Montana Law Week Subject Index – 2023
*Appellate Procedure
Appealability: (failure to raise any appeal issue as to dismissal of assault suit leaves nothing to review… Grubich affirmed (memorandum)) Lee v. Skinner, 10/7:2
City Court appeal: (motion to dismiss City’s appeal of City Court’s Brady dismissal properly denied by District Court… Grubich affirmed (memorandum)) Cut Bank v. Larson, 10/28:4
Dissatisfaction with attorney: (drug Defendant’s request to vacate review of submitted appeal, remove attorney, and forward to OAD for re-briefing denied… order) Erickson, 4/1:6
Extension: (21st motion for extension denied… order) Toulouse, 10/21:4
Jurisdiction: (lacking for appeal of District Court decision remanding approved EIS… order) MEIC v. Westmoreland Rosebud Mining, 11/25:9
Petition/briefs: (attorney referred to ODC for “further inquiry” into why supervisory control petition contained more than twice the represented number of words… order) Attar-Williams v. Harris, 1/7:1
Probate order: (dismissal of appeal filed 75 days after probate order denied where status of motion for fees & costs is uncertain (Opinion & Order) Estate of Field, 3/25:1
Supervisory control: (granted over Judge’s argument of, inter alia, mootness… Breuner reversed) AJB v. Breuner, 1/21:1; (granted vacating Parker’s order for DPHHS to submit a report regarding its plan to address the waiting list at MSH as there is no justiciable controversy since Defendant is now at MSH undergoing fitness evaluation… order) DPHHS v. Parker, 12/9:3
*Arbitration
Construction contract: ($1,475,638 plus $482,715.12 pre-award interest plus attorney fees and expenses for Tom Siebel’s breach of contract for Bozeman contractor’s renovation of historic residence on Lake Tahoe… AAA Construction Industry Tribunal) Martel Construction v. Drum Lodge, 9/9:9
*Attorney Fees, Costs
EAJA: (requested $640,701 fees & costs properly denied bison hunt Plaintiffs as US’ position was “substantially justified” despite voluntary remand… Watters affirmed (memorandum)) Neighbors Against Bison Slaughter v. NPS, 12/9:8
Insurance: ($154,973.34 fees & costs awarded for defense by homeowner insurer against embezzlement claims after no-duty ruling… Haddon) Mountain West Farm Bureau Mutual Ins. v. Plummill, 1/7:6
Prevailing party: (properly determined to be tenant who prevailed on all issues except $55.59 utility bill, entitled to additional attorney fees below and on appeal… Larson affirmed (memorandum)) Aiking-Taylor v. Serang, 3/11:1
Sexual harassment/retaliation: (Plaintiff awarded $110,565 fees incurred defending appeal of protracted proceeding “tenaciously litigated” by Defendant on top of $758,454.52 judgment… Laird) Lawson v. NorVal Electric Cooperative, 6/17:7
*Attorney Practice
Discipline: (Maribeth Hanson suspended for failure to respond to OD and meet her client obligations… order) Hanson, 1/28:5; (Penelope Oteri to be publicly censured and placed on probation/mentorship for representations relating to valuation of Peterbilt) Oteri, 2/25:4; (Linda Harris to transfer to retired status and be suspended for 5 years for RPC violations in divorce cases) Harris, 2/25:7; (Matthew Lowy suspended for at least 1 year for failing to respond to ODC regarding a Judge’s concerns about his representation of a client) Lowy, 6/3:3; (Joseph Howard suspended for 30 days for failures in representation of criminal defendant) Howard, 6/3:3; (Gregory Worcester suspended for minimum of 1 year for difficulty with executive function due to Autism) Worcester, 8/19:1; (Gregory Johnson to be publicly censured for IOLTA violation) Johnson, 8/19:1; (41 counts alleging violations of RPC by AG Knudsen and his lawyers attempting to evade authority of Supreme Court and assaulting integrity of judiciary and Justices stemming from challenge to SB 140… Complaint by ODC Special Counsel Timothy Strauch) Knudsen, 9/9:1; (complaint filed for Garry Seaman who pled guilty to deliberate homicide and attempted deliberate homicide in love triangle shooting… ODC) Seaman, 12/23:5
Disqualification: (appellant’s motion to disqualify all attorneys approached by Appellees’ attorney seeking assumption of representation after attorney who had represented Appellant joined Appellees’ attorney’s firm denied… “troubling” that Appellant’s attorney “cavalierly accuses other attorneys of serious ethical violations without evidentiary support,” substance of motion considered given seriousness of accusations despite double the permitted length… motion to default Appellees over answer brief filing extension dispute denied as likewise wholly lacking merit… order) Look v. McGowan, 2/25:3; (properly denied absent explanation of how Defendant was prejudiced by concurrent representations, dropping client like a “hot potato” does not constitute prejudice per se… Ohman affirmed) Rysewyk v. Montana Opticom, 6/17:1
Legal Services Association: (not obligated to provide representation… Eddy affirmed (memorandum)) Grigg v. Paul, 1/11:2
*Bankruptcy
Marital tort: (Hursh properly vacated Kirscher’s 2012 order finding marital tort judgment that had been discharged in 2004 Indiana bankruptcy non-dischargeable… Hursh/Morris affirmed (memorandum)) Moore v. Couture, 9/23:8
Reservation campground lease: (objection to proof of claim overruled as to $1,740,910 nondischargeable lodging tax debt owed to Blackfeet Nation by campground operator, sustained as to Lease interest, contractor taxes, and TERO fees… Holt) Eagle Bear, 11/25:9
*Bench Judgments
DUI MVA: ($525,977.05 for 2 Plaintiffs with infant in vehicle struck by DUI Defendant running stop sign… Harris) Dukart and Livesay v. Half, 1/28:5
*Civil Procedure
12(b)(6) dismissal: (MVA Plaintiffs’ claim that medical providers charged impermissible rates failed to demonstrate “concrete” harm and thus Article III standing, but should have been dismissed without prejudice to allow amendment… Morris affirmed, reversed (memorandum)) Blaine v. Benefis Health System, 9/16:4
Choice of law: (in employment contract between Nevadan intending to move to Montana to work for North Carolina employer (and who did reside in Montana at time of termination) validly provides for North Carolina law to govern wrongful discharge claim… Coffman affirmed) Barber v. Bradford Aquatic Group, 12/9:2
Class action: (certified for claims by unit owners of condo-hotels as to rental management contracts with owner… Morris) Anderson v. Boyne USA, 7/8:5; (summary judgment for insurer in class action alleging failure to advance pay medical and wages vacated and remanded for whether CAFA’s $5 million jurisdiction amount is satisfied, a question raised sua sponte by the Panel… DeSoto/Morris reversed) Moe v. GEICO, 7/22:7; (certification granted in subdivision “bad dirt” suit against developers… $3,440,000 settlement with engineers… Souza, Todd) Cooks v. Buscher Construction, 10/14:4; (certification granted as to claims that garbage service provided smaller dumpsters than contracted or represented… Marks) Montana Crestview v. Republic Services, 12/9:3; (preliminary injunction granted prohibiting Boyne from terminating Rental Management Agreements with named Plaintiff condo owners as alleged tactic to intimidate others into opting out… Morris) Anderson v. Boyne USA, 12/16:7
Default: (entry of default against contractor improperly set aside without consideration of all Cribb factors in the manner discussed in Engelsberger (which had not been brought to Judge’s attention)… Ulbricht reversed (memorandum)) Perkins Family Holdings v. Butterfield, 1/28:2; ($1,344,214.79 Default Judgment not set aside as registered agent was aware of contents of Complaint and Summons and no explanation for failure of Defendant to timely respond… Ohman) Mancebo v. The Lone Mountain Ranch, 6/10:9; (set-aside improperly denied in insurance class action case… Morris reversed (memorandum)) PacificSource Health Plans v. Atlantic Specialty Ins., 8/5:8; (set-aside in house renovation loan dispute properly denied… Kutzman affirmed (memorandum)) Mietzel v. Creative Wealth Acquisitions, 9/16:1
Discovery: (Rule 35(b)(1) “like reports” does not require insurers or their medical examiners to deliver reports for all earlier exams of the condition from all persons examined, but only earlier exams of the Plaintiff regarding the same condition to which the insurers and their Rule 35 examiners may have access… DeSoto) Cheff v. American States Preferred Ins., 3/18:5; (MVA suit properly dismissed with prejudice as sanction for dilatory responses… Souza affirmed) Butler v. Swanson, 8/12:1
Failure to prosecute: (collection agency’s suit against hospital patient improperly dismissed after 2-1/2 years in light of, inter alia, Defendant’s request for delay to pursue med-mal claims… Allison reversed (memorandum)) Centron Services v. Delorean, 2/25:1; failure to prosecute 2009 wrongful discharge suit for 8 years properly warranted dismissal… Ulbricht affirmed (memorandum)) Semenza v. Larson, 2/25:2
Failure to serve (summons & complaint within 3 years of complaint requires dismissal without prejudice of slip & fall claim which eventually identified fictitious entity that provided the mats… Deschamps) Staat v. Missoula Textile Services, 5/20:6
Interest: ($1,485.12 post-judgment interest awarded on 34 days of delayed payment of $255,075.85 prejudgment interest to sexual harassment/retaliation Plaintiff… Plaintiff entitled to fees for motion ($5,862.50 if Defendant does not request a hearing to challenge reasonableness)… Laird) Lawson v. NorVal Electric Cooperative, 8/5:5
Mootness: (appeal in rental management class action as to extension of termination mooted by expiration of order and clarification by Morris (memorandum)) Anderson v. Boyne USA, 10/28:7
