinski affirmed (memorandum)) Parker, 5/8:5; (pretrial custody infractions properly considered “additional crimes,” State entitled to revise sentencing recommendation… Larson affirmed (memorandum)) Archibald, 7/24:4
Plea withdrawal: (following sentences in excess of plea agreement recommendations for deviate sexual conduct and protective order violations properly denied… Berger affirmed (IOR I-3(c))) Harrison, 1/30:8; (by child sex assault Defendant claiming coercion by counsel properly rejected… Souza affirmed (IOR I-3(c))) Fishbaugh, 4/3:4; (to PFMA after subsequent PFMAs filed properly denied… Beal/Townsend affirmed (memorandum)) Starr, 4/24:6
Postconviction: (claims of Defendant who was convicted of staging a crime scene to implicate a deputy properly rejected without hearing… Wald affirmed (IOR I-3(c))) Ellison, 1/2:2; (appointed counsel’s delays and lack of candor improper basis for dismissing blameless Defendant’s petition… Rienne McElyea reversed (IOR I-3(c))) Wagner, 2/27:5
Privacy in Communications: (act not grounds for excluding order of protection Defendant’s phone call recorded by ex-boyfriend with no State involvement… request to overrule Long denied as no novel arguments offered… Kolar/Knisely affirmed (memorandum)) Hofman, 10/9:8
Prisoner: (MSP inmate charged with spitting on guards not deprived of fair trial by having to wear leg irons and presence of guards in courtroom… Dayton affirmed (memorandum)) Whitford, 10/16:5
Prison smuggling: (no indication of why counsel declined to request conspiracy instruction on charge of smuggling drugs into MSP, ineffective assistance claim more amenable to postconviction… Dayton affirmed (memorandum)) Black, 7/24:6
Privacy in Communications: (convictions for threatening/obscene calls affirmed over challenges to constitutionality of statute, threats to other than recipient, jurisdiction as to call to New York, instructions on elements not in charges… Eddy affirmed) Lamoureux, 4/24:2
Prosecutor disqualification: (supervisory control denied of J. Brown’s order disqualifying “necessary witness” Prosecutor who met with underage sex victim who changed story about her age… order) State v. Brown, 3/13:1
Rape: (plain error review declined as to combined expert/lay testimony without cautionary instruction and failure to exclude Prosecutor from Gallagher hearing… no record-based evidence of ineffective assistance in failing to call Defendant’s requested witness or failure to elicit false sex claims statistics in light of assertion that teen lied about claim of 2003 anal rape… Best affirmed) Rodriguez, 3/20:2, (rehearing denied) 4/24:7; (evidence of alleged victim’s long-term meth use properly limited… Souza affirmed (memorandum)) Mejia, 6/5:2; (hearsay statements and video of deaf and developmentally delayed 13-year-old girl improperly admitted through counselors and investigator… not harmless error… conviction reversed, remanded for new trial… Pinski reversed) Tome, 9/18:3; (fair trial undermined by testimony elicited from 4 experts vouching for 15-year-old’s credibility and Prosecutor commenting that she was a reliable witness with no incentive to lie… conviction reversed, remanded for new trial… Dayton reversed) Byrne, 9/25:5
Resisting arrest: (no abuse of discretion in denying in camera review of officer’s file for instances of excessive force where Defendant claims he was defending against unlawful assault… sufficient evidence that officer called in response to 911 stalking call was attempting to arrest Defendant and in any event there is never justification to use force simply because of being unaware of being arrested… Seel/Rienne McElyea affirmed) Howard, 9/25:8
Restitution: (objection to award to AWARE for sexual assault services and to increase from oral pronouncement to written judgment and amended judgment waived by acquiescence… Seeley affirmed (IOR I-3(c))) Rose, 1/23:3; (MSF correctly determined to be a victim insurer entitled to restitution but amount awarded should have been waived as unjust in light of Defendant’s dire financial situation despite her failure to formally petition for waiver… J. Brown affirmed, reversed) Lodahl, 7/3:3; (claimed $77,842.60 lost wages and medicals properly imposed on DUI driver in MVA in which contributory negligence claim was supported only by witness statement in MHP report that victim “may have jumped the light”… Allison affirmed (memorandum) Haynal, 11/6:7; (murder victim’s father’s affidavit of loss is unclear what part of his restitution sought is attributable to expenses incurred while subpoenaed as trial witness and for which the County would be responsible… remanded for clarification… Allison reversed) Lamb, 11/27:5
Revocation: (2017 amendments to §46-18-203 pertain only to revocation of felony probation/parole, PFMA misdemeanant properly revoked for using intoxicants without exhausting MIIG procedures… Jenks/Deschamps affirmed) Pope, 1/9:3; (Defendant found with revolver and sawed-off shotgun in vehicle properly found in violation of no-firearm condition despite the firearms not being tested for operability as definition of “firearm” “turns on what the weapon is designed to do, not on whether it is capable of doing its job at the particular moment”… Ulbricht affirmed (memorandum)) Vasquez, 9/25:10; (Defendant’s deferred misdemeanor sexual assault sentence properly revoked for “non-compliance” violation by driving within no-go zone of order of protection even though he was acquitted of violating the order… Pope not manifestly wrong or distinguishable… until Legislature remedies the confusing omission of misdemeanor revocation processes courts must derive their authority to revoke misdemeanor sentences from §46-18-203(7)(a)(iii) (2017)… Jenks/Vannatta affirmed) Sadiku, 11/20:4
Robbery: (convictions affirmed… Lovell affirmed (memorandum)) Arkinson, 9; (statements in police interview correctly found to be voluntary, officers did not fail to honor any unequivocal requests to terminate interview… Townsend affirmed (memorandum)) Maciel, 4/24:3
Sentencing: (Defense counsel’s erroneous representation that Judge could not continue deferred sentence with additional treatment conditions constituted ineffective assistance requiring remand for resentencing… McMahon reversed (IOR I-3(c))) Kirkland, 2/20:6; (improperly withheld information as to one informant unlikely to alter jury’s credibility evaluation, but failure to disclose other informant’s bias and exaggerated role possibly affected jury’s determination of amount of meth trafficked and resulting stiff sentence contrary to US’s niggling view of the undisclosed information… Defendant to be resentenced with lower maximums/minimums without informant’s testimony (too many reasons to disbelieve it) absent persuasive corroborating evidence… Molloy) Lira, 3/27:8; (presumption of deferred sentence for meth possession not overcome, suspended sentence improperly imposed… Cuffe reversed) Doubek, 4/3:3; (6-month DUI sentence long expired during 552 days from notice of appeal remittitur to motion to execute stayed sentence, motion improperly granted… Townsend reversed) Nelson, 4/10:2; (Defendant who committed SIWC in 2016 properly sentenced under pre-17 statute… Pinski affirmed (memorandum)) Beavers, 4/10:3; (probation conditions for Stolen Valor Defendants to wear signboards at Veterans Memorial stricken on State’s concession… Pinski reversed (order)) Morris and Nelson, 4/17:6; (tier level improperly imposed for failure to register as sex offender… Todd reversed (order)) Stutzman, 4/17:6; ($700 fine (35% of market value) for drug possession with intent to distribute properly imposed pursuant to plea agreement notwithstanding Ber Lee Yang… Cuffe affirmed (memorandum)) Long, 5/15:10; (by stipulation, gang rape Defendant to be resentenced without the “two or more persons convicted” enhancement, Defendant arguing enhancement not applicable because adjudication of juvenile co-defendant did not constitute “convicted”… order) Pedersen, 5/15:10; (challenge of validity to nolo plea to sexual abuse of children rejected on basis that 2014 conviction is time-barred and habeas is not available to challenge legal sentence… Hansen and Hardin overruled to extent they failed to distinguish between illegal sentence and invalid plea) Gardipee, 5/15:10; (sentence for violating supervised release which extends incarceration beyond maximum for felon in possession without jury