*Appellate Procedure
Mediation: (appeal dismissed with prejudice for failure to comply with mediation process and an order of the Court… Order) Tavenners v. Andrewses, 7/12:3
Non-existent cases: (appeal of 40-year POP against mother rejected for citing non-existent cases with assistance of AI… Pardy affirmed (memorandum)) Angelo v. Allen, 6/28:5
Sealed transcript: (motion to unseal part of hearing transcript relating to settlement agreement in legal malpractice action denied, more appropriately raised in appeal brief… Order) Engellant v. Crowley Fleck, 3/29:2
Stay: (Appellants properly allowed to post alternative security to supersedeas bond… Recht affirmed (Order)) Apecellas v. Overman & Robinson, 3/22:4
Supervisory control: (of Gilbert in marital property/contempt matter denied… Order) Harris v. Gilbert, 1/25:1; (of 4th Judicial District (formerly Deschamps, now Elliott) denied in child custody proceeding… Order) Elder v. 4th Judicial District, 2/15:4; (petition denied for being overlength… Order) DiCostanzo v. Linneweber, 3/22:7; (over Judge Brown’s stay of divorce action pending resolution in Seneca tribal courts denied… Order) Maybee v. Brown, 3/29:3; (based on claim that Vannatta’s rulings will increase complexity of inherently dangerous falling bundle of posts case denied… Order) Wild Horse v. Vannatta, 4/19:1
*Arbitration
Waiver: (Defendant waived right to compel arbitration after reentering litigation following default set aside without asserting the right… Breuner affirmed) Monarch Heating & Cooling v. Petra, 8/23:1
*Attorney Fees, Costs
MRAP 19(5): (fees awarded for having to respond to appeal of TOP in favor of Plaintiff attorney… Order) Groenke v. Gabriel, 7/19:1
*Attorney Practice
Admission: (admission under Uniform Bar Exam score transfer denied as untimely… Order) Kilfoyle, 7/26:3
Discipline: (Amanda Gordon’s conditional admission to Rule violations in representation of criminal defendant accepted… agreement to public censure by Supreme Court reduced to public censure by COP… COP Order) Gordon, 1/4:3; (Jenifer Reece suspended for failing to respond to ODC and COP… Order) Reece, 7/12:3
Pro se: (PR may not represent Estate pro se in appeal of legal malpractice defense verdict… Order) Engellant v. Crowley Fleck, 7/19:1
Sanctions: (Rule 1927 sanctions of $158,448.11 properly imposed on church’s General Counsel for affidavit in sex abuse cases… Watters affirmed) Rowland v. Watchtower Bible & Tract Society of New York, 7/12:8; (Rule 11 sanctions of $6,630.23 attorney properly awarded against husband’s attorney for accusing Standing Master of “trafficking of little children” by splitting parenting 60/40 and accusing wife’s attorney of representing Master… Ohman affirmed (memorandum)) Marriage of Roadarmel, 8/2:1
*Bench Judgments
FTCA: ($1,611,854, BLM officer’s sexual assault of Northern Cheyenne tribal member… Molloy) LB v. US and BIA, 3/1:8
Sexual assault of student: ($2 million… Bonilla) Jane Doe v. Young, 4/26:1
*Civil Procedure
12(b)(6) dismissal: (sufficient facts and allegations pled to survive dismissal of inverse condemnation and taking claims stemming from removal of bridge that had been erroneously permitted… Wilson reversed) Flathead Properties v. Flathead Co., 1/11:2
Class action: (certification properly granted in property tax dispute… Ruiz affirmed) Gottlob et al v. DesRosier et al, 3/29:2
Collateral estoppel: (
Default: (properly entered in writ of possession case involving myriad Justice Court rules and non-lawyer’s attempt to represent LLC… Beal/Deschamps affirmed (memorandum)) HomeRiver Group v. Anders Business Solutions LLC, 7/19:2
Dismissal: (PFMA Defendant’s appeal from City Court conviction improperly dismissed for failure to attend omnibus hearing without considering whether he had good cause… Owen reversed (memorandum)) Keller-Keith, 1/11:6; (of IIED and NIED claims in parenting case improperly ordered without explaining ruling… McElyea reversed) Del Duca v. Skydancer, 7/26:1
IME: (Defendant’s motion for IME in form of psychological evaluation granted subject to requirements… IME in form of physical exam denied… Linneweber) Vogl v. Riverside Contracting, 2/15:4
Injunction: (requesting order for ski club to issue parking permit to non-member properly denied pursuant to Rule 12(b)(6)… Breuner affirmed (memorandum)) Denis v. Spanish Peaks Mountain Club, 1/25:1
Order of protection: (pro se petitioner not denied due process when she was afforded opportunity to present her case in support of a protective order against neighbor but chose to spend her time directly examining neighbor in hearing on petitions by both neighbors against the other… protective order properly denied for pro se petitioner and granted for subsequent petitioner… Gilbert affirmed (memorandum)) Cuomo v. Derr, 3/22:2, rehearing denied, 5/3:2; (10-year POP properly issued for campaign of harassment against family law attorney… Sullivan/Allison affirmed) Groenke v. Gabriel, 5/10:1
Personal jurisdiction: (improperly found over Arizona manufacturer of allegedly defective spray foam insulation applied to Montana home… Cuffe reversed on supervisory control (Opinion & Order)) Southwest Distributing v. Cuffe, 1/11:2; (rehearing denied) 2/8:5
Preliminary injunction: (properly granted requiring DPHHS to disclose materials to a Legislator reviewing a child abuse & neglect case… McMahon affirmed) Mercer v. DPHHS, 1/18:1
Punitives: (a jury could not find actual malice to support punitives in trail ride horse fall)… Gilbert) Leonti v. Hell’s A-Roarin’ Outfitters, 2/8:6
Service: (McMahon’s ruling that strict compliance with service rules is obviated by Defendant’s notice of appearance reversed on supervisory control, remanded to dismiss MVA case for failure of proper service… Order) Treasure State Towing v. McMahon, 3/1:1
Settlement agreements: (involving estate properly approved… Souza affirmed) Estate of Elliot, 7/12:4
Statute of limitations: (properly held to bar passenger’s claims against former husband/driver of accident vehicle over assertion that fibromyalgia was self-concealing or driver was estopped from defending based on Montana statute because he had agreed to North Dakota’s 6-year statute… Knisely affirmed (memorandum)) Hughes v. Anderson, 1/11:1
