Montana Law Week Subject Index – 2024

Montana Law Week Subject Index – 2024

*Appellate Procedure

54(b) certification: (improvidently granted without consideration of requisite factors… Coffman reversed) Estate of David Wolfe, 8/24:4

Interpleader: (appeal of order by Linneweber directing deposit of interpled insurance funds and making insurers responsible for certain payments premature… order) Depositors Ins. v. The Briarwood, 5/11:2

Pro se appellant: (no right on appeal to represent oneself… Order) Weimer, 8/10:8

Redaction: (motion to redact phone number from online filings granted, although typically the responsibility of the filer to redact… Order) Hardin, 5/18:5

Rehearing: (to reinstate paragraph stricken on petition for rehearing denied… Order) Jackson v. Balkoski, 12/14:2

Stay pending appeal: (denied as to Seeley’s denial of stay from her rulings in favor of youths requiring State agencies to consider greenhouse gas emissions and climate impacts in MEPA analyses… order) Held v. State, 1/20:1; (stay of Lint’s order directing Town to abate nuisance denied… Order) Cook v. Berta’s Farm, 6/22:1

Supervisory control: (of Whalen denied in hospital’s challenge to TRO against reporting suspension of doctor’s clinical privileges… Order) St. James Healthcare v. Whalen, 7/6:1; (as to contempt sanctions declined for failure to serve parties… Order) Knudsen Family LP v. Cybulski, 9/28:4; (petition rejected for understating words and other defects… Order) Hill-Williams v. Wald, 11/16:5; (of Parker’s order that DPHHS Director travel to Great Falls to testify in fitness hearing denied for failure to comply with MRAP… Order) DPHHS v. Parker, 12/21:4

*Arbitration

Arbitrability: (for the Court rather than arbitrator to decide whether arbitration provisions in a Business Promissory Note and Security Agreement are valid & enforceable… Breuner affirmed) Bluebird Property Rentals v. World Business Lenders, 11/30:1

Detective dismissal: (Arbitrator’s finding that detective was dismissed without cause properly found to comply with the law but remand to Arbitrator improperly modified the award… Whelan affirmed, reversed) BSB v. BPPA, 12/7:1

Vehicle service contract: ($1,005,073.20, breach of service contract for failed vehicle transmission under Illinois Consumer Fraud Act… AAA) Parrish v. Endurance Dealer Services, 5/4:8

*Attorney Fees, Costs

Between government entities: (legal basis for award of fees between government entities… equities and tangible parameters support award of fees to small town against regional water authority… Ruiz affirmed) Kevin v. North Central Montana Regional Water Authority, 8/3:3

Costs: (bill of costs in subdivision variance summary judgment properly found timely, did not include unallowable costs… Allison affirmed (memorandum)) Bluemoon Refinery v. Flathead Co., 6/15:3

Private AG fees: (improperly denied in challenge of questionable enactment SB 319 (2021) (prohibiting university voter registration and requiring judge recusal involving donors)… Menahan reversed) Forward Montana v. State, 2/3:1, (Opinion holding that private AG fees were improperly denied in challenge of SB 319 enactment withdrawn, replaced with opinion clarifying that Court will not declare a statute invalid merely for Legislature’s failure to observe its own rules… petition for rehearing otherwise denied… Order); (ruling that university bills are unconstitutional affirmed… denial of Private AG fees to Plaintiffs remains undisturbed due to lack of majority on this issue… McElyea affirmed) Barrett v. State, 4/27:1

*Attorney Practice

Discipline: (Katherine Proctor suspended pending formal proceedings following conviction of felony assault on a minor… order) Proctor, 2/3:8; (Jody Palmer charged with misconduct for statements about qualifications or integrity of Standing Master, ordered to appear before COP) Palmer, 2/10:2; (Meghan Doud disbarred, ordered to pay restitution or disgorge $1,366,133 in COP’s most egregious trust violation and misappropriation/commingling case… Opinion & Order) Doud, 2/17:1; (Garry Seaman disbarred following suspension after pleading guilty to deliberate homicide and attempted deliberate homicide in love triangle shooting… Order) Seaman, 5/18:3; (Suzanne Marshall suspended for 90 days for, inter alia, failure to notify paternity client of dismissal… Order) Marshall, 5/18:3; (Jack Morris suspended for 30 days for conversations with his client’s co-defendant… Order) Morris, 12/14:4

Legal malpractice: (attempt to bootstrap malpractice claim by Ohio hotel corporation which manages Hiltons in Montana against Philadelphia insurer’s San Francisco adjusters into Montana via $4,031,519 class settlement with Montana hotels properly rejected for lack of specific personal jurisdiction…Vannatta affirmed) Philadelphia Indemnity Ins. v. Sedgwick Liquidating Trust, 10/26:1

*Banking, Commercial Paper

Schedules: (malicious prosecution and abuse of process claims not barred by judicial estoppel arising from failure to update Ch. 7 schedules to disclose pending claims… Fehr reversed) Saddlebrook Investments v. Krohne Fund, 4/6:1

*Bench Judgments

Contract: (findings of no material breach of LPA in assignment of interest in Low-Income Housing Tax Credit project without partner’s consent and order of specific performance of Option to purchase affirmed… Morris affirmed (memorandum)) Farmhouse Partners Limited Partnership v. Multi-Housing Tax Credit Partners XXX, 1/27:10; ($113,869.95 judgment improperly awarded to County for fire suppression pond defects when County failed to timely inspect and give opportunity to remedy… Dayton reversed (memorandum)) Granite Co. v. Rising Sun Estates, 2/3:7

Interference with easements: (claims against neighbors for nuisance, interference with easements/trespass, and injunctive relief following summary resolution of easement claims rejected… Owen) Moores v. Kellys, 5/4:6

*Civil Procedure

Claim preclusion: (suit alleging CWA violation by discharging reclaimed wastewater from snow guns precluded by consent order in prior suit under modified claim preclusion test, res judicata, release… Morris affirmed (memorandum)) Cottonwood Environmental Law Center v. Spanish Peaks Mountain Club, 11/23:10

Class certification: (properly granted in soil settlement suit against subdivision developers… Souza affirmed

Contempt: (Defendants who were found by jury to have acquired elderly brothers’ ranch by breached buy-sell and gift deed under undue influence found in contempt for failing to comply with judgment requiring release of mortgage… Defendants again ordered to complete release of mortgage as well as a post-verdict mortgage modification used to pay Defendants’ attorney, but brothers may at their discretion proceed with sale of the property with proceeds paid to bank entered as a supplemental judgment against Defendants… Gilbert) Helviks v. Tuscanos, 7/13:4; (ex-husband who lacked ability to pay child’s counseling costs properly not held in contempt… supervisory control of Harris denied… Order) Buehler v. Harris, 12/28:4

Deposition sanctions: (expenses/attorney fees/costs imposed against US for sending unprepared 30(b)(6) designee to deposition relating to shooting death by BIA officers… Watters) Todd, PR of Estate of Bordeaux v. US, 11/23:11

Duplicative claims: (order denying oncologist leave to amend wrongful termination complaint was not a final judgment for purposes of res judicata, but second suit restating claims still properly dismissed based on prohibition against claim-splitting… Seeley affirmed (other grounds)) Weiner v. St. Peter’s Health, 8/3:1

Choice of law: (Montana substantive law with 3-year tort statute rather than North Dakota law with 6-year statute applied to North Dakota MVA in which Montana attorney asserted claims against husband who wrecked vehicle when swerving to avoid deer in North Dakota… claim filed 6 years after MVA time-barred… statute of limitations defense not precluded by judicial or equitable estoppel, statute not tolled by claim that fibromyalgia not known to be caused by MVA… Knisely) Hughes v. Anderson, 3/9:5 (New York Post statements about Whitefish businessman are protected by New York’s fair report privilege as they fairly & accurately report court proceedings, not for a jury to decide… ex-police chief’s comparison to Weinstein and Epstein non-actionable opinion… Eddy reversed, affirmed) Goguen v. New York Post, 3/16:1

Consent to judgment: (by credit card debtor improperly rejected possibly on misunderstanding that it was a cognovit judgment… Harris reversed) American Express v. Born, 1/6:3

Default: ($35 million default judgment properly entered against Defendant for failure to participate in securities trading software litigation… Fehr affirmed (memorandum)) Saddlebrook Investments v. Birbilis, 3/16:3; (no manifest abuse of discretion in setting aside $739,738.97 default judgment in vodka distribution dispute despite “concise” analysis… Halligan affirmed (memorandum)) Fibke v. Kimerly, 4/27:1

Emotional distress: (claims by father based on his trauma of witnessing deposition questioning of his child in wrongful death suit brought by father in death of his wife properly dismissed pursuant to Rule 12(b)(6) without converting to summary judgment… Cuffe affirmed (memorandum)) Tackett v. Feller and Moore, Cockrell, Goicochea & Johnson, 5/11:1

Expert disclosures: (construction defects Defendant’s experts excluded due to egregious failure to disclose after 8 amended scheduling orders… Halligan) Kaegys v. Charter Construction, 3/16:8

Failure to prosecute: (dismissal of $5,157,580.10 default judgment case after “nine years of madness” affirmed… Allison affirmed (memorandum)) Reservation Operations Center dba National Parks Reservation v. Commissioner or Securities & Insurance, 10/26:4

Interest: (question certified to Montana Supreme Court whether compensation incident to specific performance constitutes legal damages for purpose of prejudgment interest… Order) Glacier Bear Retreat v. Duseks, 7/13:7, question accepted, 7/27:1

Judicial estoppel: (counsel substitution not justification for untimely summary judgment motion but no prejudice so properly allowed, but malicious prosecution and abuse of process claims not barred by judicial estoppel arising from failure to update Ch. 7 schedules to disclose pending claims… Fehr reversed) Saddlebrook Investments v. Krohne Fund, 4/6:1

Med-mal damage cap: (constitutional challenge rejected based on Meech, $6 million verdict for failure to timely prescribe “clot-buster” for stroke patient reduced to “nowhere close enough” $250,000… Kutzman) Zahara v. Advanced Neurology Specialists, 1/27:3

Name change: (transgender prisoner’s petition for sealed-record name change properly denied… McLean affirmed (memorandum)) Name Change of Nichols, 4/27:2