findings per 9th Circuit precedent not violative of 5th/6th Amendments under Haymond plurality… Morris affirmed) Henderson, 6/19:5; (habeas challenge of 110 years no parole for juvenile killer properly dismissed as untimely… Morris affirmed (memorandum)) Steilman, 6/19:5; (Guidelines range sentence for felon in possession of firearm not “constitutionally defective,” waiver of right to appeal applies… Haddon affirmed (memorandum)) Culp, 6/26:8; (Defendant on parole at time of endangerment charge entitled to pre-sentence jail credit pursuant to §46-18-201(9) (2017) based solely on the record of the offense for which he is being sentenced and without regard to whether he is “incarcerated on a bailable offense”… remanded to credit 489 days jail time… Kutzman reversed) Killam, 8/7:4; (DUI Defendant entitled to credit for all pre-sentence incarceration regardless of being held in connection with charges in other counties pursuant to §46-18-201(9) (2017)… Christopher reversed) Mendoza, 8/7:5; (jail time properly imposed as part of deferred imposition for paraphernalia… Walker/Todd affirmed) Thibeault, 7/10:6; (motion to amend 2008 sentence to allow sex treatment in community rather than MSP by inmate who refuses to admit guilt and is therefore ineligible for prison program properly denied… Gilbert affirmed (memorandum)) Passmore, 8/14:2; (attorney was ineffective in failing to direct Judge to possible deferred drug sentence under ASA, remanded for new sentence hearing… Oldenburg reversed) Wright, 9/25:11; ($3,025 restitution for extradition costs properly imposed on DUI/criminal endangerment Defendant whose only income is $3,000/mo Army disability… surrender of medical marijuana card properly ordered as related to alcohol addiction… Allison and Cuffe affirmed) Corriher, 10/30:5; (fines, costs, fees improperly assessed without adequate consideration of ability to pay but reason for counsel’s failure to object not apparent from record, ineffective assistance claim more amenable to postconviction petition… drug convictions affirmed without prejudice to postconviction petition… Cuffe affirmed (memorandum)) Terry, 12/4:7; (enhancement for explosives Defendants improperly denied in light of subsequent 9th Circuit decisions regarding “controlled substance offense” and Montana drug law… Morris “reversed” (memorandum)) Harding, 12/4:13; (standard of review of unsworn hearsay at sentencing clarified: the test is whether it is “procedurally” or “substantively” reliable, considered in the disjunctive… both tests met for co-defendants’ hearsay which supported obstruction enhancement of robbery conviction… Haddon affirmed) Franklin, 12/11:3; (felony DUI sentence did not violate federal law protecting SS income… Judge acted within discretion in conditioning payment of prison, probation, treatment costs on a later determination by DOC of ability to pay and imposing the $5,000 mandatory fine, but failed to make the separate inquiry into ability to pay the $560 in fees & surcharges and Defendant sufficiently objected about his ability to afford them… Cuffe affirmed, reversed) Yeaton, 12/18:2; (counsel sufficiently objected to $500 felony DUI surcharge by expressing that given Defendant’s bad leg he would have problems paying defender fee, not necessary to specifically object to each fee and cost… remanded to strike surcharge or conduct ability-to-pay inquiry… Halligan reversed) Steger, 12/25:3
Sexual abuse of children: (video of forensic interview of 9-year-old improperly admitted as prior consistent or inconsistent or mixed hearsay exceptions but error harmless in light of untainted evidence that stepfather forced her to dance around pole like her exotic dancer mother in her underwear while his penis got bigger and he “adjusted” his own underwear… Prosecutor’s closing arguments do not warrant reversal under plain error… lifetime satellite monitoring by DOC where victim is under 12 facially unconstitutional… conviction with sentence of 100-year prison term all but 20 years suspended affirmed… Halligan affirmed) Smith, 6/12:4
Sexual assault: (speedy trial claim properly denied based in part on docket congestion… new trial not warranted by post-trial disclosure that “bit player” detective was being investigated for making a false insurance claim… Kutzman affirmed (IOR I-3(c))) Salaman-Garcia, 3/13:4; (shredding of notes of interviews with 7-year-old stepdaughters after entry into database not deliberate destruction of potentially exculpatory evidence… expert properly precluded from applying expertise to facts of case… conviction affirmed… Harris affirmed) Villanueva, 10/30:1
Speeding: (sufficient evidence that 35 mph limit was “actually established” as opposed to temporary… conviction of driving 50 in a 35 zone affirmed… Swingley/McMahon affirmed (memorandum)) Prichard, 12/18:4
Speedy trial: (800+ days of delay not justified for simple misdemeanor DUI, denial of motion to dismiss reversed, remanded for dismissal… Carter/Todd reversed (memorandum)) Smith, 9/4:7
Stalking: (felony stalking conviction affirmed where victim saw defendant in person and later saw him on video depicting his then unknown presence at another location… Rienne McElyea affirmed (memorandum)) Smith, 7/24:5; (placing barbed wire and obstructions in easement constituted stalking regardless of no verbal or written “communication”… railroad tie fence post properly admitted despite weather deterioration between first trial with hung jury and second trial which diminished visibility of dirt line vis-à-vis Defense argument that screw was visible to chainsaw cutter… convictions affirmed… Berger affirmed) Hren/Nelson, 10/16:2
Theft: (correction of scrivener’s error confusing trucks, one of which Defendant was convicted of stealing and the other of which he was acquitted, does not set aside the judgment actually rendered in application of the facts to the law as passed “out of the breast of the judge,” double jeopardy not implicated… 34 conditions of suspended sentence improperly imposed when no part of sentence was suspended… time-served credit requires further consideration… Olson affirmed, reversed (IOR I-3(c))) Villa, 1/30:5; (mistrial based on references to stolen vehicle Defendant’s “jail” status properly denied… instruction for unauthorized use of a vehicle as lesser-included of theft by possession of stolen property properly denied… evidence that Defendant traded drugs for stolen plate properly admitted as transaction evidence, but why counsel stipulated to admission more amenable to postconviction… Parker affirmed) Denny, 5/8:3; (charge not supported by sufficient evidence, should have been dismissed at conclusion of evidence… Parker reversed (memorandum)) Youmans, 5/29:5
Theft/official misconduct: (claim of breach of deferred prosecution agreement by county commissioner rejected, charges dismissed… Menahan) Obert, 5/22:10
Threatening judge: (rights of mentally ill Defendant who did not assert mental defense properly protected… conviction of sending threatening letter to prior judge in disorderly conduct case affirmed… McLean affirmed (IOR I-3(c))) JWK, 3/6:2, (whether mental disease or defect by Defendant accused of threatening judge was referred to in Opinion as affirmative defense or a defense is irrelevant in context of seeking continuance… rehearing denied… order) 4/10:3
Traffic stop: (for following too close properly ripened into search of vehicle including spare tire stuffed with meth… motion to suppress properly denied… Watters affirmed (memorandum)) Sanchez, 4/24:8; (drug suppression properly denied as to passenger in car driven by CI and “suboptimal” dog sniff… Watters affirmed (memorandum)) Diskin, 5/1:6; (legitimately ripened into drugs/firearms seizure… Christensen affirmed (memorandum)) Lugo, 7/3:7; (of probation absconder resulting in drugs upheld over claims of no reasonable suspicion for stop and attenuation doctrine not applying… Morris affirmed (memorandum)) Galliher, 12/4:12
Vehicular assault: (hearsay from Trooper improperly admitted as the only substantive evidence of passenger’s injuries… evidence of driver’s injury and vehicle damage insufficient circumstantial evidence of passenger’s injuries, charge against driver should have been dismissed… H. Brown reversed) Butler, 5/22:7
Victim standing: (assault victim has not established standing to contest assailant’s sentence, mandamus of Bowler denied… order) Two Leggins, 3/13:3