Statute of repose: (bars subdivision homeowners’ negligence claims against City for settlement due to adverse soil conditions… Gilbert) Atkinsons v. Livingston, 4/5:6
Summary judgment: (a declaration executed under §1-6-105 is equivalent to an affidavit, is sufficient evidence at the summary judgment stage… summary judgment improperly granted to debt collector because patient’s declaration that she was not in ICU established material fact issues… Harada reversed) CB1 v. Hoves, 2/22:2
*Constitutional Law
Abortion: 2021 legislation regulating abortions stricken as unconstitutional… Krueger affirmed) Planned Parenthood of Montana v. State, 6/14:1
Open meetings: (blanket closure of Advisory Council’s interviews of judicial applicants violated open meeting laws but recommendation not voided as it is merely advisory… Menahan affirmed) Choteau Acantha Publishing v. Gianforte, 4/26:1
Right to know: (successful Art. II §9 Plaintiff entitled to presumption toward attorney fees… Abbott reversed) MEIC v. Office of Governor, 5/31:1
*Contracts
Construction subcontract: (summary judgment improperly granted to subcontractor, should be granted to contractor in case encompassing myriad contract law principles… Murnion affirmed, reversed) Kratzer v. Hardy Construction, 7/5:1
*Courts
Judicial immunity: (suit against JP by non-lawyer attempting to represent DUI Defendant properly dismissed for failure to state a claim… Knisely affirmed) Skurdal v. Walker, 8/9:4
Jurisdiction: (GEICO failed to show the amount in controversy necessary to establish jurisdiction under either CAFA or traditional diversity jurisdiction, may present additional evidence and assumptions on remand… Morris reversed (memorandum)) Moe v. GEICO Indemnity, 5/24:5
*Crime, Criminal Procedure
Abusive sexual contact: (conviction affirmed over improper vouching… Watters affirmed (memorandum) Don’tMix, 4/19:5
Anders brief: (rejected for failure to meet requirements… Order) Ritesman, 2/22:4
Allocution: (sex offender was able to address the Court prior to a final disposition despite initial disposition without allocution… Menahan affirmed (memorandum) Dietz, 3/22:6
Assault on officer: (speedy trial right not violated by 511 days delay, most of which was caused by fitness evaluation… no error in instructing on resisting arrest when Defendant was not charged with resisting… first-aggressor instruction properly given on justifiable force… conviction affirmed… Allison affirmed) Gysler, 5/24:3; (mandatory minimum for mental impairment properly found inapplicable due to intoxication but Defendant improperly denied opportunity to withdraw plea following 2nd rejection of agreement… Recht affirmed, reversed) Warr, 7/5:4; (sua sponte finding of ineffective assistance without opportunity to be heard requires a new trial before a different judge… Wilson reversed (memorandum)) Kelsey, 8/9:7
Assault with weapon: (violation of protective order, tampering convictions stemming from face slashing affirmed… Harris affirmed) Kalina, 4/19:2; (and carrying concealed weapon while intoxicated convictions of DEA Agent affirmed over challenge to exclusion of bar altercation victim’s post-incident statements that he was a fighter and his unresolved criminal case and jury selection procedures… Ohman affirmed) Donahue, 7/12:7
Attempted deliberate homicide: (Defendant properly required to admit that he acted purposely & knowingly to assert justifiable force… Defendant’s back-shot expert properly excluded… Deschamps affirmed) Dulaney, 4/5:3
Attempted deliberate homicide/assault with weapon: (convictions reversed for allowing a witness to testify via video without demonstration of unavailability… suppression of drugs in backpack properly denied… motion to substitute counsel properly denied… Menahan reversed, affirmed) Songer, 8/16:2
Attempted sex trafficking of minor: (conviction affirmed over challenge to sufficiency of evidence in sting and prospective juror’s outburst that he already knew Defendant was guilty… Christensen affirmed (memorandum)) Baker, 2/1:8
Burglary: (insufficient evidence to support conviction of burglary with predicate “disorderly conduct” calling girlfriend vulgar names in her house… Seeley reversed) Baertsch, 7/12:6
Child sex abuse: (mandatory 25-year parole restriction enhancement to 100 years at MSP not authorized for attempting to contact fictional 12-year-old in sting…. Harada reversed) Schultz, 7/12:5
Child sex offenses: (convictions affirmed over challenge to Allen instructions, denial of access to victim records, 30-year sentence… Watters affirmed (memorandum)) Smith, 8/23:6
Child pornography: (conviction affirmed… Christensen affirmed (memorandum)) Stricker, 8/23:6
Criminal mischief: (conviction relating to obstreperous behavior at the jail resulting in flooding from fire sprinkler affirmed over challenges to exclusion of medical expert as to heart condition proffered in support of compulsion defense, prosecutorial misconduct, outrageous conduct in attempting to remove rings used to trigger sprinkler… Hayworth affirmed (memorandum)) Latter, 1/11:7
Deliberate homicide: (conviction affirmed over claim of failure to instruct on defense of others… Halligan affirmed (memorandum)) Rossbach, 6/28:5
Double jeopardy: (not violated by prosecution for deliberate homicide by direct liability following reversal of conviction for erroneous submission of accountability theory… Mercer affirmed on petition by Defendant for supervisory control) Wood, 8/2:3