Order of protection: (4th motion to modify properly denied without a hearing for failure to provide legal or factual support… attorney fees/costs properly awarded for frivolous motion, appeal fees/costs awarded for “blatant misrepresentation” in brief and meritless arguments… Olson affirmed (memorandum)) Jones v. Parker, 1/11:1
Preliminary injunction: (State’s motion for supervisory control as to Moses’s SB 280 birth certificate sex change preliminary injunction “clarification” order granted in part but order was “clear and required no ‘clarification'”… order) State v. Moses, 1/14:3; (properly issued against co-owner of rifle barrel manufacturer… Wilson and Allison affirmed (memorandum)) Benesh v. Hebert, 6/1:1
Sanctions: (Plaintiff in Sheriff’s Office breach of promised employment case sanctioned for bringing sanctions motion against County alleging duplicity in refusing to produce recording of conversations allegedly discussing how to get rid of Plaintiff but were actually not about Plaintiff and well after Plaintiff had left the Sheriff’s Office… County’s requested sanctions in form of dismissal of case denied, sanctions awarded in form of precluding Plaintiff from referencing the recording and payment of County’s fees & costs related to the motions… Wald) Fuss v. Big Horn Co., 1/7:xx; (attorney fees/costs properly awarded for frivolous motion, appeal fees/costs awarded for “blatant misrepresentation” in brief and meritless arguments… Olson affirmed (memorandum)) Jones v. Parker, 1/11:1
Settlement agreement: (justiciability and interpretation issues related to electric utility’s rent of State riverbeds affirmed, reversed… Menahan affirmed, reversed) State v. Avista Corporation, 1/14:1; (violation claims by pro se improperly stated as criminal theft, properly dismissed under Rule 12(b)(6), not saved by recharacterization on appeal… Bidegaray affirmed (memorandum)) Deming v. Deming, 2/25:2; (probate agreement for disposition of land properly found to have been repudiated by heir who failed to perform… Lint affirmed (memorandum)) Estate of Larghi, 4/8:1
Standing: (dispute over proceeds from sale of Masonic Temple resolved on summary judgment in favor of Grand Lodge and against constituent lodge and former Grand Master for lack of standing… Wilson) DA Davidson v. Slaybaugh, 6/3:5
*Constitutional Law
Abortions: State failed to show that abortions cannot be safely provided by APRNs, §50-20-109 limiting to physicians and PAs properly held unconstitutional violation of privacy… Menahan affirmed) Weems v. State, 5/13:1
Excessive force arrest: (Monell claim against County for deputy kicking Plaintiff in head while handcuffed and on ground dismissed for failure to show pattern/practice or ratification… Plaintiff’s treating doctor and nurse allowed to testify as to medical causation but only as long as opinions were formed during treatment… Molloy) White v. Flathead Co., 7/8:4
Legislative delegation: (statute authorizing MDT to adopt safety regulations for commercial vehicles not unlawful delegation, conviction for failure to have red light for overwidth load affirmed… Larson affirmed) Akhmedli, 6/24:4
Right to know: (Governor’s Office mandated to produce all requested public information in its possession notwithstanding that it overlaps pending mining Bad Actor litigation in which the requester is a party, may withhold individual documents it believes exempted on a recognized ground… pending litigation is not a recognized exception, discovery is not adequate alternative to right to know requests… mandamus denied as to DOA which does not maintain public records merely because it maintains computer systems in which they are stored… Abbott) Montana Environmental Information Center v. DOA and Governor’s Office, 6/1:3
*Contracts
Construction: (electric subcontractor’s complaint dismissed without prejudice under Rule 12(b)(7) for failure to join general contractor in attempt to avoid arbitration… Christensen) Yellowstone Electric v. CrossHarbor Capital Partners, 9/2:4; (exterior building subcontractor’s claims for compensation for additional work resulting from Project’s defective designs dismissed without prejudice under Rule 12(b)(7) for failure to join general contractor, relief may be pursued in arbitration… bond foreclosure stayed pending arbitration… Christensen) Magleby Construction Sun Valley v. SP Hotel Owner, 9/2:6
Lease: (Defendant in lease suit entitled to attorney fees & costs from Co-Defendants for failure to defend him pursuant to Agreement… not precluded by majority rule adopted in ARCO (Mont 1991) as he seeks damages for failure to defend, not fees & costs related to establishing indemnification… Marks) R-Montana Associates v. Access Fitness, 9/2:1
Student travel: (breach of contract claims related to COVID disruptions rejected on summary judgment… class certification denied… Cavan/Watters) Sides v. Global Travel Alliance, 3/25:5
*Courts
Ethics: (Montana Code of Ethics properly held not to apply to judges… McElyea affirmed (memorandum)) Monforton v. McMahon, 5/27:2
Failure to prosecute: (suit alleging $3 million property damages from fire due to failure to maintain power lines properly dismissed after 11 years of no progress on the merits and no resolution of representation of Co-Plaintiff by pro se Plaintiff… Wald affirmed (memorandum)) Whalen and Bridges v. Beartooth Electric Co-op, 10/21:1
Judge disqualification: (disqualification of Dayton denied for lack of support for accusations including bias against female lawyers… order) State v. Griebel, 6/17:2
Judge substitution: (supervisory control of McMahon granted reversing refusal to accept Defendant’s motion to substitute which referenced “Michael Menahan” rather than “Michael McMahon” due to scrivener’s error… order) Anderson v. McMahon, 11/11:3
Judicial Standards: (Dayton to be publicly reprimanded, suspended without pay for 30 days, for sexual comments about a stalking witness… opinion & order) Reprimand & Suspension of Dayton, 5/6:6; (public reprimand of Dayton) Reprimand & Suspension of Dayton, 5/13:1
Personal jurisdiction: (properly exercised over New York wildlife photography farm critic who targeted Montana business with social media posts… supervisory control of Eddy denied, tortious interference claims may proceed) Groo v. Eddy, 10/14:1
*Crime, Criminal Procedure
Aggravated animal cruelty: (conviction for mistreatment of horses affirmed over challenge to introduction of prior cases… Seeley affirmed (memorandum)) Erickson, 6/10:4
Aggravated assault: (petition for new trial based on alleged ineffective assistance by dying attorney properly denied for lack of newly discovered medical evidence countering State’s evidence that Defendant caused infant’s brain injury that would justify “miscarriage of justice” exception to postconviction time-bar… Menahan affirmed) Oliphant, 3/18:4
Aggravated burglary: (conviction for entering house and climbing atop sleeping woman affirmed over speedy trial and instruction challenges… sentence based on incorrect information… Whelan affirmed, reversed) Kirn, 6/3:4
Aggravated burglary/PFMA: (jury properly found that former partner suffered bodily injury despite her conflicting/inconsistent testimony… restitution amounts warrant further consideration on remand… Rieger affirmed, reversed (memorandum)) Strike, 3/4:3
Aggravated kidnap: (§45-5-303(2) not unconstitutional in permitting judge to find facts that mitigate sentence… Whelan affirmed) Pine, 9/23:5
Aggravated rape: (Defendant claiming consensual sex not prejudiced by Defense attorney’s stipulation to deposition testimony of alleged victim and Zoom testimony of experts in light of significant circumstantial evidence… Abbott affirmed (memorandum)) Richards, 2/25:8
Arson accountability: (failure to offer a “mere presence” instruction not amenable to review on direct appeal where defense theory was only that Defendant withdrew from plan to burn cafe… Abbott affirmed (memorandum)) Doubek, 6/10:5
Assault: (conviction affirmed over claims of improper evidence of prior assault and speedy trial violation for improperly considering doctor “unavailable” witness… Morris affirmed (memorandum)) Morales, 4/8:5
Assault on officer: (convictions relating to shootout with officers affirmed over Defendant’s claim that he thought he was shooting at souls of 5 people he had killed in Iraq… Watters affirmed (memorandum)) Threefingers, 3/4:8
Bail jumping: (conviction affirmed over challenge to Prosecutor’s definition of “without lawful excuse” for not appearing as “an order from a court”… Harris affirmed (memorandum)) Letherman, 11/11:4
CCJI: (Legislator objecting to release of information related to obstruction conviction stemming from speeding stop had adequate notice of County’s request for declaratory judgment, information properly disseminated to newspaper with parameters without further briefing… Seeley affirmed) Ellsworth, 6/17:4
Child assault/aggravated sex abuse: (convictions affirmed over challenges to charging felony child abuse under Major Crimes Act and serious injury enhancement for aggravated sexual abuse by force or threat… Morris affirmed) Scott, 10/7:6; (convictions affirmed over challenges to sufficiency of evidence as to serious injury, lesser-included offense, subpoena to call son to testify, preindictment delay… Defendant was incorrectly warned that if he asked his witnesses about the victim’s credibility the US could ask about his credibility even if he did not testify, but no prejudice shown as none of the witnesses would have testified about the victim’s character for untruthfulness… remanded for resentencing as to assault resulting in serious injury and obstruction of justice enhancement… Morris affirmed, reversed (memorandum)) Scott, 10/7:7
Confrontation: (rights of alleged bail jumper not violated by admission of Deputy Clerk’s minute entries stating he was not present at hearings… Christopher affirmed) Staudenmayer, 1/14:5
