Montana Law Week Subject Index – 2011
*Appellate Procedure
Appealability: (denial of contempt claim not appealable) Burrell, 1/1:3; (appeal from year-old orders timely since no notice of entry) Alexander, 1/29:1; (motion to dismiss appeal filed before fee amount order and service of entry of judgment denied, but remanded for final judgment) Hughes v. Ahlgren, 2/12:4; (order for remand to require DNRC to recalculate value of state lease improvements constitutes appealable final order) Grenz v. DNRC, 2/19:1; (issue preserved for appeal even though parties failed to present developed arguments because Judge sua sponte resolved it) State v. Baze, 3/26:4; (appeal of notice by Tucker on “deemed denied” motion to amend complaint premature for lack of final judgment) Barile (Tripp & Dragstedt Apartments) v. Butte High School, 4/9:4; (60(b) motion to set aside PR removal improper attempt to circumvent decision to forgo appellate review) Marriage of Schott, 7/9:2; (appeal of refusal to hold wife in contempt for violating economic restraining order reviewable because order violated husband’s right to possession and title of truck) Marriage of Stevens, 7/9:3; (probable cause challenge waived by nolo plea without reserving right to appeal, probable cause not jurisdictional issue) Spreadbury, 8/6:4; (contempt order reviewable only by cert) State v. Hartsoe, 8/13:3; (County failed to seek ruling on duty to report meth house under §75-10-1306(1) vis-à-vis its 10/1/05 effective date, waived right to appeal duty issue following $563,592 verdict to buyers of house) Slack v. L&C Co., 11/26:1; (Petitioners may appeal denial of class certification in ag reappraisal challenge within times and in manner prescribed by MRAP, conflict with Rule 23(f)(1) to be addressed in due course) Lucas v. DOR, 11/26:7; (wife’s appeal of property ownership claim from divorce moot by sale after appeal filed and satisfaction of liens) Miller v. CBSI, 12/17:4
Appeal by State: (State not barred by double jeopardy from appeal of District Court reversal of JP Court conviction) State v. Finley, 5/14:3
Briefs: (motion by “merchant line” developer to deny landowner any extensions to file brief denied) MATL v. Salois, 4/9:4; (testimony from reversed default judgment properly presented on appeal of jurisdiction ruling) Grizzly Security Armored Express v. The Armored Group, 6/18:1
Expedited appeal: (motion for expedited appeal of McKinnon’s denial of condemnation complaint granted in light of pending legislation) MATL v. Salois, 4/9:4
Mediation: (appeal dismissed for failure to communicate with mediator, over Appellant’s position that mediation of no value in appeal of rejection of claim for damages for yellow pages errors in law practice ad) Schuster v. Dex and Kerner, 8/13:1; (request for appointed mediator to serve pro bono denied, but in light of new rule allowing stipulated substitution, parties granted 10 days to attempt to secure mediator willing to serve pro bono or at reduced rate) Falcone v. Falcone, 10/22:3; (dismissal for failure of Appellants to appear at mediation rather than by counsel denied, MRAP 7(5)(h) does not require personal attendance, $200 sanctions for frivolous motion) Pallister v. Smith, 10/29:2
Sanctions: (denied) Guardianship of MCR, 4/2:2; (denied) Marriage of Lowry, 4/2:4; (granted) Fick v. Brown, 7/9:1; ($200 sanctions for frivolous motion) Pallister v. Smith, 10/29:2; (appeal by husband not in bad faith, fees denied) Marriage of Chamberlin, 11/12:2
Supervisory control: (petition to file sealed writ denied as to request to strike affidavits by former counsel and enjoin attorney/client disclosures) Kluver v. Western Justice Associates, 1/22:1; (supervisory control/stay denied as to RR’s objections to Sandefur’s reversal of special master’s FELA discovery rulings) BNSF v. Sandefur, 3/26:1; (supervisory control of Deschamps denied as to allowance of CPA claim against chiropractor) Lambert v. Deschamps, 4/23:1; (no supervisory control of Salvagni as to denial of “reverse 404(b)” evidence to show that grandfather was perpetrator of sex crimes and that Defendant was framed) Crowe v. Salvagni, 4/23:4; (supervisory control of Newman to effectively appeal from interim order denied) Prichard v. Newman, 6/25:3; (supervisory control of Jones denied as to stay of judicial review of wage claim ruling pending case alleging fraud by employee, disputed res judicata effect of administrative ruling) Nedens v. Jones, 7/2:7; (supervisory control of discovery orders by Deschamps in rollover ejection case denied) Knoepfel v. Deschamps, 11/12:2
