Montana Law Week Subject Index- 2022

Montana Law Week Subject Index – 2022

 

 

*Administrative Law

Administrative procedures: (no avenue to challenge discretionary decision not to issue a contemplated rule… Ohman affirmed) Montana Rivers v. DEQ, 7/9:2

 

*Workers’ Compensation

Appealability: (notice of appeal properly encompassed dismissal of District Court complaint… Lint affirmed) Clark v. McDermott, 10/1:1

En banc: (recusal of Justice from “en banc” case does not warrant rehearing before full 7-member panel with substitution… order) Rolan v. New West Health Services, 3/12:1

Judicial disqualification: (of 6 Justices who “have a history of denying” work comp litigant’s due process rights denied… order) Allum v. State, 3/12:1

Stay pending appeal: (denial of stay pending appeal of reversal of coal strip-mine permit reversed… Bidegaray reversed (order)) MEIC v. Westmoreland Rosebud Mining, 8/13:1

Supersedeas bond: (Kansas rural electric entities not qualified to post bond to stay enforcement of $1,631,834.60 sexual harassment/retaliation judgment against Montana rural electric, stay denied… Laird) Shalaine v. NorVal Electric Cooperative, 1/29:5; (bond issued by Kansas rural electric “reciprocal insurers” insufficient to stay enforcement of $2,523,370.80 sexual harassment/retaliation judgment against subscriber electric… Laird affirmed (other grounds)) Shalaine v. NorVal Electric Cooperative, 4/2:1

Supervisory control: (of McMahon to vacate TRO enjoining gathering signatures for CI-121 denied, would delay resolution beyond 10 days of TRO, other remedy available… order) Monforton v. McMahon, 1/22:3; (denied as to Halligan’s refusal to allow Plaintiff time to obtain new expert after life-care planner “went rogue” in deposition… order) Woldstad v. Halligan, 4/23:1; (of Best granted vacating her own petition to terminate Mother’s parental rights… order) DPHHS (CFSD) v. Best, 4/23:1

Writ of review: (denied for claim of injury resulting from crash allegedly caused by chase by “erratic” Trooper… order) Bulltail v. State, 3/12:7

 

*Arbitration

Court modification: (face of award reveals miscalculations subject to modification by Court… remanded for Arbitrator Axelberg to clarify calculation… fees/costs for alleged vexatious actions by Defendant properly denied… Abbott reversed, affirmed) Sutey Oil v. Monroe’s High Country Travel Plaza, 3/19:3

Form: ($597,778.23 award for breach of mining facility subcontract is in form a proper “reasoned award,” improperly vacated… subcontractor entitled to fees incurred in District Court and on appeal pursuant to PPA… Brown reversed) Weeden Construction v. Simbeck & Associates, 7/30:2

Waiver: (UM women’s head basketball coach did not knowingly waive right to bring Title VII sex discrimination claim in Federal Court, arbitration clauses at most gave notice that she was agreeing to arbitrate contractual disputes regarding employment agreement… Christensen) Schweyen v. UM, 5/7:3

 

*Attorney Fees, Costs

§1983: ($75,000 verdict, §1983 unreasonable force by Probation & Parole Officer against Plaintiff who was observing arrest of her son, fractured elbow/sprained wrist… $94,077.97 attorney fees awarded of $181,865.47 requested… $2,802.97 costs awarded ($18,812.50 costs of use of force expert who did not contribute to success or appear at trial denied)) Gregory v. State and Williams, 8/27:4

Civil justifiable force: (prevailing Plaintiff in road rage assault & battery case entitled to fees pursuant to §27-1-722(4) because Defendant “asserted” justifiable force under the civil statute and not as claimed merely under the criminal statute… amount to be determined at reasonableness hearing… Marks) Olds v. Huelskamp, 10/15:6

Reasonableness: (fees improperly awarded without reasonableness hearing… Cybulski reversed) Thomas Mann Post 81 of the American Legion v. Knudsen Family LP, 7/30:1; ($532,662.35 fees & costs awarded 3rd-party Defendant flooring subcontractor and against Defendants/Counterclaimants contractor, realtors, and their joint counsel in convoluted litigation over hardwood flooring finish… subpoena for discovery as to whether fees or costs were paid by insurer denied as irrelevant to reasonableness… motion for relief from sanctions denied… Larson) Roberts v. Jon Williams, 8/6:3

Reciprocity: (improperly awarded prevailing Defendant in construction defects suit based on contract reciprocity when oral contract contained no fee provision… no fees reciprocity based on statute, but remanded to consider Foy fees… pro se Plaintiff’s motion to dismiss LLC properly denied as pro se cannot represent another, likewise improper for pro se to appeal on behalf of LLC… Gilbert reversed, affirmed) Rafes v. McMillan, 1/22:1

 

*Attorney Practice

Discipline: (Todd Stubbs suspended for unethical conduct and failure to respond… order) Stubbs, 1/29:2; (Margaret Reader suspended following complaint from District Judge of unethical conduct and failure to respond… order) Reader, 1/29:2; (proceedings against Meghan Doud for alleged trust accounts and client charges improprieties stayed pending criminal case in which she intends to plead the 5th… Doud is suspended during the interim… COP order) Doud, 7/23:2; (James McCormack suspended after defaulting on complaint alleging that he had pled guilty to felony criminal endangerment… order) McCormack, 8/6:2; (Anthony Platt suspended for 1 year for “aggressive courting” of client resulting in stalking charge and conviction of Official Misconduct… order) Platt, 11/12:1; (Courtney Lawellin suspended for 30 days for abandoning client resulting in default, ordered to pay $7,500 restitution… order) Lawellin, 12/3:1; (Joseph Connors suspended for 30 days, probation for 2 years, for failing to communicate with or perform services for client… order) Connors, 12/24:5

Disqualification: (supervisory control of Gilbert’s denial of disqualification in real estate litigation declined… order) Guenmgerich v. Gilbert, 10/22:2

Legal malpractice: (claim against sexual assault defendant’s deceased attorney’s firm fails because Alford plea entered after allegedly ill-advised guilty plea was withdrawn severed causation of initial plea… Best affirmed (other grounds, memorandum)) Terronez v. Davis, Hatley, Haffeman & Tighe), 4/30:1

Pro se: (Plaintiff’s motion to dismiss LLC properly denied as pro se cannot represent another, likewise improper for pro se to appeal on behalf of LLC) Rafes v. McMillan, 1/22:1

Unauthorized practice: (LLC’s assignment of claims to member does not permit the non-lawyer member to sue on behalf of LLC (first impression)… member also lacks standing to assert LLC’s claims… Ohman affirmed) Satorin as successor to Yellowstone Lodging LLC v. Sunrise Heating & Cooling, 3/26:1

 

*Bankruptcy

Settlement challenge: (adversary proceeding against 2 of Ch. 11 Debtors’ banks alleging involvement in check-kiting scheme barred by settlement and general release 5 years earlier… passive nondisclosure not grounds to invalidate release… adversary proceeding dismissed for failure to state claim but Trustee granted limited leave to amend… Holt) In re Shoot the Moon, 1/22:10; (adversary proceeding against Debtors’ banks alleging involvement in check-kiting scheme barred by settlement and general release 6 years earlier… proceeding dismissed with prejudice based on collateral estoppel after allowing Trustee to amend complaint to address defects requiring dismissal of prior complaint… Holt) In re Shoot the Moon, 7/23:6

 

*Civil Procedure

Amendment: (supervisory control of Dayton denied as to allowing affirmative defense 4 years after deadline… order) Spillers v. Dayton, 5/28:4

Class certification: (approved for claims of improper strip searches of misdemeanant jail detainees… Abbott affirmed) Rogers v. L&C Co., 7/23:2

Construction lien: (findings & conclusions sufficient to allow informed review of and upholding bench judgment awarding $32,662 for unpaid installment under PO and $39,113.23 fees to truss supplier against apartment building contractor and implicit rejection of contractor’s counterclaim… Parker affirmed) Truss Works v. Oswood Construction, 3/5:1; (verdict in favor of aircraft hangar insulation system designer/supplier affirmed… Holly Brown/Ohman affirmed) Thermal Design v. Duffys/Central Copters, 10/8:2; (subcontractor improperly allowed to file substitute bond to clear lien as required by contracts when Montana law authorizes only a “contracting owner” to do so… R. McElyea reversed) Skyline Consulting Group v. Mortensen Woodwork, 10/8:5

Damages: (value of written-off $165,661.50 hospital/ambulance charitable care properly denied in wrongful death judgment following certification to Montana Supreme Court… Morris affirmed) Gibson v. US, 6

Deposition: (supervisory control of Dayton to terminate deposition of deponent who threatened suicide if he had to endure a 3rd deposition denied… order) Henderson v. Dayton, 2/19:3

Discovery: (3rd-Party Plaintiff’s counsel and business partners liable for sanctions awarded against “insolvent” 3rd-Party Plaintiff… Larson) Darrell Lee Const. v. Superior Hardwoods & Millwork, 2/5:4; (supervisory control of Best denied in baler bearing wildfire case as to compelling discovery of Deere’s closed claim files from 1993 to present along with Plaintiffs’ version of a protective order allowing them to share documents with attorneys in similar cases… order) Deere v. Best, 3/26:4; (challenge of RFPs seeking financials of house sellers for punitives purposes prior to summary judgment stage rejected… Souza) Byrd v. Brewer, 12/17:3

Dismissal: (dog bite Defendant improvidently dismissed for Plaintiff’s failure to respond to motion to dismiss for lack of liability, 60(b) motion for relief improperly deemed denied without analysis of attorney’s excuse that he set motion aside expecting Defendant to file brief… Cuffe reversed (memorandum)) Harris v. Henley, 3/5:4

Dismissal/venue: (failure to respond to 12(b)(6) motion constituted admission it was well-taken notwithstanding wrongful discharge Plaintiff’s argument that Flathead Court should have decided motion to dismiss before transferring venue to Beaverhead because the motion was filed there… Defendant’s appeal fees awarded as sanction… Lint affirmed (memorandum)) Grigg v. Beaverhead Emergency Medical Services, 3/12:2

Legislative subpoenas: (petition for certiari claiming that Montana Justices’ refusal to recuse themselves from subpoenas stemming from MJA poll pertaining to SB 140 violated Due Process Clause denied without comment… order) Montana State Legislature v. McLaughlin, 4/23:9