Youth: (triple murderer in 1985 when 17 incorrectly found “irreparably corrupt” and “permanently incorrigible” at resentencing to original life without parole without considering Miller (US 2012) factors including undisputed evidence of rehabilitation… neutral expert properly appointed rather than Defendant’s… request for jury to determine “irreparably corrupt” properly denied… Pinski reversed, affirmed) Keefe, 1/16:1; (pre-2017 version of registration statute with presumption in favor of registration properly applied to offenses committed prior to effective date of amendment… challenge to 2-year-old evaluation as basis for tier designation waived for failure to pursue below… Spaulding affirmed (IOR I-3(c))) ZL, 1/30:8; (jurisdiction over youth given both juvenile and adult sentences under EJPA for possession of explosives when 16 lost when youth turned 25 with no explicit transfer to District Court… revocation at age 27 of suspended part of sentence stemming from violations of original conditions vacated… Langton reversed) SG-HM, 7/17:8
*Discrimination
Age: (finding of no discrimination against RIFed State Library employee affirmed… Holien affirmed… HRC) Blount v. Montana State Library, 12/11:12
Disability: ($53,851.85 compensatory damages, $17,950.62 attorney fees, termination of delivery driver disabled by shoulder surgery… Vanisko/Halligan) Pederson v. Fred’s Appliance, 8/14:5
Disability/retaliation: ($504,124.66 front pay for 12.84 years to intended retirement of RR diesel shop machinist with idiopathic spastic paraparesis improperly removed from service, on remand from HRC ordering front pay without consideration of previous practice of 4-year WDA limitation… $49,185.99 back pay, $50,000 emotional distress (reduced by HRC from $100,000… net $477,138.25 present value… Caroline Holien) Rod v. BNSF, 2/13:9; (net $477,138.25 award to RR diesel shop machinist with idiopathic spastic paraparesis affirmed except front pay for 12.84 years to intended retirement reduced from $377,952.26 to stipulated $348.458.81 based on 24 pay periods rather than 26… HRC internal disagreement on formula for calculating front pay… Holien mostly affirmed) Rod v. BNSF, 10/30:7; ($138,875.12, terminated probationary prison officer with PTSD from inmate restraint… Administrative Decision, Chad Vanisko) Outland v. MSP, 3/13:10
Employment: (dismissal based on statute of limitations vacated, remanded for further consideration of whether Title VII, ADA, §1981 claims are timely… Morris reversed (memorandum)) Butterfly v. Benefis Health System, 3/6:5
Employment accommodation: ($231,134.16, failure to provide reasonable accommodations to ultrasound technician as result of non-work shoulder injury… Administrative Decision… Chad Vanisko) Joachim v. St. Luke Community Healthcare, 4/24:11
Race: (African American’s co-workers’ comments/behavior “boorish and distressing” but not severe or pervasive enough to alter conditions of employment, complaint dismissed as lacking merit… ODH administrative decision… Caroline Holien) Bullock v. TeleTech, 12/11:9
Retaliation: (HRA does not provide retaliation cause to non-human entities… Seeley affirmed) Montana Independent Living Project Inc. v. Helena, 1/30:3; (claim by RIFed DOC manager rejected… Administrative Decision… Caroline Holien) Cotton v. DOC, 11/27:8; (claim that unsuccessful county fair vendor applicant was passed over for 2019 slot in retaliation for filing a discrimination claim against the County in 2015 rejected…. Administrative Decision, Caroline Holien) Carmalt v. Flathead Co., 12/25:11
Sex: ($61,725 fees, $4,301.34 costs plus prejudgment/post-judgment interest awarded following affirmation of MHRA award of $50,000 emotional distress damages for hostile work environment occasioned by conduct of “sex pest” toward gay female… Molloy) Lowery v. Sarens, 3/20:5; (sexual assault claims by restaurant employees sound in tort under gravamen analysis, properly filed directly in District Court along with negligence, negligent hiring/retention/entrustment, and constructive discharge, despite HRB dismissals of sex discrimination claims as untimely under HRA… Moses) Straub v. Shen, 5/8:6
Sex/retaliation: (HRC’s award of $80,000 for sex discrimination by female supervisor’s touching of male subordinate and $20,000 for retaliation for complaining affirmed… $360,072.65 attorney fees/costs affirmed… HRC affirmed, Reynolds affirmed, reversed) MSU-N v. Bachmeier, 2/6:1; (hostile work environment claims by casino employee involving single incident of assault by co-worker and rape “joke” by employer rejected… Administrative Decision… Chad Vanisko) Hyland v. RDJ Enterprises dba Doc & Eddy’s, 3/27:14
Sexual harassment: (HRB’s finding of unlawful harassment improperly reversed based on alleged hearsay testimony of observations of Plaintiff’s demeanor and reaction in he-said/she-said case… $25,894.76 damages award properly affirmed… Holien affirmed, Souza reversed, affirmed (memorandum) Jones v. All Star Painting, 5/29:2
Sexual harassment/retaliation: (Holien and HRC affirmed in finding that electric co-op office manager was sexually harassed by GM’s “creepy conduct and retaliated against for complaining, but front pay improperly capped by WDA 4-years to $758,454.52, should be $1,379,338 for 20 years as requested… $50,000 for emotional distress proper… $202,496.60 backpay undisturbed… Laird) Lawson v. NorVal Electric Cooperative, 3/6:3
*Elections
Campaign finance: (COPP may subpoena witnesses but must seek court authority to subpoena documents… McMahon affirmed) COPP v. Montana Republican Party, 5/1:2
*Employees
ERISA: (fact issues preclude summary judgment as to whether employer adequately advised terminally ill employee that life insurance benefits were ending thereby denying him his conversion privilege upon termination of employment… fiduciary claim against insurer properly dismissed… Christensen reversed, affirmed (memorandum)) Foster v. American Marine, 2/13:7; (former clinic Medical Education Specialist proved that she was totally disabled and entitled to benefits for 24-months ending 3/29/20, denial applied wrong definition of “Total Disability and Totally Disabled,” Claimant was unable to perform one or more material & substantial duties of her Regular Occupation, denial based on subjective evidence combined with perceived lack of objective evidence contrary to case law… Claimant awarded attorney fees, costs, prejudgment interest, remanded for determination of whether she met policy’s “any occupation” definition of “total disability” after 3/29/20… “paper bench trial”… Watters) Maulolo v. Billings Clinic, 9/18:8
Wages: (water utility employees properly found not to have exhausted CBA grievance procedures as to claim that they were wrongly required to take 30-minute unpaid lunch break, properly found not “on call” during breaks… Vanisko/Whelan affirmed (memorandum)) Bolton, 5/8:1
*Environment
Petroleum tank release: (County not barred by general 5-year statute for submitting eligibility applications… case improperly remanded to Board to reconsider arguments it had rejected… Menahan affirmed, reversed) Cascade Co. v. Petroleum Tank Release Compensation Board, 2/13:2
Natural Streambed Act: (mid-section of stream that would perennially flow absent human manipulation (mining) properly classified as “natural, perennial-flowing” subject to Streambed Act jurisdiction… McMahon affirmed) Fortner v. Broadwater Conservation District, 9/25:1
Water bottling plant: (residents have standing to challenge permits… permits violated MEPA… remanded to correct deficiencies in EA… Eddy) Water for Flathead’s Future v. DEQ, 8/14:6
*Family Law
Disclosures: (mutual decision to not include medical businesses in 2016 disclosures not “perjury” allowing for reopening decree of doctor and nurse practitioner in 2020 when they disputed ownership… Moses reversed) Fuller, 7/17:4
Grandparent contact: (supervisory control denied as to Vannatta’s denial of motion to dismiss petition… order) Hoke, 1/30:3
Guardianship: (paternal grandparents properly appointed temporary guardians/conservators of children pursuant to consent of mother and best interests of children notwithstanding deceased father’s testamentary appointment of new wife… Gilbert affirmed) JSM, 4/17:5
Parental rights: (supervisory control of Gilbert denied as to determination that Mother is not entitled to appointed counsel in Adoption Act termination because she does not meet financial eligibility requirements pursuant to OPD’s indigency determination method which included partner’s income and assets… order) SP, 6/26:3