*Arbitration
Casino construction contract: (casino contractor not liable for claimed $5.6 million construction defects or $62,000 delay penalty, wrongfully terminated by tribal owner’s agent in scheme to avoid resolution of cost overruns, awarded $525,170 unpaid contract balance, $564,877 for changed/extra work, $578,903 interest, $410,681 attorney fees, $226,953 costs, $25,650 filing/case service fees and $105,817 arbitrator fees split) Chippewa Cree Community Development Corp. v. Markovich Const., 4/23:7
CCRs: (clause in subdivision CCRs not contract of adhesion, within reasonable expectation of sophisticated buyer, fiduciary/fraud claims not PI claims exempt from arbitration, defamation claim is PI claim exempt from arbitration) Graziano v. Stock Farm HOA, 8/20:1
Compel: (arbitration compel properly denied where LLC dissolution sought pursuant to statute and no reference in OA to judicial dissolution (first impression)) Gordon v. Kuzara, 1/15:1; (significant questions as to status of contract, application of CBA, to teacher who failed to renew certification, arbitration properly compelled under “presumption of arbitrability”) KEA v. Kalispell High School Dist., 7/9:1; (agreement did not require motion to “require” arbitration, Plaintiff had timely notice that Defendant would “require” arbitration, Defendant did not waive arbitration by removing to Federal Court, agreement enforceable despite not signed by successor company) Carlstrom v. Title Cash, 12/17:2
Electric generating contract: (no abuse of discretion in refusing to vacate or modify award finding breach of electric generating contract but no damages) Colstrip Energy LP v. Northwestern Corp., 5/14:2
Wrongful discharge: ($209,198, wrongful discharge, mid-level trucking manager, “Manager’s Reference Guide” unadopted document for managers’ eyes only, not personnel policy which would support WDA violation, but manager fired without good cause, proffered reasons for termination in series of letters entertained, not just reasons in formal termination letter, numerous reasons rejected, no showing that Plaintiff not reasonably diligent in searching for new job, no UI offset) Bruhn v. Warren Transport, 2/19:5; ($109,952, wrongful discharge, assisted living facility program director) Gersack v. WEL-Life at Kalispell, 3/5:5; ($562,670, securities broker, CEO maneuvered by employees into firing what HR person termed “crazy bitch” in recorded call) Mills v. Scottrade, 7/9:7; ($164,515.89, wrongful discharge of union activist RN based on questionable HIPPA violation, flawed investigation) McKnire v. St. Vincent Healthcare, 10/22:5
*Attorney Fees, Costs
Bill of costs: ($187,864 attorney fees from County in unopposed bill of costs properly denied, as well as on claim that defense was frivolous or in bad faith) Slack v. L&C Co., 11/26:1
Contract: (no fees under indenture which provides for fees only in relation to loan default while complaint alleged negligence/contract claims for company’s role in closing where deed omitted buy-sell’s removal of life estate) Hoff v. Countrywide Home Loans, 6/11:2; (argument that hospital not entitled to fees under Patient Service Agreement for counterclaim not preserved, properly awarded $66,827 fees/costs for defense against Plaintiff’s allegations as inextricably intertwined with collection efforts) Estate of Donald v. Kalispell Regional Medical Center, 7/16:2
Declaratory action: (fees to prevailing Defendants in declaratory action involving easement dispute between similarly situated ranchers not supported by equitable considerations) Hughes v. Ahlgren, 8/13:1
Equitable: (trespass/damage claims from road construction not frivolous, $75,000 fees improperly equitably awarded to “basically innocent Defendants”) Carter Boehm, Trustee v. Cokedale LLC, 9/24:2
Frivolous/bad faith ($187,864 attorney fees from County in unopposed bill of costs properly denied, as well as on claim that defense was frivolous or in bad faith) Slack v. L&C Co., 11/26:1