Criminal endangerment: (convictions of 2 counts of endangerment based on speeding recklessly near 2 individuals in car while fleeing from killing pedestrian child not precluded by multiple charges statute… Lint affirmed) McNamara, 1/7:2
Deliberate homicide: (failure to object to Prosecutor’s improper or borderline improper statements and comments regarding Defendant accused of disappearing his girlfriend not ineffective assistance especially in light of independent evidence of guilt and his own trial admissions… Best affirmed (memorandum)) Johnston, 2/4:1; (Federal habeas claims by 2005 killer properly rejected… Christensen affirmed (memorandum)) Giddings, 5/27:9; (double murder and solicitation to kill witness convictions affirmed over challenge to use of jail informants and alleged prosecutorial misconduct… Wheelis affirmed) Hardy, 6/17:3; (mitigated deliberate instruction properly denied where Defendant disavowed interview statement that he “snapped” and shot victim but at trial maintained that he did not shoot him… felony deceptive practices for sale of victim’s truck not supported by evidence of value… Best affirmed, reversed) Craft, 7/8:1; (conviction of decapitation affirmed over speedy trial and prison video testimony challenges… Todd affirmed (memorandum)) Cherry, 8/12:4; (why counsel wrongly advised that mitigated deliberate was not a lesser-included of deliberate is not clear, ineffective assistance claim more appropriate for postconviction… State’s offer of proof was sufficient to accept Alford plea to shooting friend in the head and hiding the body… Menahan affirmed) Bristow, 10/7:3; (Defendant not prejudiced by attorney’s failure to call purported alibi witnesses, ineffective assistance claim properly denied without a hearing… Allison affirmed) Wittal, 10/14:3
Deposition: (rulings in tax lien case involving pro se Defendants, email notices, telephonic and in-person depositions, improper service by US, objections to questions… Defendants order to attend in-person depositions at Federal Courthouse, pay travel expenses of one US attorney and costs of stenographer… mitigating facts preclude US’ request for default… Molloy) Millett and McLaughlin, 3/11:2
Double jeopardy: (habeas properly granted securities fraud Defendant because Cuffe abused discretion in declaring a mistrial, Defendant may not be retried… Christensen affirmed, Cuffe and Montana Supreme Court “reversed” (memorandum)) Hartman v. Knudsen, 5/20:7
Drugs: (PO had no basis to authorize search of vehicle occupied by probationers that was stopped in intersection, warrantless arrest of driver was illegal, cash and meth found in search should be suppressed… McElyea reversed) Price, 8/19:2; (presumption of deferred imposition for first possession by obstreperous Defendant properly overcome but fees & costs not imposed in pronouncement improperly imposed in judgment… Cuffe affirmed, reversed (memorandum)) Allen, 11/18:6
DUI: (claim of improper prosecutorial comments on Defendant’s credibility and credibility instruction rejected… Holly Brown affirmed (memorandum)) Overlease, 2/4:2; (Deputy’s interpretation of statutes regulating low-intensity aftermarket lights on pickup was incorrect but mistake was reasonable because statutes are so ambiguous that overturning her traffic stop judgment requires hard interpretive work… conviction of resulting DUI affirmed… Olson affirmed (memorandum) Johnson, 3/4:2; (blood draw nurse properly allowed to testify from Greece via Zoom… 6th DUI Defendant should be sentenced to DOC, not MSP, under 2019 statute … Ulbricht affirmed, reversed) Walsh, 3/4:3 ; (officers standing on sidewalk properly investigated driver who nearly hit pedestrian and dumpster, properly evolved into DUI investigation and arrest… Seeley affirmed (memorandum)) Strachan, 4/1:5; (sufficient facts to conduct investigatory stop of vehicle partly in ditch, further DUI investigation, statements about drinking were voluntary… Brown affirmed) Schlichenmayer, 5/13:3; (request to speak with an attorney before agreeing to breath or blood sample properly considered a refusal to provide a sample, license reinstatement properly rejected… Grubich affirmed) Turner, 5/20:6; (reasonable to infer from Trooper’s responses that Defendant and another vehicle ahead “tried” to beat the red light that Defendant did not succeed, sufficient reason to stop for running red light, license reinstatement properly denied… Grubich affirmed (memorandum)) Falkenhagen, 6/17:6; (no error in refusing to strike panelist who doubted ability to remain neutral due to growing up in alcoholic family… Oldenburg affirmed (memorandum)) Britzius, 9/30:6; (disputed PSI improperly relied on for felony enhancement… remanded for resentencing as misdemeanor… Harris reversed) Letherman, 10/28:3; (
Expungement: (properly denied Defendant who pled guilty to possession with intent to distribute more than 15 ounces of marijuana over assertion that amount is not clear in judgment… Oldenburg affirmed (memorandum)) Pein, 3/4:5; (petition properly denied for failure to specify offenses… Eddy affirmed (memorandum)) Hammerquist, 5/27:3
Fitness: (no abuse of discretion in resuming kidnap proceedings after 15 months in jail and mental hospital before declared fit to proceed… Krueger affirmed) Gibson, 6/17:4
Franks hearing: (for deliberate homicide probable cause affidavit properly rejected, supervisory control of Menahan denied… order) Ford, 4/8:4
Habitual Traffic Offender: (Idaho default Infraction for failing to respond to Idaho speeding citation properly counted as a conviction by Montana MVD… Perry affirmed (memorandum)) Boyce, 5/13:4
Incest: (postconviction claims alleging ineffective assistance and prosecutorial misconduct rejected… Gilbert affirmed (memorandum)) Standley, 2/18:2
Incest/intimidation: (convictions for anal rape of young daughter affirmed but 678 days of pretrial incarceration should have been credited to 100-year sentence… Lint affirmed, reversed (memorandum)) Goodman, 12/2:5
Investigative stop: (pre-Miranda admission to graffiti was not the result of improper tactics by officer… Ohman affirmed (memorandum)) NT, 12/30:5
Jury: (supervisory control of Eddy to strike panel for failure of Clerk to follow up with prospective jurors who failed to respond to Jury Notice denied as moot… order) Hedrick, 11/4:2; (Deliberate homicide Defendant’s post-verdict challenge to jury selection process for Clerk and Sheriff not pursuing “non-responders” including thousands of phantoms on Court Administrator’s list rejected… Wilson) Shaw, 11/11:4
Partner strangulation: (conviction affirmed over objections to expert definitions of strangulation and phone-checking/dozing juror… Brown affirmed) Sneed, 9/30:5
Postconviction: (“miscarriage of justice” exception to timeliness not extended to Defendant who pled guilty to shooting wife but has no idea why he did it… Ulbricht affirmed (memorandum) Foley, 3/11:1; (Montana conviction of sexually touching 10-year-old step-daughter affirmed over challenge to extensive evidence of similar subsequent conduct in Wyoming case… Murnion affirmed) Stryker, 4/15:2; (petition seeking to continue litigating claim that Defendant was wrongfully convicted of comp theft properly dismissed as moot following requested dismissal of completed deferred imposition… Seeley affirmed (memorandum)) Ailer, 10/28:3; (deliberate homicide Defendant not prejudiced by counsel’s failure to obtain GSR testing following shootout with cabin owners… McMahon affirmed (memorandum)) Daniels, 11/4:4
Prisoners: (claims relating to clothed body search of MSP prisoner properly rejected on summary judgment… Dayton affirmed) Lawrence v. Pasha, 8/12:3
Probationary search: (home visit properly evolved into search that yielded meth after PO entered exterior structure, knocked repeatedly on trailer door, opened door a “crack,” called for probationer, she let officers in, and officer observed meth pipe in plain view… motion to suppress properly denied… Allison affirmed) Thompson, 10/21:2
Rape/incest: (claims of actual innocence of 2004 convictions of sexual abuse of daughters based on “newly discovered evidence” of recantation, false memories, and abuse by another Defendant properly rejected in time-barred postconviction proceeding… Lint affirmed) Worthan, 8/12:2
Resisting arrest: (conviction reversed for Judge’s failure to consult with Defendant and counsel as to jury’s queries as to definition and timing of “arrest” before replying that it should apply the instructions as given… McMahon reversed) Zitnik, 7/15:2
Restitution: (properly imposed for damage to 5 vehicles that was alleged under single count of criminal mischief but amount for 1 vehicle improperly based on initial repair estimate rather than later lower estimate… Brown affirmed, reversed) Arthun, 11/18:4; ($306,419 properly awarded for embezzlement despite only $13,095 listed in indictment… Christensen affirmed (memorandum)) Gendreau, 11/25:9
Revocation: (deferred imposition sentence expired before State petitioned to revoke and is therefore illegal… conclusion based on de novo review of record, issue not raised by parties… Cuffe reversed) Ellsworth, 1/21:2; (Grubich violated separation of powers by refusing to accept global plea agreement to resolve revocation petition in his Court and intimidation charge in Kutzman’s Court, assumed prosecutorial role in taking judicial notice of the intimidation proceeding when the State refused to present evidence pursuant to the plea agreement… supervisory control granted, dismissal denial reversed… order) Elendil, 7/8:2; (suspended sentence improperly revoked for being terminated from sex treatment when no such condition was imposed in sentence… Hayworth reversed (memorandum)) Brendt, 7/15:6; (“just punishment” sentencing claim rejected… Molloy affirmed (memorandum)) Derryberry, 7/15:9; (sex offender improperly revoked on basis that he did not have treatment arranged prior to release from prison… Ruiz reversed) Pulst, 8/26:3