Parenting: (parenting plan considering children’s wishes supported by substantial evidence… contempt order not ripe for review… Kutzman affirmed (IOR I-3(c))) Simonsen, 3/6:1; (issues properly resolved in “extremely contentious” litigation between lawyer father and ex-girlfriend’s lawyer father… Oldenburg affirmed (memorandum)) SRG, 7/17:7; (new husband (a non-party) improperly ordered to engage in family counseling… absent parent improperly allowed to contact children “regularly” contrary to mediated stipulation… future conflicts improperly subjected to mandatory mediation… tax dependency deductions properly split between the parties… Halligan reversed, affirmed) PHR, 9/25:1; (2008 50/50 stipulated parenting plan properly amended to give full custody of 15-year-old to his mother over his wishes to live with his father… Gilbert affirmed (memorandum)) Lalicker and Hartkopf, 10/23:2
PMA: (rulings upholding PMA and rejecting counterclaims grounded in breach of promise to marry by Canadian judge who took semi-retirement to marry wealthy Bozeman businessman affirmed… $97,600 fees at $380/hr properly awarded judge’s attorney for enforcement of PMA in “War of Roses”… Best affirmed (memorandum)) Pariser v. Shriar, 5/29:3
Property: (family farm/ranch division, equalization payment, interest rate, tax consequences… Cybulski/Simonton affirmed, reversed (IOR I-3(c))) Myers, 3/27:5; (wife’s failure to timely respond to discovery warranted sanctions but not to the extent of awarding husband virtually all the estate without proper consideration of §202 factors… Cybulski reversed (memorandum)) Schaub, 9/4:3; (distributions involving construction businesses and encumbered marital property affirmed… Gilbert affirmed (memorandum)) Carbah, 9/4:4
PSA: (interpretation of 1995 PSA affirmed and reversed… Cuffe affirmed, reversed (IOR I-3(c))) Payne, 2/6:3
Residency: (90-day residency defect in original petition cured by “supplement,” improperly dismissed for lack of jurisdiction… Eddy reversed (IOR I-3(c))) Dietrich/Godbe, 2/27:4
Sanctions: (wife’s failure to timely respond to discovery warranted sanctions but not to the extent of awarding husband virtually all the estate without proper consideration of §202 factors… Cybulski reversed (memorandum)) Schaub, 9/4:3;
*Federal Government
Affordable Care Act: (US required to pay Montana Health CO-OP $56,704,559.42 as full amount of Risk Corridors Program payments owed under ACA… appropriations rider could not reduce the obligation after MHC relied on RCP payments to enter the exchange… judgment under Tucker Act following US Supreme Court ruling in parallel cases… Wolski) Montana Health CO-OP v. US, 8/14:12
Beef promotion: (by non-contractual third parties utilizing $1 checkoff is government speech exempt from 1st Amendment challenge by cattle producers who object to the advertising campaigns… Johnston/Morris affirmed) R-CALF v. Ag Dept., 8/14:8
Black lung benefits: (Montana coal miner successfully invoked 15-year presumption of legal pneumoconiosis (which has both medical and statutory definitions), coal company failed to rebut presumption, benefits properly awarded based on diagnosis of COPD from coal dust and smoking… ALJ Sellers affirmed) Decker Coal v. Pehringer, 8/28:7
*Indians
Police authority: (a tribal officer has authority to detain temporarily and search non-Indians traveling on public rights-of-way through a reservation for potential violations of state or federal law… Watters/9th Circuit reversed) US v. Cooley, 6/5:5
Utility regulation: (Crow Tribe retains power to regulate electric utility’s winter termination of service… Cavan/Watters) Big Horn Co. Electric Cooperative v. Big Man, 3/6:6
*Insurance
Claim file: (conserving resources insufficient for supervisory control of Menahan’s refusal to order insurer to produce entire MVA/UTPA claims file… order) Reisbeck v. Menahan, 9/18:3
Coverage: ($2,083,171 default and $9,157.50 discovery sanctions properly excluded as to Firm and 2 members not involved in default or sanctions since the member who was involved did not disclose potential claims at inception of policy… Menahan affirmed) ALPS Property & Casualty Ins. v. Keller, Reynolds, Drake, Johnson & Gillespie, 2/27:1; (water damage to RV wall constitutes covered “sudden damage” under policy language… Vannatta reversed) Kaul v. State Farm Mutual Auto Ins., 3/20:1; (claims against mother of death shooter who was forbidden to possess firearms not covered by business policies) Employers Mutual Casualty v. Hansen, 3/20:8; (coverage under homeowners or umbrella policies for damages claimed by buyers of house whose trusses had been modified to expand living area precluded by “real estate sale,” “owned property” exclusions… insurer that defended under reservation entitled to recoup defense costs… Cavan) Safeco Ins. v. Grieshop, 4/3:7; (oil well pollution not covered by $1 million umbrella because primary only provides $100,000 pollution coverage… Morris affirmed (memorandum)) BITCO General Ins. v. J. Burns Brown Operating Co., 4/24:8; (coverage of breast cancer med-mal claim precluded by failure to timely notify insurer as to one policy and prior-knowledge exception as to other… Cavan/Watters affirmed (memorandum)) Capitol Specialty Ins. v. Big Sky Diagnostic Imaging, 5/1:3; (injured driver of mail delivery truck was employee of insured entity under control test in complicated business relationships, coverage barred by employee exclusion… Morris) State Farm Mutual Auto Ins. v. Triple L, 5/8:9: coverage and defense of oilfield waste pollution suits by Louisiana entities for activities in Montana precluded by failure to provide timely notice and by material misstatements in policy applications… Louisiana law applied in case transferred to Montana… Morris) Admiral Ins. v. Dual Trucking, 5/22:12; (claim of house settling damage due to water leak under slab properly determined to be excluded by Earth Movement Exclusion… Watters) Ward v. Safeco Ins., 8/14:9; (“physical injuries” of house cracks occurred at time of construction, not discovery, are within policy coverage period, not barred by Earth Movement Exclusion, insurer has duty to provide coverage… Todd) Loendorf v. Employers Mutual Casualty, 8/21:6; (CGL policy purchased for premises containing office, warehouse, and shop space does not cover a subsequently constructed tank wash building that was destroyed by fire… Watters) PSC Custom dba Polar Service Center v. Hanover American Ins., 12/11:6
Duty to defend/indemnify: (homeowners and umbrella policies potentially covered alleged sexual assaults of tenant by property manager, implicating duty to defend, insurer’s unilateral gamble that they did not results in its liability for $1.1 million state court judgment… Molloy) Wigton v. State Farm Mutual Auto Ins., 7/31:10; (seeking declaratory judgment as to duty to defend defective siding claims does not constitute direct or anticipatory repudiation breach of contract but is endorsed by Montana Supreme Court… duty to indemnify for insured’s out-of-pocket settlements brokered without insurer’s consent not plausible breach of contract… plaintiff in underlying State Court suit against siding Defendant not a necessary party to declaratory action under rationale forged by this Court in light of open question in 9th Circuit… Landis stay of declaratory action granted as to on-the-merits determination of whether claims in State Court suit are covered by Policy, denied in all other respects… Christensen) Cincinnati Ins. v. Northwest Painting, 8/21:8; (insurer correctly held to have breached duty to defend State for injury/death claims resulting from Libby asbestos… rulings that led to $97,833,193.93 judgment against insurer upheld except as to qualifying “occurrences” and coverage for claimants exposed to asbestos prior to policy period… Holly Brown affirmed, reversed) National Indemnity v. State, 11/27:1
Duty to provide policy to 3rd-party claimant: (claim that insurer has duty to provide policy to 3rd-party claimant when insured’s liability is reasonably clear not rendered moot by insured providing the policy after suit filed… insurer failed to show inapplicability of voluntary cessation exception by showing its conduct will not recur… Rienne McElyea reversed) Wilkie v. The Hartford, 9/11:2