Order of protection: (POP improperly issued based on hearsay… Kolar/Fehr reversed) Fritzler v. Bighorn, 2/24:6; (10-year order properly issued against Trooper’s ex-girlfriend… West/Breuner affirmed) Cook v. Bodine, 8/31:2; (properly granted in parenting dispute based on harassing emails to Petitioner and attorney, prior evidence of Petitioner’s behavior properly excluded… Menahan affirmed (memorandum)) Masse v. Richardson, 11/16:6; (properly granted in favor of mother’s attorney for father’s threatening emails… McMahon affirmed (memorandum) Vanisko v. Richardson, 12/7:2; (motion to terminate properly denied without a hearing… Gilbert affirmed (memorandum)) Bills v. Cooper, 12/14:1

Preliminary injunction: (improvidently granted against affordable housing legislation… Salvagni reversed) Montanans Against Irresponsible Densification v. State, 9/7:1; (2023 preliminary injunction revisions reconciled with Winter, applicant must make showing as to all 4 factors under 9th Circuit’s serious questions framework… District Court addressed only irreparable injury, remanded to make supplemental findings & conclusions as to all factors… preliminary injunction is available for agister’s liens… Rieger reversed) Stensvad v. Ayers Ranch, 11/2:1

Protective order: (warranted by “cruel and unusual harassment” causing psychological damage, not precluded by 1st Amendment or stalking statute… Swingley/Menahan affirmed (memorandum)) Murray v. Connors, 10/19:2

Receivership: ($249,423.79 fees properly awarded Receiver and his attorney prior to disposition of all claims in commercial property dispute… Larson affirmed (memorandum)) Pummill and Robertson v. Patterson, 3/30:1

Required party: (US not a required party to determine access to property across private parcels and then across BLM land as BLM access is provided under lease to 2037… Menahan reversed) Behlmer v. Crum Real Properties, 10/26:4

Sanctions: (for loss of Probation Office parking lot surveillance footage improperly imposed under Court’s “inherent authority” when such loss is covered by Rule 37(e) which requires purposeful hiding of evidence… finding of “recklessness” insufficient to instruct that it was established as a matter of law that Probation Officer used excessive force against probationer’s mother… $75,000 verdict and $94,077.97 attorney fees reversed, remanded for new trial… Morris reversed) Gregory v. Montana, 9/28:7

Settlement agreement: (Statute of Frauds correctly applied less technically to text messages to prevent commission of a fraud in house defects/buy-back dispute… texts also properly found to constitute enforceable settlement agreement… Eddy affirmed) Perls v. Grants, 2/3:2

Statute of limitations: (claim of fall through service access alleges elements of negligence per se, not claims that are a “liability created by statute,” 3-year statute applies and claim is timely… Vannatta) Warren v. Jackson Contractor Group, 4/20:4

Standing: (dispute over proceeds from sale of Masonic Temple and revocation of charter properly rejected on summary judgment for lack of standing by Lodge member… Wilson affirmed) DA Davidson v. Slaybaugh, 11/16:2

Untimely summary judgment motion: (counsel substitution not justification for untimely summary judgment motion but no prejudice so properly allowed, but malicious prosecution and abuse of process claims not barred by judicial estoppel arising from failure to update Ch. 7 schedules to disclose pending claims… Fehr reversed) Saddlebrook Investments v. Krohne Fund, 4/6:1

Vexatious litigant: (request to declare probate litigant vexatious denied… Order) Estate of Walter Grey, 10/12:4

*Constitutional Law

Environment: (Constitution’s clean & healthful environment properly found to include stable climate system, invalidates MEPA review limitation… 16 children had standing to bring challenge… psychiatric exams of 8 children properly denied… Seeley affirmed) Held v. State, 12/21:2

Gender dysphoria: (preliminary injunction enjoining SB 99 which proscribes medications & surgery to treat gender dysphoria in minors affirmed on right of privacy… Marks affirmed) Cross v. State, 12/14:4

Parental Consent for Abortion Act: (properly found unconstitutional) Planned Parenthood of Montana v. State, 8/17:7

*Contracts

Contract/fraud: (verdict of $64,875 for breach of contract and $100,000 for constructive fraud stemming from NSF check presented to repay investment loan affirmed… Knisely affirmed (memorandum)) Allen & Linda Munro v. John Munro, 1/6:1

Student travel: (claims of breach of contract for failing to provide full refunds for trips that were disrupted by COVID properly rejected on summary judgment… Cavan/Watters affirmed (memorandum)) Sides v. Global Travel Alliance, 5/25:3

*Corporations

LLC dissociation: ($2,420,000 compensatory damages verdict in favor of farm/ranch LLC and against departing members affirmed, but $80,000 punitives verdict reversed as action arose from Operating Agreement… 8-year contract statute properly applied in “twilight zone of contract and tort law”… dissociation date properly fixed at 2/2/18… departing members’ 2 shares properly valued at $434,000 each with 7.5% interest accruing from 2/2/18… Laird affirmed, reversed) Dolls v. Little Big Warm Ranch LLC, 8/24:1

*Courts

City Court: (Clerk terminated by Mayor ordered reinstated during pendency of challenge by Judge… Order) Burman v. City of Glendive, 4/20:2; (writ of prohibition (not mandate) granted arresting Glendive Mayor’s proposed unilateral termination of City Court Clerk… Burman affirmed) Burman v. Glendive, 8/3:4

Costs waiver: (supervisory control granted reversing Recht’s denial of waiver for not providing financial information exceeding DOJ’s requirements… order) Deschamps v. Recht, 2/3:5

Judge disqualification: (Defendant properly charged with attempted escape when he fled courtroom during arraignment… Judge present at the incident not disqualified from presiding over subsequent jury trial… Harada affirmed) Flesch, 8/10:3

Judge substitution: (party seeking to substitute successor to retired Judge had actual notice of successor, untimely motion properly denied despite no formal notice… Bonilla affirmed (memorandum)) Estate of Thirlmann, 6/1:1; (supervisory control granted reversing Grubich’s denial of substitution in convoluted case involving consolidation of 2 Informations… Order) Fraser, 6/22:6

Judicial conduct: (Judge’s criticism of Defense Counsel’s strategy was improper but did not compromise trial integrity… conviction of truck driver of criminal endangerment for driving along interstate with large paper rolls in danger of falling out after crash affirmed… Deschamps affirmed (memorandum)) Bennett, 4/6:5

Judicial standards: (formal complaint against Judge Christopher for failing to timely/adequately arrange coverage during illness… JSC Prosecutor Amy Christensen) Christopher, 1/20:4

Jurisdiction: (insurer failed to establish $75,000 for federal jurisdiction over State Court common fund challenge to cross-policy anti-stacking endorsement… DeSoto’s rejection of anti-stacking challenge reversed, remanded to State Court (memorandum) Johnson v. Mid-Century Ins., 2/24:10; (“state-court loser” complaining of injuries caused by state-court judgments stemming from marital property litigation barred by Rooker-Feldman from challenging judgments in Federal Court (asserting RICO claims against ex-wife and her attorneys), remanded for dismissal without prejudice… Morris affirmed (other grounds) (memorandum)) Boudette v. Oskerson, 3/30:4; (personal jurisdiction properly declined over Brazilian sued by Montanan… Fehr affirmed) Creative Games Studio v. Alves, 5/18:1; (personal jurisdiction in med-mal case properly declined over Washington Defendants, but should be transferred, not dismissed… Morris affirmed, reversed (memorandum)) Tackett v. DPHHS, 6/8:8; (supervisory control of Harris denied as to denial of motion to dismiss Maryland LLC member disputing that he personally conducted business in Montana… Order) Goldsteen v. Harris, 6/22:1

TOP/parenting plan venue: (BSB Justice Court properly removed mother’s TOP case to Gallatin District Court after father filed parenting action in Gallatin… District Court’s TOP order affirmed… Bowen/Ohman affirmed) Penado v. Hunter, 10/5:1

*Crime, Criminal Procedure

Accountability: (sufficient evidence to convict of accountability for aggravated burglary but conviction of accountability for assault with weapon violated “multiple conviction” statute… Kutzman affirmed, reversed) Rodriguez, 6/30:2

Aggravated animal cruelty: (challenge to imposition of liability for County’s costs in caring for 58 horses waived by failure to object, but costs were “reimbursement,” not “restitution,” so 10% restitution fee improperly imposed… Seeley affirmed, reversed (memorandum)) Erickson, 5/11:6

Aggravated rape: (girlfriend’s postconviction “recantation” as to whether she consented to sex properly rejected as newly discovered evidence of innocence… “confusing jurisprudence” “clarified” in 71-page Opinion… Larson affirmed) Henderson, 11/23:2

Assault on minor: (plea agreement for deferred sentence for severe spanking of child entered into with first Prosecutor undermined by second Prosecutor’s disparaging comments… suspended sentence reversed, remanded with opportunity to substitute Judge… Knisely reversed (memorandum)) Yates, 4/13:5

Assault on officer: (warrantless entry into suicidal person’s home justified by community caretaker doctrine, suppression of evidence properly denied… conviction for pointing pistol or what appeared to be a pistol at officer affirmed… Krueger affirmed) Case, 8/10:6

Assault on officer/DUI: (911 caller’s statement that Defendant was “intoxicated” and “gonna be driving under the influence” improperly included in recording of call played to jury, but was harmless error as there was ample other evidence that Defendant was intoxicated during encounter with officer… judgment imposing “Audit Hearing” condition stricken as conflicting with oral pronouncement… Lint affirmed, reversed) Johnson, 12/21:7

Assault with weapon: (justifiable force instruction in shoving match that escalated to stabbing improperly refused on basis that Defendant had not presented evidence of his state of mind, but the evidence nevertheless did not support the instruction… Harris affirmed (other grounds)) Fredericks, 10/12:8

Assault with weapon/burglary: (because predicate of assault with weapon merged into principal of burglary, assault with weapon must be vacated, remanded for resentencing for burglary… Spaulding reversed) Stokes, 2/24:7

Assault with weapon/PFMA: (conviction affirmed over claims of prosecutorial misconduct… Cuffe affirmed (memorandum)) Benedict, 12/28:5

Attempted deliberate homicide: (conviction stemming from standoff shootout with weapon enhancement affirmed… Murnion affirmed) Marfuta, 11/9:3; (accomplice instruction properly denied as to Defendant’s claim that his passenger was equally likely the one who shot at officers during high-speed chase… Dayton affirmed (memorandum)) Hill, 11/30:7

Attempted escape: (Defendant properly charged with attempted escape when he fled courtroom during arraignment… Judge present at the incident not disqualified from presiding over subsequent jury trial… Harada affirmed) Flesch, 8/10:3

Attempted sexual assault/aggravated assault: (convictions of obstreperous Defendant via mid-trial plea agreement affirmed over double jeopardy challenge… jury costs improperly imposed without addressing ability to pay… Ulbricht affirmed, reversed) Westfall, 5/18:3