Sentencing: (claim of ineffective assistance in failing to recognize that Defendant would be unable to withdraw indecent exposure plea if Judge imposed a parole restriction lacks record facts for direct appeal… State did not breach agreement when it advocated for rejection of Defendant’s request for probation… Lint affirmed (memorandum)) Sage, 5/6:6; (State did not breach plea agreement in which sexual offenses against children were amended to criminal endangerments and maximums were imposed rather than agreed 6 years suspended… SVORA registration improperly imposed on non-sexual offenses despite acceptance in plea agreement… Gilbert affirmed, reversed) Collins, 5/13:2; (contested conditions properly imposed on Defendant charged with felony sexual assault of minors who pled guilty to criminal endangerment… Best affirmed (memorandum)) Sangrey, 5/13:3; (mandatory $600 fine lawfully imposed on DUI Defendant but Municipal Judge erred in not considering alternatives for paying it… Hileman/Ulbricht reversed) Curran, 6/24:3; (Montana PFMA does not categorically require violent force, improperly applied to increase possession of firearm offense level… Watters reversed) Castro, 6/1:8; (conditions limiting Internet access overbroad for statutory rape Defendant… Brown reversed) Johnson, 7/29:3; (allowing “only one device that has access to online services” by child pornography Defendant not unconstitutionally vague… Christensen affirmed (memorandum)) Reynolds, 9/9:7; (fines, surcharges, fees improperly imposed on impoverished felony DUI Defendant… Cuffe reversed) Dowd, 9/16:3; (sentence properly imposed following guilty plea to felon possessing firearm over challenges to Judge finding facts in prior Montana felony assault for enhancement and application of Georgia aggravated assault convictions to increase base level for “crime of violence”… Molloy affirmed) Barlow, 10/7:4; (departure for “sporting exception” properly denied Defendant found with guns in vehicle on way home from hunting… Watters affirmed (memorandum)) Dempster, 10/28:7; (untimeliness of PFO notice waived by guilty plea… probable cause correctly found that Defendant breached plea agreement by uncharged infractions while in custody… Grubich affirmed) Claus, 11/4:3; (State’s petition for supervisory control challenging Deschamps’ sua sponte reduction at sentencing of plea-agreed felony sexual abuse of children to misdemeanor surreptitious recording denied without prejudice to its right to appeal the final judgment… order) State v. Deschamps, 12/30:4
Sex offender registration: (retroactive application of post-07 SVORA amendments constitute ex post facto lifetime punishment… Defendant convicted of sexual assault in 1994 improperly convicted in 2019 for failure to register… Whelan reversed) Hinman, 6/17:5
Sexual abuse of children: (conviction of mother selling 4-year-old daughter affirmed over challenges relating to rape shield, COVID restrictions, credibility testimony by detective, late-disclosed detective’s note referencing victim’s reputation for untruthfulness… Larson affirmed) Mountain Chief, 8/5:1
Sexual assault: (claims of inadequate Miranda and coercive interrogation properly rejected… Moses affirmed (memorandum)) Flansburg, 2/4:2; (girls’ therapist’s records properly excluded following in camera review by Judge and also — because they recanted at trial — by the Supreme Court’s in camera review… dismissal of panelist who expressed view that alleged victims tend to be credible but that he would follow instructions properly denied… conditions improperly included in judgment that were not in pronouncement… Menahan affirmed, reversed) Calahan, 11/25:5
SIWC: (conviction as to minor daughter affirmed over challenges to verdict form and Judge’s responses to jury questions and claim of ineffective assistance… Seeley affirmed (memorandum)) Buchanan, 8/19:2
Solicitation of SIWC/sexual abuse of children: (sexual abuse conviction reversed due to improper result-based instruction of “knowingly” in relation to sexual pictures of child on Defendant’s phone allegedly taken by child… result-based instruction properly applied to solicitation… Seeley affirmed, reversed (memorandum)) Smith, 3/4:4
Speedy trial: (violated by 1,179 days of back and forth between jail and MSH fitness evaluations, assault conviction reversed… Parker reversed) Allery, 1/11:5: (clock started when Defendant became an accused the day arrest warrant was filed for charges stemming from pursuit, not when he was taken into custody for violations of conditional release from prior sentence, thus 351 days of relevant delay, not 579 as claimed… dismissal for lack of speedy trial properly denied… Christopher affirmed (memorandum)) Allen, 6/1:2
Stalking: (State improperly bolstered charges with uncharged acts to meet “course of conduct” definition of “two or more acts,” conviction reversed… Best reversed) Buttolph, 12/16:3
Statutory rape: (conviction affirmed over challenge to exclusion of defense evidence as irrelevant and to improperly admitted but harmless hearsay… Spaulding affirmed) Ripple, 4/22:1
Strangulation: (evidence that Defendant “shoved meth” into partner’s mouth after strangling her properly admitted under transaction rule… McMahon affirmed (memorandum)) Garay, 3/25:3; (conviction affirmed over objections to statements by the Prosecutor, a panelist, and an officer… Manley affirmed (memorandum) Bigleggins, 4/1:4
Supervision discharge: (motion by sexual assault Defendant properly denied… Ulbricht affirmed (memorandum)) Glick, 1/11:7
Tampering conspiracy: (properly established by jail calls… Gillham order improper basis for allowing deceased mother’s attorney to share information from her but Defendant already had the information… conviction affirmed… Oldenburg affirmed (memorandum)) Wright, 8/5:4
Terry stop: (justified by oddly behaving and dressed man carrying shotgun or rifle in blanket on shoulders indicative of possible intoxication, improperly suppressed in possession of firearm by prohibited person case… Watters reversed (memorandum)) Vasquez, 4/22:2
Theft of federal funds: (conviction and restitution by Indian domestic/sexual violence chairwoman affirmed… Watters affirmed (memorandum)) McConnell, 5/27:9
Threats in official matters: (Defendant’s status as misdemeanor sex offender properly admitted under Transaction Rule and Rule 403 in support of State’s argument that he was threatening Deputy regarding his wife and daughter in effort to deter blood draw or further DUI investigation… conviction affirmed but pretrial supervision costs improperly imposed without analyzing ability to pay… Vannatta affirmed, reversed) Hardin, 7/15:3
Traffic stop: (purportedly for lane violation unlawfully stretched by inquisitive drug team Trooper into search and seizure of meth… suppression improperly denied, conviction reversed… Rieger reversed) Noli, 5/20:2
Witness tampering: (sufficient evidence that Defendant threatened witnesses to intimidate them from testifying about Defendant lighting their dog on fire as opposed to merely threatening to sue them for slander (which also is tampering)… prosecutorial misconduct claims insufficient for plain error review… attorney’s failure to object to prosecutor’s comments may have been strategic… convictions affirmed… Cuffe affirmed) Palafox, 1/11:3
Witness tampering/privacy in communications: (convictions affirmed over challenge to sufficiency of evidence, constitutionality of PIC statute, evidence of prior assault of girlfriend… Moses affirmed (memorandum)) Sullivan, 4/8:2
Youth jurisdiction: (District Court properly exercised jurisdiction over misdemeanor spit assault as arising out of felony assault on officer by Pine Hills detainee but improperly exercised jurisdiction over 3 other misdemeanors… $200 statutory charge improperly imposed on suspended (as opposed to “levied”) $2,000 fine… Hayworth affirmed, reversed) Pehringer, 8/5:3; (transfer to Youth Court improperly denied based purely on egregious nature of sex offenses… Souza reversed) Johnson, 9/2:1
*Discrimination
ADA: (claim of failure to accommodate depression & anxiety by transfer to position with limited or no contact with a co-worker properly rejected… DeSoto affirmed (memorandum)) Rough v. GlaxoSmithKline, 7/22:8
EEOC: (EEOC Defendant barred by collateral estoppel of state $758,454.52 judgment from relitigating liability, back pay, front pay, emotional distress damages… EEOC’s claims for injunctive relief and punitives and Plaintiff’s claims for punitives and attorney fees/costs remain to be tried… Morris) EEOC and Lawson v. NorVal Electric Cooperative, 4/8:6
Marital: (claim based on allocation of water to couple as 1 individual rejected for lack of showing of injury… Jeffrey Doud) Pearson v. Greenfields Irrigation District, 3/11:7
Mental disability: (student denied accommodations for medical licensing exam properly found to have missed deadline for HRB complaint by 2 days, petition for review properly denied… Spaulding affirmed) Zolnikov v. National Board of Medical Examiners, 4/1:1; ($91,741.56 for discharging call center rep for taking FMLA leave for outdoor activities to address anxiety and major depressive disorder affirmed… Vanisko affirmed, Final Agency Decision) Cregan v. DirecTV, 6/1:8