Failure to notify of suit: (failure to notify auto insurer of dog injury suit precludes liability for $475,000 consent judgment, notice-prejudice rule not applicable merely because insurer would have changed coverage decision had it been notified of suit… Morris affirmed (memorandum)) Baadsgaard v. Safeco Ins. of Illinois, 11/20:12
Policy Simplification Act: (question certified to Montana Supreme Court whether, when a policy that does not include a table of contents or notice section of important provisions in violation of PSA, the insurer may rely on unambiguous exclusions or limitations to coverage given that §33-15-334(2) provides that 337(2) is “not intended to increase the risk assumed under policies subject to” its requirements… order) High Country Paving v. United Fire & Casualty, 10/2:8
Subrogation: (personal jurisdiction found over non-contracting GEICO entities in 2nd amended complaint challenging subrogation practices… Molloy) James Lee Const. v. GEICO, 3/27:7; (putative class Plaintiffs’ request for declaratory judgment as to GEICO’s subrogation practices preempted by UTPA, but amendment permitted to bring proper UTPA claim… Molloy) James Lee Const. v. GEICO, 9/11:4; (supervisory control of Wilson denied as to dismissal of made-whole individual and class claims as unripe and thus currently unjusticiable… order) Johnson v. Wilson, 11/6:3
Title insurance: (statutes governing issuance of a title policy do not impose a duty with respect to the offer of insurance in a preliminary commitment… claims by sellers in failed transaction stemming from failure to insure for legal access properly rejected… Hayworth affirmed) Phipps v. Old Republic National Title Ins., 6/26:1; (lapsed after named insureds quitclaimed interests in property to trusts, no coverage of access claim by heirs… Cavan/Watters) Green v. Chicago Title Ins., 10/2:9
*Landlord/tenant
Security deposit: (landlord violated CPA by misrepresenting that she possessed security deposit (property of the tenant) when she had expended it… tenant entitled to $1,200 (his lost deposit) not merely $500 statutory damages for each CPA violation, plus $27,946.25 fees… Larson affirmed, reversed (memorandum)) Aiking-Taylor v. Serang, 6/19:1
*Legislature
Legislative subpena: (Legislature preliminarily enjoined from subpoenaing Justice Rice for documents related to MJA SB 140 poll… request for stay for negotiations with Rice denied as Court would have to be “blind” not to see what “all others can seen and understand” that subpoena is a clash between branches over records of intense legislative political interest… McMahon) Rice v. Legislature, 5/22:9; (to Court Administrator stemming from MJA poll pertaining to SB 140 quashed as not serving a valid legislative purpose and overbroad… opinion & order) McLaughlin v. Montana Legislature, 7/17:1, rehearing denied, 9/11:3
*Local Government
City water leak: (City responsible only for repair of private water line serving single customer, not for monitoring or maintaining to prevent claimed $94,075.11 damages under theories of negligence, breach of contract, inverse condemnation… Souza) Schlenker v. Billings, 4/10:4
County road abandonment: (decision to abandon part of road over landowners’ protest properly found on petition for writ of review to be supported by substantial evidence that road did not abut Plaintiffs’ property… Wald affirmed) Williams v. Stillwater Co. Commissioners, 7/3:2
Municipal annexation: (claim that City violated equal protection because of higher connection costs for Plaintiff than for neighbors in 2011 annexation rejected on judgment on pleadings based on statute of limitations… Wald) Curtis v. Hardin, 1/2:7
Negligent home inspection: (claim against City for residential defects barred by public duty doctrine… Deschamps) Weatherman v. MTV Construction, 6/19:3
Refusal to annex: (City’s refusal to annex and provide services to farmland which owner wishes to develop did not amount to constitutional taking… Kutzman) KYSO Corp. v. Great Falls, 11/20:8
Special Use Permit: (2015 statute granted Commissioners discretion in reviewing BOA determination but abuse of discretion standard of review applies… Commissioners abused discretion by re-weighing the evidence and modifying, reversing, or remanding BOA’s conditions… Manley) MRLU v. Cascade Co. Commissioners, 1/2:5
Volunteer fire department: (properly found to be municipally owned, attempt to declare itself divested properly rejected… Murnion affirmed) Ekalaka v. Ekalaka VFD, 10/23:2
Zoning: (amendment of Neighborhood Plan to allow commercial development properly upheld over spot-zoning claim but certain defined commercial uses improperly stricken… Ulbricht affirmed, reversed) Hartshorne v. Whitefish, 5/15:3; (Part 1 SZD protest provision allowing veto of citizen zoning petition by half of landowners unconstitutional, similar to Part 2 in Williams… Moses) Rukstad v. Yellowstone Co. Commissioners, 6/12:10
*Medicaid
Countable asset: (Trust principal consisting of jointly owned home not a countable asset for Medicaid eligibility under “any circumstance”… 1st impression… DPHHS/McMahon reversed) Estate of Scheidecker v. DPHHS, 7/3:2
*Mental Commitment
Findings: (extensive oral findings sufficiently buttressed bare bones written findings to support commitment… Rienne McElyea affirmed (memorandum) JS, 6/19:3; (commitment of “renowned artist” to MSH with involuntary medication properly ordered in “close case” and disputed standard of review… Lint affirmed (memorandum)) FJS, 8/28:3
Presence at hearing: (counsel’s waiver of presence at initial hearing due to dementia and hearing loss plain error, commitment reversed… Eddy reversed) ER, 10/16:1
Vision Net testimony: (professional person improperly allowed to testify via Vision Net, error not harmless, commitment reversed… McMahon reversed) NA, 9/18:1
*Probate
Creditor’s claims: (claim by decedent’s siblings for $100,371.75 POD funds properly allowed as creditor’s claim over challenge by estranged daughter… undue influence by neighbors, competing wills, right to jury, appointment of independent PR… 10% “legal rate” interest improperly awarded on creditor’s claim… Moses affirmed, reversed (IOR I-3(c))) Cooper, 2/20:4, (rehearing denied) 3/27:5
Trust assets: (correctly held to be nonprobate assets to be used to satisfy widow’s statutory allowances only to extent the probate estate is insufficient… estate properly found sufficient to satisfy statutory allowances through abatement of devises… Best affirmed) Dower, 10/2:3
*Property
Boundary: (surveyor’s map properly given priority over deeds in resolving ownership of gap between properties… Christopher affirmed (memorandum)) Shurtz v. Dalton Grove Properties LP, 6/5:2
Easement: (access to American Legion park began with gift by ranchers in 1944, matured by mid-50s, not abandoned… Cybulski) Thomas Mann Post 81 of the American Legion v. Knudsen Family LP, 2/27:9, ($51,705 fees, $1,480.83 costs awarded American Legion Post… Cybulski) 7/31:7; (road properly found to be private due to lack of public road by petition or prescriptive easement… Gilbert affirmed) PLWA v. Robbins, 4/3:3; (claim of easement through subdivision properly rejected… Ulbricht affirmed (IOR I-3(c))) Shelter Valley Road Users Association v. Russell, 4/3:3; (no error in sua sponte ordering easement claimants to survey metes & bounds in 1987 easement grant to clarify location of easement in relation to post-judgment dispute, but error to not clarify the 2016 judgment and easement on motion for clarification in accordance with law of the case established in first appeal and error to rescind 2016 fee award because 1987 easement and related 2016 judgment determined to be “useless” and deny fees incurred in defending 2016 judgment in first appeal as “necessary & proper” declaratory relief… no fees for this appeal of motion to enforce declaratory judgment… Cybulski affirmed, reversed) VanBuskirk v. Gehlen, 4/17:2; (public road easement claim by County to make room for sidewalk running through house and garage based on easement by reference via unlabeled dashed line on COSs rejected in bench trial… $42,672 attorney fees and $1,111.29 costs awarded… Harris) Yellowstone Co. v. Hannen, 5/8:8; (challenge to express easement that was matter of public record, clearly depicted, referred to in multiple public documents rejected, but Defendant not entitled to equitable attorney fees