Attorney withdrawal: (Defendant’s acquiescence in attorney’s motion to withdraw properly construed as wanting to proceed pro se rather than asking for substitute, “seemingly substantial” inquiry not triggered.. Bidegaray affirmed (memorandum)) Lorenz, 1/27:1

CCJI misuse: (supervisory control granted ordering dismissal for lack of probable cause charges stemming from attorney’s submission of a modified CCJI request form… Herrington reversed) Ramsey, 6/1:4

Child pornography: (conviction stemming from Instagram CyberTips affirmed… Christensen affirmed (memorandum)) Weber, 3/2:9

Child sex abuse: (prosecutorial misconduct claims in case involving abuse of 14-year-old stepdaughter rejected as not meriting plain error review… conviction affirmed… Wald affirmed) Welch, 3/9:4

Counsel substitution: (grievances against attorneys properly found not “seemingly substantial” in initial inquiry, separate hearing not required… substitution properly denied… Souza affirmed

Criminal endangerment: (Judge’s criticism of Defense Counsel’s strategy was improper but did not compromise trial integrity… conviction of truck driver of criminal endangerment for driving along interstate with large paper rolls in danger of falling out after crash affirmed… Deschamps affirmed (memorandum)) Bennett, 4/6:5

Deliberate homicide: (Defendant accused of hatcheting to death a participant in what was supposed to be a group fistfight was not prejudiced by failure to give accomplice instruction… no prejudicial effect from Prosecutor’s opinions/vouching in light of entire evidence and cautionary instruction… prejudice not shown by panelists possibly seeing Defendant escorted by guards in restraints… conviction affirmed… Best affirmed (memorandum)) Parker, 2/17:8; (failure to inform Defendant during interview that he had already been charged insufficient to require suppression… fees/costs improperly imposed without considering ability to pay… Cybulski affirmed, reversed) Geno, 7/13:4; (conviction affirmed over challenges to panelist qualification, limitations on cross of jailhouse informants, sufficiency of evidence to support felony murder, late-disclosed jailhouse letter… Halligan affirmed) Rossbach, 8/3:10; (conviction affirmed over objection to crime scene photos… joint & several restitution properly imposed… Harada affirmed (memorandum)) Davis, 8/17:8

Deputy qualifications: (deputies who had not completed mental evaluations by a qualified provider lacked authority to stop and arrest 3 DUI Defendants… supervisory control granted reversing Vannatta’s reversal of JP Taron’s suppression orders… Order) Patrick et al v. Vannatta, 8/17:10

Drugs: (affidavit facts sufficient to establish “fair probability” that evidence of crime would be found at suspicious residence, motion to suppress meth properly denied… Watters affirmed (memorandum)) Espinoza, 3/16:10; (parole officers had reasonable suspicion that Defendant controlled RV on property which he reported as his residence (regardless of whether it is a dwelling or a vehicle)… Morris affirmed (memorandum)) Hamper, 5/18:6; (meth possession/tampering conviction affirmed over challenge to improper consideration of motion to suppress search of purse involving US Marshals and PO… Deschamps affirmed (memorandum)) Johnston, 5/25:1; (stop for no trailer plate improperly expanded into drug investigation based on information about prior suspected drug activity of “extremely nervous” driver and known user passengers… meth should have been suppressed… Cybulski reversed) Panasuk, 6/1:2; (Trooper lacked particularized suspicion to expand speeding stop into drug investigation, motion to suppress improperly denied, conviction of possession with intent to distribute reversed… Vannatta reversed) McElroy, 6/30:1; (pre-release Defendant’s mere presence in casino insufficient probable cause to arrest for contempt of court… meth found in subsequent search of car should have been suppressed… good faith/independent source exceptions to exclusionary rule rejected… Dayton reversed) Baldwin, 9/7:3; (initial stop for speeding and revoked license was not extended beyond what was necessary, resulting in discovery of meth… sufficient evidence to convict passenger of accountability to possession with intent to sell… Menahan affirmed) O’Howell, 9/21:6; (community caretaker chat with driver slumped over wheel properly expanded to probationary search and discovery of drugs… Owen affirmed) Cleveland, 9/28:4; (man with red wig who turned out to not be the one a tipster identified as subject of local arrest warrant but who upon further investigation turned out to be subject of other warrants was properly stopped pursuant to Terry, meth discovered in jail intake search properly not suppressed… McElyea affirmed (other grounds)) Stanley, 11/30:7; (suppression of meth found in vagina properly rejected over challenge to non-sequitur disclosure of possible warrant for failure to appear on speeding charge… Halligan affirmed) Rymal, 12/7:3; (welfare check properly expanded into investigatory stop and discovery of meth… Larson affirmed) McClellan, 12/7:4; (suppression motion properly decided on briefs (and denied) after Defendant failed to appear… Lint affirmed (memorandum)) Cahoon, 12/7:7

DUI: (Defendant properly allowed to cross-examine witness as to details of her conviction for false reporting but not evidence of the conviction itself… Abbott affirmed (memorandum)) Tunnell, 1/27:2; (Trooper properly stopped driver who passed him based on license check showing suspended license even though no poor driving… sufficient evidence of DUI despite no BAC evidence… discretionary fees properly imposed on Defendant who was uncooperative in disclosing finances… Hayworth affirmed (memorandum)) Idland, 3/16:6; (jury properly instructed that Defendant found sleeping sprawled on seat of truck need not be conscious to be in actual physical control of vehicle… not prejudiced by absence of photos showing him sleeping… §61-8-731(3) mandatory $5,000 fine without regard to ability to pay is facially unconstitutional… Cuffe affirmed, reversed) Gibbons, 3/23:4; (Defendant properly tried in L&C where he drove into ditch and came to stop in Broadwater… properly taken to Trooper’s car under community caretaker and signs of impairment… not impeded from independent blood draw… statutory speedy trial waived by request for continuance… conviction affirmed… Swingley/McMahon affirmed (memorandum)) Boudette, 3/30:3; (Defendant not impeded from obtaining independent blood draw by confused advisories between supervisor and trainee… Halligan affirmed (memorandum)) Painter, 4/6:4; (felony conviction affirmed over claims by non-testifying Defendant of prosecutorial burden-shifting… Souza affirmed (memorandum)) Deavila, 5/4:5; (officer properly allowed to give lay opinion testimony that intoxicated driver was in “actual physical control” of his vehicle parked at gas pump and therefore subject to arrest… Cuffe affirmed) James, ????6; (officer properly relied on 3rd-party reports to dispatch of “drunk driver” to administer field tests after observing bloodshot & glassy eyes, motion to suppress properly denied…. Kolar/Harris affirmed (memorandum)) Stigen, 6/8:6; (Trooper violated speeder’s expectation of privacy by pursuing past “No Trespassing” signs on private road to where Defendant lived with girlfriend… motion to suppress 7th DUI evidence improperly denied… McMahon reversed) Lanchantin, 6/22:4; (sufficient probable cause for investigative subpoena to obtain blood of unconscious motorcyclist but Trooper instead properly asked hospital staff to preserve blood drawn earlier… Best affirmed) Hesser, 6/30:3; (probable cause to believe Defendant who had driven off road was DUI when handcuffed and taken in for testing due to bad weather… statements after being handcuffed prior to Miranda did not warrant suppression… Lint affirmed) Davis, 7/13:3; (blood toxicology properly admitted despite failure to log lot numbers or expiration dates for collection tubes… sufficient evidence of physical control by intoxicated Defendant found sitting in non-running vehicle with key in console… felony conviction affirmed… Brown affirmed) Wojtowicz, 7/20:2; (officers did not violate Defendant’s privacy responding to a report of a truck hitting a vehicle in the parking lot and the driver staggering into his apartment… officers’ opinions improperly elicited as to level of intoxication to rebut claim that he became intoxicated after arriving at his apartment, but the error was harmless in light of other evidence… conviction affirmed… Overland/Eddy affirmed) Zumwalt, 7/27:5; (Trooper had probable cause to believe that motorcyclist had “serious bodily injury” providing basis to request blood test… statement that “I don’t want that” properly construed as withdrawing initial consent for test… license suspension properly upheld… Grubich affirmed) Smith, 10/12:7; (RADAR sign showing 36 in a 25 zone properly utilized to confirm officer’s speed estimate, does not constitute a prohibited automated traffic enforcement device, resulting DUI investigation likewise reasonable, suppression of evidence properly denied… speedy trial right not violated by 742 days between arraignment and final trial date… Peterson/Seeley affirmed) Flynn, 10/26:6

Failure to register: (sufficient evidence to convict regardless of alleged hearsay error… Ulbricht affirmed (memorandum)) Holmquist, 12/7:8

Felony murder: (defense verdict, stabbing death) Andrade, 6/30:5

Fitness to proceed: (dismissal of negligent endangerment based on noncompliance with §46-14-221 timeline properly denied… Gilbert affirmed) Powers,9/21:7

Food truck in county park: (prohibition against food truck in park without permission not unconstitutionally vague as applied to operator who had county license for truck… conviction affirmed… Cuffe affirmed (memorandum)) Runkle, 11/9:9

Habitual vehicle offender: (statute affirmed as absolute liability offense… Howard/Wilson affirmed) Olds, 7/6:3

Hate: (conviction of hate crime for shooting at house in furtherance of “mission” to “rid” town of “lesbians and queers” affirmed… Morris affirmed) Howard, 6/15:10

Identity theft: (State properly allowed to add credit card foundational witness first day of trial, any error in allowing testimony via Zoom was harmless… conviction affirmed… Menahan affirmed (memorandum)) Rucker, 4/6:7

Incest: (and other counts related to ongoing sex with adopted daughter affirmed… Todd affirmed) Martinez, 1/6:15; (conviction of sex with teen daughter affirmed over challenge to Prosecutor’s bolstering in closing and prior consistent statements… restrictions improperly imposed on internet use… Laird affirmed, reversed (memorandum)) Dominguez, 10/5:2

Indian kidnap: (conviction affirmed over excited utterance hearsay exception challenge… Watters affirmed (memorandum)) Stackhouse, 6/30:6

Interstate detainer: (motion of Montana DUI Defendant incarcerated in Nevada to dismiss in accordance with IAD properly denied… Krueger affirmed) Carnes, 5/18:5

Justice Court speedy trial: (State failed to show good cause for trial delay of Defendant who was in federal custody, dismissal for failing to meet 6-month deadline improperly denied… Fagenstrom/Kutzman reversed) Wolverine, 2/24:8