Retaliation: (finding of retaliation against DOC Government Relations Director for participating in investigation of sexual harassment allegations against DOC Director affirmed except 1% growth rate applied rather than 2.5%, award reduced from $413,053 to $377,944… Vanisko affirmed as modified… HRC Final Agency Decision) Cotton v. DOC, 7/8:8; (finding of retaliation against DOC Government Relations Director for participating in investigation of sexual harassment allegations against DOC Director and award of $377,944 exceeded statutory authority in rejecting HO’s conclusions of no retaliation… Holien affirmed, HRC FAD reversed… McMahon) DOC v. Cotton, 12/23:5
Sex: (Title VII claim by non-renewed Lady Griz head basketball coach rejected on summary judgment… Christensen) Schweyen v. UM-Missoula, 11/11:8
Sexual harassment: (rehearing of decision that HRC’s “front pay” of $505,957 was improperly increased to $1,379,338 by Laird rejected… order) Lawson v. NorVal Electric Cooperative, 1/28:5
Title VII employment discrimination: (retaliation claim relating to refusal to interview or hire former HR employee for part-time positions properly rejected on summary judgment… Haddon affirmed (memorandum)) Washington v. UPS, 6/10:11
Vaccination discrimination: (Non-Vax Surcharge challenge preempted by ERISA… Judy Bovington) McKenzie v. Lincare, 3/11:8
*Elections
County Attorney: (attorney correctly found not qualified for Roosevelt County Attorney based on residency… Bidegaray affirmed) Downs v. Piocos, 9/23:3
Initiative: (BI 2 to revised property taxation properly rejected for violation of separate-vote requirement… Opinion & Order) Monforton v. AG and SOS, 9/30:4; (BI-12 for top-4 primary incorrectly found deficient by AG based on separate-vote requirement… Opinion & Order) Montanans for Election Reform v. AG and SOS, 11/25:2
*Employees
RIF: (dismissal of FMLA and retaliation claims reversed… dismissal of WDEA, ADA, ADEA claims affirmed… Watters affirmed, reversed (memorandum)) Eaton v. Montana Silversmiths, 11/4:6
*Environment
CERCLA: (cleanup costs properly allocated 65/35 between aluminum smelter entities… Molloy affirmed (memorandum)) Columbia Falls Aluminum v. Atlantic Richfield, 2/4:4
Coal mine expansion: (permit rulings affirmed in part, reversed in part, remanded for rehearing by BER and recalculation of attorney fees from the $862,755 awarded Conservation Groups for both administrative and judicial proceedings… Bidegaray affirmed, reversed) MEIC v. Westmoreland Rosebud Mining, 11/25:3
Wastewater discharge: (Judge improperly substituted judgment for DEQ’s in vacating water bottling company’s wastewater permit… Eddy reversed) Water for Flathead’s Future v. DEQ and Montana Artesian Water, 5/20:1; (defense verdict in suit against water/sewer district alleging discharge of treated but polluted wastewater into Gallatin River without permit affirmed… dismissal of golf course that irrigates with the wastewater reversed… Morris affirmed, reversed) Cottonwood Environmental Law Center v. Big Sky Water & Sewer District and Boyne, 11/25:6; (CWA claim alleging pollution of West Fork of Gallatin River by use of sprinklers and snowmakers around ski runs and flushing of golf course irrigation system to discharge treated wastewater barred by consent decree in prior litigation… Morris) Cottonwood Environmental Law Center v. Spanish Peaks Mountain Club, 12/30:6
Wastewater for snowmaking: (challenge to permit for town wastewater for snowmaking fails for lack of information suggesting material aquatic impact from pharmaceuticals… Breuner) Gallatin Wildlife Association v. Yellowstone Mountain Club, 7/8:3
*Family Law
Guardianship of minors: (properly awarded to grandfather per 1999 Amendment due to circumstances limiting mother’s parenting ability… McMahon affirmed) LRTS and AMTS, 5/27:3
Parental interest: (California Gestational Carrier Agreement between Billings surrogate and gay Chinese national did not preclude surrogate from later establishing a parental interest in the child under Montana law, PMA properly found valid and not unconscionable, but nonparent parental interest improperly adjudicated in favor of surrogate without finding conduct by the father ceding his rights to the surrogate… Harris affirmed, reversed) Sayler v. Yan Sun, 9/30:4
Parenting: (income properly imputed to rancher in determining child support in light of ability to drive commercially… poison pen letter denigrating mother properly admitted over hearsay objection… primary custody to mother with limited visitation to father properly awarded… Harada affirmed (memorandum)) HRH-H, 4/1:3; (final parenting plan properly ordered but attorney fees improperly awarded Husband without reasonableness hearing… Cybulski affirmed, reversed (memorandum)) Taylor, 10/14:3
PMA: (alleged PMA properly found unenforceable and unconscionable, property equitably divided including award of parcel to intervenor son… Eddy affirmed (memorandum)) Shiffman, 1/14:3
Property: (Wife properly awarded 55% of home valued at time of dissolution rather than separation… Gilbert affirmed (memorandum)) Bullard/Birkeland, 10/14:2; (medical equipment company properly valued at time of 2014 trial ($2.2 million), improperly revalued to 2017 date of Decree pursuant to wife’s Rule 60 motion after selling for $24.5 million… Brown reversed (memorandum)) Remitz, 11/11:2
Vexatious litigant: (Harvard lawyer properly declared vexatious litigant and assessed 80% of wife’s attorney fees in divorce with 280 filings… Oldenburg affirmed (memorandum)) Adams, 5/27:2; (4th groundless child support action properly dismissed but Plaintiff improperly denied opportunity to be heard before being subjected to filing restrictions… Eddy affirmed, reversed (memorandum)) Walid v. State, 7/15:2
*Fish & Game
Wolf Hunting: (§87-6-903(1) does not prohibit thermal and infrared imaging but merely adds a sentence enhancement for use of it in aid of illegally taking an animal… but FWC exceeded SB 314 (2021) which allows use of artificial light or night vision scopes by allowing thermal (infrared) imaging… issue not moot even though regulations have lapsed… McMahon) Trap Free Montana v. FWP, 7/15:6
*Guardianship/Conservatorship
Reimbursement/attorney fees: (Judge sitting in equity had authority to order reimbursements rather than require an audit… attorney fees properly denied for defense of guardian/conservator but should be awarded for services pertaining to administration of Estate… Allison affirmed, reversed (memorandum)) Estate of Lewis, 3/4:1
*Health Care Providers
Nursing home malpractice: (nursing home not immune from COVID-based claims of estates of deceased patients under Public Readiness & Emergency Preparedness Act, motion to dismiss denied… Cavan/Watters) Estates of Peterson, Simons, and Guiford v. Canyon Creek, 3/11:5
*Indians
ICWA: (Bertelson‘s blanket statement that ICWA cannot apply to internal family disputes overruled… remanded for proceedings in compliance with ICWA to determine if children who were placed with grandparents by stipulation should be returned to mother… Lint reversed) Matter of LRJ, 1/7:1; (§41-3-306(7)(b) exception for Indian child cases from emergency protective services hearings in dependent-neglect cases stricken as violative of equal protection… supervisory control granted over Judge’s argument of, inter alia, mootness… Breuner reversed) AJB v. Breuner, 1/21:1
Jurisdiction: (motion to dismiss order of protection for lack of jurisdiction properly denied without finding parties’ tribal status as assault occurred off Reservation… Laird affirmed (memorandum)) Phillips v. Webb, 2/18:1; (jurisdictional factors improperly weighed to determine that LLC is an arm of the Assiniboine & Sioux Tribes in oil & gas leases dispute… Laird reversed) Lustre Oil v. Anadarko Minerals, 4/8:1; (State Court lacked jurisdiction over custody dispute because alleged torts occurred either on Blackfeet Reservation or arose out of Tribal Court proceedings… Olson affirmed (memorandum)) Monroe v. Boggs, 6/3:4
*Insurance
Agent’s duty: (claim that agents breached duty of care in failing to offer UIM properly rejected on summary judgment… Morris affirmed (memorandum)) Lindsay v. State Farm Mutual Auto Ins., 11/4:6
Anti-concurrent cause: (questions certified to Montana Supreme Court as to effect of anti-concurrent cause clause in policy vis-à-vis efficient proximate cause doctrine regarding claim of house settling damage due to water leak under slab which Watters determined was excluded by Earth Movement Exclusion… order) Ward v. Safeco Ins., 1/11:8, (questions accepted), 1
Attorney fees/interest: ($37,500 fees at 25% (downward from 1/3 contingency) awarded on delayed acceptance of $250,000 UM limits demand for attempted kidnap injuries, $16,312.50 prejudgment interest… Souza) Schuchard v. State Farm Fire & Casualty, 6/10:7
Bad faith: (leveraging and other UTPA claims based on settlement of UIM and MP claims without insured sending back signed release properly rejected on summary judgment… Morris affirmed (memorandum)) Bentle v. Farmers Ins. Exchange, 11/18:8
Coverage: (dwelling improperly construed as only referring to a single structure… burned “community center” on acreage with house covered by $212,900 “dwelling” limit rather than $21,290 “other structures” limit… Christensen reversed (memorandum)) Safeco Ins. v. Halvorson, 5/27:7; (insurer had no duty to defend/indemnify contractor for claims by homeowners alleging negligence in failing to pay landscaping subcontractor… claims cannot be construed as construction defect property damage… Menahan affirmed) Christian v. United Fire & Casualty, 6/3:1; (summary judgment that CGL policy purchased for premises containing office, warehouse, and shop space does not cover subsequently constructed tank wash building that was destroyed by fire affirmed… Watters affirmed (memorandum)) PSC Custom v. Hanover American Ins., 7/22:8; (insurer has duty to defend off-duty police officer against claims stemming from bar parking lot altercation in which Plaintiff alleges he was “brutally assaulted” as he was attempting to drive through the lot and the officer claims he acted in self-defense because of Plaintiff showing a firearm in his vehicle… underlying Complaint allegations read in conjunction with other facts known to insurer including self-defense claim asserted as affirmative defense in officer’s Answer… DeSoto) Allstate Vehicle & Property Ins. v. Frank, 8/26:5; (lifetime home care and numerous other claims under long term care and home-care recovery policies properly rejected on summary judgment… Christensen affirmed (memorandum)) Clark/Carroll v. SILAC Life Ins., 9/16:5; (employee injured while driving personal vehicle not covered for UM under “temporary substitute” provision of employer’s policy… Cavan/Watters affirmed (memorandum)) Barnhart v. Philadelphia Indemnity Ins., 12/23:8