as Plaintiffs had to engage legal process to enjoin Defendant/dominant tenement’s construction of new entryway gate with large triple posts and contemplated arch which impedes access to easement and impairs viewshed… gate structure ordered removed, ground restored… Ulbricht) Burns v. Robbins, 5/29:7; (improperly found in gross rather than appurtenant, injunctive relief for Plaintiff improperly denied… Dayton reversed) Wilkinson LLC v. Erler LLP, 7/17:3; (private road properly found across ranch subject only to FWP conservation easement for hunting… Menahan affirmed) Sieben Ranch v. Adams, 7/17:4; (implied easement by preexisting use properly found for residential use of landlocked river properties that have no other means of access but improperly found to extend to other HOA members… all HOA members properly found to have prescriptive easement for residential and recreation… easement for use by public improperly found as HOA did not assert its claim on behalf of the public… UDJA appropriate for HOA to seek attorney fees for easement claims, but $96,650.18 attorney fees/costs improperly awarded as both parties had good faith beliefs supporting their claims and insufficient evidence of unequal footing… Pinski affirmed, reversed) JRN Holdings LLC v. Dearborn Meadows Land Owners Association, 8/21:1; (transaction documents properly reformed to align with intent to reserve easement over existing road… Eddy affirmed (memorandum)) Mehring v. Goudreau, 12/18:1
Foreclosure: (summary judgment properly granted to credit union as to all lending breach claims based on issue/claim preclusion, Plaintiff corporation properly declared vexatious litigant with filing restriction on corporation and shareholders… Allison affirmed (memorandum)) Thorco Inc. v. Whitefish Credit Union, 8/28:2
Inverse condemnation: (claims stemming from breach of massive fish pond allegedly caused by road construction precluded by collateral estoppel of case in which Plaintiff pond owners were Defendants in suit by lower property owners… Wilson affirmed) Brishka v. MDT, 5/29:1
Quiet Title Act: (challenge of public use of road across private land per FS easement properly dismissed based on statute of limitations… Christensen affirmed) Wilkins and Stanton v. US, 10/2:8
Wrongful detainer: (foreclosed homeowners’ affirmative defense to wrongful detainer claim and 3rd-party claims against bank and loan servicer barred by res judicata by Federal Court statute of limitations judgments on challenge to foreclosure as claims could have been pled in federal case… Halligan affirmed (memorandum)) Fennessy v. Knight, 4/24:1
*Railroads
Abandoned right of way: (US retained reversionary interest in abandoned right of way traversing Plaintiff’s land under 1988 Rails-to-Trails Act where Plaintiff failed to obtain a decree under 1922 Abandoned Railroad Right of Way Act… Christensen affirmed) (US retained reversionary interest in abandoned right of way traversing Plaintiff’s land under 1988 Rails-to-Trails Act where Plaintiff failed to obtain a decree under 1922 Abandoned Railroad Right of Way Act… Christensen affirmed) Estate of Finnigan v. US, 6/26:6
FELA: (employee’s state law bad faith claims not preempted by FELA… Bidegaray affirmed) Dannels v. BNSF, 3/27:2
*Settlements
Asbestos: ($754,000/$263,900 settlement by OKS Claimants, 1/3 contingency for Odegaard Kovacich Snipes… Eddy) Asbestos Litigation, 4/17:6; ($4,900,000/$1,470,000 settlement, 1/3 contingency for McGarvey Law… Eddy) Asbestos Litigation, 4/17:6
Mandalay Bay Shooting Litigation: ($2,004,294.76 for injuries sustained in the Route 91 Harvest Country Music Festival/Mandalay Bay shooting… allocation award based on 1,906.5240 points valued at $1,051.28210895841 per point from $800 million global settlement with 4,400 claimants) Claim of McIntosh, 10/2:11
Short-term medical insurance: ($8 million, national class action short-term medical insurance case with 28,767 policyholders alleging use of Data iSight software to discount medical charges to amount below what was promised in the policies… settlement preliminarily approved by Watters with final approval hearing set… Class Representative’s individual non-class claims settled for $900,000 new money in addition to $75,000 paid during litigation) Butler v. Unified Life Ins. 8/14:11, (settlement approved by Watters following final approval hearing including Class Counsel’s requested $2 million fees and $30,729.76 litigation expenses… Class Representative’s individual non-class claims settled for $900,000 new money in addition to $75,000 paid during litigation) 12/4:13
*Social Security
SSD: (claim properly denied (2-1 decision)… Cavan affirmed (memorandum)) Durose, 2/20:8; (arthritis claim properly rejected, subjective pain claim improperly rejected… Kelley/Lynch affirmed, reversed (memorandum)) Porteous, 4/3:7; (Claimant properly found able to work but further consideration required as to extent time attending medical appointments inhibits ability to work… Kelley/DeSoto affirmed, reversed (memorandum)) Bourcier, 5/1:4; (ALJ improperly acted as his own medical expert in assessing functional limitations as to CTS claim, remanded for a medical expert to review the record or for a consultative exam… neck/back pain and mental claims properly rejected… Molloy) Deborah DM, 10/16:9; (application based on claim of inability to work properly denied… Kilroy/Cavan affirmed (memorandum)) Camarena, 12/25:6
SSD/SSI: (Claimant received notice of right to representation… ALJ did not violate duty to develop record by not obtaining records from a vocational program… ALJ improperly rejected claim that hand tremors were severe… Opp/Cavan affirmed, reversed (memorandum)) Harmon, 3/20:5; (properly denied… Opp/Johnston affirmed (memorandum)) Krampitz, 4/10:8; (denial remanded for proper consideration of Applicant’s PTSD diagnosis and doctor’s treatment notes… Kelley/Lynch reversed (memorandum)) Nadon, 4/10:9; (partial denial of applications affirmed… Kilroy/DeSoto affirmed (memorandum)) Mergenthaler, 9/4:8
SSI: (bathroom breaks for Claimant with urinary incontinence properly considered in application denial… Kilroy/Cavan affirmed (memorandum)) McGee, 12/18:7
*State Government
Liquor: (agency Franchise Agreement transfer interference claims properly rejected… Oldenburg affirmed) BYOB Inc. v. DOR, 8/7:1
Teachers’ Retirement: (benefits improperly received by “Director of Education” for private entity performing same functions previously performed as Superintendent of public school district… Menahan affirmed (IOR I-3(c))) Zabrocki v. TRS, 2/27:3
*Taxes
Resort services fee: (not subject to Lodging Facilities Use Tax but subject to Sales Tax… forfeited guest deposits not subject to either tax… Berger affirmed) Boyne USA v. DOR, 7/3:1
*Torts
Abuse of process: (abuse of process claims against debt collection attorney and others properly rejected on summary judgment without hearing… suspended attorney properly declared vexatious litigant and sanctioned with District pre-filing order, extended statewide… Menahan affirmed (memorandum) Wallace v. Spencer Law Offices, 10/9:3
Conversion/emotional distress: (claim that shop converted loader by releasing it to unauthorized party rejected… emotional distress claims fail parasitic or standalone standards… Christopher affirmed (IOR I-3(c))) Fitzpatrick v. Subatch, 2/13:1
Daycare negligence: (claims as to child’s subdural hematomas rejected on summary judgment… Rienne McElyea) Kostelecky v. Peas in a Pod, 4/10:3
Defamation: (claim that store customer was defamed by manager accusing him of “misdemeanor assault” for making physical contact with bent-over employee rejected on summary judgment… Whelan) Fredrickson v. Safeway Stores, 8/14:6
Foreign adoption: (Delaware/Illinois adoption agency had duty of care for Chinese child placed in Montana… Montana has personal jurisdiction over agency in suit alleging torture by Ranch for Kids… Morris) Mayer v. Madison Adoption Associates, 10/9:10