Lien: (motion to intervene to enforce lien untimely following dismissal of case, firm may still seek arbitration or sue to enforce lien) Rhoades v. Murray, 12/3:4
Offer of settlement: (fees properly denied under §25-7-105 for failure to establish value less than $50,000, although important questions raised in light of timing of offer) Larsen v. Richardson, 8/20:3
Private AG: ($319,406 private AG fees properly awarded against intervenors in stream access case, but remanded for clarification as to specific landowners) Bitterroot River Protective Association v. Bitterroot Conservation Dist., 4/2:1
UTP-CPA: (UTP-CPA house defect claims against broker not frivolous, fees properly denied following defense verdict for broker ($80,000 against builder and salesperson)) Harmon v. Fiscus Realty, 9/24:1
Vexatious litigation: (fees denied I-164 proponents in signature challenge defense under claim of vexatious litigation, independent judgment despite “verbatim” rationale) Coutts v. Cap the Rate, 7/23:2; ($11,189.10 against vexatious litigant) Scottrade v. Davenport, 11/19:8
*Attorney Practice
Bar exam: (comments invited on proposed adoption of adopt Uniform Bar Exam) Petition to Adopt Uniform Bar Exam, 5/14:2
Character/fitness: (comment invited on petition to amend character/fitness admission rules) Petition to Revise Rules for Admission and Rules of Procedure of Commission on Character & Fitness, 6/4:4
Conflict: (supervisory control challenging Curtis’s refusal to disqualify Plaintiff’s law firm that hired paralegal from Defendant’s firm denied, Judge found adequate ethical screening from accounting malpractice file over accounting firm’s claim of appearance of impropriety) Junkermeier, Clark, Campanella, Stevens, 11/26:6
Legal malpractice: (statute did not begin to run until summary judgment against dock rights claimant and damages accrued and he was clearly on notice that advice as to assignment to non-heir was incorrect, not earlier when property owner disputed interpretation of contract and lease, summary judgment for law firm reversed) Ehrman v. Kaufman, Vidal, Hileman & Ramlow, 1/8:1; (District Court has no authority to compel ODC or COP to act, but malpractice claims improperly dismissed without appropriate findings & conclusions) Fourstar v. Zemyan, 7/16:5; (claim alleging fraud and legal malpractice by entering into stipulation for $2,389,000 confession of liability by employer for job arm amputation when there was no coverage under CGL policy time-barred) Hubbard v. Tramelli, 12/24:1; (claim by animal cruelty defendant time-barred) Polejewski v. Lulf-Sutton, 12/31:1
Limited representation: (contract, bad faith, deceit claims against limited representation attorney in suit by prisoner against former counsel properly rejected on summary judgment) Miller v. Begley, 10/1:1
Student prosecutor: (civil claims against 3L intern and CA in prosecuting criminal case rejected) Spreadbury v. Wetzsteon, 6/4:5
*Banking, Commercial Paper
Debt collection/payday loans: (collection agency may not charge bad check penalties for checks assigned by payday lenders when lenders prohibited from charging such penalties (2007 Act), remanded to determine if illegal pursuit of penalties constituted intentional violation of Act justifying award of penalties, fees, costs to borrower (ignorance of law no defense)) Credit Service v. Crasco, 9/10:1; (state law libel/credit libel/ CPA claims against credit card company for referral of unauthorized charges to collection agency not preempted by FCRA) Curtis v. Citibank, 10/8:1
Money order: (typed name on money order did not constitute “signature,” but whether insured submitted “payment” depends on whether unsigned money order would have been honored, not mere fact of no signature, as money order is similar to check, summary judgment to insurer improper based on invalid payment for policy reinstatement around time of house fire in light of dispute as to whether money order would have been honored if presented) Smith v. FUMI, 9/3:3
*Bankruptcy
Discharge: (debt discharged in Ch. 7 properly reduced from share of trust upon trustor’s death under pre-discharge trust terms) Marjorie Q. Ward Revocable Trust, 12/10:1