Kidnap/interstate sex abuse: (convictions affirmed) Stackhouse, 6/30:6

Lesser-included: (Defendant properly convicted of criminal trespass after being acquitted of burglary… Bonilla affirmed) Frydenlund, 8/31:4

Miranda rights: (assertedly incomprehensible warning was given gratuitously in non-custodial child sex assault interrogation, motion to suppress properly denied… Marks affirmed (memorandum)) Lohman, 8/10:5

Mitigated deliberate homicide: (cumulative errors including failure to disclose Brady phone evidence and violation of in limine order precluding drug reference in trial described by Judge as “a disaster” undermined claim of self-defense shooting such that new trial is warranted… Rieger reversed) Severson, 4/13:2

Municipal Court speedy trial: (COVID a legally sufficient reason to delay protective order trial 2 days beyond statutory deadline… Bolstad/Parker affirmed) Kuntz, 1/13:5

Negligent homicide: (strangulation expert improperly precluded from testifying to bolster claim of self-defense in running over victim in bar parking lot confrontation… Prosecutor’s sentencing recommendation had appearance of vindictiveness for having to try the case a 2nd time… Defendant improperly not given opportunity to make statement at sentencing… conviction reversed, remanded for 3rd trial… Lint reversed) Santoro, 7/6:4; (conviction in shooting of brother affirmed over claim of prosecutorial misconduct… ineffective assistance claim more amenable for postconviction… weapon enhancement consecutive to PFO sentence proper… Cuffe affirmed) Johnson, 7/27:2

Permanent order of protection: (properly entered against assaulter… Perry affirmed (memorandum)) Stewart v. Grimsrud, 8/10:7

PFMA: (prior altercations properly admitted to provide context for Defendant’s pattern and reasons for partner’s reactions… Eddy affirmed) Palmer, 2/17:6

PFO: (notice filed eve of trial improperly allowed… Marks reversed) Gardner, 12/7:6

Phone search: (Court had jurisdiction to issue warrant to search New Jersey phone provider’s records of New Mexico resident accused of attempted rape in Montana under SCA and Montana law… Vannatta reversed) Levine, 8/10:2

Plea agreement: (properly held illegal for proposing amendment of child sex abuse offenses to fictitious SIWC by common scheme… Seeley affirmed) Arellano, 6/1:5

Postconviction: (petition properly denied without a hearing based on findings by another Judge in co-defendant’s case… Larson affirmed) Main, 9/28:5; (claims of ineffective assistance in cabin aggravated burglary properly rejected without a hearing… McMahon affirmed (memorandum)) Strizich, 10/19:4; (petition alleging 2008 assault on officer charge defective because officer had been charged with stealing or tampering in an unrelated case properly denied… Christopher affirmed (memorandum)) Adams, 12/7:5

Pretrial publicity: (claim of ineffective assistance for failing to inquire of the venire regarding pretrial publicity in homicide case in small community properly rejected… Wald affirmed (memorandum)) Hardman, 12/28:8

Prisoners: (claim that MSP confiscated non-legal mail improperly dismissed as prisoners have 1st Amendment right to send and receive mail even when it is not sent to or from an attorney… other claims properly dismissed… Morris affirmed, reversed (memorandum)) Standley, 3/30:5; (County’s challenge to reimbursement rate for housing DOC prisoners properly rejected… Menahan affirmed) Missoula Co. v. DOC, 5/11:7; (inmate’s suit against former guard for allegedly planting meth in cell improperly dismissed for failure to exhaust administrative remedies… Haddon reversed (memorandum)) Strizich v. Palmer, 7/27:7

Probable cause determination: (incarcerated burglary Defendant not prejudiced by 13-day delay between initial appearance and when District Court granted State’s motion for leave to file information… PSI and prosecution fees improperly imposed in judgment when not in pronouncement… Berger affirmed, reversed) Seyler, 12/14:5

Prohibited person firearm: (scienter not required for enhancement despite Sentencing Commission’s commentary… Christensen affirmed (memorandum)) Newton, 9/28:9

Prosecutorial misconduct: (Prosecutor’s “were they lying” questions proper because robbery Defendant’s and witnesses’ testimonies were diametrically opposed… “you could just tell the truth, couldn’t you?” was not personal opinion as to whether Defendant was telling the truth… counsel not ineffective for failing to object… postconviction petition properly denied… Ohman affirmed) Burchill, 2/10:3; (prosecutorial misconduct claims in case involving abuse of 14-year-old stepdaughter rejected as not meriting plain error review… conviction affirmed… Wald affirmed) Welch, 3/9:4

Prostitution promotion: (summary grant of Defendant’s motion to proceed pro se 4 days before trial was not plain error, but the alleged victim’s testimony from New Mexico via video violated Defendant’s confrontation rights… conviction reversed, remanded for retrial… Harris affirmed, reversed) Hogues, 12/21:6

Protective search: (reasonable when officer saw subject of noise complaint at 2 a.m. sitting in vehicle with shotgun next to him… unloading the gun before allowing Defendant to return to his car evolved into sawed-off shotgun charge… motion to suppress properly denied… Watters affirmed (memorandum)) Lingelbach, 1/13:6

Rape: (jury improperly instructed with high-probability-of-a-fact definition of “knowingly” for the element of “without consent” rather than a conduct-based definition in situation of withdrawn consent… conviction reversed, remanded for retrial… Larson reversed) Hamernick, 1/6:10; (conviction of SIWC of alcoholic affirmed over challenge to mens rea instructions and exclusion of testimony as to victim’s drinking and withdrawal symptoms… Parker affirmed) Bryson, 12/28:9

Rape/kidnap: (facts underlying dismissed charges properly considered in acceptance of Alford pleas and sentencing for kidnap of girlfriend… Seeley affirmed (memorandum)) Lucero, 3/23:6

Restitution: ($13,495 to repair damage to rental property from bullet that passed through deceased and into walls and bookcase not supported, remanded for proper determination… Abbott reversed (memorandum) Kelly, 1/20:6; (Defendant who stole credit cards properly found accountable for missing SS cards but improperly ordered to pay restitution for LifeLock for victims… Brown affirmed, reversed) Holmes, 3/23:7; ($2,039.20 properly imposed for scratches to vehicle from removal of Uber sign in dispute over being cheated out of ride… Ohman affirmed) Schroder, 3/23:8; (petition by vehicular assault victim to mandate Clerk to reinstate Defendant’s expunged and destroyed drug court records in effort to collect allegedly due restitution denied… Order) Triplett v. Cascade Co. Clerk of Court, 8/17:8; ($280,000 properly awarded for theft of cash from deceased’s safe… Kutzman affirmed (memorandum)) Westerman, 9/7:4; (homicide lifer’s general objection based on indigency did not amount to affirmative request for relief from $34,728.14 restitution… Vannatta affirmed) Bertsch, 11/2:4; (stalking victim entitled to restitution for lost wages but appropriate amount requires further substantiation… Owen reversed (memorandum)) Devlin, 11/16:8

Revocation: (hearing as to attorney representation not required as complaints not seemingly substantial… revocation impliedly comported with MIIG even though Judge “not a big fan” of it and does “not give it a lot of consideration”… drugs Defendant entitled to 574 days elapsed time… Krueger affirmed, reversed (memorandum)) Smith, 4/6:7; (suspended sentence improperly revoked based on alleged failure to pay full restitution… Recht reversed) Puccinelli, 6/15:6; (No authority to impose consecutive sentence upon revocation in convoluted sentencing scenario… Allison reversed) Wolfblack, 8/10:5; (“guilty but mentally ill” person who killed a woman in a wrong-way interstate collision and was committed to Warm Springs properly revoked under criminal sentencing statutes… Dayton affirmed) State v. Kepler, 8/17:9; (longer prison term improperly imposed than in the original suspended sentence… Larson reversed) Toulouse, 8/31:6; (alleged failure to follow MIIG intervention procedure not preserved for appeal… Ruiz affirmed (memorandum)) Hill, 12/14:6

Right to be present: (not violated by Judge answering jury query about witness statements that were not in evidence… Oldenburg affirmed (memorandum)) Peterson, 2/3:8; (claim that absence at omnibus hearing prevented assertion of self-defense waived by guilty plea… Krueger affirmed (memorandum)) Caye, 10/19:6

Right to testify: (sufficient basis to infer that aggravated burglary defendant waived right when counsel rested without calling him… Whelan affirmed (memorandum)) Branstetter, 4/20:2

Robbery by common scheme: (conviction of jail inmate in “common scheme” to haze new inmates by screening for drugs and/or stealing their possessions affirmed… remanded to strike conditions that were not in pronouncement… Seeley affirmed, reversed (memorandum)) Polich, 6/15:6

Sanctions: ($51,923.61 sanctions against defense attorney for delays resulting in sua sponte mistrial reversed following Federal Courts’ exoneration of counsel)… Cuffe reversed

Search warrant: (process of accessing devices already lawfully seized does not violate the 10-day limit on serving a warrant… suppression of evidence from devices reversed… Halligan reversed) Bao, 12/21:5

Sentencing: (Defendant entitled to additional 780 days served credit in one concurrent case and 651 in the other upon revocations… Harris reversed… orders) Campa, 1/20:7; (probation condition properly imposed precluding drugs Defendant from associating with other probationers or parolees including her husband… Larson affirmed (memorandum)) Hurt, 2/24:9; (McCoy claim that trial counsel conceded drug Defendant’s guilt on felon possessing firearm over his express objection improperly summarily dismissed… Watters reversed (memorandum)) Baughman, 4/13:7; (“large capacity magazine” properly construed by Sentencing Commission as 15 rounds, Glock 17 rounds properly used to enhance felon in possession’s base offense… Christensen affirmed) Trumbull, 8/31:9; (treatment court improperly imposed as part of possession sentence (rather than just recommendation)… properly imposed as condition of suspended tampering sentence… misdemeanor sentences exceeded statutory maximum… Rieger reversed, affirmed Villalobos, 12/14:6; (obstruction of justice enhancement to aggravated sexual abuse sentence properly imposed for Defendant’s testimony at trial that he did not have sex with the victim in contrast to his prior statements that he had sex with her… Morris affirmed (memorandum)) Scott, 12/14:7; (AP&P pilot conditions permitting search of devices and disclosure of intimate partner relationships improperly imposed on PFMA Defendant… Kutzman reversed) Ledeau, 12/28:6; (Defendant entitled to credit under clarification of “time served” in §46-18-201(9)… Dayton reversed) Risher, 12/28:7

Sex abuse of child: (convictions affirmed… Morris affirmed (memorandum)) Burke, 4/20:5; (conviction affirmed… Morris affirmed (memorandum)) Blackman, 9/7:6