Legal malpractice: (claims against public defender properly rejected as time-barred and lacking contract… Halligan affirmed (IOR I-3(c))) Smith v. Green, 2/20:5, (rehearing denied) 3/27:5; (coverage of $2,083,171 default and $9,157.50 discovery sanctions properly excluded as to Firm and 2 members not involved in default or sanctions since the member who was involved did not disclose potential claims at inception of policy… Menahan affirmed) ALPS Property & Casualty Ins. v. Keller, Reynolds, Drake, Johnson & Gillespie, 2/27:1, (rehearing denied) 3/27:4; (claim against attorneys for failure to make claim against $500,000 homeowner policy discovered by successor attorney 9 years later properly rejected on summary judgment that boating accident was excluded by watercraft exclusion… original attorneys secured uncollectible $1,300,853 default judgment against boat owner, subsequent attorney negotiated $100,000 “cost of litigation” settlement with insurer… Wilson affirmed) Young v. Hammer, Hewitt, Jacobs & Floch, 7/24:1; (summary judgment for attorneys as to claim of negligence in not preserving client’s wish to remain on ranch rent-free following sale premature despite client obtaining summary judgment on liability against buyer… Best reversed (memorandum)) Konesky v. Keller, Reiff, and Church, Harris, Johnson & Williams, 8/28:1
Lending breach: (claims relating to re-fi foreclosure properly rejected on summary judgment… Allison affirmed) House v. US Bank, 2/27:2
Liquor liability: (“negligence (premises liability)” claim with 3-year tort statute — co-pled with “negligence (liquor liability)” claim with 2-year Dram Shop statute — precludes dismissal of bar from suit filed 2 years 8 days after assault by patron… Wilson reversed) Babcock v. Casey’s Bar, 9/4:1
Malicious prosecution/abuse of process: (claims stemming from junk vehicle citation allegedly motivated by politics dismissed on summary judgment… Murnion) Thompson v. Forsyth, 1/2:6; (claim against law firm properly dismissed based on judicial estoppel for failure to disclose criminal fraud charges in bankruptcy schedules, improperly dismissed based on failure to disclose civil fraud claim… reasonableness of firm’s investigation of Plaintiff’s role in foreclosure must be resolved by a jury… Wilson affirmed, reversed) McAtee v. Morrison & Frampton, 9/11:1, rehearing denied, 10/16:1
Medical malpractice: (supervisory control of McElyea denied as to order to produce decedent’s cell phone for hospital’s expert to attempt to retrieve data for 2 days of hospitalization in case alleging death resulting from excessive medication… Petitioner’s request to “File Additional Information to Correct the Record” rejected as inappropriate under MRAP… order) Mooring as PR of Barnett v. R. McElyea, 5/15:3
Negligence: (testimony on statutes/legal conclusions properly limited in mid-block auto-pedestrian… reversal not warranted by claimed errors in admission of irrelevant medical evidence or limiting argument on a damage instruction where jury did not reach damages… UIM defense verdict affirmed… McMahon affirmed) Wenger v. State Farm Mutual Auto Ins., 2/20:1, (rehearing denied) 4/17:4
Nursing: (clinic nurse who prescribed increased Warfarin to patient who later died of heart attack shielded from personal liability by corporate shield, not liable under CPA for employer’s business practices… claims framed in ordinary negligence or “nursing malpractice” in attempt to avoid med-mal damages cap… Recht affirmed (memorandum)) Estate of Brager v. Weinberger, 5/15:
Officer sexual assault: (whether law officers act within course & scope per FTCA when they use their authority to sexually assault certified to Montana Supreme Court… order on appeal from Watters’s conclusion that BIA officer who assaulted tribal member was not in course & scope) LB v. US, 8/14:7; (certified question accepted) 8/21:4
Power of attorney: (properly exercised by daughter from previous marriage to aid father in financial affairs, not to cheat wife out of inheritance… Oldenburg affirmed (memorandum)) Haffner-Lynn v. Annala, 9/25:3
Product liability: (summary judgment rulings as to fire/injuries from leaking barbecue grill propane tank… summary judgment denied for valve manufacturer… summary judgment granted as to punitives for store, denied as to propane supplier… all affirmative defenses including misuse and assumption of risk precluded… Plaintiffs’ motion for summary judgment denied as to liability… recommendations by Cavan adopted by Watters) Copenhaver v. Cavagna Group, 8/21:11
Sex abuse reporting: (supervisory control denied as to Best’s granting leave to proceed with a dismissed common law negligence claim against church for handling sex abuse claims internally rather than reporting after $35 million negligence per se verdict failed on appeal… order) Watchtower Bible & Tract Society of New York v. Best, 1/30:1
Sexual assault: (claims by restaurant employees sound in tort under gravamen analysis, properly filed directly in District Court along with negligence, negligent hiring/retention/entrustment, and constructive discharge, despite HRB dismissals of sex discrimination claims as untimely under HRA… Moses) Straub v. Shen, 5/8:6; (stay of civil suit until expiration of statute of limitations for “potential” criminal prosecution denied… Eddy) IE v. Baroch, 11/6:8
Vehicle/cattle negligence: (summary judgment properly granted for ranchers for death of 10 heifers by truck plowing into herd being moved on highway… “flag person” properly interpreted as rancher in a pickup with hazards flashing on side of road… $46,478.25 fees properly awarded under §25-10-303 & 201 and as sanction for discovery abuses and spoliation (allowing truck to be destroyed)… $68,128.74 judgment including $20,528.29 for the heifers… Bidegaray affirmed) Walden v. Yellowstone Electric, 5/22:1
Water system negligence: (summary judgment rulings in case involving failure of water supply system resulting in residence becoming unhabitable… statute of repose applicable to designer/builder of system, not to “materialman” supplier of pipe fittings… Allison) Roland v. Flathead Co. Ranch Water District, 12/18:5
Well contamination: (driller of well at bar & grill found to be contaminated with fuel from store/gas station across the street dismissed from store’s 3rd-party claims after settling with bar & grill although not joint tortfeasor but under Deere/Durden rationale… main case settled eve of trial… Berger) Plaster v. Montana City Properties, 8/14:2
Wrongful death: (claims against trucking company and driver by PR of passenger killed when car lost control on rainy interstate and crossed median into path of truck exceeding speed limit 2-5 mph rejected on summary judgment… Molloy) Creel v. Loy, 3/13:5; (defense verdict in “suicide by officer” case affirmed… Dayton affirmed) Estate of Frazier v. Miller, 4/17:1
Wrongful discharge: (claim denied on summary judgment for failure to exhaust grievance remedies… Rienne McElyea) Hathaway v. Zoot Enterprises, 2/27:7; (limitation period tolled until employer’s grievance procedures were exhausted, suit timely filed within 1-year statute… McMahon reversed) Shepherd v. DOC, 3/27:1; (good cause to terminate mental health Program Manager for concerns about her conduct and client care, claim properly dismissed on summary judgment… Eddy affirmed) Buckley v. Western Montana Community Mental Health Center, 4/3:1; (numerous fact issues preclude summary judgment as to whether County employee should be barred from suing for failing to follow internal appeal process… Ruiz) Schubert v. Hill Co., 5/29:6; (post-discharge grievance irregularities not valid basis for claim of failure to follow personnel policy, independent damages complaint properly dismissed… statement that challenge of agency grievance process should be through judicial review was obiter… Menahan affirmed (memorandum)) Wiegand v. Office of Public Defender, 6/5:1; (“Willful Loss of Earnings Doctrine” applied to determine that fired Program Manager who took substitute teacher job failed to adequately mitigate with reasonable diligence… without damages, entire claim fails, rejected on summary judgment… Oldenburg) 7/31:7; (failure to give notice of medical marijuana use constituted good cause for discharge… Berger affirmed) Barthel v. Barretts Minerals, 9/18:1, rehearing denied 10/30:1
*Utilities
PSC: (street lighting challenges properly rejected… Reynolds affirmed (memorandum)) Gruba v. PSC, 8/7:3
*Verdicts
Assault/battery: ($88,700, alleged armed assault and physical battery on private road) Olds v. Huelskamp, 12/4:10