New trial: (granted following $168,500 MVA verdict due to Counsel suggesting that a judgment would be covered by insurance or the State rather than having to be paid by Defendant herself… Foreman’s affidavit disallowed… Laird) Voegel v. Salsbery, 11/5:7

Offer of judgment: (for $50,000 plus costs & fees which §1983 Plaintiff accepted prior to 14-day deadline but following non-final summary judgment for Defendant properly enforced under plain text of Rule 68… Molloy affirmed) Kubiak v. Ravalli Co., 5/7:1

Preliminary injunction: (against school masking policies properly denied… Marks and McElyea affirmed) Stand Up Montana v. Missoula and Bozeman School Districts, 8/6:2; (2021 laws regulating or restricting abortions properly preliminarily enjoined… Moses affirmed) Planned Parenthood of Montana v. State, 8/13:2; (properly issued in road access dispute based on prima facie case that road was unabandoned county road… Gilbert affirmed) Flying T Ranch v. Catlin Ranch, 8/20:2

Punitives: (disputed fact issues preclude summary judgment for Defendants as to claim that employer was reckless in allowing employee to drive its vehicles in relation to rear-end MVA… Rienne McElyea) Olson v. Miller Insulation, 4/23:4

Settlement enforcement: (agreement for disbursement of ranch trust properly enforced over claim of incapacity by COVID, undue influence by threat of litigation, individual ownership of sections under long-expired contract for deed… Wald affirmed) Lily Smith and Vernon Lindemulder v. Samuel Lindemulder, 6/25:1

Punitives review: ($30 million punitives confirmed on top of $6.5 million compensatory damages for insurer’s failure to warn Defendant of ARD risk at Grace’s vermiculite mill in Bellwether Asbestos Court case… Parker) Hutt v. Maryland Casualty, 11/19:5

 

*Constitutional Law

Open meetings: (sub-quorum recess meeting of House Judiciary Committee not violative of open meeting laws… Menahan affirmed) AP v. Usher, 2/12:4

Unreasonable force arrest: (sanction designating that officers used unreasonable force to arrest Plaintiff imposed for failure to preserve security camera video of Probation & Parole Office parking lot where arrest occurred… issues of causation, injury, damages, and whether officers acted with malice reserved for jury… Morris) Gregory v. Montana, 2/5:4

 

*Contracts

Forgiveness: (loan to CPA education employee properly found forgiven in disputed forgiveness letter as consideration for assuming additional duties… Rienne McElyea affirmed (memorandum)) Hoven v. Waddell, 7/2:1

Novation: (1978 family farm corporation share purchase agreement did not constitute novation of 1973 agreement, corporation properly entitled to purchase shareholder’s shares for price designated by directors in 2017 pursuant to 1973 agreement… Oldenburg affirmed) O’Brien v. O’Brien, 12/24:4

Vaccination anti-discrimination: (HB 702 permanently enjoined as unconstitutional and preempted by federal law as applied in healthcare settings… Molloy) MMA v. AG, 12/31:7

 

*Courts

Intervention: (improperly denied oil/gas entity to appeal vacatur of lease sales impacting its leases… Morris reversed (memorandum)) Montana Wildlife Federation v. BLM, 1/15:7

Judicial error: (motion to amend family law order was assertion of judicial error, not clerical mistake, barred by 1-year limit… Menahan affirmed (memorandum)) Marriage of St. Clair, 7/16:3

Jury separation: (14 days not prejudicial as to warrant mistrial… Watters affirmed (memorandum)) Coversup, 6/25:5

Justice court jurisdiction: (Wheatland JP had jurisdiction to issue warrant for blood draw of driver arrested for rollover in Golden Valley… Egebakken/Spaulding affirmed) Grussing, 4/16:7

Mistrial sanctions: ($51,923.61 imposed against Defense attorney personally for gaming the system with tactical delays that resulted in mistrial of insurance/securities fraud case… Cuffe) State v. Hartman, 2/19:4

Personal jurisdiction: (declined over Idaho wolf advocates’ alleged infringement of Montana wolf advocates’ website and “relistwolves” trademark in a video… Christensen) Wolves of the Rockies v. Stone, 1/22:7

Sanctions: (Court’s “clarification of application of order” finding counsel and clients in defective flooring case liable for sanctions for frivolous/vexatious conduct provided for new counsel… Larson) Roberts v. Jon Williams, 4/2:7

Supreme Court districting: (HB 325 referendum properly enjoined from November ballot… Ohman affirmed) McDonald v. SOS Jacobsen, 8/13:2

 

*Crime, Criminal Procedure

Aggravated DUI: (pursuit of suspect into fenced backyard following serious MVA justified “hot pursuit” regardless of whether Defendant had dominion over yard… Seeley affirmed (memorandum)) Honka, 12/10:1

Arrest: (assault and official misconduct charges against arresting officer dismissed for lack of probable cause… Wilson) Curtin, 9/10:2

Assault on minor/perjury: (speedy trial not violated by 466 days arrest to trial… sufficient evidence to convict of perjury as to denial of using taser on children… Olson affirmed) Burnett, 1/29:4

Assault on officer: (continuance of retrial based on attorneys’ vacation plans properly denied… no abuse of discretion in requiring witness to appear shackled and in jail clothes based on security concerns… Defendant properly sentenced as PFO based on release from a sentence on revocation… conviction affirmed… Manley affirmed) Rossbach, 1/8:4

Assault with weapon: (State properly allowed to peremptorily strike only non-white Panelist in trial of African American… couple of Prosecutor’s comments close to improper but overall not plain error… conviction affirmed… Kutzman affirmed) Miller, 5/21:2; (conviction affirmed under harmless error analysis of hearsay objections… credit for time served improperly reduced by incarceration on another matter… Parker affirmed, reversed) Pitkanen, 11/19:3

Attempted deliberate homicide: (Defendant with hidden knife and making verbal threat may have been prepared to kill but did not make an attempt to complete the crime, insufficient evidence to support conviction… assault on officer conviction affirmed but conditions of possible parole improperly imposed on unsuspended sentence… Hayworth reversed) Boyd, 1/1:5; (State improperly allowed to reference and elicit testimony regarding Defendant’s shocking child sex abuse comments in an explicit/repetitive manner that went beyond mere need to show motive to kill and was unfairly prejudicial… conviction reversed, remanded for new trial… McMahon reversed) Lake, 2/12:4

Attempted rape: (evidence of mens rea of Courthouse lawn sex with unconscious woman sufficient for conviction even without questionable video testimony by witnesses… Larson affirmed (memorandum) Small, 10/1:4

Burglary: (fence was not an accomplice to burglars, his and other non-accomplice testimony sufficiently linked Defendant to burglaries… convictions affirmed… Christopher affirmed) Tollie, 3/26:5

Child pornography: (suppression of pornography found by private group home manager on resident’s devices properly denied… Reynolds affirmed) Larson, 11/12:3

Contempt: (indirect contempt for MSH failing to immediately accept criminal defendant for fitness rehab with $500/day sanction reversed… Kutzman reversed) MSH Administrator Fouts and DPHHS Director Meier v. Kutzman, 1/22:4; (petition to stay contempt order moot following end of 30 days of incarceration, motion for petition to be well-taken due to failure of Municipal Judge to file answer brief properly denied by District Court… Bolstad/Kutzman affirmed (memorandum)) Polich, 10/8:6

Deliberate homicide: (security footage capturing Defendant placing large heavy object in truck following ex-girlfriend’s disappearance properly allowed into jury deliberations… conviction of killing her affirmed… Fehr affirmed) Green, 11/5:4

Deliberate homicide/tampering: (officer’s reading of text messages between participants in double homicide properly admitted over hearsay objections… Judge’s choice of Montana pattern instruction on reasonable doubt properly given over Defendant’s preference for 9th Circuit instruction… convictions affirmed… Menahan affirmed) Wienke, 6/18:1; (speedy trial and jury selection challenges properly rejected in light of COVID circumstances… Marks affirmed) Hesse, 10/29:3

Disorderly conduct: (conviction related to quarrel at basketball game and interaction with Police Chief affirmed over challenge to amended Information which added bases for charge, failure of Judge to give specific unanimity instruction, and alleged “vindictive prosecution”… Salvagni affirmed (memorandum)) Ferris, 12/31:5

Double jeopardy: (supervisory control of Wald denied as to refusal to dismiss assault on minor following acquittal on 1 count and hung jury on 1 count over Defendant’s argument that there was no proof of 2 distinct injuries… order) Polakoff, 7/23:3; (not implicated by discussion of Meagher Co. SIWC in L&C case… supervisory control of Spaulding denied… order) Buchanan, 10/1:5; (not violated by charges in 2 counties stemming from police pursuit… Berger affirmed) Dunne, 11/12:2

Drugs: (new charge based on admission of drug use to PO ordered dismissed on State’s concession… order) Moody, 1/29:5; (trooper had reasonable suspicion for dog sniff of traveler in rented vehicle heading for North Dakota oil fields, motion to suppress meth properly denied… Christensen affirmed (memorandum)) Imhoff, 3/5:9; (speeding stop improperly extended into DUI investigation and then drug investigation, motion to suppress marijuana found in vehicle which Trooper smelled and dog confirmed improperly denied… Walker/Davies reversed) Harning, 4/2:5; (entrapment not established as matter of law in social media sting by drug agent, motion to dismiss meth charge properly denied… Rieger affirmed) Vallie, 10/29:3

Drugs/DUI: (lawful stop & detention for “welfare check” and DUI suspicion unlawfully prolonged with extensive interrogations to wrongful seizure of meth and pipes (.000 BAC on PBT)… convictions reversed… Rieger reversed) Zeimer, 5/28:4

DUI: (motion to suppress/dismiss following death of arresting officer properly denied without evidentiary hearing… John Brown affirmed (memorandum)) Rivers, 2/5:2; (officer justified under caretaker doctrine to check on sleeping or passed out driver parked next to gas pump with lights on and motor running, further particularized suspicion for DUI investigation… license reinstatement properly denied… Gilbert affirmed (memorandum)) Blaylock, 3/12:6; (North Dakota statutes sufficiently similar to pre-21 Montana statutes to sustain felony enhancement… Recht affirmed) Pankhurst, 5/14:5; (felony conviction upheld over Native American’s Batson challenge to State’s peremptory removal of Native American Panelist, Prosecutor’s comments, prior DUI as felony predicate… Harris affirmed) Wellknown, 5/28:9; (felony conviction affirmed over challenge to refusal to allow Defendant to call Prosecutor to impeach a witness with asserted inconsistent interview statements as to witness’s drinking… remanded to clarify parole conditions as recommendations and strike provision for supervision fees… Allison affirmed, reversed (memorandum)) Hummel, 7/9:6; (1990 DUI should have been expunged pursuant to §61-8-714(5) (1987), not counted toward 2015 DUI… felony conviction reversed… Brown reversed) Peralta, 10/22:3; (supervisory control of Marks to permit anticipatory DUIs to count toward felony denied… order) Brooks, 12/24:6