Drugs: (Defendant lawfully stopped for driving in left lane… Molloy affirmed (memorandum)) Waldeck, 2/22:8; (traffic stop correctly extended when officers discovered Defendant was on parole, consent to then search vehicle was voluntary… suppression of meth properly denied… Molloy affirmed (memorandum)) Bradford, 5/24:7; (inquisitive Officer lacked suspicion but did not violate Defendant’s rights when she agreed to answer questions after conclusion of speeding stop and consented to search of vehicle, suppression of drugs properly denied… Recht affirmed) Summers, 5/31:2, rehearing denied, 6/21:7; (traffic stop properly expanded to drug investigation and discovery of meth but State was improperly allowed to offer rebuttal evidence of prior drug sales to counter Defendant’s claim that she only used drugs… possession with intent to distribute conviction reversed, remanded for new trial… Lint affirmed, reversed) Hunt, 6/21:4; (odd driving provided particularized suspicion for Terry stop of suspected drug traffickers and users which led to discovery of drugs… Swandal affirmed) Herzog, 6/21:6; (search warrant for hotel room supported by probable cause… State District Court warrant for California Facebook records authorized under Stored Communications Act… Christensen affirmed) Westfall, 7/19:8; (conspiracy to distribute meth and fentanyl affirmed… Christensen affirmed (memorandum)) Stringari, 8/23:6; (conviction for conspiracy to distribute meth and fentanyl affirmed over challenge to hearsay at sentencing hearing… Christensen affirmed (memorandum)) Topete, 8/23:7
DUI: (conviction of Defendant found exiting stuck motor home affirmed… Berger affirmed (memorandum)) Boucher, 1/25:4; (§61-8-1016(4)(a) does not preclude a blood warrant when a 1st-time DUI suspect refuses to submit to testing under the implied consent statute… Ray/Lint affirmed) Clinkenbeard, 3/29:3; (sentence for 5th DUI improperly imposed under 2021 amendment when contemporaneously sentencing for 4th and 5th DUIs… Larson reversed) Bloomer, 5/10:4; (felony conviction affirmed over challenge by pro se Defendant found intoxicated in single-vehicle MVA who chose not to testify to not being allowed to make statements in closing not made under oath at trial… Wilson affirmed) Ament, 5/17:5; (California statute which does not specify where the offense occurs is sufficiently similar to Montana’s statute which specifies “upon the ways of this state open to the public” to support felony enhancement… McElyea affirmed) Lapointe, 6/21:7; (disputed erratic driving supported by Officer’s testimony and dash cam video, provided particularized suspicion for stop… driving under influence of THC affirmed… Fehr affirmed) Matthews, 6/28:6; (supervisory control of Lint granted as to rejection of license reinstatement Petitioner’s request for waiver of court fees/costs… Order) Giachino v. Lint, 7/26:3; (21 days between initial appearance and probable cause hearing was reasonable… SCRAM improperly imposed as parole condition… $5,000 mandatory minimum fine improperly imposed without consideration of ability to pay… Whelan affirmed, reversed) Vaska, 8/9:6; (mandatory minimum custodial sentence for 4th DUI not unconstitutional… Recht affirmed) Alford, 8/9:7
DUI vehicular homicide: (conviction stemming from driving wrong way on Interstate affirmed… Vannatta affirmed) Loera, 5/3:5
Exculpatory evidence: (firearms indictment dismissed for failure to preserve automatically deleted voicemail to officer… Christensen) Chelini, 8/16:4
Failure to register: (jury properly found that Defendant “knowingly” failed to register as sex offender… 84 months imprisonment not unreasonable… Watters affirmed (memorandum)) Shoulderblade, 5/31:6
Felon in possession: (sentence enhancements for semiautomatic capable of large magazine and possessing 8 or more firearms by pawn shop employee affirmed… Morris affirmed) Kurns, 2/22:8
Firearms & domestic violence: (Montana PFMA conviction does not qualify as “misdemeanor crime of violence” forbidding possession of firearms… Christensen reversed) DeFrance, 1/4:6
Habeas: (petition improperly dismissed sua sponte without notice of intent to dismiss despite deliberate homicide Petitioner’s acknowledgment of 20-year delay… Watters reversed) Race, 3/22:4
Impersonation of public servant: (conviction of falsely impersonating a US Marshall to induce stripper to rely on that pretense affirmed… no-contact condition improperly imposed on unsuspended sentence… Krueger affirmed, reversed (memorandum)) Copyak, 2/1:4
Intimidation: (sufficient evidence that dialysis patient had intended purpose to cause technician to remove him from dialysis… disorderly conduct and assault are not lesser-includeds of intimidation… ability to pay properly considered in assessing victim advocate fee… Parker affirmed) Dellar, 5/31:4
Jury (JP did not err by conducting a misdemeanor PFMA bench trial without a written jury waiver… Beal/Deschamps affirmed) Cole, 2/1:5; (Clerk’s failure to certify to the Sheriff jurors who did not return their questionnaires did not rise to substantial noncompliance… conviction of murder of wife affirmed… Allison affirmed) Hillious, 3/29:4
Lesser-included: (instructions properly rejected as to assault of great-grandmother… Cuffe affirmed) Avidiya, 2/22:4
Multiple convictions: (violated by separate conviction for criminal mischief underlying attempted burglary… Seeley reversed (memorandum)) Richeson, 8/9:7
Plea agreement: (DUI Defendant failed to preserve denial of his motion to dismiss for lack of speedy trial… Berger affirmed) Golas, 1/25:2; (Prosecutor breached agreement by paying lip service to agreed sentencing recommendation… a judge does not have unilateral authority to restrict a defendant’s right to seek early termination of a sentence but a defendant may agree to waive or restrict that right… remanded for specific performance of the plea agreement before a different judge… Abbott reversed) Brady, 5/24:2; (materially breached by failure to cooperate with PSI, State justified in recommending harsher sentence… Kutzman affirmed (memorandum)) Huff, 7/19:5; (breached when Prosecutor recommended additional parole restriction for sex abuse of children… Rieger reversed) Walton, 8/23:2
Prisoners: (claim that participation in Blackfeet Nation religious activities illegally burdened by MSP’s) Clear Conduct Policy properly dismissed on summary judgment… Morris affirmed (memorandum)) Whitford v. Salmonsen, 7/26:4
Privacy in communications: (25 years at MSP for vile comments to multiple victims affirmed… Harris affirmed) Ernst, 5/3:4