Auto:($11,550, side-impact MVA, admitted negligence, soft-tissue neck, headaches) Edinger v. Silverman-King, 1/16:3; (defense, UTPA claims stemming from handling of MVA “dual-insured loss” claims) Humes v. Farmers Ins. Exchange, 6/19:5; ($25,000, t-bone MVA, closed head, lumbar strain, admitted liability) Largess v. DeGroot, 8/21:7; (defense, rear-end MVA (20 mph impact), admitted negligence, neck/shoulder strains… $60,000 settlement reached in mediation left on table) Engeron v. Kraayeveld, 9/4:7; ($510,343.05, admitted liability MVA, shoulder injuries likely requiring replacement) Breuer v. State, 12/18:6
Auto/pedestrian: (testimony on statutes/legal conclusions properly limited in mid-block auto-pedestrian… reversal not warranted by claimed errors in admission of irrelevant medical evidence or limiting argument on a damage instruction where jury did not reach damages… UIM defense verdict affirmed… McMahon affirmed) Wenger v. State Farm Mutual Auto Ins., 2/20:1
Bicycle/auto: (defense, back/TBI/concussion) Coon v. Walsh, 10/16:9
Dig Law: (defense verdict and rulings in insurer’s claim for reimbursement of damages from saltwater pipeline strike affirmed… Watters affirmed (memorandum)) Mid Continent Casualty v. Engelke, 1/2:9
Dog bite: (defense, puncture wounds to hand and wrist) GER v. Florence, 2/6:9
Easement dispute: ($100,000 compensatory and $750,000 punitives for false imprisonment awarded to Defendant/Counterclaimant in easement dispute… Defendant justified in using force against Plaintiff (attorney fees sought under this claim)… Plaintiff’s claims of battery, IIED, trespass rejected) Adams v. Roberts, 6/5:6
Failure to properly investigate report of child suffering from abuse: $16,652,538, negligence by DPHHS in failing to properly investigate report of child suffering from abuse ultimately resulting in TBI, loss of sight, seizure disorder, developmental delays when father’s girlfriend swung her head into crib bars) Wilson v. DPHHS, 12/4:7
Hemp: ($65,530,500 ($9,530,500 for negligence, negligent misrepresentation, fraud, deceit, $56 million punitives), failure to release hemp crop to 19 farmers) Romo v. USA Biofuels, 7/10:8
Insurance bad faith: (defense, UTPA claims stemming from handling of MVA “dual-insured loss” claims) Humes v. Farmers Ins. Exchange, 6/19:5; (defense, UIM/UTPA claims by former insurance agent stemming from rear-end MVA) Reisbeck v. Farmers Ins. Exchange, 10/16:7
Medical malpractice: (defense, newborn circumcision injury) Higgins v. Augustine, 6/5:4
Officers’ shooting death: (defense (49% liability by City, 51% by Decedent)) Estate of O’Brien v. City of Livingston, 8/28:13; (defense, MRI interpretation, neurologic deficits) O’Brien v. Cole, 9/11:3
Ophthalmology malpractice: ($3,087,000 ($2 million general damages), ophthalmology malpractice, intraocular lens implants allegedly leading to loss of vision) Espy v. LaGreca, 6/26:6
Rotten logs in home: ($466,000 (40% against previous owners, 60% against inspector) Stamp v. Morgan, 8/7:11
Ski wreck: (defense, ski wreck, TBI, fractured arm, fractured clavicle) Meyer v. Big Sky Resort, 3/20:10
Telecoms merger: ($1.2 million to Plaintiffs, $400,000 to Defendants/Counterclaimants, breach of contract to merge telecommunications companies) Weber v. Preston, 9/18:6
Wrongful death: (defense verdict in “suicide by officer” case affirmed… Dayton affirmed) Estate of Frazier v. Miller, 4/17:1
Wrongful discharge: (defense, controller) Wells v. River Design Group, 2/27:9; (defense, policeman) Stinchfield v. Sidney, 4/24:7
*Water
Beaverhead Valley rights: (summary judgment adjudicating BOR rights in Beaverhead Valley affirmed… Russ McElyea affirmed) 12/25:1
Beneficial use permit: (permit related to Rock Creek Mine improperly reversed… DNRC affirmed, Seeley reversed) Clark Fork Coalition v. RC Resources, 2/20:5
Point of diversion: (location properly resolved in favor of claimants… Russ McElyea affirmed) Macks, Claimants; Andersons, Objectors 2/6:2
*Workers’ Compensation
60-month rule: (claim of entitlement to hearing aid benefits beyond 60-month rule termination not ripe for trial… Sandler) Collen v. MSF, 11/27:6
Causation: (on-job incidents properly held on summary judgment to have not caused more than temporary aggravations of preexisting neuropathy… Sandler affirmed (memorandum)) Walund v. MSF, 10/2:4
Course & scope: (after-work MVA injuries precluded by going & coming rule… Molloy affirmed (memorandum)) Rochdale Ins. v. Dixon, 8/7:11
Denial: (insurer’s denials were not attempt to “unaccept” liability without justification, but is liable for L4-5 and left cubital tunnel syndrome, not for right cubital tunnel syndrome or left carpal tunnel syndrome, not for fees/penalty… Sandler) Krezelak v. Indemnity Ins. of North America, 9/18:11
Discovery: (documents privileged or irrelevant reserve info, insurer’s objections sustained… Sandler) Ray v. Ohio Security Ins., 1/23:3; (Petitioner claiming OD in employment as a comp adjuster for Sedgwick entitled to Sedgwick’s entire file because documents in Intermountain’s file suggest that Sedgwick is actively involved in adjusting the claim from Kentucky and supervising & directing Intermountain’s Montana adjusters and acting as more than mere “payment clerk”… if the Intermountain adjusters disclosed communications from Hartford’s attorney to Sedgwick, attorney-client and work-product privileges have been waived… Sandler) Bowman v. Hartford Accident & Indemnity, 5/29:11; (purported employer not entitled to claimant’s medical records from UEF… Sandler) Rickert v. UEF, 7/17:9: (surveillance videos and related doctor testimony stricken as sanction for failure to disclose videos when requested… Sandler) Meyer v. Church Mutual Ins., 8/28:12
Exclusivity: (negligence/intentional tort claims by convenience store employee assaulted by customer and claiming physical and mental injuries survive judgment on pleadings in part, fail in part… Molloy) Everett v. Holiday Stationstores, 12/25:7
Fraud: (claims not properly before the Court, evidence supporting those claims irrelevant and inadmissible… Sandler) Rice v. Johnston, 3/6:9
Injury: (Claimant failed to produce objective medical evidence and prove causation of neuropathy with medical expertise or opinion… Sandler) Walund v. MSF, 2/27:10
Mediation: (fact issues as to whether UEF notified alleged employer at his proper address of its liability determination precludes summary judgment on timeliness of request for mediation… Sandler) Laemmle/Riverside Drywall v. Pettit, 9/4:9
Mental incompetence: (2-year statute for petition for hearing tolled during period of incompetence… Sandler) Bryer as Guardian/Conservator for Sheldon v. Accident Fund General Ins., 8/14:14
PTD: (“not entirely credible” Petitioner failed to prove that age, pain, lack of skills preclude approved JAs at nursing home, PTD claim rejected… Sandler) Robertson v. MSF, 3/27:12
Settlement enforcement: (MSF’s motion to enforce unsigned settlement agreement granted because Petitioner did not make signing a condition to a binding agreement… Sandler) Winegardner v. MSF, 12/18:7
Settlement rescission: (third attempt to rescind settlements of 1988 head injury rejected… Sandler) Miller v. MSF, 3/13:7, (Sandler affirmed) 7/31:1
Subrogation: (§414(6)(a) (2017) subrogation is unconstitutional under Art. II §16 full redress for not including claimant’s costs of recovery in tort claim including attorney fees but the remedy is not a ruling that insurer has no right of subrogation, insurer may exercise that right when below-knee amputation Claimant who obtained $7,875,000 tort settlement is made whole… Sandler) Hogan v. Federated Mutual Ins., 4/17:10; (because Court need not make a finding of amount of comp to be paid in future to find whether Claimant has presently been made whole, insurer’s reserve information is irrelevant, not discoverable by Claimant resisting subrogation on $7,875,000 tort settlement… Sandler) Hogan v. Federated Mutual Ins., 5/8:11; (Petitioner’s request for final judgment in ongoing resistance to subrogation on $7,875,000 tort settlement rejected, attorney rapped for inaccurate representations, lack of candor… Sandler) Hogan v. Federated Mutual Ins., 5/15:12
TTD termination: (improperly terminated based on mistaken full-duty release, DLI properly ordered reinstatement pending a hearing per §610… Sandler) National Union Fire Ins. of Pittsburgh v. Rainey, 7/3:8
Wages: (hours claimed worked but not paid not includable as “actual wages” for calculation of “average actual earnings” under §123(1)(b)… half of $40,000 settlement of backpay and sexual harassment claims for “alleged emotional distress damages” likewise not includable as “actual wages”… Sandler) Marjamaa v. MSF, 7/10:11