DUI/assault on officer: (Prosecutor’s effort to correct information was clumsy and dragged into morning of trial but not prejudicial… video appearance of toxicologist did not implicate trial fairness… Prosecutor’s explanation of presumption of innocence, officer’s muted reaction to kick in shin, “colorful” comment about Defendant with .249 BAC being “loaded” not misconduct… convictions affirmed… Dayton affirmed (memorandum)) Derby, 6/4:4

Escape: (Defendant whose suspended sentence was revoked and failed to report to his PO as ordered properly convicted of felony escape… Marks affirmed) Ohl, 12/17:2

False statements: (in report to a PO do not constitute false statements to a judge that would invoke the “judicial proceeding exception” to the sweeping prohibition against lying to the Federal Government… supervised release properly revoked for lying in report… Molloy affirmed) Oliver, 7/30:9

Felony murder: (convictions of getaway driver in double homicides affirmed… restitution claimed by victim’s sister affirmed… Menahan affirmed (memorandum) Hamm, 7/2:4

Fitness: (if a defendant found unfit to proceed regains fitness a judge can resume the criminal case, but sexual assault case against mentally challenged defendant that was dismissed in 2006 was improperly reinstated in 2018 without new charging documents and consideration of justness of the extended delay… resumption of criminal case reversed but new civil commitment proceeding could be pursued should the law and evidence support a new filing… Deschamps reversed) Mosby, 1/15:3

Incest: (acquittal of SIWC did not invalidate conviction of incest for sexual contacts with adopted daughter… that and other postconviction claims properly rejected… Cybulski affirmed (memorandum)) Hamilton, 6/4:7; (plain error review of sentence of 100 years at MSP no parole for 30 years denied… Dayton affirmed (memorandum)) Bauer, 7/2:5; (Defense’s request to interview children properly denied… fair trial of stepmother accused of encouraging stepson to touch her breasts not violated by State’s failure to lodge forensic interviews of children from a different case involving Defendant’s husband… plain error review of failure to give specific unanimity instruction in light of conviction on 1 count and acquittal on 1 count declined… conviction affirmed… Olson affirmed) Mathis, 8/13:3; (child’s prior statements regarding alleged “false accusation” of sexual assault properly excluded under rape shield balancing… not clear whether “playing doctor” and “sleeping” with cousin when both were 5 were sexual… conviction of sexual abuse of granddaughter affirmed… Best affirmed) Hansen, 8/20:4; (victim’s allegations of sexual abuse by relatives (in addition to father) properly excluded under Rape Shield… elicitation of expert testimony as to false reporting statistics not directly reviewable under ineffective assistance claim or as plain error by Judge’s failure to stop questioning… conviction of forcible sexual conduct with minor daughter affirmed… Larson affirmed) McCaulou, 10/15:5

Indecent exposure: (bench trial conviction for masturbating in vehicle in college dorm parking lot affirmed… Menahan affirmed (memorandum)) Grana, 4/2:6

Ineffective assistance: (claim that divorce attorney was ineffective resulting in statements that should be suppressed in criminal prosecution fails because there is no right to counsel in a divorce… Olson affirmed (memorandum)) Fuson, 10/1:6

Intimidation: (challenges to Deputy’s 404(b) testimony for not being sua sponte stricken or followed with curative instruction waived for being raised first time on appeal… claim of ineffective assistance for not requesting curative instruction or striking testimony more appropriate for post-conviction… Best affirmed (memorandum)) Ball, 12/31:4

Marital rape/sexual assault: (convictions of forced sex with incapacitated wife and sexual assault of stepdaughter affirmed over challenges to failure to remove panelist for cause and mental state and consent instructions… Wald affirmed) Deveraux, 7/9:4

Mistrial: (claim that attorney was ineffective in not opposing mistrial for Defendant’s failure to appear rejected… assault with weapon conviction affirmed… Ruiz affirmed (memorandum)) Dion, 6/18:4

Obstruction of officer: (dismissal for insufficient evidence to convict order of protection suspect who attempted to walk away from officer while being questioned improperly denied… Lerman/Vannatta reversed) Bennett, 4/16:6; (refusal to exit vehicle stopped for turn violation so officer could determine possible impairment properly constituted obstruction (Defendant acquitted of DUI)… Lerman/Vannatta affirmed (memorandum)) Rana, 7/16:4

Parental interference: (sufficient evidence to convict mother of frustrating father’s parenting time by taking child to grandfather’s home and frustrating deputy’s attempts to learn child’s whereabouts… Prosecutors have discretion to prosecute in lieu of enforcement through contempt… order to pay fine in installments does not preclude paying sooner to terminate deferred sentence early… McElyea affirmed (memorandum)) Lalicker, 3/26:6

PFMA/unauthorized use of vehicle/tampering: (allowing deputies to testify about out-of-court statements by witnesses harmless error… right to fair trial not violated by not interviewing a juror who told a witness in the hall that he was brave for testifying… confrontation right not violated by repeated replaying of jail calls to victim… costs wrongly imposed without ability-to-pay inquiry… Vannatta affirmed, reversed) Oliver, 6/4:6

Plea withdrawal: (based on not understanding that nolo plea to violation of order of protection would add 14-17 months to Guidelines in Federal case properly denied as “collateral consequence”… Jenks/Halligan affirmed (memorandum)) Goodman, 1/29:4; (waived by failure to renew challenge when given the opportunity following horse theft sentencing… Berger affirmed (memorandum)) Van Fleet, 2/26:7; (to PFMA properly denied despite Defendant’s “misunderstanding” of Judge’s “improvident” comment as suggesting that he could be charged with perjury in the same trial if he did not plead guilty… McMahon affirmed (memorandum)) Carlon, 10/29:4

Prisoners: (mandamus to require DOC to provide treatment for trans-female’s gender dysphoria denied… order) Bloodstone, 2/19:4; (mandamus to require DOC to provide fresh fruit at every meal and provide Fresh Life Church to MSP Low Side units denied as civil remedies are available… order) Shreves, 3/26:7; (§1983 claims against MSP officials related to failure to protect from assaults by rival gang properly rejected on summary judgment… Johnston/Christensen affirmed (memorandum)) Strizich, 3/26:8; (§1983 claims as to indifference to medical needs properly dismissed on summary judgment but claims of unsafe conditions arising from assignment to clean isolation cell are triable… Christensen affirmed, reversed (memorandum)) Hall, 12/17:5

Probation search: (gun-drawn warrantless entry into probationer’s apartment, handcuffing him, leaving him sitting naked on bed for 30 minutes with bag of suspected meth properly held lawful… suppression of meth properly denied… Allison affirmed) Peoples, 1/15:2

Prosecutorial misconduct: (Prosecutor acted improperly relating to Defendant’s prior felony and MSP history but mistrial properly denied in light of ample evidence of assault on PO… conviction affirmed… Manley affirmed) Erickson, 1/1:1

Public defenders: (Harris wrongly ordered OPD to assign counsel within 3 working days of order and provide continuous representation… contempt order quashed… order) OPD v. Harris, 7/23:4

Rape: (counsel’s failure to object to expert testimony as to false reporting statistics was ineffective assistance, prejudicial in that objection might have resulted in acquittal… rape conviction reversed, remanded for new trial… other charges involving girlfriend affirmed… Reynolds reversed, affirmed) Quiroz, 1/29:3; (State properly allowed to file a 3rd Amended Information mid-trial after Judge discovered error in charging SIWC under 2017 aggravated SIWC statute that was not effective at time of charged offense… instruction on consent not reversible under plain error review… convictions affirmed… McMahon affirmed) LaFournaise, 2/26:2; (ineffective assistance not established against any of 5 attorneys in 2 trials… Ulbricht affirmed (memorandum)) Franks, 6/4:3; (evidence purporting to show that accuser was motivated to fabricate to avoid jail for violating conditional release properly excluded… Defendant properly limited in attempt to impeach accuser about leniency she allegedly received on pending DUI in another county… disqualification of entire county attorney office due to meritless claim that CA had confidential information from representing Defendant in 2011 properly denied… conviction affirmed… Christopher affirmed) James, 9/17:2; (tText expressing frustration at having sex while intoxicated twice before with boyfriends properly excluded under Rape Shield… conviction of sex with intoxicated woman affirmed… Rienne McElyea affirmed) Ragner, 10/29:2

Restitution: (restitution claimed by murder victim’s sister affirmed) Hamm, 7/2:4; (value of new laptop properly awarded for destruction of used… Peterson/McMahon affirmed (memorandum)) Casem, 7/2:5

Revocation: (sexual assault Defendant properly suspended for failing to comply with sex treatment condition of suspended sentence… MIIG, compliance v. non-compliance violations, voluntary violation, prison alternatives elucidated… Best affirmed (memorandum)) Miesmer, 3/12:3; (original 10 years for felony theft properly imposed based on determination that Defendant would not be responsive to additional incentives & interventions… Defendant entitled to credit for 335 days elapsed time… Abbott affirmed, reversed) Pennington, 9/24:4; (Defendant entitled to 565 days credit for time served on merged sentences including deferred sentence… Bidegaray reversed) Kortan, 10/22:4; (Defendant only entitled to credit for elapsed time and presentence incarceration against aggregate of multiple consecutives… Rieger affirmed) Souther, 10/22:4; (reimposed sentence ending 2 years later than original does not constitute sentence greater than original… Knisely affirmed) Johnson, 11/5:3

Search & seizure: (supervisory control of Dayton’s denial of motion to suppress evidence obtained during warrantless search & seizure in armed entry during welfare check declined… order) Case, 3/12:6