Sexual assault: (prior sexual conduct with 3 young family members was admissible to show motive and intent for alleged over-clothes vaginal touching of step-granddaughter, but its volume and detail including lack of consequences was unfairly prejudicial… conviction reversed, remanded for retrial… Recht reversed) Peterson, 1/20:4; (conviction affirmed over claims of need for special unanimity instruction and prosecutorial misconduct… Harada affirmed (memorandum)) Allen, 5/11:6

Sexual assault on minor: (uncharged sexual assault improperly admitted as proof of motive or plan to commit earlier assaults pursuant to a fictional “common scheme”… jury improperly allowed to select a conduct-based or result-based mental state definition… conviction reversed… Abbott reversed Rowe, 3/2:8

SIWC: (Iraq vet with PTSD not entitled to exception to mandatory 25 years parole restriction for molesting child… Brown affirmed (memorandum)) Severson, 3/23:8; (psychologist erroneously allowed to testify via Zoom from Nantucket to bolster Prosecution witness… conviction reversed, remanded for new trial… Larson reversed) Strommen, 5/4:3; (conviction of 3 counts of sex with minor affirmed over claims of lack of unanimity instruction and prosecutorial misconduct… Harada affirmed (memorandum)) Voyles, 6/22:3; rehearing of Opinion affirming conviction of sex with minor over claim of prosecutorial misconduct denied… Order) 7/6:5

SIWC/incest: (of 3-year old step-daughter affirmed over challenge to video testimony by former cell mate from Illinois federal prison and admissions of victim’s forensic interview and other statements from 2018 at 2021 trial… sexual assault reversed as duplicative… Larson affirmed, reversed) Whitaker, 11/16:6

Stalking: (Defendant waived right in plea agreement to challenge constitutionality of statute under subsequent USSC mens rea holding… Brown affirmed (memorandum)) Brackett, 6/8:5

Strangulation PFMA: (conviction of strangling “foster father” reversed by stipulation following contention that “foster father” is not a “family member”… Cuffe reversed… Order) Bryant, 5/25:2

Tampering with witnesses or informants: (conviction affirmed over challenge to alleged hearsay statement and circumstantial evidence… McMahon affirmed) Twoteeth, 11/9:7

Theft: (Defendant properly charged in Ravalli where he was apprehended for theft of vehicle stolen in Missoula… Recht affirmed (memorandum)) Dooling, 12/7:6

Traffic stop: (stop of rental vehicle in drug corridor not unreasonably prolonged, suppression of meth properly denied… Christensen affirmed (memorandum)) Gray, 4/27:5

Vehicular homicide: (habeas finding of ineffective assistance for not calling reconstructionist in 2008 hit & run death reversed, rejection of Brady claims affirmed… Christensen reversed, affirmed) Garding, 7/6:5; (claim that counsel was ineffective for not understanding that the plea agreement allowed the State to argue for a parole restriction more appropriate for postconviction review… witness testimony as to impact of Defendant’s conduct was designed to seek parole restriction, not undermine the plea agreement… Lint affirmed (memorandum)) Canfield, 7/27:5

Withdrawal of admissions: (after admitting violating suspended sentence conditions properly denied albeit for wrong reasons… Olson affirmed (memorandum)) Johnson, 11/30:8

Youth: (unnecessary to adopt modified criteria for youth court ineffective assistance claims as youth accused of sex offenses was not prejudiced by failure to object to hearsay under any standard… Seeley affirmed) CM, 1/6:13; (supervisory control of Recht’s ruling that minor sexual assault Defendant waived right to have parent at interrogation denied because question is factual… Order) AZ, 10/12:7

*Discrimination

Disability in public accommodation: ($3,000 damages for impeding legally blind person with guide dog from carpeted area of store… Jeffrey Doud) Nelson v. The 406 Store, 5/11:11

Government services: (DSB improperly required to issue driver’s license with non-binary sex designation… Doud reversed… FAD) Berndts v. DOJ, 6/30:7

HRB conciliation: (consent lacking from “agreement in principle” that set payment for age discrimination but lacked affirmative relief provisions… Seeley affirmed) Strable v. Carisch Inc. dba Arby’s, 8/31:1

Retaliation: (HRC’s finding of retaliation against DOC Government Relations Director for participating in investigation of sexual harassment allegations against Director and award of $377,944 exceeded statutory authority in rejecting HO’s conclusion of no retaliation… Holien/McMahon affirmed, HRC reversed) Cotton v. DOC, 11/30:2

Vaccination: (§49-2-312(1) prohibition against employers discriminating based on vaccination status or immunity passport does what the title of HB 702 declares it does, but §312(4) provision that one may not be required to receive vaccine under emergency use authorization or vaccine undergoing safety trials is unconstitutional as not expressed in the title… ruling on remand from Supreme Court to resolve “single-subject” issue… Rieger) Netzer v. State, 6/30:3

*Elections

Constitutional initiative: (CI-14 abortion initiative improperly rejected by AG as violative of separate vote prohibition… opinion & order) MSRR v. AG and SOS, 3/23:4; (AG’s ballot statement for CI 14 abortion initiative rejected, Court certifies its own statement… Opinion & Order) MSRR v. AG and SOS, 4/6:4; (supervisory control of Menahan denied as to TRO allowing counting inactive voters for signing election reform and abortion petitions… Order) SOS Jacobsen v. Menahan, 7/27:1

Initiative: (Constitution’s limit of local self-government powers also limits local initiative power… law precluding local initiative from regulating plastic containers not unconstitutional… McMahon reversed) Cottonwood Environmental Law Center v. State, 12/21:4

Replacement US Senate candidate: (supervisory control of McMahon denied as to allowing Green Party’s nominated/appointed US Senate candidate on general election ballot as suit by Democratic Party unlikely to succeed on the merits… Opinion & Order) Montana Democratic Party v. McMahon, 9/21:2

Voter legislation: (unconstitutionality of 2021 voter amendments affirmed… Moses affirmed) MDP v. SOS, 3/30:2

*Environment

Endangered species: (preliminary injunction limiting wolf trapping & snaring to prevent unlawful “take” of grizzlies affirmed in part, vacated in part, remanded… Molloy affirmed, reversed) Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 4/27:4

Opencut mining: (Title 27 preliminary injunction provisions improperly applied to mining challenge when Plaintiff had remedy for similar relief in pending Title 75 action challenging environmental review… Larson reversed) Protect the Clearwater v. DEQ and LLC Inc., 8/24:3

Sheep-grazing allotments: (action against FS concerning 7 sheep-grazing allotments in Montana properly dismissed… Morris affirmed (memorandum)) Cottonwood Environmental Law Center v. FS, 10/26:7

Waste water: (claim that permit for treated sewage for artificial snow for skiing failed to consider impact of pharmaceuticals properly rejected… Breuner affirmed (memorandum)) Cottonwood Environmental Law Center v. DEQ and Yellowstone Mountain Club, 5/18:2

*Family Law

Adoption: (no reversible error in adoption decree… Brown affirmed (memorandum)) CMC, 7/20:1

Child support: (modified support properly ordered prior to wife receiving notice from CSSD… Menahan affirmed) Meinhardt, 4/6:4; (underemployed OB/GYN’s former income properly imputed… Hayworth affirmed) SJW, 7/13:2

Contempt: (appeal of contempt order mooted by clearing of contempt… remanded to Breuner) Swift, 12/14:3

Default divorce: (decree properly set aside under Rule 60(b)(6) for attorney’s failure to make court appearances… Halligan affirmed (memorandum)) Cruz and Hernandez, 1/20:3; (default judgment with property division as proposed by wife affirmed… Lint affirmed (memorandum)) Upchurch, 11/16:4

Grandparent parenting: (grandparents properly given parental interest under 3rd-party parental interest statute rather than grandparent visitation statutes and despite finding that parents are fit… Eddy affirmed) LMAR, 7/20:1

Parenting: (supervisory control granted vacating sua sponte parenting plan by Judge Christopher for injecting her own parenting experiences into largely amicable proceeding to order immediate custody of 5-year-old to Oregon father for 5 years with no contact by mother without proper consideration of best interest factors… remanded for transfer to Judge Owen and restoration of custody to mother pending a final parenting plan… order) ManyWounds v. Christopher, 1/6:5; (change in circumstances for amending parenting plan not met by wife’s inability to move with children to California as contemplated when her inability to move was due to husband’s failure to make payments… Christopher affirmed (memorandum)) Del Toral and Richard, 1/13:3; (GAL acted within scope of authority in proposing plan amendments following disagreements with initial stipulation, but Lint erred in adopting amendments without a hearing… Lint reversed (memorandum)) Berk, 3/9:2; (no authority to award damages for false reporting to CFS in this parenting plan case but parent could bring separate tort action… Eddy reversed (memorandum)) BH & TH, 7/6:2; (Father properly found in contempt for failing to abide by parenting plan… parenting plan properly amended… Cuffe affirmed (memorandum)) Handy, 8/17:6

Property: (property of domestic partners properly distributed… Marks affirmed (memorandum)) Correia and Murphy, 2/24:6; (wife properly awarded disproportionate share of property in light of husband’s greater earning potential and wife’s substantial contributions, wife properly awarded half the fees & costs husband paid to his attorney out of the estate despite wife not pleading them… Harris affirmed (memorandum)) Wilson, 3/16:6; (farm/ranch properly valued and distributed, husband properly found in contempt for vexatious conduct… Harada affirmed (memorandum)) Strecker, 5/11:4, (rehearing denied) 6/8:5; (correction of wife’s easement in split property based on erroneous COS may be made without involvement of non-party neighbor pursuant to Rule 60(b)(1)… Dayton reversed (memorandum)) Smith, 6/15:4; (distribution of assets and debts including unknown valuation of Grenada property affirmed… Harada affirmed (memorandum)) Roberts, 9/28:2; (husband properly ordered to pay equalization for 15 years totaling $242,400 in light of “lopsided” assets and division and without considering a 2010 property settlement as a prenup… payments automatically qualify for post-judgment interest, wife did not need to object to Decree’s failure to address interest… remanded to award interest and correct scrivener’s error as to payment schedule… Ruiz affirmed, reversed) Schaub, 10/19:1; (failure to consider husband’s property maintenance/construction contributions resulted in inequitable 80% award of jointly held property valued at $1,450,000 to wife… Coffman reversed) Ash and Elliot, 11/30:5

Stepmother adoption: (based on incorrect statutes… Brown reversed (memorandum) CMC, 10/19:4