Exemptions: (certified question from Kirscher accepted as to ATV sporting good exemption) Holzapfel, 4/23:1; (ATV is “motor vehicle,” not “sporting good”, answer to certified question by Kirscher) Holzapfel, 10/15:2
Property claim: (certified question to Bankruptcy Court whether Ch. 12 plan which does not provide for secured creditor to retain interest in property, and whose claim is valued at zero, has effect of eliminating any claim in the property) Stiles v. Simonton, 7/2:6
*Bench Judgments
Advertising contract: (advertiser who furnished airport banner responsible for maintaining/removing it, breached contract by not removing it, marketing company awarded $3,200 past due rent, $4,173 fees) Travel Marketing v. Missoula Maulers, 1/29:4
*Civil Procedure
60(b)(6): (lawyer’s failure to present evidence of value of house resulting in adoption of $22,423 tax notice amount merited 60(b)(6) relief) Orcutt, 6/18:3
Agister’s lien: (properly asserted, foreclosed, conversion claim properly dismissed with sanctions, appeal sanctions denied) Cox v. Seiffert, 4/23:1; (Montana statute unconstitutional in not providing adequate pre-deprivation due process opportunities, summary judgment for County recommended denied in claim following sale of mobile home
Amendment: (amendment to add tort claims properly denied as untimely) Kershaw v. MDT, 7/23:1
Assumption of risk: (Plaintiff failed to preserve objection to assumption of risk defense to trench fall strict liability claim, acquiesced in availability of the defense, 60/40 defense verdict affirmed) Bell v. Cummings, 6/4:1
Class action: (cross-jurisdictional class action tolling rule adopted) Stevens v. Novartis Pharmaceuticals, 1/8:2; (1992 class action settlement/judgment intended only to release drain tile claims, tile plaintiffs had no knowledge in 1992 of contamination claims which later gave rise to separate suit, general release would be unconscionable, interpreting drain tile release to bar unrelated claims would not satisfy class action reasonableness or members’ due process, Defendant’s motion to enjoin State Court contamination claims denied, motion to enforce judgment denied) Daniels v. Anaconda Minerals, 3/19:5; (5-year statute (not 8-year) applied to retroactive application of Ahlborn in class action alleging excessive 3rd-party Medicaid reimbursements, retroactive to all class members because “case” is the pending case, not administrative claims of members, statute of limitations may be asserted against individual members’ claims, DPHHS required to compile all ordered data on class members’ claims, no interest against DPHHS until 2 years after judgment, “third party” includes all other medical assistance including private insurance and recipient’s UM/UIM, “made whole” inapplicable in light of Ahlborn) Blanton v. DPHHS, 5/28:2; (RDV not type of Ridley claim that must be paid in advance, UTPA claim for RDV not ripe for named representative, no typicality for class action) Hop v. Safeco Ins., 9/3:6; (Petitioners challenging cyclical ag reappraisal did not fail to commence action as class action despite lack of artful pleading for Rule 23(a) certification, but proposed class so ambiguous as to require mini-trials to identify, certification denied, also lack of commonality, typicality, adequate representation, failure to satisfy 23(b)) Lucas v. DOR, 11/12:6; (Rule 23(f) class certification/settlement appeal time amended to resolve conflict with MRAP, MRAP 6(3)(d) amended to include appeal of denial of class settlements, error in Rule 45(a) corrected) Revisions to MRCivP 23(f) and 45(a)(1)(A)(iv), Amending MRAP 6, 12/3:5
Compulsory counterclaim: (mobile home park seller not required to assert nonjudicial foreclosure as counterclaim in prior negligent nondisclosure action brought by the buyer which resulted in a defense verdict, buyer, as Plaintiff in 2nd case alleging that note was unenforceable because seller failed to counterclaim for enforcement, cannot assert fraud or compel seller to commence judicial action so he may raise affirmative defense) Deschamps v. Treasure State Trailer Court, 6/11:3