Defend/indemnify: (insurers correctly found to have no duty to defend CPA against claims stemming from participation in allegedly baseless 2012 suit… Vannatta affirmed) Farmers Ins. Exchange v. Minemyer, 7/22:5
Failure to cooperate: (homeowners’ claims against insurer properly rejected on summary judgment for failure to cooperate with arson investigation… certification to Montana Supreme Court of enforcement of contractual duty to cooperate denied… DeSoto/Christensen affirmed (memorandum)) Streeters v. USAA, 12/9:7
Records format: (writ of prohibition against Insurance Commissioner’s enforcement action properly denied in records format dispute between comp insurers… Abbott affirmed) Victory Ins. v. Insurance Commissioner, 7/22:6
Dwelling: Subrogation: (challenges to GEICO’s subrogation practices properly rejected as not allowable under UTPA… Molloy affirmed (memorandum)) James Lee Const. v. GEICO, 1/21:3
*Local Government
Conditional use permit: (Council’s denial of request to build a hotel not so lacking in fact that it was clearly unreasonable… Allison affirmed) Whitefish 57 Commercial v. Whitefish, 9/23:4
Jail negligence: (claims by Estate of inmate who died of DTs not precluded by HRB findings of no race or alcohol disability discrimination… fact issues remain as to liability of Counties… Cuffe reversed, affirmed) Stricker PR for Longsoldier v. Blain Co. and Hill Co., 11/11:1
Subdivision MOU: (street provisions properly construed but fact issues remain as to whether a majority of a quorum of the Town Council approved it… Laird affirmed, reversed) Windsock Land & Cattle Partnership v. Fort Peck, 11/11:2
*Mental Commitment
Presence at hearing: (improper waiver by attorney of physical presence at commitment hearing, person improperly required to attend via video over his objection, State’s “forfeiture by violent conduct” proposal rejected, commitment reversed… Christopher reversed) JDL, 4/15:1
*Probate
Administration: (challenge to rulings related to administration of estate including alleged fraud on the court by special administrator rejected… Souza affirmed (memorandum)) Elliot, 12/23:3
Equitable conversion: (properly applied to distribute insurance proceeds from burned house that had been devised by mother to son… Souza affirmed) Rowan, 10/28:1
Jurisdiction: (District Court sitting in probate had jurisdiction to interpret MPSA involving large ranch following husband’s death following divorce when deeds had not yet been signed, MPSA properly interpreted including correcting attorney’s scrivener’s error… PR daughter properly replaced by special administrator on petition by wife… Laird affirmed) Williams, 5/6:1; (Court sitting in probate lacked subject jurisdiction over children’s creditor claim to equity in deceased father’s farm… Gilbert reversed) Scott, 5/27:1
PR removal: (“independent paralegal” properly removed as PR from estates and denied remuneration due to “gross maladministration”… Ulbricht affirmed (memorandum)) Fox, 5/6:3
Reopening: (estate closed in 2013 properly reopened in 2022 after PR discovered value of stock pledge… Vannatta affirmed) Starkel, 11/25:1
Theft/undue influence/conversion: (summary judgment rulings affirmed, reversed)… Gilbert affirmed, reversed (memorandum)) Estate of Marble v. King, 7/29:1
Trust: (claims of being excluded from father’s Trust due to incompetency and mother’s undue influence properly dismissed under Rule 12(b)(6)… Bidegaray affirmed (memorandum)) Nickels, 4/1:4
Will: (self-deleting text about “touching up my will at the moment” and “i wanted to let you know that my sword company is going to go to you and david and ted” did not constitute valid will… Recht) Brockbank, 9/23:6
Will challenge: (defense verdict affirmed over claims of juror misconduct… $428,659 attorney fees properly awarded Estate, $86.931.50 improperly awarded wife of heir for participation to defend her own interests… interest rate on fees improperly required to be recalculated each year… Gilbert affirmed, reversed) Burns, 12/30:1
Written contract: (emails, texts, and verbal agreement do not constitute a “written contract” executed by each heir for distribution of truck… PR had no duty to put purported agreement by heirs in writing… Harris reversed) Kemmer, 12/9:1
*Property
Adverse possession: (action to quiet title is an action in equity and does not mandate right to a jury trial… Recht affirmed (memorandum)) Estate of Mateo Chavez v. Estate of Alfred Chavez Jr., 7/15:1
Boundary relocation: (agreement enforced over dispute as to unwritten “jog” in the fence line v. a corner depicted in COS… Berger affirmed (memorandum)) Abbey v. Hartley, 1/28:4
Buy-sell: (Buyer breached buy-sell, forfeited earnest money, not entitled to specific performance by equitable estoppel… Olson affirmed (memorandum)) Look v. McGowans, 9/30:2; (buy-sell of elderly brothers’ ranch breached by buyers based on jury verdict, Gift Deed void based on jury finding of undue influence… buy-sell judicially rescinded, title to ranch quieted in favor of brothers, mortgage taken by buyers without payment to sellers must be released by buyers… $150,000 jury award vacated since Court imposed judicial recision… Gilbert) Helviks v. Tuscanos, 10/14:5
Construction defects: (tort claims against excavation contractor of apartment building that was destroyed due to soil movement including concealment of defects dismissed on summary judgment based on statutes of limitation… contract claims survive summary judgment BUT Plaintiffs are unable to seek restoration damages because they cannot prove “temporary injury” resulting in dismissal of entire case… Hayworth) Action for Eastern Montana v. Triple J Dirt Works, 2/18:3; (suit involving apartment building that was destroyed due to soil movement remains alive pursuant to Court’s ruling on requested “clarification” of summary judgment rulings which Defendant construed as resulting in dismissal of entire case… Hayworth) 3/4:6
Covenants: (myriad claims stemming from challenge to barriers to building in subdivision properly dismissed… DeSoto/Morris affirmed (memorandum)) Thompson v. Sullivan, 6/1:6
Easement: (preliminary injunction properly denied as to construction equipment’s minor expanded… Wilson affirmed (memorandum)) Bardos v. Spoklie, 1/28:2; (lessee of State school lands had standing to claim prescriptive easement over subdivision roads for farming equipment even though the State was not claiming an easement… preliminary injunction against lessee reversed, remanded for consideration of his easement claim against subdivision owners… Vannatta reversed) Oberlander v. Hennequin, 3/18:3; (motion to dismiss claims by Defendants for lack of subject jurisdiction for failure to name all necessary parties to easement dispute properly rejected, necessary party issue may be taken up on remand from interlocutory appeal… Allison affirmed (memorandum)) Westphal v. Kissinger, 6/10:3; (prescriptive easement properly found over roads for failure to show neighborly accommodation in bench trial after denial of summary judgment and amendment to include road that was not in original complaint… Gilbert affirmed) Cremer Rodeo Land & Livestock v. McMullen, 6/24:1; (claim by tax deed successor properly rejected over issues involving which tracts were servient and which were dominant, COS specificity, “subject to” and “together with” language in deeds, extrinsic evidence… Wald affirmed) Duke v. Lee Lou, 9/23:4; (use of road permissive, no prescriptive easement… $15,000 trespass damages to Plaintiff, $15,000 civil assault damages to Defendant… McMahon affirmed (memorandum)) Sprague v. Beard, 9/30:1; (Defendants in lake property access dispute have express easement over Plaintiffs’ property, implied easement by prior use, and prescriptive easement but not implied easement by necessity… Plaintiffs’ request to add claim of prescriptive easement over Defendants’ property denied… Defendants’ counterclaims for nuisance, interference with easements, and punitives remain for trial… Owen) Moore Family Company v. Kellys, 10/28:4; (Defendants properly found to have prescriptive easement appurtenant to their Ranches over one road to trail cattle over Plaintiffs’ property (but limited to historical 200 cow-calf pairs, not 300), improperly found to have an easement over another road… Kutzman affirmed, reversed) Fabers v. Ratys, 12/2:2
Estate property/trust: (claims properly resolved in favor of Defendants on summary judgment and bench trial except attorney fees improperly awarded without reasonableness hearing… Allison affirmed, reversed (memorandum)) Booth v. Weitzels, 11/18:2
Foreclosure: (“maintenance expenses” in §25-13-802(3) do not include cleanup costs for removal of a redemptioner’s personal property (scrap yard items)… Allison reversed) 360 Reclaim v. Russell, 12/30:3
House construction: (claims that contractor suffered subdural hematoma from being struck on head by pipe and is owed for work performed rejected on summary judgment… Cuffe) Maxim v. Cameron, 5/13:5; (most claims against general contractor and subcontractors involved in extravagant lake house and boathouse projects dismissed on summary judgment… Eddy) Wilkins v. Incoronato, 5/27:4