Vexatious litigant: (attorney fees/costs awarded against Harvard lawyer for unprecedented frivolous motions practice attempt to weaponize his resources and legal education to harass ex-wife across numerous jurisdictions… additional vexatious litigant conditions imposed… Laird affirmed (memorandum)) Adams, 8/17:4

*Guardianship

Appointment: (nephew rather than housekeeper affirmed.. Ohman affirmed (memorandum)) MHO, 3/23:3; (elder abuse entity properly appointed temporary conservator of 80-year-old with dementia and temporary co-guardian with feuding sisters… Dayton affirmed) JFR, /34

Creditor’s Claim: (for reimbursement for costs claimed in connection with appointment as conservator of missing daughter who was later found drowned in river properly denied for failure to substantiate costs… Marks affirmed) Barsotti, 3/16:4

*Insurance

Bad faith: (hospital’s call to insurer that injured motorcyclist’s wife was “wondering” if there was “any way” for the hospital to bill insurer did not constitute a Ridley demand sufficient to trigger UTPA obligations… form for optional release of husband and wife included with payment of policy limits for husband did not violate UTPA… summary dismissal of all claims properly granted… DeSoto affirmed (memorandum)) Brodowys v. Progressive Direct Ins., 7/20:3; (3rd-party common law claims stemming from delayed payment of settlement of DUI bicycle death not barred under MCA 33-18-242(4) (2023)… Court adopts majority federal rule allowing pleading of punitives in initial complaint even though contrary to MCA… Morris) Dzintarses v. Fireman’s Fund Ins., 10/5:4; (amendment to add NIED and IIED to third-party bad faith claims not precluded by MCA 33-18-242(4) (2023) or futility… Johnston) Lawson v. Federated Rural Electric Ins. Exchange, 11/30:9

Comp bad faith: (supervisory control of Best denied as to “discretionary” discovery/sanctions rulings involving “disputed issues of fact” in suit against insurer and adjuster… Order) Accident Fund General Ins. v. Best, 6/8:1

Coverage: (coverage of $3.76 million net verdict for defectively designed & constructed disappearing floor pool at residence precluded by CGL business risk and professional liability exclusions… Molloy) Farrens v. Rock & Water, 3/9:9; (Injury to Worker Exclusion did not become part of renewed policy due to failure to provide proper notice of updating and insurer and insured “stuck their heads in the sand” as to changes in insured’s operations over several policy renewals, no affirmative misrepresentation that would preclude coverage for injured subcontractor of subcontractor… declaration of insurer’s employee stricken as undisclosed expert testimony, not lay testimony as purported… Molloy) Scottsdale Ins. v. Wild Horse Trading, 7/6:6

Duty to defend: (insurer failed to unequivocally demonstrate that UTV was not designed for operation principally on public roads and could never be a Covered Auto, now liable for $1.6 million consent judgment plus interest and attorney fees for failure to defend rollover injury claim rather than only $25,000 policy limit it would have risked had it filed declaratory action… Watters) Fettkether v. Progressive Northwestern Ins., 1/13:8

Negligent procurement: ($1,022,257.85 verdict for negligent procurement failure to list general contractor as additional insured on subcontractor engineer’s CGL policy resulting in no coverage for litigation involving sinking of condo affirmed… Allison affirmed) TCF Enterprises v. Rames fbda Central Ins. Agency, 3/2:1

Subrogation: (letter from subrogation vender properly held not to constitute enforcement of subrogation, but putative class action claim that insurer enforced subrogation in violation of Montana’s made-whole doctrine improperly dismissed as unripe, remanded for opportunity to amend to include additional factual allegations… DeSoto/Watters affirmed, reversed (memorandum)) Smith v. Blue Cross, 5/11:6

Title insurance: (claims against title insurer’s agency properly rejected in convoluted case involving subdivision “lots,” proposed reconfigured divisions into “parcels” or “tracts” which never happened, and “Pro Forma” commitments with unmet requirements… Marks affirmed (other grounds)) Johnson v. Flying S Title & Escrow, 3/2:5, (rehearing denied… Order)

UTPA claim splitting: (Montana mining company’s claim-splitting UTPA claims against adjuster barred by res judicata of Delaware court’s resolution of claims against insurers… Restatement of Judgments exceptions inapposite… discovery on the issue of agency denied in light of Plaintiff’s admission of facts sufficient to establish privity between insurer and adjuster… Wald) Stillwater Mining Co. v. AIG Claims, 2/10:5

*Landlord/Tenant

Justice Court damages limit: (justice court lacked jurisdiction to award rtla damages ($58,753.73) In excess of the $15,000 general limit… Harada reversed) Kahl v. Polkow,

11/2:4

*Local Government

City/County Health Board: (Mayor properly found to be full voting member… Best affirmed) Great Falls v. Cascade Co. Commissioners, 6/8:5

County Indian criminal reimbursement: (claims properly rejected based on statute of limitations and on summary judgment… Eddy affirmed) Lake Co. v. State, 12/7:2

Subdivision: (claims against County of negligent misrepresentation, NIED, and respondeat superior based on assurances of access rights to RV resort that Federal Court later found preempted by Tribe improperly dismissed under Rule 12(b)(6) as time-barred, better suited for summary judgment or trial… Larson reversed) Lundeen v. Lake Co., 6/8:2; (City mandated to approve preliminary plat application following arbitrary & capricious denials… Gilbert) Livingston West LLC v. Livingston, 8/10:8

Water/sewer district: (Board members not required to file oath of office, are immune even when oppression, fraud, or malice alleged… Gilbert affirmed) Gardiner-Park Co. Water & Sewer Dist. v. Knights, 6/8:4

Zoning: (Judge properly determined that Major Change in Use Permit improperly allowed structures for short-term vacation rentals but erred in requiring restoration to unaltered condition… attorney fees & costs awarded to Plaintiffs properly allocated half against Intervenor property owners after County settled out… Eddy affirmed, reversed) Friends of Lake Five v. Flathead Co. Commission, 6/8:3; (challenge of revised zoning ordinance for allowing “Greek” housing was untimely under 30-day statute over claim of insufficient notice rendering it void ab initio… Breuner reversed) Johnson v. Bozeman, 8/10:1

*Mental Commitment

Hearsay: (commitment supported by testimony other than hearsay of husband… McElyea affirmed) GM, 3/16:6

Waiver of rights/forced meds: (signed stipulation properly construed as valid waiver of rights but prior authorization to involuntary medicate improperly provided… Recht affirmed, reversed) MTH, 2/24:5

*Oil/Gas

New Well Tax Incentive (statute properly construed as requiring contiguous months of production… Murnion affirmed) Bluebird Energy v. DOR, 1/27:1

*Minerals

Forced pooling: (producer entitled to forced pooling of interests acquired by successor to non-participating owner as well as risk penalties… Davies affirmed) Phoenix Capital v. Kraken, 5/4:2

Mining: (copper mine near Smith River properly permitted by DEQ… Bidegaray reversed) Montana Trout Unlimited v. DEQ and Tintina Montana, 3/2:7

*Partnerships

Expulsion: (CPA in rental partnership expelled for reasons unrelated to tax fraud incarceration that continuation is no longer reasonably practicable… Marks affirmed) Merila v. Burke, 1/20:1

*Probate

Conversion: (time-stamped “subscriber notes” of payments and deposits produced with assistance of bank’s online vendor properly found admissible as business records hearsay exception… wife properly found to have converted dying husband’s account which designated his sister as POD beneficiary, but was improperly denied constructive trust over half of house sale proceeds deposited into husband’s account… Brown affirmed, reversed) Brenden, 12/28:1

Estate administration: (rehearing of Opinion rejecting challenge to rulings related to administration of estate including alleged fraud on the court by special administrator… order) Elliot, 2/10:1

Intervention: (daughter’s Estate improperly denied intervention of right in probate of mother’s Estate 20 years after their MVA deaths… daughter’s Estate improperly ordered bound by Agreement for disposition of home jointly owned by mother and daughter pursuant to mother’s Will found 16 years after deaths directing that the Deed’s joint tenancy be disregarded… Krueger reversed) Lena Johnson, 10/12:1

Jurisdiction: (invitation to “buck” precedent and allow courts sitting in probate to exercise jurisdiction over tangential matters declined… fiduciary duty, negligence, fraud, bad faith claims related to PR’s alleged sale of house under market value properly dismissed… but Foy fees improperly awarded as arguments that jurisdictional precedent should be overruled not “wholly frivolous or malicious”… Seeley affirmed, reversed (memorandum)) Wilson v. Stamper, 5/11:3

PR: (Judge had discretion to determine PR, not necessary to address marital status for claim of priority or PSA enforceability… Parker affirmed (memorandum)) Heavy Runner, 6/1:2

Valuation/distribution: (homestead on ranch correctly valued and distributed in light of will and contract for deed… Abbott affirmed (memorandum)) Field, 8/31:3

Will: (video does not constitute a “document or writing upon a document” per §72-2-523, not valid as an “intended will”… Wald) Beck, 1/13:5; (notarized but unwitnessed Will properly found valid over challenge by PR son… PR’s claim for expenses/disbursements related to defense against father’s partner’s petition to remove him improperly denied without good faith determination… Ulbricht affirmed, reversed (memorandum)) Grey, 9/28:1; (new wife waived right to challenge son’s and daughter’s agreement in mediation to admit father’s 2007 Will to probate rather than 2021 deathbed Will… Larson affirmed (memorandum)) Maclay, 11/9:1

*Property

Buy-sell: (buyers did not properly rely on water rights or inspection contingencies to terminate BSA… DeSoto affirmed (memorandum)) Glacier Bear Retreat, 7/13:6, (issues settled, case dismissed), 9/21:2

Covenants: (conversion of garage into accessory dwelling not violative of covenant against short-term rental of single-family residence but renting it as Airbnb violative of commercial business restriction… Wald reversed) Myers v. Kleinhanses, 9/21:1

Easement: (Preliminary injunction properly granted barring purchasers of land-locked mining claim from access across neighboring property pending resolution of litigation… Seeley affirmed (memorandum)) Masolos v. Thomases, 1/6:3; (rehearing of cattle trailing opinion denied… order) Fabers v. Ratys, 1/6:5; (Montana law does not recognize equitable easement… encroachment must be cured by removing fence and gate from neighbor’s property and placing them at the actual line but house is de minimis encroachment and need not be moved… additional Water Well Agreement restrictions were reasonable considering the parties’ animosity… Eddy reversed, affirmed) Frisk v. Thomases, 8/3:2; (subdivision owners properly found to have access rights across river bridge built by Defendant, not required to share in construction costs pursuant to terms of 1994 Easement Agreement… Larson affirmed) Beck v. Dimar, 8/17:1; (claim of prescriptive easement across railroad right-of-way to land-locked property rejected… McElyea affirmed) Nelson v. MRL, 9/7:1; (grantee did not exceed scope of easement by temporarily parking, loading, unloading construction equipment within the easement and using the road for equipment’s passage onto his properties for further development… Wilson affirmed) Bardos v. Spoklie, 11/23:1