Sentencing: (conditions of possible parole improperly imposed on unsuspended sentence… Hayworth reversed) Boyd, 1/1:5; (time served credit should have been awarded felony DUI Defendant based solely on record for case for he is being sentenced (212 days) without regard for time held for revocation of prior conditional release… Dayton reversed… order) Selage, 1/22:4; (tiered sex offender designation erroneously imposed for failure to register as sex offender… parole restriction erroneously imposed on DOC commitment and because it was not in oral pronouncement.. Best reversed (memorandum)) Knapp, 2/26:6; (carjacker has no “cause or prejudice” to overturn plea agreement as result of attorney’s failure to anticipate by 2-1/2 years Supreme Court finding residual clause of 18 USC 924(c)(3)(B) (enhanced penalties for firearm during crime of violence) unconstitutionally vague… Christensen affirmed (memorandum)) West, 2/26:10; (variance (not departure) from Guidelines range properly imposed for child sex conviction… Morris affirmed (memorandum) Follette, 4/2:9; (claim of improper consideration of information related to dismissed charges in sentencing for admitted rape, aggravated burglary, PFMA rejected… “sexually violent predator” properly found… Todd affirmed (memorandum)) Soria, 6/25:3; (xex offender registration and other conditions improperly imposed on sex assault Defendant… Dayton reversed (order)) Heitkemper, 8/13:6; (credit for time served improperly reduced by incarceration on another matter… Parker reversed Pitkanen, 11/19:3; (credit improperly denied for incarceration on another offense… supervisory conditions improperly imposed on unsuspended sentence… Oldenburg reversed) Spagnolo, 11/19:4

Sexual abuse of children: (conviction of texting stepdaughter to engage in sexual exhibition in exchange for paying phone bill and 100-years sentence affirmed… Harada affirmed) Brown, 9/17:1; (consent to search Facebook Messenger on cell phone to verify that Defendant was on phone during curfew violation did not give PO permission to access photo gallery… search of gallery was not a valid probation search… child porn extracted as result of illegal search subject to suppression under exclusionary rule… Krueger reversed) Meffford, 10/1:3

Sexual assault: (failure to instruct that age disparity was an element of the offense warrants reversal of conviction under plain error review… Cybulski reversed (memorandum)) Cord, 11/5:5

Substitute counsel: (based on not seemingly substantial complaints properly denied without hearing… murder/attempted murder convictions affirmed… H. Brown affirmed) DeWise, 7/23:5

Teacher/student sex: (convictions of teacher as to conduct with 15-year-old student affirmed over challenges to speedy trial, small county venue, blind expert testimony, “without consent” instruction under 2011 law… Oldenburg affirmed (memorandum)) Adsit, 2/26:4

Theft: (Defendant caught driving stolen truck that he claimed he was hired to drive to South Dakota properly convicted despite no instructions on results-based definitions of knowingly and purposely… Murnion affirmed (memorandum)) Tracy, 10/22:4

Traffic stop: (Defendant pursued for speeding had reasonable expectation of privacy in driveway of his secluded residence once he told the officer that he was trespassing and needed to return with a warrant… failure to stop for minor traffic violation did not create a “hot pursuit” exigency… DUI was not suspected until after Defendant asserted privacy… DUI conviction reversed… Bailey/Recht reversed) Smith, 1/1:3; (not justified by flicking brights 1 time at oncoming patrol car that had brights on, officers’ misunderstanding of the law not constitutionally reasonable, subsequent DUI evidence should have been suppressed… Magone/Vanatta reversed) Gardner, 1/8:6; (improperly extended to drug investigation… conviction reversed… Laird reversed) Carrywater, 7/9:3; (not unlawfully prolonged by asking for driver’s papers even after learning that he was not the subject of the warrant associated with the truck because requesting papers fell within the “mission” of the stop… search warrant which yielded meth properly supported by field tests, dog sniff, and evidence from previous controlled buy out of same truck… meth/firearm convictions affirmed… Morris affirmed (2-1)) Nault, 7/30:6; (no reasonable cause for stop of parked car on closed road at 11:30 p.m. or for prolonging stop “after not a hint of criminal activity” to allow for removing all persons from the car and conducting a “free air” K9 sniff… paraphernalia (THC pen) conviction reversed… Andrew Huff reversed) Gopher, 10/1:8

Trespass: (claim that attorneys were ineffective by pursuing contempt against FS Ranger in Justice Court for not testifying in trail case rather than filing federal APA action more amenable for postconviction… Cantin/Gilbert affirmed (memorandum)) Howard, 4/23:2

Waiver of counsel: (counsel intelligently waived as robbery Defendant knew risks and was advised of potential PFO-enhanced penalties and sentenced well within range… Eddy affirmed) Winzenburg, 12/17:1

Witness tampering: (as “crime of violence” conviction affirmed… Christensen affirmed (memorandum)) Stuker, 12/24:10

Youth: (removal of parole restriction from triple murderer upon consideration of rehabilitation satisfied USSC’s requirement for a “meaningful opportunity” for a youth offender to obtain release notwithstanding practical effect of 3 consecutive life terms… request for time-served from 1986 properly denied in resentencing… Eddy affirmed) Keefe, 7/2:2; (Youth Court erroneously concluded that the consent decree guilt admission required by §41-5-1501(2) constitutes or requires a change of answer under §1502(8), thus effecting a delinquency adjudication… Parker reversed) DAT, 9/17:3

 

*Discrimination

Disability: (septic truck driver who suffered seizure while driving not discriminated against when discharged for refusing to accept FMLA leave while medically prohibited from driving… Administrative Decision, Jeffrey Doud) Lewis v. USA DeBusk, 6/11:7; (truck company did not discriminate against driver by not rehiring for upcoming construction season due to risk from unpredictable diabetic episodes… Administrative Decision, Jeffrey Doud) Rafay v. Eckart Trucking, 6/18:7; (request to be reassigned to a position with no contact with a co-worker who was causing anxiety & depression not reasonable on its face or in the run of cases, no need to resort to sham affidavit rule as to whether Plaintiff requested no contact or merely limited contact… DeSoto) Rough v. GlaxoSmithKline, 8/27:2; (claims stemming from refusal to allow service dog into store properly rejected… Johnston affirmed (memorandum)) Conlan v. Costco, 9/3:2; (claim for reporting employment status to UID rejected… Administrative Decision… Judy Bovington) Paiaina v. Poteet Const., 9/3:4

Disability discrimination in public accommodation: (claim for refusal to deliver packages to abusive customer or let her pick them up denied on summary judgment… Administrative Decision, Judy Bovington) Foreman v. UPS, 12/3:4

Employment: (fair food booth operator’s claim of retaliation for discrimination complaint properly dismissed for failure to establish prima facie case… HRB/Ulbricht affirmed (memorandum)) Carmalt v. Flathead Co., 4/16:5

Mental: ($91,741.56 for discharging call center rep for taking FMLA leave for outdoor activities to address anxiety and major depressive disorder… Chad Vanisko) Cregan v. AT&T, 11/12:6

Political: (§1983 claim improperly dismissed on grounds that HRA was exclusive remedy for claims by demoted sheriff’s deputy grounded in political discrimination but unchallenged ruling upholding FAD precludes reinstatement of §1983 claim… notice of appeal properly encompassed dismissal of District Court complaint… Lint affirmed) Clark v. McDermott, 10/1:1

Procedure: (service dog case dismissed pursuant to Rule 41(b) for failure of Charging Party to prosecute, not sufficient to tell OAH to “just f__k off”… Hearing Officer Judy Bovington) Foreman v. Fergus Co. Justice Court, 8/27:7

Race: (District Court complaint against HRB for dismissing 2002 claim years ago properly dismissed for failure to first file with HRB, also beyond 180-day statute… Parker affirmed (memorandum)) Ku v. HRB, 6/4:3

Race/sex/national origin: (claims by parents of bullied high school student dismissed for failure to exhaust administrative remedies… Christensen) Lechowski-Mercado v. Seeley Swan High School, 8/27:3

Retaliation: ($413,053 for retaliation by DOC against DOC Government Relations Director for participating in investigation of sexual harassment allegations against Director… Chad Vanisko) Cotton v. DOC, 11/5:12

Sex: (claim by law clerk based on “boorish” conduct of employer’s domestic partner attorney while visiting the firm rejected… evidence that law clerk provided marijuana to domestic partner relevant as to nature of their relationship, not protected from public disclosure… Administrative Decision, Caroline Holien) Jackson v. Strong dba Strong Law Firm, 1/1:10

Sexual harassment/retaliation: (HRC correctly determined that electric co-op office manager was subjected to severe and/or pervasive sexual harassment by GM and not mere “flirting” and was retaliated against… HRC’s “front pay” of $505,957 improperly increased to $1,379,338 by Court, proper damages total is HRC’s $758,454.52… $519,837 fees properly awarded, enhancement properly rejected… Laird affirmed, reversed) NorVal Electric Cooperative v. Lawson, 12/24:1

Title IX retaliation: (refusal to renew college golf coach’s contract may be an adverse action for a Title IX retaliation claim because it could deter an employee from reporting discrimination (alleged gender inequity in the athletic department)… Haddon reversed) MacIntyre v. Carroll College, 9/10:3

Transgender: ($66,531.94 awarded for lost pay to deputy county attorney constructively discharged due to County healthcare plan’s exclusion of “services or supplies related to sexual reassignment”… award reduced from requested $131,879.96 in lost compensation and travel to medical providers for failure to mitigate employment damages and denial of travel costs… Hearing Officer Decision, Chad Vanisko) Maloney v. Yellowstone Co., 2/5:9

Vaccination: (vaccination status discrimination claim dismissed on the basis of preemption by OSHA directive during the time it was in effect… Jeffrey Doud) Chavez v. Cabela’s Wholesale, 11/5:12; (preliminary injunction properly denied HB 702 challenger for failure to establish prima facie case of irreparable harm but “single-subject” issue not mooted by codification of bill… Rieger affirmed, reversed) Netzer v. State, 11/19:2; (claims by mailroom employees limited to 11/8/21 through 12/16/21 when state law applied… Chad Vanisko) McPhee and Burden v. Torrent Technologies, 12/10:9

 

*Elections

Ballot initiative: (challenge to AG’s determination of legal deficiency of I-24 (designating parts of Madison and Gallatin Rivers “Outstanding Resource Waters”) timely filed within 10 days of SOS’s notice of determination to Proponents… determination of unconstitutional taking of private property erroneous, signature gathering may proceed… order) Cottonwood Environmental Law Center v. AG, 3/19:4; (Constitution permits initiatives to appropriate money… AG’s rejection of I-33 to extend free education to prekindergartens reversed) Meyer v. AG, 6/4:2