Lease: (informal agreement properly construed as not granting one Plaintiff a life estate in rural parcel and another the right to reside on it… Murnion affirmed (memorandum)) Schmid v. Notti, 3/18:3
Mobile home lot evictions: (MRMHLRA does not allow a lot owner to terminate tenant’s month-to-month lease without cause… Vannatta and Recht reversed) Westview Mobile Home Park v. Lockharts; Greener Montana Property Management v. Cunningham, 11/4:1
Property settlement: (properly enforced by specific performance and equitable conversion after house burned prior to closing which had been delayed as tactic to force sale for less than appraisal… Davies affirmed) Bender v. Rosman, 7/22:3
Quiet Title Act: (challenge of public use of road across private land per FS easement improperly dismissed based on statute of limitations… §2409a(g) is a nonjurisdictional claims-processing rule… Christensen, 9th Circuit reversed) Wilkins v. US, 5/13:7
Zoning: (variance properly granted to allow replacement of burned 9-unit apartment building with three 3-unit buildings… Allison affirmed (memorandum)) Cahill v. Columbia Falls, 5/6:5; (church properly allowed to demolish current building and construct new one with rear-yard setback and steeple variances… Lint affirmed) Hamilton Southside Historic Preservation Association v. Hamilton Zoning Board of Adjustment and Roman Catholic Bishop of Helena, 6/24:3
*Schools
COVID masking: (substantive due process challenge to school mask mandates properly rejected on summary judgment… Marks affirmed) Stand Up Montana v. Missoula Co. Public Schools, 12/16:2
*Settlements
Breach of employment promise: ($250,000 from County to former Sheriff’s Deputy for breach of promised new position of Detention Center Administrator… $10,000 from Deputy to County for improper sanctions motion) Fuss v. Big Horn Co., 2/25:9
Drilling accident: $11 million, traumatic arm amputation) Milos v. Oftedal Construction, 5/13:7
Jail suicide: ($550,000) Estate of Alexander v. Slaughter and Cascade Co., 11/11:11
Medical malpractice: ($1,460,952.46, medical treatment resulting in Osmotic Demyelination Syndrome) Lowry v. Phillips County Hospital, 7/29:5
Officers’ shooting: ($525,000 following summary judgment for County & Deputies rejected over claim of sham affidavit testimony that Plaintiff was pointing gun at ground when he opened door to unknown persons on porch in dark who shot him and claims of qualified immunity. Tolan v. Yellowstone Co., 2/25:10
Semi/auto: ($1,490,000, 2 deaths, 1 PI) Conservatorship of Nayelie Olvera, 12/9:6
*Social Security
SSD: (claim properly denied despite harmless error at step 3… Opp/Cavan affirmed (memorandum)) Murray, 4/29; (claim involving podiatrist’s opinions properly rejected… Kelley/Cavan affirmed (memorandum)) Glendenning, 5/27:8; (claims related to mental, headaches, knee pain properly denied… SSA/Cavan affirmed (memorandum)) Allen, 6/24:4; (depression claims properly rejected… SSA/Cavan affirmed (memorandum)) Williams, 6/24:6; (ALJ properly declined in 2020 to give preclusive effect to another ALJ’s 2012 RFC finding… Claimant failed to show that medical appointments would preclude working on a regular basis… application properly denied… SSA/DeSoto affirmed (memorandum)) Curtiss, 6/24:5; (pain claims improperly rejected… Kilroy/DeSoto reversed (memorandum)) Speck, 6/1:7; (number of medical appointments not necessary for RFC analysis… Cavan affirmed (memorandum)) Abrahams, 7/15:9
*State Government
Highway right-of-way: (challenge to placement of mailboxes in MDT right-of-way properly rejected for lack of standing/justiciability and no ministerial duty to support mandamus… Christopher affirmed) Kageco Orchards v. MDT, 5/6:6
State employee pay: (full requested backpay properly awarded FWP employee pursuant to “one rate” system, but no basis for award of attorney fees… Fehr affirmed, reversed) Watson v. FWP, 12/16:1
Unemployment insurance: (petition properly dismissed for insufficient service… Owen affirmed (memorandum)) Dupuis, 10/28:2
*Taxes
Income taxes: (NOL statute does not constitute impermissible taxation of income beyond State’s authority… MTAB affirmed, McMahon reversed) Tiegs v. DOR, 9/9:1
Property: (challenge to DOR’s authority to require counties to “bank” school equalization mills exceeding the statutory cap in one year and apply them to reach the cap in subsequent years rejected… Opinion & Order) MACo v. DOR, 11/25:2
Tax avoidance: ($8,465,000 in penalties properly imposed for promoting bogus tax-avoidance scheme of charitable deductions for donation of unwanted timeshares… Morris affirmed) Tarpey v. US, 8/26:4
*Torts
FTCA: (claims that FS was required to consult landowners personally about Lolo Peak fire suppression activities on their properties but failed to do so and that it intended the suppression activities to cause damage properly held to be precluded by discretionary function exception… Molloy affirmed) Schurg v. US, 4/1:7; (charred tree fall death & injuries on forest road barred by discretionary function exception… Molloy affirmed (memorandum)) Gould v. FS, 9/2:3
Landfill nuisance (claims against landfill owner and County relating to road through ranch properly rejected on summary judgment… Harada affirmed (memorandum) Diamond V Corporation v. Buckhorn Energy Oaks Disposal Services and Dawson Co., 10/7:1
Malicious prosecution: (claim against carbon fiber rifle barrel manufacturer for filing ultimately voluntarily dismissed trade dress mark infringement proceeding rejected on summary judgment on the basis of probable cause… inadvertently disclosed draft document in email from attorney protected by attorney-client privilege and as opinion work product, not considered on summary judgment… claims of false or fraudulent registration of a trademark and tortious interference with business relations/prospective economic advantage previously dismissed under Rule 12(b)(6)… DeSoto) McGowen Precision Barrels v. Proof Research, 9/2:8 (and other claims stemming from charges of negligent vehicular homicide and 5 counts of negligent vehicular assault arising from MVA with dispute as to who was driving, failure to disclose long brown hair found in driver’s door, and 2 hung juries, and ultimate dismissal rejected on summary judgment… Gilbert) Overstreet v. Fetterhoff, 9/9:4; (claims for attorney fees, emotional distress, and punitives stemming from Defendants providing information to County Attorney’s Office which initiated prosecution of Plaintiff for violating order of protection culminating in not guilty verdict dismissed under Rule 12(b)(6)… Berger) Johanson v. Cooksons, 9/23:7
Medical malpractice: (summary judgment improperly granted to OB/GYN for failure to present sufficient expert testimony relating to newborn brain injuries… Best reversed) Kipfinger v. Kuykendall, 3/18:1; (JML on informed consent properly granted for lack of expert testimony on standard for advising of possible long-term hoarseness and swallowing difficulty from ACDF surgery… Harada affirmed (memorandum) Greene v. McDowell, 3/25:1; (proportionate duty and loss of chance instructions improperly refused in blindness case, defense verdict reversed… jury improperly polled… Wilson reversed) Camen v. Glacier Eye Clinic, 9/23:1
Negligence: (alternative causation evidence improperly excluded in MVA trial, error compounded by Plaintiff taunting Defense for not presenting excluded evidence… $510,343.05 verdict reversed, remanded for new trial on causation/damages elements of pain/suffering and course of life… Dayton reversed (52-page Opinion)) Breuer v. State, 12/23:1
Nuisance: (jury properly instructed that notwithstanding “surface water is an enemy of all mankind and each landowner has the right to protect its own land therefrom” lower landowner must take reasonable care to avoid damage to upper owner… $250,000 verdict to upper owner for flooding resulting from lower owner paving affirmed… Olson affirmed) Winkowitsch v. Glacier Electric Cooperative, 12/2:1
Officers’ shooting: (summary judgment for County & Deputies rejected over claim of sham affidavit testimony that Plaintiff was pointing gun at ground when he opened door to unknown persons on porch in dark who shot him and claims of qualified immunity… case settled following ruling for $525,000… DeSoto/Watters) Tolan v. Yellowstone Co., 2/25:10
Premises liability: (expansion of liability to non-invitee third parties on public road rejected, summary judgment for Goodwill as to motorcycle collision with auto exiting private drive after dropping off donations… Ohman) Murray v. Steinmetz and Goodwill, 9/30:7
Wrongful arrest: (mistrial based on Defense Counsel’s reference to Plaintiff’s criminal history properly denied… no jurisdiction to review denial of Defendants’ motion for summary judgment based on qualified immunity following defense verdict… Cavan affirmed (memorandum)) Cane v. O’Neill, 12/2:6
Wrongful discharge: (complaint improperly dismissed based on inclusion of improper marital discrimination claims… Rienne McElyea reversed (memorandum)) Peavler v. Rocky Mountain Supply, 1/28:1; (Galbreath rule limiting defense to reasons in discharge letter not superseded by 1999 amendments but evidence offered to substantiate those reasons admissible… answer to 9th Circuit question (reversing Watters’s summary judgment for employer)) Smith v. Charter Communications, 5/27:1; (inability of DOC HR Director to provide truthful information during investigation into her recordings constituted good cause for termination regardless of disputes as to whether recordings were surreptitious… Seeley affirmed) Shepherd v. DOC, 6/3:1; (material fact issues preclude summary judgment as to reasons given in discharge letter in case in which Montana Supreme Court clarified that Defendant may defeat wrongful discharge action only for reasons in discharge letter… Watters reversed (memorandum) Smith v. Charter Communications, 7/29:6; (Flathead Basin Commission ED properly found to be employee of DNRC which had good cause to terminate her for financial improprieties… Seeley affirmed) Miske v. DNRC, 12/16:1