Construction lien: (properly found valid, $15,264 breach of contract verdict affirmed) Loken Builders v. Boyce, 2/19:1; (firm’s lien attached day it commenced work for buy-sell “contracting owner” of subdivision property, has priority over bank’s later mortgage (even if purchase money)) Gaston Engineering v. Oakwood Properties and Yellowstone Bank, 3/19:1; (one entity was “contracting owner” of ranches, another was “agent” for purpose of contracting for improvements, established to have no on-going assets against which liens or judgments could be levied, lien improperly held invalid, $1,632,961 judgment and lien foreclosure reinstated) Anderson Const. v. Monroe Property LLC, 6/18:2, (interest clarified), 7/23:2; (substitution of bond for subcontractor’s lien did not constitute discharge of lien entitling owner to attorney fees) AAA Const. v. CLR Properties, 10/29:1
Default: (default judgment against mortgage company set-aside properly denied, no attorney fees under indenture which provides for fees only in relation to loan default while complaint alleged negligence/contract claims for company’s role in closing where deed omitted buy-sell’s removal of life estate) Hoff v. Countrywide Home Loans, 6/11:2; (default judgment properly set aside based on lack of notice and attorney’s false assurance of no default during negotiations) Benintendi v. Hein, 12/17:1; (no abuse in setting aside entry of default) Carlstrom v. Title Cash, 2
Damages: (JML should have been granted on claim for restoration damages for burned trees where Plaintiff presented undisputed evidence of temporary nature of injury and “reasons personal” for seeking to restore property and Defendant only argued that damage to trees will naturally restore, $250,000 verdict reversed, remanded for new trial on claim of $1,050,000 to restore) Lampi v. Speed, 9/17:2
Discovery: (adverse inference sanctions granted for Defendants’ failure to produce discovery as ordered in wrongful death case) Parrick (PR of Jerry Parrick v. FedEx Ground Package System, 1/22:6; (late-disclosed metallurgical expert’s report in collapsed ladder case stricken, expert excluded as witness, based on Defense counsel taking unfair advantage of Plaintiff and Court) Rafter v. Sojitz, 1/29:6; (motion to compel granted, motion for protective order granted and denied, as to hospital report of “Patient X” who died of infection following myelogram in case in which Plaintiffs’ decedent died of Strep B infection following myelogram) Beehler v. St. Vincent Healthcare, 2/26:5; (document in possession of non-party hospital concerning delivery of twins discoverable in suit against sister hospital, whether or not admissible at trial it may lead to admissible information, motions to quash subpoena denied, document ordered disclosed under protective order) Hollow v. St. James Healthcare, 3/5:4; (supervisory control/stay denied as to RR’s objections to Sandefur’s reversal of special master’s FELA discovery rulings) BNSF v. Sandefur, 3/26:1; (order by H. Brown allowing “IME with contrast” to determine whether seizure disorder may be attributable to non-MVA cause reversed on supervisory control) Malloy v. Brown, 4/9:2: (Plaintiff may depose out-of-state corporate employees telephonically but court reporter must be with the witnesses, fees/costs denied) Schneider v. Jo-Ann Stores, 4/9:7; (default judgment properly denied as sanction for routine destruction of Narcotic Count Record (but issue properly framed as discovery sanction, not tort of spoliation) Willson v. Addison, 8/6:1; ($21,967.50 fees awarded to Plaintiff jointly & severally against Defendants and counsel for inadequate discovery responses in Indian casino construction case, including against local counsel over claim of minimal involvement in discovery contrary to LR requirement of active involvement) Markovich Const. v. Brown, 8/20:6; (subpoena “revision” order merely undid order quashing subpoenas, no need for new subpoenas, non-party entity in civil contempt for failing to appear at deposition with documents identified in subpoena duces tecum, claim of imperfect service not valid for denying subpoenas, purge hearing set, failure to purge could result in incarceration, attorney for entity vexatiously multiplied proceedings by advising not to appear with documents, responsible for excess fees, costs, non-party