Clean Campaign Act: (requirement that political committees contemporaneously provide a candidate any campaign advertisement published within 10 days of an election if it refers to, but does not endorse, the candidate, does not pass constitutional muster… Molloy) Montana Citizens for Right to Work v. CPP Mangan, 1/22:7

Electronic signatures: (Independent AG candidate’s 2020 petitions containing only electronic signatures properly rejected… challenge reviewed under “capable of repetition” mootness exception… Brown affirmed) Meyer v. SOS, 5/21:1

Initiative petitioning: (requirement that signature gatherers be Montanans reversed, ban on pay per signature affirmed… Lovell affirmed, reversed) Pierce v. Montana SOS, 8/13:8

Political practices: (2 retirees who gave “hobbyist” presentations regarding voting records of Republican legislators improperly held violative of registration and reporting requirements rather than being exempted under unconstitutionally vague “de minimis acts” exception for travel expenses… Mangan/Christensen reversed (2-1)) Butcher and Bergstrom v. AG Knudsen and CPP Mangan, 7/9:7

PSC redistricting: (preliminary injunction granted enjoining SOS from certifying candidates for Districts 1 & 5 pending final disposition of malapportionment claim… Molloy, Watford, Morris) Brown v. SOS Jacobsen, 1/15:7

Voter ID, registration: (SOS’s request to stay preliminary injunction prohibiting enforcement of HB 176 and SB 169(2) granted… Moses reversed… order) Montana Democratic Party v. SOS, 5/21:1; (SB 169 (student ID insufficient to vote) and HB 176 (no election day registration) properly preliminarily enjoined… Moses affirmed) Montana Democratic Party v. SOS Jacobsen, 9/24:3

 

*Employees

Aborted employment: (Sheriff’s Deputy had valid contract offer to move to position of Detention Center Administrator although no specific written contract, is entitled to jury trial on amount of contract damages for County’s breach but not to tort damages for breach of covenant… Wald) Fuss v. Big Horn Co., 12/24:6

 

*Environment

Clean Water Act: (amended complaint naming golf course owner dismissed for failure to sufficiently identify alleged violation to allow for correction following Defense verdict for water & sewer district… Morris) Cottonmwood Environmental Law Center v. Boyne USA, 11/5:9

Natural Streambed: (310 law correctly found to apply to waterway over owner’s contention that it is merely a drain ditch… Rienne McElyea affirmed) PFEIL Acquisitions LLC v. Gallatin Conservation District, 12/3:1

 

*Family Law

Child abuse/neglect: (abandonment correctly held to be a prerequisite for foster parent intervention pursuant to 1999 amendment displacing Rule 24… Souza affirmed) UAC, 11/19:2

Child support: (non-working father’s income from his father properly categorized as “gift income” excluded from child support calculation… Halligan affirmed) Miller, 6/11:2; (suspension of child support while incarcerated not supported under clear precedent, fees awarded for frivolous appeal… Gilbert affirmed (memorandum)) Hedstrom and Peters, 10/22:3

Custody: (primary custody of children properly awarded to father over mother’s contention that ATV accident and disputed alcohol use that day should have weighed heavily against him… Dayton affirmed (memorandum)) Keegan, 6/11:4

Jurisdiction: (Montana default annulment properly set aside out of comity for first-filed Maryland petition… Menahan affirmed (memorandum)) Girdler, 12/24:5

Property: (Estate with multiple prior acquired properties by divorced, remarried, reunited, separated, and divorced couple properly apportioned… Cuffe affirmed (memorandum)) Watkins, 2/5:1; (contempt order which also ordered division of disputed annuity properly before the Court on direct appeal… Judge erred in concluding that annuity was mistakenly omitted from settlement agreement… husband entitled to fees/costs for attempting to enforce agreement by contempt motion… Davies reversed) Harms, 3/5:4; (home properly apportioned where wife funded entire downpayment and worked during marriage while husband stayed home to remodel and maintain property… Menahan affirmed (memorandum)) Conroy, 4/30:4; (apportionment of estate of insurance company executive and wife with interests in family beer & wine distributorship and child support affirmed and reversed… adoption of husband’s findings & conclusions not grounds for new trial… Menahan affirmed, reversed) George and Frank, 9/24:1

 

*Hospitals

Medical records charges: (putative class action alleging overcharges for copies of medical records properly dismissed… Molloy affirmed) Deming v. Ciox Health, 3/5:8

 

*Indians

Cross-deputization: (challenge to cross-deputization agreement by Indian arrested by State Trooper on Fort Peck Reservation properly rejected… suppression of firearms seized in traffic stop properly denied… Morris affirmed) US v. Fowler, 9/17:7

Electric termination: (Crow Tribe retains jurisdiction under first Montana exception to regulate electric utility’s winter termination… Cavan/Watters affirmed (memorandum)) Big Horn County Electric Cooperative v. Big Man, 3/19:7

Jurisdiction: (District Court had jurisdiction to amend parenting plan for Indians vis-à-vis Tribal Court… Westveer/Olson affirmed) Parenting of LDC, 8/20:4; (cert denied as to 9th Circuit affirming Cavan and Watters that Crow Tribe retains jurisdiction under first Montana exception to regulate electric utility’s winter termination… order) Big Horn Co. Electric Cooperative v. Big Man, 12/17:4

Tribal Court: (criminal contempt improperly charged by Judge (not Prosecutor) against Tribal Court Administrator/Clerk, tried by same Judge, $100 fine levied in personnel matter… Chief Judge Coffee reversed… order) Chippewa Cree Tribe v. Nault, 7/30:11

 

*Insurance

Advance pay 3rd-party medical: (insurer had no obligation under UTPA to advance-pay 3rd-party medical bills absent explicit request, demand, or claim, also had reasonable basis for not making advance payments… common law bad faith claim time-barred… DeSoto’s 56(a) ruling not precluded by Lynch’s prior 12(b)(6) ruling… DeSoto/Morris) Moe v. GEICO, 1/29:10; (Insurer had standing to bring Ridley declaratory action, properly granted summary judgment based on auto/motorcycle liability and causation… initial willingness to advance-pay $89,983.95 medicals/wages did not constitute acceptance of liability… fees/costs properly denied Defendant/3rd-party claimant… hearing on summary judgment motions properly denied for lack of specific request… Seeley affirmed) Depositors Ins. v. Sandidge, 2/19:1

Bad faith: (claims against excess insurers in $1.49 million school sex abuse settlement and related tort claims alleging misconduct by school’s defense counsel dismissed on summary judgment… Rienne McElyea) Butler v. Montana Schools Property & Liability Insurance Plan, 7/2:6; (defense verdict on UTPA claims handling of MVA “dual-insured loss” affirmed over argument that Plaintiff was prejudiced by exclusion of global settlement amounts… McLean affirmed) Humes v. Farmers Ins. Exchange and Mid-Century Ins., 7/30:4

Broker negligence: (agent’s claim that broker’s negligence cost him valuable customer properly rejected… Lovell affirmed (memorandum)) Biegler v. GMI Ins., 2/19:8

Coverage: (townhouse developer was not additional insured under contractor’s CGL policy… failure to pay landscaper relates to breach of contract, not “bodily injury,” “property damage,” or “personal & advertising injury” which might be imputed to developer… no duty to defend/indemnity developer for claims arising out of his failure to pay subcontractors… Menahan) Christian v. United Fire & Casualty, 1/1:7; (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 affirmed) Admiral Ins. v. Dual Trucking, 4/30:6; (injured driver of leased mail truck employed by USPS contractor not excluded from truck coverage when applying language of Employee Exclusion and definition of “employee” rather than the “control test”… Morris reversed (2-1 memorandum)) State Farm Mutual Auto Ins. v. Triple L, 5/28:11; (policy does not cover loss of use of insured’s MVA-damaged truck… Menahan) Edith Express v. Progressive Ins., 6/11:4; (no coverage under auto and umbrella policies of suit stemming from assault & kidnap of estranged wife… Marks affirmed (memorandum) 21st Century North American Ins. v. Frost, 9/10:1; (injured driver of leased mail truck employed by USPS contractor excluded from auto policy coverage under truck policy by Comp Exclusion because contractor had statutory obligation to provide comp even though it did not do so… summary judgment for insurer on remand from reversal of summary judgment for insurer based on Employee Exclusion… Morris) State Farm Mutual Auto Ins. v. Triple L, 12/10:6; (no coverage under homeowner policy for embezzlement claims… Haddon) Mountain West Farm Bureau Mutual Ins. v. Pummill, 12/10:7; (coverage of sexual assault/harassment claims precluded by Willful & Malicious Act and Business Pursuits exclusions in Homeowners and Personal Liability Umbrella policies, insurer had no duty to defend alleged assailant against claims that resulted in $1.1 million State Court judgment… Molloy reversed (memorandum)) Wigton v. State Farm Fire & Casualty, 12/24:9

Earth Movement Exclusion: (unambiguously precludes coverage for homeowners’ claims against developer for damage caused by settlement of soil under/around homes regardless of natural v. human-made cause… Todd reversed) Loendorf and Stevens v. Employers Mutual Casualty, 7/23:1

Equitable estoppel: (equitable estoppel improperly applied in dispute between insurers, remanded to determine whether this litigation with settlement between MVA Plaintiffs and primary insurer presents a single claim governed by $1 million “each Claim” limit or multiple (class) claims governed by $3 million aggregate limit… damages stemming from primary insurer’s failure to conduct a made-whole analysis for class members are not precluded by indemnification “Loss” exclusion for contract damages (first impression)… Seeley reversed, affirmed) Rolan v. New West Health Services, 1/8:1

Long-term care: (Lifetime home care and numerous other claims under Long Term Care Policy and HomeCare Recovery Policy rejected on summary judgment… Christensen) Clark/Carroll v. SILAC Ins., 8/20:6

Long-term leak exclusion: (damage from pipe leakage in basement of part-time home excluded… Molloy) McKain v. Safeco Ins., 8/27:1

Personal jurisdiction: (suit by Minnesotans in MVA in Montana against Illinois insurer properly dismissed for lack of personal jurisdiction… Haddon affirmed (memorandum)) Johns v. Illinois Farmers Ins., 4/2:8