Release from registry: (properly denied Defendant convicted of SIWC in 1982 because, although charged as statutory rapes, they involved force or violence… Bonilla affirmed) Clark, 5/3:3
Rape: (Defendant was not prejudiced by wrong definition of “knowingly,” ineffective claim fails… Marks affirmed (memorandum)) Green, 3/22:2; (multiple sex acts properly charged separately… Moses affirmed) Foster, 6/28:7; (failure to interview and call potential witness who observed injuries on Defendant not prejudicial in light of overwhelming evidence supporting conviction of sex with intoxicated person… order granting postconviction relief reversed… McElyea reversed) Ragner, 7/12:5
Rape/sexual assault: (convictions relating to touching 6-year-olds affirmed over objection to unrestricted jury access to their drawings… Abbott affirmed) Walks, 7/19:6
Rape/incest: (time served in 3 counties improperly calculated… fines, surcharges, IT fees improperly imposed without evaluating ability to pay and merely because the length of Defendant’s sentence would give him time to pay… Gilbert affirmed (memorandum)) Sullivan, 8/9:8
Restitution: ($35,000 properly awarded to husband for claimed lost wages caring for wife who was injured in an assault, in addition to $9,450.50 to deceased victim’s Estate… Harada affirmed (memorandum)) Wolfchild, 1/18:3; ($7,000 award vacated for failure to resolve specific objections to sum sought… Morris reversed (memorandum)) Wilson, 2/1:9; (full $17,470.36 awarded for damage to old truck and missing hunting gear over Defendant’s claim that truck was damaged before theft… Fehr affirmed) Raver, 3/22:1
Revocation: (Court correctly corrected prior Judge’s clerical error which dismissed case with prejudice rather than only dismissing first revocation as State intended… clerical errors v. judicial errors explicated… Grubich affirmed) Ziele, 5/10:5
Search & seizure: (statements to police and drugs seized from hotel room without warrant properly upheld… Watters affirmed (memorandum)) Biggs, 4/5:7; (failure to set aside false or misleading material in the affidavit harmless error because there remained probable cause for warrant… Morris affirmed (memorandum)) Welch, 8/30:3
Sentencing: (incest Defendant’s request to transfer to residential sex treatment after 10 years of waiting for enrollment in MSP’s Phase II treatment properly denied… Kutzman affirmed) Damon, 1/25:3; (PSI erroneously ordered for 2 misdemeanors when neither was originally charged as sexual or violent… Grubich reversed) Denny, 4/5:4; (MHP Drug Fund fee, public defender fee, jail diversion fee improperly imposed… Lint reversed (memorandum)) Nielsen, 4/5:5; (Judge lacked authority to sua sponte dismiss felony sexual abuse of children to which Defendant had pled guilty and amend or re-charge it to misdemeanor surreptitious recording… Deschamps reversed) Partain, 5/3:2; (enhancement properly applied to Defendant who had gun on driver’s seat while attempting to hot-wire vehicle… Watters affirmed (memorandum)) Kennedy, 5/31:6; (Defendant not entitled to credit for time at recovery center which he chose to attend without court order… Wilson affirmed) Welzel, 7/5:5; (remanded to remove sting enhancement… Order) Ball, 8/2:4; (remanded for additional 2,220 days credit in convoluted case… Seeley reversed) Keech, 8/9:7
Sex abuse of children: (100 years at MSP, 65 suspended, no parole for 25 years for 69 IQ Defendant in on-line sting affirmed… Fehr affirmed) Lee, 2/15:4; (Watching teen stepdaughter in stages of undress sufficient for conviction under pornography statute… conviction improperly reversed, remanded for reinstatement… Menahan reversed) Brennan, 3/22:5; (conviction affirmed over challenge to knowledge of victim’s age and being in “custody, care, or supervisory control”… Morris affirmed (memorandum)) Werk, 7/19:9
Sex offender designation: (Judge properly went beyond sex evaluator’s recommendation of tier 1 to designate child rape Defendant tier 2… Parker affirmed) Garcia, 2/8:5
Sex offender registration: (petition for relief from registration properly denied over substantive due process and ex post facto claims… Dayton affirmed (memorandum)) Hardin, 2/1:5; (properly imposed on youth for community safety… Deschamps affirmed) BJB, 8/16:3
Tampering: (jury erroneously instructed to convict based on “knowingly” rather than “purposely” tampering with blood evidence but error was harmless… Kutzman affirmed) Parker, 5/10:4
Underage possession: (discovery of paraphernalia by flashlight shined into back window provided reasonable suspicion for search… double jeopardy not violated by count of UPIS for alcohol and count for marijuana… Gilbert affirmed) Roberts, 5/31:3
Verdict: (Defense, 17 counts, failure to pay child support, false claims, bank fraud, false statement to bank, money laundering) Walid, 2/1:9
*Discrimination
Disability: ($177,458, failure to engage in interactive process with airline agent as to his request to return with restrictions following wrist surgery… Administrative Decision, Joslyn Hunt) Stevens v. SkyWest Airlines, 6/28:9
Disability/retaliation: ($45,685.40 back pay, $11,175 emotional distress and counseling costs, fired diabetic RN… Administrative Decision, Joslyn Hunt) Holm v. Senior Solutions Homecare & Hospice, 4/26:3
Political discrimination/retaliation: (claims by fired deputy who withheld Brady drug tests, ran in sheriff election, made disparaging social media remarks about new sheriff rejected… OAH HO Jeffrey Doud) Landers v. Custer Co. Sheriff’s Office, 1/18:5
Pregnancy: (reasonable cause to believe discrimination occurred in termination of pregnant corporate Payroll Benefits Director who was replaced with non-pregnant female with same duties and comparable salary… FIR, Stephanie Galle, Investigator) Jeffery v. Under Canvas, 3/22:5
Sex discrimination in public accommodation: ($5,000 for emotional distress stemming from canceling further massage therapy appointments because concrete worker was a man… not entitled to recover $5,000 attorney fees paid to resolve TRO filed by the therapist… Administrative Decision, Joslyn Hunt) Jacobi v. LUXE Relaxation & Massage, 5/3:8