witness appeared but subpoena did not command him to bring anything with him, so not in contempt, additional contempt in producing 1% of documents found including redacted pages, contrary to order to produce all documents, unredacted, non-party witness in contempt for causing paralegal to redact, attorney for non-party witness in contempt for advising bringing redacted documents without seeking protective order and for vexatiously multiplying proceedings, purge requires producing all documents unredacted, stay of trial to challenge contempt in Supreme Court denied, but contemnors not precluded from petitioning for cert, motion for protective order by new attorney for non-party witness but signed by another attorney challenging contempt and purge conditions and raising issues already addressed in violation of Rule 11, City’s motion to compel mediation denied as lawyers already have responsibility to negotiate, Plaintiff contends City has refused to produce discoverable materials in preparation for negotiation, City ordered to pay $13,894 sanction fees NOW, not withhold pending any appeal, motion to refer to different judge denied, failure to purge may include jail) Overfield v. Great Falls, 9/17:5; (supervisory control of discovery orders by Deschamps in rollover ejection case denied) Knoepfel v. Deschamps, 11/12:2
Dismissal: (no excusable neglect by brother relying on sister to handle mortuary negligence litigation in not responding or appearing after Defendant’s notice of removal of Plaintiffs’ attorney and show cause hearing sent to sister’s wrong address, brother’s claim properly dismissed with prejudice (dismissal of sister’s claim set aside due to the mailing error) Puhto v. Smith Funeral Chapels (Smith-Olcott Funeral Chapel), 11/12:1; (dismissal proper for failure to prosecute condemnation challenge over claim that private counsel not authorized to represent City and 1-sentence motion not supported by brief) Frates v. Great Falls, 12/17:4
Experts: (Plaintiffs’ experts as to manufacturing & design defects and duties of importers/wholesalers qualified under Rule 702 and Daubert in collapsed ladder case, motion to exclude for failure to satisfy Rule 26 denied) Rafter v. Sojitz Corp. of America, 4/23:6
Foreign judgment: (judgment to collect attorney fees in Texas divorce proceeding properly given full faith & credit) Hamilton v. Duffy, 7/9:2
Injunction: (City followed proper procedures to enjoin construction without filing complaint and serving summons, no right to jury on purely equitable application for injunction) Great Falls v. Forbes, 2/5:1; (preliminary injunction improperly went far beyond relief requested by State, required RR to resume per-car payments to short-line operator contrary to arbitration award) State v. BNSF, 5/21:1
Interest: (prejudgment interest at statutory 10% properly awarded, but bank interest on funds deposited with Court improperly awarded in addition) Estate of Donald v. Kalispell Regional Medical Center, 7/16:1; (interest clarified following reinstatement of $1,632,961 arbitration judgment and lien foreclosure) Anderson Const. v. Monroe Property LLC, 7/23:2
Intervention: (intervention of right improperly denied conservation groups supporting snowmobile restriction) Citizens for Balanced Use v. Montana Wilderness Association, 8/6:5; (motion to intervene to enforce lien untimely following dismissal of case, firm may still seek arbitration or sue to enforce lien) Rhoades v. Murray, 12/3:4
Joint & several liability: (objection to “and/or” instruction as to 2 defendants inadequate & untimely after business venture case tried on joint & several theory, $185,000 judgment affirmed) Sands v. Universal Casettes, 7/16:4
Judicial estoppel: (abandoned claim that Explorer windows allowed fatal ejection in rollover may not be resurrected for punitives, isolated evidence as to the glass as it relates to development of the safety canopy may possibly be presented at trial) Stokes v. FMC, 2/19:5
Jury: (verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender driver) United Tool Rental v. Riverside Contracting, 9/3:1