Policy Simplification Act: (despite failure to follow Policy Simplification Act table of contents/notice provisions an insurer may rely on unambiguous exclusions when invalidating would increase the risk assumed… 9th Circuit certified question answered… Molloy reversed) High Country Paving v. United Fire & Casualty, 4/16:1

Statutory cap: (insurer correctly denied benefit of the §2-9-108 $750,000 cap in relation to $12,410,016.11 bench judgment for injuries from snowplow running stop sign because it waived the cap by providing a policy to the County with limits in excess of the cap… Rienne McElyea affirmed

Subrogation: (Third Amended Complaint fails to save previously rejected challenges to GEICO’s subrogation practices, no further amendment allowed… Molloy) James Lee Const. v. Government Employees Ins., 1/8:11) Daniels v. Atlantic Specialty Ins., 7/16:1

UTPA/UIM: (claims properly disposed of by jury finding no injury from MVA over claims of unfair trial due to exclusion of claims file, denial of bifurcation, refusal to excuse panelist for cause, Judge asking jurors if they wanted to hear any more about witness’s qualifications, cumulative error… Menahan affirmed (memorandum)) Reisbeck v. Farmers Ins. Exchange, 11/5:1

 

*Landlord/Tenant

Security deposit: (most of $1,200 deposit properly withheld by successor management entity despite no new Statement of Condition… Holloway/Deschamps affirmed (memorandum) Snyders v. Professional Property Management, 10/8:6

 

*Local Government

Marijuana: “Storefront” medical marijuana licensees not entitled to preliminary injunction against expansion under City ordinance enacted pursuant to Marijuana Regulation & Taxation Act… John Brown) Kirschenmann v. Bozeman, 1/15:4; (preliminary injunction properly granted allowing continued operation pending litigation on compliance with zoning regulations… Eddy affirmed (memorandum)) Yatsko dba Green Creek Dispensary v. Cascade Co., 10/29:1

Residential building application: (negligence & nuisances claims against Town rejected for failure to establish special relationship exception to public duty doctrine… rights to know and participate claims time-barred… Olson) Hendrick and Hanes v. Valier, 5/14:6

Subdivision: (covenant prohibiting “further subdivision of any Lot” ambiguous when not read in isolation, requires extrinsic evidence… statutory damages against County for approval of amended plat improperly denied on summary judgment… covenants properly found to obligate developer to serve each lot with dual water lines for domestic and irrigation, performance not excused by doctrine of impossibility… fees to HOA premature… Reynolds reversed, affirmed) L&C Co. v. Wirth, 6/4:1; (disputed fact issues preclude summary judgment that fire suppression pond is defective because surface freezes in winter… Dayton reversed (memorandum)) Granite Co. v. Rising Sun Estates, 6/11:2; (inverse condemnation and other claims related to MDT’s failure to install larger culverts during road reconstruction resulting in subdivision in 100-year floodplain having to construct large detention pond properly rejected on summary judgment… Berger affirmed) Hamlin Construction & Development, 10/8:1; (failure to disclose experts fatal to claim that HOA was responsible for water failure on newly purchased property or whether the system on the property itself caused the failure, as well as to IIED/NIED claims… Marks) Chaffin v. Sorrel Springs Homeowners Association, 10/29:5; (claim for statutory damages against County for application denial not subject to 30-day limit under 2019 statute… §1983 complaint allegations improperly dismissed for failure to state claim… Larson reversed) Tai Tam LLC v. Missoula Co. Commissioners, 11/19:1

Water: (subdivision residents’ claim that City breached water contract and implied covenant by charging “franchise fees” (subsequently declared illegal sales tax) for 15 years rejected because under UCC they “accepted” the good (water) and continued paying for it without notice of breach… Salvagni) McDaniel v. Billings, 3/12:7

Zoning: (large-scale water bottling plant properly held to be valid nonconforming use under agriculture zoning regulations… Allison affirmed) Egan Slough Community v. Flathead Co., 3/26:4

 

*Mental Commitment

In absentia hearing: (refusal to leave protective custody cell and attacking anyone who came in contact with her and the area outside her cell being too small to allow COVID distancing justified in absentia commitment hearing… Reynolds affirmed (memorandum)) TA, 3/19:5

Predictable deterioration: (person hallucinating improperly committed to Warm Springs on ground of predictable deterioration of ability to provide for his needs and safety, could only be committed to less restrictive facility… commitment Order reversed… Ruiz reversed (memorandum)) JJS, 10/15:4

Professional person: (improperly allowed to testify by phone when courtroom video was unavailable, MSH commitment reversed… Brown reversed) SE, 10/22:2

Sufficiency of evidence: (commitment of alleged bipolar who refused to remove religious undergarments to change into jail uniform and fasted for religious reasons affirmed despite MSH deciding to terminate commitment after 3 days… Recht affirmed (memorandum)) BAB, 8/6:1

 

*Minerals

Mineral interests: (of quiet title Defendant properly construed under deed’s reservation language and bolstered by chain of title circumstances… neither estoppel by deed nor estoppel in pais prevented Defendant from asserting title to the minerals because the grantees were not misled by the reservation clause… Murnion affirmed) Dellit v. Schleder, 10/15:2

 

*Partnerships

Farm partnership dissolution: (rulings upholding special administrator’s actions in dissolving and distributing “land rich and cash poor” partnership in face of repeated interference by pro se heir who preferred in-kind distribution of land affirmed… Knisely affirmed (memorandum) Estate of Elliot, 5/14:3

 

*Probate

Will: (siblings properly awarded only $1 each from Estate based on Will’s no-contest provision and their challenge to their father’s common-law marriage and widow’s claim for elective share and statutory allowances… Cuffe affirmed (memorandum)) Poston, 8/20:3

 

*Property

Cabin dispute: (conversion-based claim for possession of cabin on FS land not barred by 2-year statute but constructive fraud counterclaim properly rejected on summary judgment… Dayton reversed, affirmed) Drescher v. Malee, 10/22:1

Buy-sell: (failure to obtain Architectural Committee approval of home not specifically stated as circumstance in which the buy-sell terminates, not grounds for termination, summary judgment for buyer on contract claim… material fact issues as to whether seller breached the implied covenant by interfering with the committee’s approval so he could terminate the buy-sell… buyer entitled to attorney fees per buy-sell… Rienne McElyea) Grand Slam Endeavors v. Heidecker, 8/13:6

Covenants: (injunction properly entered against commercial use of gym contrary to covenants… $60,150 attorney fees properly awarded to Plaintiff pursuant to covenants, also entitled to appeal fees… Eddy affirmed (memorandum)) Santacroce v. Ferron, 10/15:3

Easement: (Legion post properly found to have implied easement by preexisting use to access park dedicated in 1944 “for returning servicemen and the public” against challenge by surrounding ranch… fees improperly awarded without reasonableness hearing… Cybulski affirmed, reversed) Thomas Mann Post 81 of the American Legion v. Knudsen Family LP, 7/30:1; (claim to easement based on reference in Notice of Purchaser’s Interest in contract for deed properly rejected… Marks affirmed) Towsley v. Stanzak, 11/5:1; (“alley” running between private properties to river found owned by Town, half by summary judgment, half following trial… Berger) Stears v. Ennis, 12/10:2; (confrontation claims involving easement to 5 acres landlocked within 500-acre ranch rejected on summary judgment… Berger) Morrison v. Bender, 12/10:4

Homestead exemption: (judgment lien to recover debt from alleged con artist who was put on deed allegedly by fraud improperly satisfied before owner received full value of the exemption from proceeds of sale of the property… Wilson reversed) J&L Lands v. Nezat, 6/11:1

Inverse condemnation: (claim against City for sewage backup into home caused by grease clog properly rejected on summary judgment… Moses affirmed) Williams & Taylen v. Billings, 7/9:1

Partition: (Referees’ division of property inherited by siblings properly confirmed without hearing on objections… Dayton affirmed) Morley v. Morley, 1/29:1; (issues between brothers in dissolution of large ranching operations properly resolved including appointment of special master and discovery sanctions… Todd affirmed) William Pratt v. Thomas Pratt, 5/14:2

Public road easement: (County properly failed to establish 30 foot easement from center of County road onto Defendant’s property through his garage & house based only on unmarked dashed line on COSs… $42,671 fees and $1,111.29 costs properly awarded under UDJA… Harris affirmed (memorandum)) Yellowstone Co. v. Hannen, 1/22:2

Quiet title: (30 acres with complex chain of title and 1958 deed discovered in Bible in 2013 acquired by adverse possession with any interest by cotenants extinguished by ouster… constructive fraud counterclaims against Plaintiffs and DOR properly rejected on summary judgment… Ohman affirmed) Hart v. Hale, 4/30:2

Realtor malpractice: (claims related to fencing and mold properly rejected on summary judgment… Swandal affirmed) Young v. ERA Advantage Realty, 7/16:2

Tax deeds: (void for sending notice to erroneous address in Litigation Guarantees… Larson reversed) Wells Fargo Bank v. Zinvest, 11/12:1

Trustee’s sale: (indenture trustee not prohibited under STFA from delegating notice duties to agents (ND law firm and private process firm)… sale affirmed… Krueger affirmed) Pennell v. Nationstar Mortgage, 11/26:1

 

*Settlements

Chamber Choices: ($2,850,000 settlement of Chamber Choices litigation including $950,000 fees for Class Counsel approved… Halligan The Depot v. Caring for Montanans, 11/26:2

Hospitals employees health benefit plans: ($6,952,065, action for accounting, disgorgement of profits, reimbursement of losses, on behalf of 11,000 employees with health benefit plans at 5 hospitals) Turner v. Northern Montana Hospital, 2/5:5

 