HOA: (bedroom addition for visiting parents with stubbed out places for kitchen and laundry properly construed as not violating Covenants’ restriction to single family dwelling… $37,621.60 attorney fees & costs properly awarded to homeowner per Covenants reciprocity… Ohman affirmed (memorandum)) Clover Meadows HOA v. Spear, 5/18:1

Land transfer: (quiet title properly granted to son against father and granting possession… additional findings required as to the amount of claimed contract damages and competing unjust enrichment claims…. Berger affirmed, reversed (memorandum)) Taylor v. Taylor, 12/28:3

Quiet title: (pro se Defendant failed to preserve challenge to quiet title… Cuffe affirmed (memorandum)) House v. Orr, 9/28:3

Quitclaim: (rehearing granted of Opinion affirming son’s quit claim acquisition of elderly mother’s home over her Estate’s claim of undue influence, fraud, unjust enrichment… issue of mother’s ownership share was never brought into the litigation and Judge should not have ruled on it…Brown affirmed with contested paragraph stricken) Faye Jackson as PR of Edna Balkoski v. Steven Balkoski, 11/9:2

Real estate: (agreement stating buy-sell rights of tenants in common to house purchased together properly construed… Halligan affirmed (memorandum)) Gerber v. Davalos & Fazendin, 5/4:1, (rehearing denied) 6/8:5

Realtors: (supervisory control of Gilbert denied as to ruling that realtors were not dual agents… Order) Tidwells v. Gilbert, 10/12:3

Wrongful detainer: (request to invalidate Justice Court order of possession precluded by res judicata of prior denial… Order) Thompson v. Adams, 10/12:3

*Schools

Athletics: (preliminary injunction denied as to MHSA’s denial of waiver from 8-semester rule for 5th-year senior to play basketball after absence sophomore year due to Covid… Murnion) Herts v. MHSA, 2/3:9; (supervisory control of Murnion denied as to denial of preliminary injunction seeking waiver from 8-semester rule for 5th-year senior to play basketball after absence due to Covid… order) Herts v. MHSA, 2/10:1

*Settlements

Class action: (1/3 attorney fees of $4.3 million settlement of hospital data breach class action properly awarded… Parker affirmed) Tafelski v. Logan Health Medical Center, 7/13:1; (settlement of breach of email data of 12,298 Easterseals-Goodwill clients approved including $215,000 attorney fees… Morris) Teeter v. Easterseals, 7/20:5

MVA: ($6.5 million, illegal left turn from right lane of 2-lane road by semi into motorcycle, multiple injuries culminating in death from pulmonary embolism, settlement following summary judgment for Plaintiff on liability & causation) Williams v. Johanns and North Park Transportation, 5/4:7

Sexual harassment/retaliation: ($50,000 punitives to former electric co-op office manager for sexual harassment and retaliation by former general manager plus extensive injunctive relief in EEOC action… previous total of $1,702,148.43 damages in State Court proceedings) EEOC and Lawson v. NorVal Electric Cooperative, 5/11:10

*Social Security

SSD: (denial of benefits reversed for failure to consider whether Claimant’s various impairments together indicate that her combination of conditions meets or equals any Listing… Michele Kelley reversed… Morris) Devereaux, 1/6:14; Ventimiglia (denial of benefits affirmed… Kelley/Cavan affirmed (memorandum)) 6/15:9; (properly denied for MS Claimant… Kelley/Cavan affirmed 2-1 (memorandum)) Valdez, 11/9:10; (sufficient evidence that Claimant can find job outside normal business hours so he can attend treatment… Christensen affirmed (memorandum)) Childs, 12/14:7

*State Government

Abortion: (preliminary injunction enjoining HB 575 and HB 721 affirmed… Menahan affirmed) Planned Parenthood v. State, 10/12:5; (preliminary injunction enjoining HB 544, HB 862, and Rule dealing with Medicaid funding of abortions affirmed… Menahan affirmed) Planned Parenthood v. State, 10/12:6

CFS: (mandatory injunction granted ordering DPHHS to provide Legislator requested records generated in course of CFS investigations and adjudications… McMahon) Mercer v. DPHHS, 8/31:8; (order stayed pending exhaustion of appeal… McMahon reversed) 9/7:2

DPHHS neglect substantiation: (ALJ’s Proposed Decision vindicating youth academy owner relating to teen’s suicide improperly replaced with “Final Order” by DPHHS Deputy Director that adopted Proposed Decision but added remarks that erased the owner’s vindication after being put through a “living hell”… Court declares that a request for Director review of an ALJ decision shall only be initiated by a party other than DPHHS in a child abuse & neglect case… Claimant entitled to attorney fees/costs under UDJA… McMahon) Manning v. DPHHS, 9/21:8

Marijuana licensure: (license improperly revoked on summary judgment without considering mitigating circumstances as to application representations of controlling beneficial members… ALJ Cunningham reversed… Berger) Therapeutic Essentials v. DOR, Cannabis Control Division, 8/24:4

Tobacco sales: (challenge to AG’s ban on sale of all of Canadian manufacturer’s products in Montana due to alleged adulteration/misbranding of 8 withdrawn products likely to succeed on FDA preemption claim, preliminary injunction improperly denied… Morris reversed (memorandum)) Grand River Enterprises Six Nations Ltd v. AG Knudsen, 6/22:7

Vaccination discrimination: (ruling that HB 702 is preempted by ADA and OSHA reversed… Molloy reversed) MMA v. AG Knudsen, 10/12:9

*Taxes

Property: (Judge erroneously substituted his opinion for DOR’s in ruling that its mass appraisal methodology was unlawful… Wilson reversed) Solem v. DOR, 9/28:1

*Torts

Assault & battery: ($115,500 judgment on verdict reversed for improper exclusion of self-defense expert for untimely disclosure, remanded for new trial… Marks reversed) Olds v. Huelskamp, 4/20:1

Constructive discharge: (Trooper’s WDEA claims barred because he failed to exhaust CBA grievance procedures, summary judgment for State improperly denied, $114,888 verdict reversed… Gilbert reversed) Fowler v.l DOJ-MHP, 2/17:5

Defamation: (New York Post statements about Whitefish businessman are protected by New York’s fair report privilege as they fairly & accurately report court proceedings, not for a jury to decide… ex-police chief’s comparison to Weinstein and Epstein non-actionable opinion… Eddy reversed, affirmed) Goguen v. New York Post, 3/16:1

DPHHS negligence: (§41-3-203(1) immunity not applicable to State in case alleging DPHHS failed to properly investigate child abuse resulting in serious injuries… Court erred by ruling that DPHHS was negligent and assault was foreseeable… disproportionate sanction imposed on State for spoliation of photos showing bruising… $16,652,538 verdict reversed, remanded for new trial… Best affirmed, reversed) SW v. DPHHS, 3/23:1

False Claim Act: ($5,826,023 to US for false claims by CARD with Qui Tam Relator BNSF awarded 25% plus $1,423,936.58 fees/costs affirmed… Christensen affirmed (memorandum)) BNSF v. CARD, 9/28:6

Furnace fire: (fact issues preclude summary judgment that furnace servicer was not cause-in-fact of fire that destroyed home… denial of motion to exclude Plaintiff’s experts because one was Zoom-averse not abuse of discretion… Berger reversed, affirmed) Norris v. Olsen/A&O Sheet Metal, 6/15:1

Inherently dangerous activity: (installation of 60-foot long-span roof trusses is inherently dangerous as a matter of law, required special safety precautions to mitigate against the peculiar risks… general contractor potentially liable for injuries suffered by subcontractor’s laborer due to falling truss… Halligan) Reynolds v. Meridian Construction, 11/23:6

Malicious prosecution: (claims by bail bondsman charged with assault of client for her failure to abide by conditions properly dismissed as bondsmen not authorized to arrest or pepper spray clients without outstanding warrant… claims also barred by prosecutorial immunity… Ruiz affirmed) Rupnow v. State Auditor & Insurance Commissioner, 2/3:6; (and other claims stemming from charges of vehicular homicide/assault with dispute as to who was driving, failure to disclose long brown hair found in driver’s door, 2 hung juries, ultimate dismissal properly rejected on summary judgment… Gilbert affirmed (memorandum)) Overstreet v. Fetterhoff, 12/21:1

Manager liability: (resort GM who planted CO detector in room after guests were poisoned dismissed pursuant to respondeat superior/corporate shield… statement to officers admitting planting admissible against resort as admission by party-opponent, deposition admission not admissible without further authority in support of him being resort’s “managing agent”… Ohman) Hudgens v. Rainbow Ranch, 3/16:9

Medical malpractice: (thighplasty defense verdict affirmed over challenge to summary judgment as to excess skin removal sequencing (buttocks before thighs)… review of improper expert impeachment claim for providing stock images on plastic surgeon’s website declined for failure to provide entire record… Grubich affirmed (memorandum)) Muscle v. Santin, 2/24:1; (knee replacement surgeon properly dismissed for insufficient service after his Ch. 7 discharge, motion to add malpractice insurer as real party properly denied for failure to establish malpractice liability… Kutzman affirmed) Dodds v. Tierney, 3/16:5; (first amended complaint properly dismissed with prejudice because it was filed outside the med-mal limitations period… Ulbricht affirmed) Phillips v. Logan Health, 8/17:3; (complaint correctly dismissed for untimely service but incorrectly dismissed with prejudice… Halligan reversed) Petersen v. Simon, 8/31:2; (non-economic damages cap declared unconstitutional… Best) Donaldson v. Baker, 8/31:6

Negligence: (evidence properly admitted that pedestrian struck in crosswalk had been drinking, but last-minute refusal to take judicial notice of medical record of .053 BAC at hospital requires reversal of defense verdict, remand for new trial… Ohman affirmed, reversed) Vancos v. MDOT, 2/24:2

Officer sexual assault: (summary judgment for US precluded by factual dispute as to whether BIA Officer was within his authority when he coerced minor into sexual acts… remanded for bench trial before a different judge… Watters reversed (memorandum)) LB v. US, 7/27:6