Vaccination: (HO correctly held to have authority to determine if Executive Order preempted HB 702 vaccination mandate and to determine that it did… Hunt/Menahan affirmed) Qlarant Integrity Solutions v. Guthneck, 3/29:1
*Elections
Library mill levy: (library mill levy election challenge properly rejected… Perry affirmed) Cummings and Johnson v. Great Falls, 4/5:2
*Environment
Air quality permit: (DEQ did not conduct adequate environmental review of natural gas power plant before issuing permit, should have considered greenhouse gas, analysis of lighting impacts deficient, but rather than vacatur of permit remanded for further evaluation of environmental impacts… Moses affirmed, reversed) MEIC v. DEQ and Northwestern Energy, 1/11:3
Conservation easement: (preliminary injunction against 33,000 forest land easement by owner of 13,000 acres of mineral interests rejected for failure to show likely irreparable harm… easement later approved by Land Board… Cuffe Citizens for Balanced Use and WRH Nevada Properties v. FWP, Trust for Public Land, and Green Diamond Resource, 8/23:4
Endangered species: (summary judgments in Black Ram Project grizzly case affirmed, reversed… Molloy affirmed, reversed (memorandum) Center for Biological Diversity v. FS and FWS, 3/8:8; (FWS properly analyzed effects of Helena-Lewis & Clark Forest’s 2021 Land Resource Management Plan on grizzlies… Molloy affirmed (memorandum)) Helena Hunters & Anglers Association v. FS and FWS, 3/8:9
Floodplain: (challenges to permit for glamping resort on river island properly rejected… Ohman affirmed) Protect the Gallatin River v. Gallatin Co., 2/22:3
Riverbeds: (title properly quieted to US for 4 “Segments” of rivers and to the State for 1 segment… Christensen affirmed) Montana v. Talen Montana, 3/8: 7
Water use permit: (for Tintina’s proposed copper mine properly upheld… Hayworth affirmed) Montana Trout Unlimited v. DNRC and Tintina, 1/11:4
*Evidence, Criminal
Deliberate homicide: (State’s alternative theory of accountability by phantom shooter submitted to jury without sufficient evidence… verdict form did not allow jury to declare guilt or innocence regarding each of the charged offenses or theories of liability… errors not harmless, reversed and remanded for new trial… Christopher reversed) Wood, 1/11:4; (Judge did not reject agreement relating to Defendant’s justifiable force defense, did not improperly reject special unanimity verdict form… Oldenburg affirmed) Walla, 3/1:4
Plea withdrawal: (properly denied in convoluted case in which agreed sentence exceeded sentence authorized by law and the State accepted a sentence reduced from that agreed upon to one within the legal term… Harris affirmed) Welch, 1/11:5
*Family Law
Adoption: (attorney owed no duty to Plaintiffs as non-clients in adversarial interstate adoption… claims against DPHHS properly dismissed based on collateral estoppel as to Utah’s approval of adoption… Menahan affirmed) Shelton and Costas v. DPHHS, 4/19:1
Child support: (motion to modify improperly denied without discovery and hearing as to claimed changed circumstances… Berger reversed) Jackson, 8/16:1
Common law marriage: (properly not found… Allison affirmed (memorandum)) Oblinger and Oster, 5/17:4
Parental termination: (of father’s rights to twins properly relied on prior termination of rights to older siblings and finding of chronic, severe neglect… Grubich affirmed) SW and DW, 8/16:3
Property: (husband owes wife nothing under ambiguous MPSA which provided for wife to receive home by husband paying off mortgage and remitting the remainder or by providing $456,000 lump sum… wife not entitled to interest because husband did not owe additional equalization payment and his delay in paying did not constitute a breach because time was not of the essence… wife not entitled to attorney fees under marital exception… Best affirmed (memorandum)) Ghahari and Hirad, 2/8:4; (2nd request to amend PSA properly summarily denied… Seeley affirmed (memorandum)) Stuck and Squillaciotti, 3/8:2; (summary judgment apportionment of property properly denied… distribution of the estate and denial of maintenance and attorney fees affirmed… Berger affirmed (memorandum)) Urell, 2; (property properly valued and distributed including valuing Idaho home based on sale price as sanction for not disclosing it… Whelan affirmed (memorandum)) Martin, 5/10:3; (wife properly reimbursed from house sale for expenses maintaining the estate after doctor husband’s incarceration… fees awarded for frivolous appeal… Recht affirmed (memorandum)) Christensen, 6/14:1; (additional house appraisal properly ordered even if it constituted a modification of the PSA… Parker affirmed (memorandum)) Caldwell, 6/28:3
Third-party parenting: (emergency order was premature but defects cured by post hoc compliance… Eddy/Berger affirmed) DCS, 8/16:2
*Health Care Providers
Oncologist termination: (Health Care Quality Improvement Act properly held to immunize hospital and physicians from damages arising out of peer review of suspended oncologist… Menahan affirmed) Weiner v. St. Peter’s Health, 2/15:2
*Indians
Guardianship: (children properly awarded to non-Indian foster parents… Souza affirmed) IRS and MWAH, 7/12:4
Indian lands: (suit to mandate BIA to partition land on Crow Reservation consistent with a settlement agreement barred by sovereign immunity… “Indian” rather than “Native” used for consistency with caselaw and in a political sense… Watters reversed) James Halverson as PR of fee estate of Jack Halverson v. Interior Secretary Burgum, 8/30:2
Parental termination: (affirmed… Laird affirmed) JB, 8/9:6
*Insurance
Apex product: (Plaintiff injured during “employee ski day” who alleges that Apex product was “effectively useless” allowed to amend to add punitives and a restructured employer… Berger) Young v. Yellowstone Club Operations, 8/9:9