*Social Security

SSI/SSD: (ALJ failed to comply with new regulations for evaluating medical opinions in denying benefits… Hallie Larsen reversed… Johnston) Wells, 1/8:13; (application with numerous claimed ailments properly denied… Kelley/Cavan affirmed (memorandum)) Tucker, 3/12:10; (ALJ Marchioro failed to properly evaluate Clinical Social Worker’s medical opinions under new regulations, remanded to determine whether Claimant is disabled… Johnston) Keele, 3/12:10; (application properly denied on remand to consider how depression would affect RFC… extent of back pain properly discounted, Dupuytren’s Contracture properly not included in RFC… Johnston affirmed (memorandum)) Loader, 3/26:7; (date of protective filing properly used as filing date instead of formal application date (important because of change in medical evaluation regulations)… benefits properly denied… Opp/Johnston affirmed (memorandum)) Johnson, 8/6:5; (100% VA disabled veteran improperly denied SSD… remanded for immediate award of benefits… Kilroy reversed… Morris) Londagin, 10/29:8; (medical opinions improperly discounted… Kelley reversed… Johnston) 11/12:4; (2015/16 applications improperly denied by ALJ Marchioro in light of treating physician opinions and Claimant’s testimony as to panic disorder and agoraphobia pursuant to pre-17 regulations… Court initially erred in applying new standard to affirm ALJ… Morris) Winters, 12/17:7

SSD: (ALJ erred in considering Plaintiff’s drug use in conducting initial 5-step inquiry… determination of severity of mental impairments not supported by the evidence… Kelley reversed… Cavan) Bowman, 11/5:10; (insufficient findings as to extent of migraines and wrist impairment, remanded for further findings… Kelley reversed… Johnston) Trimp, 11/19:7; (ALJ Kelley failed to properly credit medical opinions, VE, Claimant’s testimony in denying benefits… remanded for immediate award… Morris) Lehotsky, 12/3:2; (bladder/bowel incontinence claim properly denied… Lynch affirmed (memorandum)) Seaich, 12/17:6; (application properly denied based on occupational requirements… Kilroy/Johnston affirmed (memorandum)) Petritz, 12/17:7

 

*State Government

HB 702 vaccination restrictions: (challenges mostly survive motions to dismiss on standing and 12(b)(6) grounds… Molloy) Montana Medical Association v. AG Knudsen, 1/29:11; (enforcement of MCA 49-2-312 as it relates to COVID-19 vaccine against Montana healthcare facilities preliminarily enjoined for so long as CMS’s Interim Final Rule remains in effect… Molloy) MMA v. AG, 4/2:9

Mining permit: (neighbors’ objection to stone quarry permit properly rejected… Wilson affirmed) Belk v. DEQ, 2/26:1

Petroleum Tank Release Compensation Fund: (County’s request for attorney fees, costs, interest, unjust enrichment damages statutorily prohibited despite being “prevailing party”… Menahan affirmed) Cascade Co.l v. Petroleum Tank Release Compensation Board, 10/22:1

Solid waste: (City landfill expansion properly granted in wetlands area leading to Yellowstone River over objections from owners of adjacent public park… DEQ/Davies affirmed) Hillcrest Natural Area Foundation v. DEQ, 12/17:1

 

*Taxes

Income taxes: (tax preparer’s petition for a rule to “clarify” DOR’s audit procedures to parallel IRS’s for appeal purposes properly denied… DOR/Dayton affirmed) Wangerin v. DOR, 12/3:1

 

*Torts

Abuse of process: (claim by ranchers frustrated by neighbors’ efforts to stop wind farm and “squeeze them out” improperly dismissed under Rule 12(b)(6)… Hayworth reversed (memorandum)) Jarrett and Anderson v. Wild Eagle Mountain Ranch, 5/28:2

Corporate shield: (employer is liable for rear-end MVA negligence of employee in employer’s vehicle pursuant to respondeat superior, employee is protected by the corporate shield… Rienne McElyea) Olson v. Miller Insulation, 4/23:3

Daycare negligence: (claims as to child’s subdural hematomas properly rejected on summary judgment… Rienne McElyea affirmed) Kostelecky v. Pease in a Pod, 10/15:1

Hospital negligence: (claim against hospital that testicle torsion following surgery and loss of testicle resulted from failure to make ultrasound available to non-employee surgeon properly found time-barred… Dayton affirmed) Selensky-Foust v. Mercer, 5/28:1

Jail inmate alcohol withdrawal death: (entirety of longstanding case involving death from alcohol withdrawal syndrome dismissed as to Blaine Co. and most of case as to Hill Co. regarding vicarious liability for hospital’s conduct in turning him away as “playing” jailers because he did not want to be in jail… Cuffe) Stricker PR for Longsoldier v. Blaine Co. and Hill Co., 2/26:7

Malicious prosecution: (claim against pro bono attorneys who alleged scheme to defraud elderly couple of reverse mortgaged property properly dismissed on summary judgment… Wilson affirmed) McCauley v. Crowley Fleck, 3/19:1; (and numerous other claims against City and officers by attorney cited for barking dogs, disorderly conduct, misdemeanor assault stemming from obscenity laced screaming rant dismissed on summary judgment… Cavan/Watters) Rebsom v. Kunnath, 3/26:9

Medical malpractice: (late-disclosed expert opinion that doctor used incorrect scissors or correct scissors improperly resulting in newborn circumcision injury properly excluded, defense verdict affirmed… McMahon affirmed (memorandum)) Higgins v. Augustine, 2/12:1; (initial MLP application relating to mother’s death deficient as son lacked authority until he received his PR Letters when it was too late… Todd affirmed (memorandum)) Laedeke v. Billings Clinic, 9/3:2

Nuisance: (abusive behavior in easement dispute supported $360,000 parasitic emotional distress and punitive damages verdict… punitives cap waived by limited financial information provided… Ulbricht affirmed) Rubin and Haugh v. Hughes, 4/16:2

Officer sexual assault: Law enforcement officers do not as matter of law act outside scope of employment when they use their authority to sexually assault a person they are investigating, question is for trier of fact… answer to 9th Circuit certified question on appeal from Watters’s conclusion that BIA officer who assaulted tribal member was not in course & scope in FTCA case) LB v. US, 8/20:1

Sewage system liability: (operating a lift station with the electrical junction box inside requiring entrance into it to perform pump maintenance and resulting in technician falling to the bottom is an abnormally dangerous activity warranting strict liability… City’s liability not barred by statute of repose or common carrier exception… John Brown) Muniz v. Bozeman, 1/22:5

Unjust enrichment: (properly rejected in bench trial of claim of “extra work” required by subcontractor excavator to complete mine buttressing as “benefit” of work was conferred on Mine not excavator… $54,187.50 fees properly awarded Defendant pursuant to oral contract between contractor and subcontractor… Wald affirmed (memorandum)) Donnes v. Four Beers Inc. dba Stillwater Excavating, 3/26:1

Wildfire liability: (negligence/intentional tort claims by landowners relating to FS’ communication decisions (or lack thereof) as to firing operations precluded by FTCA discretionary function exception… FS also had the legal right to conduct firing operations on out-of-state owner’s non-residential property, it did not intend for fire to travel or remain (trespass) on the properties, any emotional distress Plaintiffs suffered not “serious or severe”… Molloy) Schurg v. US, 2/12:8

Wrongful discharge: (credit union employee’s claim that he was wrongfully discharged properly rejected on summary judgment based on undisputed fact that he rejected unconditional offer of reinstatement, no properly submitted evidence to support “special circumstances” to justify rejection… McMahon affirmed (memorandum)) McCaul v. Southwest Montana Community FCU, 1/15:1; (claim properly dismissed as time-barred even given claimed tolling period… Cuffe affirmed (memorandum)) Grigg v. Cabinet Peaks Medical Center, 1/29:1; (whether employer may defend solely for reasons in discharge letter as held in Galbreath or whether 1999 amendments supersede the Galbreath rule certified to Montana Supreme Court… order) Smith v. Charter Communications, 1/29:8; (FMLA/Due Process claims by discharged surgical technologist properly rejected based on res judicata and statute of limitations following $80,762 wrongful discharge verdict… Morris affirmed (memorandum)) Jergens v. Marias Medical Center, 5/28:12; (Federal “Willful Loss of Earnings” doctrine erroneously applied to relieve employer of proving failure to mitigate… Oldenburg reversed) Timpano v. Central Montana Human Resources Development Council, 9/3:1; (summary judgment and JML motions by police officer as to PD termination policies properly denied, defense verdict affirmed… Ruiz affirmed (memorandum) Stinchfield v. Sidney, 11/5:3

 

*University System

Campus guns: (University System has constitutional authority to regulate firearms on campuses… McMahon affirmed) Board of Regents v. State, 7/2:2

 

*Utilities

Judicial review: (of water/sewer rates properly rejected for failure to exhaust administrative remedies without considering futility/waiver/estoppel arguments… Menahan affirmed) North Star Development v. PSC, 6/4:2

Procedure: (“as-applied” constitutional challenge to PSC’s procedures properly dismissed on justiciability grounds… Seeley affirmed) Broad Reach Power v. PSC, 11/19:2

Rural electric service: (cooperative and member not required under 1956 and 2008 easements to extend service from member’s ranch buildings to new neighbor a section away… Cavan) Short v. Park Electric Cooperative, 1/8:7

Wind farms: (judicial review rulings on PSC orders affirmed and reversed… Menahan affirmed, reversed) CED v. PSC, 5/14:2

 

*Vehicles

Vehicle misrepresentation: (claims settled in binding emails regardless of no formal release, remedy for failure to perform lies in contract such as rescission… Menahan affirmed (memorandum)) Lee v. Lithia, 2/12:2

 

*Verdicts

§1983 unreasonable force: ($75,000, unreasonable force by Probation & Parole Officer against Plaintiff who was observing arrest of her son, fractured elbow/sprained wrist… $94,077.97 attorney fees awarded of $181,865.47 requested… $2,802.97 costs awarded ($18,812.50 costs of use of force expert who did not contribute to success or appear at trial denied)… $35,000 settlement with City and police officer) Gregory v. State and Williams, 8/27:4

Asbestosis: ($36,500,000 ($30 million punitives) for insurer’s breach of duty to warn of asbestos hazard at Libby mill) Hutt v. Maryland Casualty, 3/19:6; ($30 million punitives confirmed on top of $6.5 million compensatory damages for insurer’s failure to warn Defendant of ARD risk at Grace’s vermiculite mill in Bellwether Asbestos Court case… Parker) Hutt v. Maryland Casualty, 11/19:5

Assault & battery: (prevailing Plaintiff in road rage assault & battery case entitled to fees pursuant to §27-1-722(4) because Defendant “asserted” justifiable force under the civil statute and not as claimed merely under the criminal statute… amount to be determined at reasonableness hearing… Marks) Olds v. Huelskamp, 10/15:6; ($3,000, shopping cart pushed into Plaintiff following altercation over Defendant shooting Plaintiff’s dog that was chasing his calf) Two Leggins v. Gatrell, 11/5:8