Mootness: (Commission’s failure to act within statutory time rendered gravel pit zoning challenge moot, no “capable of repetition” exception because whether protest provisions of §76-2-205(6) constitute unconstitutional delegation of legislative authority to private parties never ripened) Gateway Opencut Mining Action Group v. Gallatin Co. Commission, 8/27:2
Order of protection: (properly entered forbidding harassing) Cozino v. Jones, 2/12:3; (acts in Montana and Ohio satisfy “repeatedly” requirement of underlying stalking statute, sufficient evidence to support permanent order, Respondent not punished for exercising right to defend his liberty) Jordan v. Kalin, 7/2:3; (may be continued or terminated notwithstanding petitioner’s desires, remanded for hearing on merits of motion by ex-husband to terminate FOP obtained by ex-wife) Albrecht v. Albrecht, 12/24:4
Protective order: (challenge in $5 million intellectual property arbitration case barred as untimely and by res judicata) Wallade v. Hayes, 12/10:1
Punitives: (improperly awarded in form of attorney fees without findings on all statutory punitives factors) Osman v. Cavalier, 4/23:2
Real party: (suit in name of “trustee” for non-existent trust properly dismissed for failure to join “trustee” as plaintiff in individual capacity, trespass/damage claims from road construction not frivolous, $75,000 fees improperly equitably awarded to “basically innocent Defendants”) Carter Boehm, Trustee v. Cokedale LLC, 9/24:2
Relief from judgment: (Rule 60 motion challenging final estate decree for lack of notice and hearing filed 124 days after judgment was not “within a reasonable time,” properly deemed denied) Estate of Snyder, 10/22:2
Res judicata: (challenge of ARM proscription against fitting dentures over implants barred by res judicata of 2006 decision upholding constitutionality of BOD’s partial denture regulation of denturists) Wiser v. Board of Dentistry, 4/2:2; (supervisory control of Jones denied as to stay of judicial review of wage claim ruling pending case alleging fraud by employee, disputed res judicata effect of administrative ruling) Nedens v. Jones, 7/2:7; (zoning denial judicial review barred by voluntary dismissal with prejudice of factually identical petition filed 7 days after filing of dismissed petition, petitions did not involve “split claims”) Touris v. Flathead Co., 7/16:5; (challenge in $5 million intellectual property arbitration case barred as untimely and by res judicata) Wallade v. Hayes, 12/10:1
Sanctions: (Plaintiff properly found in civil contempt of protective orders, assessed $9,835 fees) Kortlander v. Nightengale, 4/9:3; (cert denied as to McLean’s imposition of Rule 11 sanctions, granted as to finding of contempt with fine or incarceration) Davenport v. McLean, 7/2:7; (no reasonable inference from minimal factual allegations that Defendant liable for civil conspiracy, tortious interference with contract & inheritance, undue influence, fraud, breach of fiduciary duty, killing James LeFeber, intentional spoliation, dismissed with prejudice, attorney fees to Defendant from vexatious Claimant) Scottrade v. Davenport, 10/29:7; (Plaintiffs properly sanctioned for abusing Defendant and Defendant’s counsel in depositions and discovery and abusing the system) Polejewski v. Metzger, 12/17:2
Service: (complaint against school district defendants properly dismissed for improper service) Roberts v. Lame Deer School Dist. Trustees, 4/2:3; (equitable tolling denied for FELA complaint where 7 years elapsed between injury and service on 2nd complaint after 1st complaint dismissed for untimely service) Macioroski v. BNSF, 4/2:5
Settlement agreement: (oil wells settlement agreement properly enforced in favor of Defendant, 2 years “reasonable time” for money payment, Defendant not obligated to deliver title documents as condition to Plaintiff’s payment, payments due regardless of whether Plaintiff sells wells, claim that Defendant filed liens to interfere with sale properly rejected) Summer Night Oil v. Miocene Oil & Gas, 8/27:1; (emailed MOU constitutes written, signed, enforceable settlement of agreement reached at mediation of ranchers’ claims of damage from Colstrip plants, attempt by one ranch to repudiate following advice of tax consequences rejected, parties ordered to complete settlement set forth in MOU & map including global release, conveyance of title, 99-year lease, instrument providing Plaintiffs right to purchase the land for $1 upon companies’ decision to convey the property when they cease operating)