Bad faith: (claims following $400,000 settlement of esophageal perforation during student intubation med-mal case properly rejected on summary judgment… Christensen affirmed (memorandum) Anthony v. BNSF Railway, 4/19:1; (claims involving hail insurance properly rejected on summary judgment… Watters affirmed (memorandum)) Dow v. Safeco Ins., 4/19:4; (rulings on claims related to belated approval of specialized surgery for herniated disks… Morris) Rutherfords v. Health Care Service Corporation, 5/31:7; (class certification tentatively granted on claims related to belated approval of specialized surgery for herniated disks… Morris) Rutherford v. Health Care Service Corporation, 6/14:2; (bad faith claims after settlement of asbestosis claims with State rejected based on judicial admissions in settlement proceedings that insurer had reasonable basis for contesting claims and because insurer had reasonable basis to contest coverage… Johnston) Coleman v. National Indemnity, 7/26:5
Coverage: (actions of driver who drove into parked camp trailer and fired rifle shots at it excluded under criminal act exclusions of home and auto policies and intentional act exclusion of auto policy… Christensen) Safeco v. McBeath, 8/30:6
Duty to defend: (because Auto Policy did not cover off-road UTV, denial of defense was justified… Watters reversed (memorandum)) Fettether v. Progressive Northwestern Ins., 2/15:6; (because no named Defendant is an insured under residential construction policy involving convoluted business entities there is no coverage and insurer has no duty to defend against claim by trucker injured by falling bundle of posts… Vannatta) Blancards v. Wild Horse Trading Co. LLC, 3/8: 4
MMIA v. MSF: (claims by MMIA that MSF and its broker illegally solicited business from municipalities precluded by Sherman Act and Robinson-Patman Act as they allege activity regulated by state law as part of the business of insurance… Morris) MMIA v. MSF, 7/5:6
Ridley: (disputed fact issues as to liability and causal relationship between Plaintiff’s snowy stairs fall and medical expenses preclude insurer’s obligation at this time to advance-pay medicals… Coffman) Short v. 430 Stillwater Road and Burlington Ins., 3/1:5; (doctor’s opinion that MVA claimant has reached MMI creates sufficient cloud on causation to defeat Ridley claim… Sullivan) Biley v. Mundel and Mid-Century Ins., 3/8:3
Sale: (Victory properly found in violation of insurance code by sale of its comp policies to Clear Spring, fined $250,000 without jury trial… McMahon affirmed) Victory Ins. v. CSI, 8/16:1
Surprise billing: (claims under ERISA relating to “in-network” and “out-of-network” services for ski accident Plaintiff rejected on summary judgment… Christensen) Meyer v. UnitedHealthcare Ins., 4/19:5
Title insurance: (insurer properly held not obligated to defend insured against counterclaims… Owen affirmed) Hutchinsons v. Old Republic National Title Ins., 2/15:1
Tripartite premium-financed life insurance: (motions to dismiss claims involving complex tripartite premium-financed life insurance mostly rejected… Christensen) Stevensons v. Massachusetts Mutual Life Ins., 8/30:4
Vehicle damage: (claims that LLC’s vehicle damaged by self-insured truck was undervalued by software utilized by TPA adjuster resulting in underpaying thousands of consumers by many millions of dollars dismissed in part, allowed to proceed in part… Molloy) Coutos and Couto & Sons Property Service LLC for themselves and those similarly situated v. CorVel Enterprises, Alacrity Adjusting Solutions, Alacrity Claims Solutions, and Mitchell International, 8/2:5
*Local Government
City sidewalk: (City has duty to maintain sidewalk involved in trip & fall, property owners dismissed from City’s claim against them… Seeley) Flatow v. Helena, 6/28:7
Public road: (1915 curative statute properly applied to find that County abandoned road in 1916… Ruiz affirmed) Sayers v. Chouteau Co., 8/2:3
Water/sewer: (preliminary injunction against major water & sewer project and to mandate enhanced public disclosures denied… Sullivan) Citizens for a Better Flathead v. Lakeside Co. Water & Sewer District, 8/30:2
*Mental Commitment
Jury waiver: (person waived jury based on representations by attorney… commitment warranted by suicidal ideations… Snipes-Ruiz affirmed (memorandum)) WJB, 1/18:1
Notice of concession: (State’s notice of concession to reverse commitment fails to state grounds “with particularity”… Order) OK, 7/19:2
Re-commitment: (1-year recommitment to NCC affirmed over claim of lost jurisdiction… Perry affirmed) MHW, 5/17:3
*Oil/Gas
Sage-grouse habitat: (judgments as to BLM policies governing lease sales on protected habitat affirmed and reversed… Morris affirmed, Patricco reversed, affirmed) Montana Wildlife Federation v. BLM, 1/18:3
*Probate
Common law marriage: (properly found not established in Montana… Cybulski affirmed) Estate of Zugg, 4/26:1
Disallowance of claims: (PR correctly found lacking authority to unilaterally extend time for creditors to respond to disallowance, but Estate is equitably estopped from raising a time-bar defense due to tolling representations by PR’s attorney… Pardy reversed) Eddleman, 2/22:1
Inheritance: (of $100,000 MVA insurance for child’s death properly denied mother for refusal to support the child… Brown affirmed) MAC, 2/8:1
*Property
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… $150,000 jury award vacated because of recision… Gilbert affirmed) Helviks v. Tuscanos, 7/12:1
Covenants: (amended declaration of covenants that allowed metal roofs and chickens that got 62.5% of owners who voted failed to get requisite 2/3 vote of all owners for renewal (as contrasted with 60% for modification)… declaration expired, HOA cannot enforce… Ohman affirmed) Charlie’s Win LLC v. Gallatin West Ranch HOA, 3/22:1; (subdivision covenants intended to encourage “country living” properly construed to prohibit short-term rentals… Coffman affirmed) Brandts et al v. R&R Mountain Escapes LLC, 7/26:3; (properly enforced against Defendants, attorney fees properly awarded Plaintiff… Marks affirmed) Sloway Cabin LLC v. Extremes, 8/9:1; (preliminary injunction against commercial activities on subdivision lots properly granted… Laird affirmed (memorandum)) Byrons v. Rainbow Estates HOA, 8/30:1