Auto: ($4,938,143 less 10% offset for failure to mitigate, HyRail roll on icy road, disk herniation/bulge) Barron v. BNSF, 1/1:8; ($790,941, centerline sideswipe by negligent per se semi-conscious diabetic, cervical spine, brainstem, concussion) Satterlee v. Haggart, 1/22:7; (defense, 4-way stop rear-end MVA, admitted liability) Joliff v. Hoffman, 3/5:7; ($168,500, rear-end MVA, admitted negligence, disputed contributory, whiplash) Voegel v. Salsbery, 6/11:5; ($1,600, sideswipe MVA, back/neck/head pain) Brown v. Uzelac and Mollman, 7/16:5

Auto/bicycle: ($5 million, wrongful death, child) Spotted Bird v. Sansaver, 7/16:6

Auto/motorcycle: ($3,270,088.96 net ($5,109,514, 64/36 negligence), motorcycle/commercial van, femur/pelvis fractures) Ochsenbein v. Temp Right Service, 1/29:6

Breach of farmhouse lease/legal malpractice: ($488,291 ($388,921 for breach of lease of farmhouse that was destroyed by fire, $100,000 for legal malpractice in connection with the underlying representation) Konesky v. Keller, 12/24:8

Clean Water Act: (defense, water/sewer district did not violate Clean Water Act by alleged seepage from Water Resource Recovery Facility) Cottonwood Environmental Law Center v. Big Sky Water & Sewer District, 5/7:5

Construction lien: (verdict in favor of aircraft hangar insulation system designer/supplier affirmed… Holly Brown/Ohman affirmed) Thermal Design v. Duffys/Central Copters, 10/8:2

Dog bite: ($12,500 (50/50 negligence), dog bite, sural nerve) Griffin v. Segall, 4/30:5

Dog shooting death: (defense verdict, dog shooting death, trespass… summary judgment rejection of horse death claim, parasitic emotional distress damages allowed, evidence/testimony as to condition of dog after it was shot precluded for failure to disclose preserved body) Jensen v. Olsen, 4/23:5

Hemp: $65,530,500 verdict for failure to pay or release hemp crop to farmers affirmed… Bidegaray affirmed) Romo v. Shirley, 12/31:1

Insurance: (defense verdict on UTPA claims handling of MVA “dual-insured loss” affirmed over argument that Plaintiff was prejudiced by exclusion of global settlement amounts… McLean affirmed) Humes v. Farmers Ins. Exchange and Mid-Century Ins., 7/30:4; ($1,022,257.85, negligent insurance procurement, failure to list general contractor as additional insured on subcontractor engineer’s CGL policy resulting in no coverage for litigation involving settlement (sinking) of condo under construction) TCF Enterprises dba Malmquist Construction and Cincinnati Insurance v. Rames Inc. formerly dba Central Insurance Agency, 9/17:3

Intersection negligence: (defense (State negligent in maintenance or design of intersection but not cause of injuries), pedestrian/auto, face, brain, hips/knees replacement… $232,500 settlement with County, settlement with driver for undisclosed amount) Vancos v. MDOT, 11/5:9

Jail negligence: (defense, alleged denial of medical treatment for severe acne) Bergstrom v. Gallatin Co., 7/16:5

Joint real estate ventures: ($400,000 for unjust enrichment to Estate of deceased partner in joint real estate ventures, $43,000 to Defendant partner for fraud/constructive fraud/deceit by deceased partner) Bley PR of Estate of McHatton v. Quinn-Stobie, 1/29:7

Massage therapist: ($64,000 to resort massage therapist for retaliation and wrongful discharge stemming from objecting to male clients wanting “something more”… Defense verdicts as to disability and sex discrimination and punitives and $4,475 on counterclaim for Plaintiff’s breach of loan) Rhoten v. The Ranch at Rock Creek, 10/29:8

Medical malpractice: (late-disclosed expert opinion that doctor used incorrect scissors or correct scissors improperly resulting in newborn circumcision injury properly excluded, defense verdict affirmed… McMahon affirmed (memorandum)) Higgins v. Augustine, 2/12:1; (defense, ophthalmological/medical malpractice, alleged failure to timely diagnose fulminant IIH and make emergency referral for brain shunt resulting in legal blindness) Camen v. Glacier Eye Clinic, 3/5:7; (directed verdict for med-mal Defendant, lasting vocal hoarseness & difficulty swallowing following cervical surgery… Harada); (defense, alleged inappropriate medial thighplasty, disfigurement) Muscle v. Santin, 5/21:4; ($1,192,626 gross/$775,206.90 net (65/35 negligence) wrongful death, Suboxone prescribed by nurse practitioners in medical group dedicated to treating opioid-use disorder) Rector v. Ideal Option, 8/13:8; ($6 million, med-mal, failure to timely prescribe tPA “clot-buster” for stroke patient) Zahara v. Advanced Neurology Specialists, 9/24:4; (defense, embolic stroke following surgery for urinary incontinence, informed consent as to use of daVinci robot) Hamner v. Sironi, 10/15:8

Nuisance: (abusive behavior in easement dispute supported $360,000 parasitic emotional distress and punitive damages verdict… punitives cap waived by limited financial information provided… Ulbricht affirmed) Rubin and Haugh v. Hughes, 4/16:2

Prisoner: ($.02 nominal damages for deprivation of due process by jailers failing to provide written statement of evidence or reasons for disciplinary action as found on summary judgment, $0 for 5 other due process claims) Briggs v. Gallatin Co., 6/18:5

Slip & fall: (defense, commercial parking lot snow slip & fall, hip fracture) Riefflin v. Gatewest Property Management, 4/23:5

Stock shares redemption: ($989,793, disputed stock shares redemption) Heitz v. Dvorak, 1/8:7

Will contest: (defense, ownership interest in family ranch LLC) Estate of Burns, 2/19:7

Wrongful arrest: (defense) Cane v. O’Neill, 11/5:12

Wrongful death: (defense, death of transient crushed in garbage truck hopper) Fisher v. Billings, 10/1:7

Wrongful discharge: (summary judgment and JML motions by police officer as to PD termination policies properly denied, defense verdict affirmed… Ruiz affirmed (memorandum) Stinchfield v. Sidney, 11/5:3

 

*Water

HB 286: (constitutional challenge to process for State to acquire rights in privately developed or diverted ground water used on school lands rejected… McMahon affirmed (other grounds)) Advocates for School Trust Lands v. State, 3/12:2

Jurisdiction: (Filure to timely file claim for exempt groundwater precluded Water Court jurisdiction… Ostrem/Elyea affirmed) Hurds, Claimants, 6/25:3

Pre-73 right: (claim of right to pre-73 fishing pond properly rejected based on aerial photos… Stradley/McElyea affirmed (memorandum)) Million v. State, 7/9:2

Priority dates (for irrigation affirmed… Stephen Brown affirmed) Twin Creeks Farm & Ranch v. Petrolia Irrigation Dist., 1/29:2

Shared well: (agreement limiting usage to single family dwelling properly enforced against parties seeking to put in RV park pursuant to contract, not Water Use Act… Olson affirmed) Mandich v. French, 1

 

*Workers’ Compensation

AWW: (neither party correctly calculated AWW for purposes of TPD for janitor who had different hourly rates cleaning State and private offices and whose weekly hours varied… Sandler) Andrews v. MSF, 11/12:5

Causation: (Petitioner failed to prove job MVA caused shoulder injury/cervical spine condition… neither Petitioner nor wife credible, physicians based causation opinions on incomplete/misleading history provided by Petitioner and wife who failed to report that Petitioner had subsequently fallen… Sandler) Ray v. Ohio Security Ins., 2/5:6

Compensable injury/penalty: (Claimant suffered compensable injuries from burst gas cylinder valve which resulted in cardiopulmonary arrest and brain damage… insurer’s denial unreasonable because it did not conduct adequate investigation or keep claim file in accordance with §107(3)… Sandler) Bryer, Guardian/Conservator for Sheldon v. Accident Fund General Ins., 6/11:5

Concurrent employments: (PPD improperly calculated for concurrent employments… Claimant entitled to additional PPD ($18,032 claimed) but not fees/penalty as MSF’s arguments were reasonable… Sandler) Barnhart v. MSF, 1/15:10; (PPD rate improperly aggregated from concurrent employments when Claimant was only precluded from 1 employment at MMI… Sandler reversed) Barnhart v. MSF, 12/31:3; (school bus driver/groundskeeper did not have concurrent employment with school district as paraprofessional/aide at time of summer injury, combined earnings for TTD properly denied… Sandler) Fite v. MSF, 1/15:10

Employment status: (WCC jurisdiction lacking over WHU Investigator’s employment status Determination… Sandler) GuideTime v. Clinch, 11/19:7

Exclusivity: (mental injuries sustained by store employee in assault by customer related to physical injuries (“physical-mental”), negligence claims barred by exclusivity… case now limited to intentional tort claims for alleged conduct and injuries sustained after the assault… Molloy) Everett v. Holiday Stationstores, 8/6:5

Interim TTD: (properly awarded where Claimant reasonably refused to attend appointment with insurer’s designated treating physician to address RTW restrictions… DLI affirmed… Sandler) Victory Ins. v. Andell, 7/2:7; (interim TTD award for low back condition sequelae of leg injury supported by prima facie case with conflicting medical opinions… Sandler) Sentry Ins. v. Godat, 8/20:12

Lump sum: (Petitioner failed to demonstrate need for $150,000 lump-sum of PTD or that it is in her best interest… Sandler) Ruff v. Benefis Health System, 4/30:9

Pay periods: (good cause to use additional earnings from before last 4 pay periods before injury per §123(3)(b) to calculate bus driver’s wages because co-worker’s affair with Assistant GM and owner’s condoning it created intolerable conditions that drove her to transfer positions and start part-time schedule and then co-worker and Asst. GM retaliated by giving her fewer hours… Claimant entitled to costs but not fees/penalty as calculation of wages under 123(3(a) was reasonable… Sandler) Thomas v. MSF, 2/19:9

Reconsideration (of concurrent employments ruling denied for lack of compelling reason to cite new argument earlier… Sandler) Barnhart v. MSF, 2/19:9

 

*Youths

Pine Hills placement: (youth charged with negligent homicide improperly committed to DOC for placement at Pine Hills… Harris reversed) VKB, 5/21:4