Wrongful discharge/discrimination: (claims of dental employee who was prescribed medical marijuana and fired for failing drug test pursuant to Workforce Drug & Alcohol Testing Act properly rejected on summary judgment… Fehr affirmed (memorandum)) Edwards v. Turley Dental Care, 11/18:1; (claims of female driver properly rejected on summary judgment… Olson affirmed (memorandum)) Fuson v. CHS, 12/2:4
*Utilities
Electricity pre-approval: (challenge to electricity pre-approval statute fails for lack of standing… Marks reversed) 350 Montana v. NWE, 5/20:2
Solar contracts: (Judge erred by sua sponte excluding Plaintiff’s other projects and development fees and in instructing that jury could award lost profits for NWE’s breach of contract to purchase electricity after PSC suspended NWE’s standard rate… $480,000 verdict reversed, remanded for new trial on recovery of development fees… claim of judicial bias warranting reassignment on remand rejected… Haddon reversed (memorandum) Pacific Northwest Solar v. NWE, 4/15:4
*Verdicts
Aircraft landing damage: (defense) Livingston v. Tiensvold, 4/1:7
Auto: ($425,000 for past pain & suffering, intersection MVA, admitted liability, disputed causation low back/neck) Moseman v. Estate of Stolcis, 3/4:7; (defense, admitted responsibility for passenger-side MVA but no causation found, cervical rotational bending injury resulting in cervical cord contusion involving all 4 extremities as well as post-trauma vision syndrome) Shaw v. McCafferty, 3/25:4; ($94,500 net (10/90 negligence), intersection MVA, whiplash/soft-tissue… settled following verdict) Levin v. Ferronato, 4/29:1; (comment in closing that Plaintiff’s medical bills were not to compensate Plaintiff but “for other people and other providers so the burden of taking care of Cheryl doesn’t fall on someone else, doesn’t fall on the State” did not suggest that Defendant had insurance, not sufficiently prejudicial to warrant new trial following $165,000 verdict… Laird reversed) Voegel v. Salsbery, 7/22:1; ($64,000 for driver, $62,000 for sleeping co-driver/wife, semi crashed into Defendant’s jackknifed semi, spinal cord/TBI) Mageses v. Picard Corp. dba Step Saver Transportation, 11/11:10; ($1.8 million gross, t-bone MVA, death of driver, injuries by passenger, negligence apportioned 60% to speeding other driver, 40% to deceased driver for BAC and leaving business driveway without yielding) Davis v. Angove, 12/16:6; ($112,000, hotel slip & fall, admitted liability, CRPS) Bonette v. The Firebrand Hotel, 12/23:8
Boxes falling on driver’s head: ($657,000 gross, $427,050 net (65/35 fault), boxes falling on driver’s head when opening trailer at warehouse store, TBI/post-concussion syndrome) Douglass v. Sam’s Club, Walmart, 6/17:9; (Plaintiff’s request to “correct” his verdict for damages incurred by boxes falling from truck to reflect via 9 juror affidavits that jury made “clerical error” in finding $657,000 “total” damages to be reduced by his 35% fault when it intended $657,000 to be the “net” award denied on basis that affidavits not admissible to impeach the verdict… Defendant’s motion to offset SSDI denied as Plaintiff would not be fully compensated in light of 35% fault reduction (1st impression)… pre-judgment interest awarded on $25,000 medicals award even though the stipulated amount was more… Davies) Douglass v. Sam’s Club, Walmart, 8/12:5
Construction lien: ($4,050 net to contractor on construction lien after offset of $41,700 awarded to home owners on construction defects counterclaim… contractor entitled to fees/costs on lien foreclosure, neither party entitled to costs on legal claims as neither prevailed) Walters v. Mortier, 1/11:7
Earthwork subcontract: ($2,221,839, breach of subcontract by earthwork subcontractor resulting in demolition of apartment building due to movement from lack of soil compaction and foundation drainage) Action for Eastern Montana v. Triple J Dirt Works, 12/16:4
False/fraudulent ARD claims: ($1,081,265 verdict trebled by Judge Christensen to $3,243,795 damages for false or fraudulent ARD claims by CARD plus $2,582,228 False Claim Act penalties for total of $5,826,023 to US with Qui Tam Relator BNSF awarded 25% of total proceeds plus fees/costs (claim for $1.4 million pending)) BNSF v. CARD, 8/12:8
Financial exploitation/abuser: (son found to have committed financial exploitation of his father in amount of at least $1,000 and to be an “abuser” pursuant to §72-2-813 resulting in forfeiture of interest in deceased father’s ranch) Estate of Flanagan, 1/7:5
Hospital negligence: (defense, claimed PTSD, increased pseudo seizures, and other associated symptoms following anxiety attack in MRI machine) Kersten v. St. Peter’s Health, 11/18:7
Inverse condemnation: ($105,000, inverse condemnation, 35 acres of Plaintiff’s fields “taken” from farm entity by City by subdivision stormwater runoff at stipulated $3,000/acre) L. Johnson Inc. v. City of Great Falls, 5/6:9
Malicious prosecution: ($1,499,300 including $100,000 punitives, malicious prosecution of mortgage broker by law firm retained by credit union) McAtee v. Morrison & Frampton, 5/6:8
Medical malpractice: (proportionate duty and loss of chance instructions improperly refused in blindness case, defense verdict reversed… jury improperly polled… Wilson reversed) Camen v. Glacier Eye Clinic, 9/23:1
Nuisance: (jury properly instructed that notwithstanding “surface water is an enemy of all mankind and each landowner has the right to protect its own land therefrom” lower landowner must take reasonable care to avoid damage to upper owner… $250,000 verdict to upper owner for flooding resulting from lower owner paving affirmed… Olson affirmed) Winkowitsch v. Glacier Electric Cooperative, 12/2:1 Prisoner: (defense, prisoner not subjected to cruel & unusual punishment as he was not subjected to dangerous work conditions in relation to cleaning feces contaminated cell during which he fell and broke his shoulder) Hall v. Myotte, 5/13:9
Punitives: (evidence of alleged racial motivation improperly precluded in punitives phase of trial in which jury awarded Indian $1,000 compensatory damages for assault by white neighbor and $2,000 punitives… remanded for new trial on punitives… Wald reversed) Two Leggins v. Gatrell, 8/26:1
Slip & fall: $112,000, hotel slip & fall, admitted liability, CRPS) Bonette v. The Firebrand Hotel, 12/16:7
Timber trespass: ($5,000 property damage) Schaeffer v. Pipkorn, 6/10:11
Wastewater discharge: (defense verdict in suit against water/sewer district alleging discharge of treated but polluted wastewater into Gallatin River without permit affirmed… dismissal of golf course that irrigates with the wastewater reversed… Morris affirmed, reversed) Cottonwood Environmental Law Center v. Big Sky Water & Sewer District and Boyne, 11/25:6
Wildfire: (defense, combine operator not negligent as to fire caused by combine in wheat field) Bowman v. Leininger, 7/15:8
Will challenge: (defense verdict affirmed over claims of juror misconduct… $428,659 attorney fees properly awarded Estate, $86.931.50 improperly awarded wife of heir for participation to defend her own interests… interest rate on fees improperly required to be recalculated each year… Gilbert affirmed, reversed) Estate of Burns, 12/30:1
Work comp bad faith: (defense, Third Party Administrator violated UTPA and acted in bad faith in allegedly leveraging truck driver to settle MVA claim for half of “worst-case-scenario” amount when he settled for $375,000, but had reasonable basis in law or fact for its conduct and thus 0 award) Lopez v. ESIS, 7/29:4
Wrongful discharge: ($155,685.07, wrongful discharge of Town Public Works Director, slander by Town Councilman) Linton v. Darby, 8/5:6
*Water
Bottling plant: (beneficial use permit properly vacated and remanded due to deficiencies material to physical availability of water… attorney fees to Objectors who prevailed after 7 years improperly deemed denied… Seeley affirmed, reversed) Flathead Lakers v. DNRC and Montana Artesian Water, 5/20:1, rehearing denied, 6/1:2
*Workers’ Compensation
Jurisdiction: (WCC properly held to lack jurisdiction over constitutional claims following stipulated judgment resolving benefit disputes… Sandler affirmed) Allum v. MSF, 6/24:2
Medical opinion: (providers’ documentation of what Petitioner told them insufficient medical opinion to prove OD… Sandler) Christoffersen v. MSF, 9/2:12
Occupational disease: (supervisory control of Krueger denied as to ruling that 1961 MODA applies to ARD claim against power company rather than 1993 version in effect when Plaintiff stopped work for subsequent employer… order) NWE v. Krueger, 11/4:2
Statute of limitations/causation/fees/penalty: (statute properly tolled during time Claimant was without a guardian… substantial evidence supports finding that Claimant was working with argon when valve burst leading to incapacitating injuries from lack of oxygen… attorney fees and penalty properly imposed for inadequate investigation by adjuster… Sandler affirmed) Bryer as Guardian/Conservator for Sheldon v. Accident Fund General Ins., 6/10:1
Treating physician: (no grounds to terminate benefits for Claimant refusing to attend appointment with treating physician designated by insurer while it was paying benefits under reservation… Sandler) Russell v. Victory Ins., 8/26:8