Easement: (across neighboring property for commercial “glamping” exceeded permissible use & scope… Foy fees improperly awarded for prevailing on counterclaims… Eddy affirmed, reversed) Baugh v. H2S2, 1/4:1; (lakeshore easement not limited to summer, does not preclude regular residential use… Coffman affirmed) Archer v. Tait & Janz, 1/4:2; ($54,610 compensatory damages, $56,500 punitives, $48,124.40 attorney fees & costs properly awarded for interference with water well easement… Cuffe affirmed (memorandum)) Workmans v. Stainthorpe, 3/1:2; (irrigator properly found to have unreasonably interfered with ditch company’s easement rights… Spaulding affirmed) Musselshell Ditch Co. v. JD Bar D, 4/5:1; (judgment on remand sufficiently clear as to trailing cattle on road, requests by both parties for further clarification denied… Kutzman affirmed (memorandum)) Fabers v. Ratys, 4/5:2; (preliminary injunction properly granted… Brown affirmed) Stephenson v. Lone Peak Preserve, 7/12:4
First refusal: (challenge to use of RFR by Hotel dismissed for lack of subject jurisdiction with leave to amend to cure defective allegations as to standing… Cavan) Shoshone Condominium Hotel Owners Association v. Boyne USA, 8/23:7
Home inspection: (Plaintiffs who failed to sign home inspection agreement are nonetheless bound by its limitation of damages to the cost of the inspection… Larson) Johnson & Jenisch v. Spire Home Inspection, 3/22:3
Lakeshore Dock: (does not interfere with navigation or lawful recreation because Plaintiff does not have right to access cove in 18-foot ski boat when smaller crafts remain unimpeded… Lakeshore Protection act, prescriptive easement, nuisance claims properly rejected… Larson affirmed) Murphy Properties v. Paint Rocks, 3/8: 1
Quiet title: (fact issues preclude summary judgment on validity of suicide note and signature on Deed purporting to leave property to daughter… Coffman reversed) Estate of Wolfe, 8/9:2
Subdivision covenants: (motocross course incorrectly found to not violate “residential use” covenant, hitting golf balls onto neighbor’s property correctly found violative and trespass, ramp-building correctly found not violative of commercial activity prohibition… Plaintiffs entitled to attorney fees as prevailing party… Krueger affirmed, reversed) Larsens v. Sayerses, 2/8:2
Subdivision roads: (public access easements properly held not to include primary access to neighboring subdivision… Eddy affirmed) GBSB Holding v. Flathead Co. Commissioners, 2/8:3, rehearing denied, 3/8:2
*Schools
High school reunion: (order by JP resolving dispute over funds and expenses from 50th reunion properly affirmed by District Court… Hummel/Eddy affirmed (memorandum)) Flathead High School Class of 1973 Reunion Committee v. LaRose and Peters, 3/22:1
*Settlements
Police shooting death: ($1.4 million, fatal shooting of person in mental crisis) Settlement of Bennett, 7/12:9
*Social Security
Failure to attend hearing: (substantial evidence supports ALJ’s finding that claimant did not show “good cause” for missing telephonic hearing resulting in denial of petition… Johnston affirmed (memorandum)) Miller, “6/21:11
SSD: (claim properly denied… ALJ bias claim rejected… Kilroy/Cavan affirmed (memorandum)) Cratty, 4/12:4; (ALJ erred in downgrading Plaintiff’s limitations in maintaining concentration, persistence, pace… Kelley/Johnston reversed (memorandum)) Gageby, 5/17:7; (digestive issues claim properly denied… Johnston affirmed (memorandum)) Trapp, 5/24:6
SSD/SSI: (claims properly again rejected on remand from 2017 denial… Kelley/Christensen affirmed) Nadon, 8/2:4
*State Government
Gubernatorial privilege: (Judge erred in finding that Montana law does not recognize any form of gubernatorial privilege but correctly determined that Governor’s assertions of privilege as to Agency Bill Monitoring forms were subject to in camera review… Seeley reversed, affirmed) O’Neill v. Gianforte, 1/4:3
Junque Files I: (State’s emergency motion to stay Kutzman’s order granting preliminary injunction to Plaintiffs challenging Legislative Services’ denial of access to background information of proposed bills denied without prejudice… Order) Saslav et al v. Legislative Services Division, 2/1:1
Junque Files II: (State’s 2nd emergency motion to stay Kutzman’s order granting preliminary injunction to Plaintiffs challenging Legislative Services’ denial of access to background information of proposed bills denied… Order) Saslav et al v. Legislative Services Division, 2/1:2
*Taxes
Federal income taxes: (challenge to $400,000 judgment rejected… Molloy affirmed (memorandum)) US v. Millett, 8/9:12
Property: (District Court lacked subject jurisdiction to hear interlocutory adjudication of matter that MTAB had dismissed… Lint affirmed) Hawkins v. DOR, 6/28:2
Tax deed: (delinquent property owner’s personal check received by the Treasurer 1 day after the deadline substantially complied with redemption statutes… Harada reversed) Guardian Tax MT v. Tasey, 8/9:3
*Torts
Duties of skier: (snowboarder negligent per se in colliding with stopped skier… fact issues preclude summary judgment as to causation for injuries and comparative negligence… Breuner) Wimberg v. Hinkley, 5/3:5
Equine Activities: (Defendant’s motion for summary judgment as to horse fall based on Equine Activities Act denied… Gilbert) Leonti v. Hell’s A-Roarin’ Outfitters, 2/1:6
Exercise machine negligence: (properly dismissed for failure to produce a proper expert on the standard for preventing a cable failure… Seeley affirmed) Seymour v. State, 5/3:1
FTCA: (VA nurse’s claims against US barred by sovereign immunity… Watters affirmed (memorandum)) Kransky v. US, 5/31:4
FTCA/Indians: (material fact issues preclude summary judgment as to discretionary function exception and contributory negligence of drivers of 2 vehicles involved in high-speed Reservation pursuit accidents… Morris) Estate of Naomi Killsnight-Hiwalker v. US, 1/4:7; (summary judgment for US properly granted based on landlord-tenant relationship of BIA ditch rider living in BIA housing whose pit bull bit Plaintiff, but improperly granted based on employee’s alleged negligence within scope of his employment… Molloy affirmed, reversed (memorandum) Kiser v. BIA, 6/21:7