Unauthorized access to medical records: (claims properly rejected on summary judgment for failure to establish that RN/ex-wife’s access to records caused harm… Vannatta affirmed (memorandum)) Malloy v. Hunt, 11/16:4

Wrongful death: (claims against scuba center for renting equipment involved in diving death properly rejected on summary judgment… Marks affirmed) Hubbell v. Gull Scuba Center, 11/2:1, rehearing denied, 12/7:2

Wrongful discharge: (claim of pre-discharge emotional distress properly allowed to go to jury which awarded $232,000 while rejecting wrongful discharge claims… Rieger affirmed (memorandum)) Winsor v. Commissioner of Securities & Insurance, 3/9:1; (no Montana personal jurisdiction over wrongful discharge suit by Texas law firm attorney who moved to Montana to work out of his home… case transferred to Texas Federal Court rather than dismissed… Molloy) Isakson v. Roberts Markel Weinberg Butler Hailey, 4/13:8

Wrongful prosecution: (claims by former county commissioner properly dismissed except for breach of contract and covenant claims which are not time-barred… McMahon affirmed, reversed) Obert v. State and Swanson, 11/16:1

*Unemployment Compensation

Failure to return: (benefits properly denied restaurant server who failed to return following COVID reopening… Murnion affirmed (memorandum)) Zastoupil v. DLI, 6/22:2

*Unions

Unfair labor practices: (MBPA hearing examiner’s decision correctly held not eligible for judicial review under §§ 2-4-701 or 702(1)(a)… Ruiz affirmed) Great Falls v. International Association of Firefighters Local 12/14:8, 12/14:4

*University System

Covid refunds: (class action for reimbursement of tuition and fees after MSU transitioned to online learning due to Covid properly dismissed… McMahon affirmed (other grounds)) Codero v. MSU, 8/10:1

Legislation: (ruling that university bills are unconstitutional affirmed… denial of Private AG fees to Plaintiffs remains undisturbed due to lack of majority on this issue… McElyea affirmed) Barret v. State, 4/27:1

*Utilities

Energy purchase: (rulings pursuant to Community Renewable Energy Project affirmed and reversed… Manley affirmed, reversed) MEIC v. PSC and NWE, 3/23:3

*Verdicts

Asbestosis: ($8 million, 2 mesothelioma deaths due to BNSF’s handling of vermiculite containing asbestos at its Libby railyard… defense verdict as to negligence and punitives) Wells/Hemphill v. BNSF, 4/27:6

Assault & battery: ($115,500 judgment on verdict reversed for improper exclusion of self-defense expert for untimely disclosure, remanded for new trial… Marks reversed) Olds v. Huelskamp, 4/20:1

Auto: ($150,000, intersection MVA, admitted liability, whiplash) Diekhans v. Ray, 5/25:2; ($1,470,045, rear-end MVA, admitted liability, concussion) Mundahl v. Waldner, 10/19:6

Auto/”pedestrian”: (defense, pickup driver struck by another pickup while stepping down from adjusting straps on load… broken bones) McCoun v. Schott, 6/8:7

Broodmare death: (defense, severe colic) Wild Horses Building Champions v. High Plains Veterinary Clinic, 4/13:6

Buy-sell access: ($3,307,500 verdict in buy-sell access disclosure dispute ($2,450,000 compensatory damages and $812,500 punitives against seller to buyers, $35,000 damages against seller’s agent, $10,000 damages against buyers’ agents)) Kleinhans Farm Estates v. Wheelers, 4/27:3

Carbon monoxide poisoning: ($15 million, poisoning and death of resort honeymooners, 65% fault by resort, 35% fault by 3 settled HVAC party-Defendants) Hudgens v. Rainbow Ranch, 4/27:2

Coffee drink burns: (defense, coffee hut not negligent in connection with burns sustained by 12-year-old from spill in pickup) Ennis v. MoJava Coffee, 3/9:7

Contract/fraud: (verdict of $64,875 for breach of contract and $100,000 for constructive fraud stemming from NSF check presented to repay investment loan affirmed… Knisely affirmed (memorandum)) Allen & Linda Munro v. John Munro, 1/6:1

DPHHS negligence: (§41-3-203(1) immunity not applicable to State in case alleging DPHHS failed to properly investigate child abuse resulting in serious injuries… Court erred by ruling that DPHHS was negligent and assault was foreseeable… disproportionate sanction imposed on State for spoliation of photos showing bruising… $16,652,538 verdict reversed, remanded for new trial… Best affirmed, reversed) SW v. DPHHS, 3/23:1

Excessive force: (sanctions for loss of Probation Office parking lot surveillance footage improperly imposed under Court’s “inherent authority” when such loss is covered by Rule 37(e) which requires purposeful hiding of evidence… finding of “recklessness” insufficient to instruct that it was established as a matter of law that Probation Officer used excessive force against probationer’s mother… $75,000 verdict and $94,077.97 attorney fees reversed, remanded for new trial… Morris reversed) Gregory v. Montana, 9/28:7

False Claim Act: ($5,826,023 to US for false claims by CARD with Qui Tam Relator BNSF awarded 25% plus $1,423,936.58 fees/costs affirmed… Christensen affirmed (memorandum)) BNSF v. CARD, 9/28:6

Fetal death: (defense) Unrein v. Community Medical Center, 1/27:8

Fire repairs: ($89,136.51 to Plaintiff for home fire repair claims, 0 for emotional distress, $10,602.83 to Defendant contractor for Plaintiff’s breach of contract) Grossman v. Sussex Construction, 7/13:5

Jail conditions: (defense, alleged inadequate conditions of confinement while in administrative segregation at BSB jail) Lopez v. Johnson, 3/9:13

Kidnap: ($20,000, kidnap of estranged wife, no liability for ranch corporation) Sherri Frost v. Kevin Frost, 3/23:9

Medical malpractice: (defense, sudden cardiac death) Norby v. Council, 2/10:7; (thighplasty defense verdict affirmed over challenge to summary judgment as to excess skin removal sequencing (buttocks before thighs)… review of improper expert impeachment claim for providing stock images on plastic surgeon’s website declined for failure to provide entire record… Grubich affirmed (memorandum)) Muscle v. Santin, 2/24:1; (defense, claimed untimely diagnosis of lacerated tendon from dropped glass) Dwyer v. Crossley, 6/8:6

Medical malpractice damage cap: (constitutional challenge rejected based on Meech, $6 million verdict for failure to timely prescribe “clot-buster” for stroke patient reduced to “nowhere close enough” $250,000… Kutzman) Zahara v. Advanced Neurology Specialists, 1/27:3 Negligent procurement: ($1,022,257.85 verdict for negligent procurement failure to list general contractor as additional insured on subcontractor engineer’s CGL policy resulting in no coverage for litigation involving sinking of condo affirmed… Allison affirmed) TCF Enterprises v. Rames fbda Central Ins. Agency, 3/2:1

Oil drilling: ($112,000 for Plaintiff oil drilling consultant, 0 for Counterclaimant project owner) Welter Consulting v. Cardinal Oil, 6/22:7

Pedestrian/auto: (evidence properly admitted that pedestrian struck in crosswalk had been drinking, but last-minute refusal to take judicial notice of medical record of .053 BAC at hospital requires reversal of defense verdict, remand for new trial… Ohman affirmed, reversed) Vancos v. MDOT, 2/24:2

Solar power purchase agreements: ($3.2 million, retrial on remand from reversal of $480,000 verdict) Pacific Northwest Solar v. NWE, 3/16:10

Wrongful conviction: (defense, former prisoner failed to prove he did not rape fellow inmate despite claimed “exoneration” by Montana Innocence Project, resulting in rejection of claim for certificate of innocence and $733,006 damages and other benefits under wrongful conviction statute) Marble v. State and Missoula Co., 6/1:7

Wrongful discharge: (constructive discharge, Trooper’s WDEA claims barred because he failed to exhaust CBA grievance procedures, summary judgment for State improperly denied, $114,888 verdict reversed… Gilbert reversed); Fowler v.l DOJ-MHP, 2/17:5(claim of pre-discharge emotional distress properly allowed to go to jury which awarded $232,000 while rejecting wrongful discharge claims… Rieger affirmed (memorandum)) Winsor v. Commissioner of Securities & Insurance, 3/9:1

UM student loan refund procedures class action: (defense) Knudsen v. University of Montana, 1/27:8

*Water

Co-equal appropriators: (Decree properly enforced by District Court in percent shares rather than flow rates during shortages… attorney fees properly denied for inability to ascertain a prevailing party… Jones affirmed) Little Big Warm Ranch v. Doll, 1/13:1

Jefferson River rights: (service area and rights to Jefferson River water correctly decreed… Stephen Brown affirmed) Parrot Ditch Co. v. AMD, 11/30:5

Municipal water: (DNRC correctly determined that Shelby satisfied permit & change criteria via service agreements with each community in its service area except for one community… Stephen Brown affirmed, reversed) Town of Kevin v. City of Shelby, 9/21:4

School lands: (State holds ownership interest in water right developed & diverted on private land for beneficial use on school trust land… Stephen Brown affirmed) Schutters v. Board of Land Commissioners, 5/4:2

Seniority: (stock use right properly found senior to irrigation user… Stephen Brown affirmed) Bradley Livestock v. Fraser, 8/10:2

*Workers’ Compensation

Headaches: (chronic headaches claim rejected on summary judgment for lack of objective medical findings… Bruner) Schmidt v. MACoWCT, 8/10:9

IME: (motion to compel IME granted with conditions: Petitioner is required to sign the provider’s Informed Consent document but not the FAQ document or take any action associated with the HIPAA notice… Bruner) Roberts v. Arch Ins., 4/20:6; (insurer’s motion to compel IME of Cascade Claimant in Missoula where psychiatrist practices rather than Great Falls which is closer to Claimant granted) Neisinger v. New Hampshire Ins., 4/27:7; (DLI’s failure to make factual finding as to whether Claimant’s failure to attend medical appointments was unreasonable before approving insurer’s request to suspend comp requires remand… Bruner) Neisinger v. New Hampshire Ins., 5/25:3

Jurisdiction: (Court lacks jurisdiction to appoint GAL for disabled child… Bruner) TG, 1/20:7; (Court lacks jurisdiction to change minor-beneficiary’s payee from deceased’s sister to beneficiary’s mother/deceased’s ex-wife… Bruner) CK, 7/20:6

Wage-loss: (both parties’ methods of calculating wage-loss benefits are incorrect for Petitioner who works at 2 simultaneous jobs but post-injury can continue at only 1 (1st impression)… Bruner) Perea v. AmTrust Ins., 2/3:11