Medical-Legal Panel: (Plaintiff may proceed against pharmacy PA who was not named in MMLP Application because PAs are not subject to MMLP jurisdiction… Harada) Christina Turner PR of Estate of Valerie Turner v. Community Medical Services Methadone Clinic, 2/8:6
Medical negligence: (claims against care/rehab provider dismissed on numerous grounds including failure to properly exhaust MMLP… Joseph) Waddell v. Continental Care & Rehab, 8/23:3
Negligent supervision: (claim against grandmother of 10-year-old injured in a crash on uncle’s scooter dismissed on summary judgment for lack of foreseeability… Menahan) Jenny & David Foley v. Patricia Foley, 1/11:9
Premises liability: (fact issues preclude summary judgment as to senior facility ice slip & fall… Larson reversed (memorandum)) Stalowy v. Missoula Manor Home, 5/24:1
Rape: (developmentally disabled resident of group home who was raped by employee was not owed nondelegable duty of care by the State but was owed duty by the home… Menahan affirmed, reversed) TMB v. West Mont, 1/4:1
*Trusts
Trust/tax lien foreclosure: (rulings relating to ranch affirmed… Watters affirmed (memorandum)) Faith McLain as Beneficiary of the Estate of Bernard McLain v. Francis McLain Individually and as Co-Manager of Terra Bani Retreat Ministries, 2/22:5
*Unions
ULP: (claim properly dismissed for failure to file within 6-month statute and prior to exhaustion of grievance process… Marks affirmed) McBroom and Lewis-Bacca v. BOPA, 4/5:1
*Verdicts
Auto: (defense, Defendant was negligent in connection with vehicle sliding into Plaintiff’s vehicle at ski resort parking lot but negligence did not cause Plaintiff injuries) Crockett v. Dodd, 7/5:5
Auto/motorcycle: (defense (35/65 negligence), auto/motorcycle, multiple injuries including head trauma) Murray v. Steinmetz, 3/1:7
Auto/pedestrian: ($1,040,000 net (65% driver, 35% pedestrian), defense as to City’s design/maintenance of intersection) Sara Da’ v. Bozeman and Nelson, 3/29:5
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… $150,000 jury award vacated because of rescission… Gilbert affirmed) Helviks v. Tuscanos, 7/12:1
Child abuse: ($11,237,500, abused infant who suffered blindness and severe TBI after CFS failed to properly investigate allegations of child abuse… retrial on remand from reversed $16,652,538 verdict) Wilson v. DPHHS, 7/19:6
Chiropractic malpractice: (defense, neck
Construction contract: ($60,512.60 verdict to excavator for breach of contract affirmed over property owner’s appeal of refusal to instruct on “construction defect” and negligence… Whelan affirmed) Grosvold v. Neely, 5/17:1
Developmentally disabled abuse: (verdict award to counter-claimant Estate of deceased developmentally disabled man of $28,900 compensatory damages and $45,000 punitives for attempt to buy his house for 1/3 of its value affirmed… denial of treble damages and attorney fees under the CPA affirmed… failure to award fees & costs as a sanction for Plaintiff’s last-minute dismissal of specific performance complaint reversed… Whelan affirmed, reversed) Estate of Harris v. Reilly, 6/21:1
Failure to protect inmate: ($27,750,000) Lake v. CoreCivic, 4/26:2
Helicopter crash: ($22 million product liability damages, $8 million offer of judgment for Estate of helicopter pilot killed in crash while fighting fire in Oregon) Central Copters v. Kaman Aerospace, 5/10:6
Horse fall: (defense, trail ride horse fall, pelvic/hip fracture, concussion… settled prior to verdict) Leonti v. Hell’s a-Roarin’ Outfitters, 3/22:3
Jail due process: ($.02 nominal damages for deprivation of due process by jailers failing to provide written statement of evidence or reasons for disciplinary action, $0 for 5 other due process claims, affirmed… DeSoto affirmed (memorandum)) Briggs v. Gallatin Co., 7/19:9
Jail inmate death: ($681,000 gross to Estate of inmate who died of DTs, 41% fault by Hill Co., 15% fault by Blaine Co., 44% fault by settled party Northern Montana Hospital… $102,150 judgment against Blaine Co., $279,210 against Hill Co.) Stricker PR of Estate of Longsoldier v. Blaine Co. and Hill Co., 1/4:5
Medical malpractice: (defense, alleged failure to timely diagnose acute cholecystitis) Davis v. Smith, 5/17:6
Mobile Home Lot Rental Act: ($270,000 for landlord’s breach of Act, wrongful eviction, negligence, as to 2 Plaintiffs) Richter and Kelly v. Nelson, 7/19:7
Railroads: Defense, locomotive engineer, cumulative spinal trauma) Anthony v. BNSF, 4/19:1
Student loan refunds: (defense verdict as to class action against UM affirmed… Vannatta affirmed) Knudsen v. UM, 6/21:3
Wrongful death: (defense, wrongful death, disputed provision of cocaine to wedding party guest who went missing and was found dead in a creek) Estate of Collin v. Hauser, 3/15:7
*Water
Attorney fees: (fees properly denied under Water Use Act, improperly denied under UDJA for lack of tangible object to be possessed… McMahon affirmed, reversed) Upper Missouri Water Keeper v. Broadwater Co., 7/5:3
*Workers’ Compensation
Medically determined physical condition: (MSF has not established that Petitioner does not have a “medically determined physical restriction” for TPD purposes… Bruner) Covington v. MSF, 6/21:11
Multiple employments: (payment of full amount of claimed benefits constituted waiver of recoupment in multiple employments case, alleviates any injury except for claim for penalty which was improperly denied… Bruner reversed) Perea v. AmTrust Ins., 6/28:1
Penalty/fees: (denied in late settlement check situation… insurer also denied fees for having to respond to motion to enforce stipulated judgment… Bruner) Simone v. Old Republic, 7/26:8
TTD calculation: (summary judgment denied as to based on disputed hours hired to work and value of housing provided… Bruner) Espinoza v. MSF, 8/23:8
TTD suspension: (DLI finding Claimant unreasonable for failing to keep IME and consultation and suspending benefits reversed… Bruner) Neisinger v. New Hampshire Ins., 3/29:8
*Youths
CCYA: (original adult sentence improperly imposed following CCYA hearing… Larson reversed) Knowles, 5/24:4