Settlement release: (1992 class action settlement/judgment intended only to release drain tile claims, tile plaintiffs had no knowledge in 1992 of contamination claims which later gave rise to separate suit, general release would be unconscionable, interpreting drain tile release to bar unrelated claims would not satisfy class action reasonableness or members’ due process, Defendant’s motion to enjoin State Court contamination claims denied, motion to enforce judgment denied) Daniels v. Anaconda Minerals, 3/19:5
Sovereign immunity: (state sovereign immunity not waived by removal of case with FMLA claim (1st impression in Montana and 9th Circuit), supplemental jurisdiction retained over state-law claims) Wood v. DOR, 12/3:8
Standing: (individuals and association have standing to challenge proposed subdivision) Heffernan v. Missoula, 5/14:1; (no standing by shareholder to sue on behalf of corporation over industrial coffee urn, failed to amend to include dissolved corporation, no standing to sue for breach of contract to which neither he nor Defendant was a party) Weaver v. Advanced Refrigeration, 7/30:2
Statute of limitations: (cross-jurisdictional class action tolling rule adopted) Stevens v. Novartis Pharmaceuticals, 1/8:2; (Montana’s 3-year general PI statute applies in §1983 claim of failure to give credit for jail days, accrued when prisoner knew of injury (failure of MSP to release) more than 7 years prior to suit, not at time of records official’s deposition explanation of calculation, claims time-barred) Cheetham v. Swanson, 1/15:7
Survival: (not enough time between collision and fatal blow to head after partial ejection for survival claim against vehicle manufacturer for inadequate restraints, pre-impact fright claim against manufacturer not saved by claims of secondary collision or joint & several liability with other driver) Stokes v. Ford Motor, 5/28:4
Vacatur: (joint motion to vacate novel foreclosure rulings as condition of settlement denied, federal law relied on in first impression issue) Pomranky v. Peterson, 1/29:3
*Civil Rights
§1983: (no protected interest in county road approach permit despite belief that application had been approved and Commissioners’ past leniency in granting permits, due process claims properly rejected, fact issues preclude summary judgment on “class of one” equal protection claim against Commissioners, no qualified immunity for Commissioners) Diehl v. Northwest Trustee Services, 4/2:6; (deputy had reasonable suspicion for investigatory stop of man 200 from single-vehicle MVA in residential area at 1 a.m. and walking away after man at scene claimed responsibility, Terry stop became arrest the moment deputy drew taser, triable issue as to whether deputy unreasonably violated established law when he arrested man, use of taser as alleged was excessive force since no force was reasonably necessary, no qualified immunity as to excessive force because tasering to effectuate false arrest was use of force where none was necessary and no reasonable officer could have concluded otherwise, summary judgment for deputy as to illegal seizure, denied in all other respects) Jackson v. Johnson, 7/23:5; (alleged misuse of state execution statute by law firm resulting in Sheriff facilitating attachment of property does not implicate state policy, cannot be attributed to the state to support §1983 “color of state law” claim, claim dismissed) Salminen v. Morrison & Frampton, 8/6:6 (correction 8/27:8
*Conservatorship
Disabled adult child support: (father properly required to provide support in conservatorship proceedings (1st impression)) MAS, 12/24:3
Fiduciary duty/negligence: (expert not required to prove breach of fiduciary duty/negligence by CPA conservator because allegations did not involve CPA skills, error in dismissing claims for lack of expert harmless because Plaintiff failed to show breach of even prudent person standard, conservator substantially complied with order, properly discharged without liability over claim that he was removed because of violation of duties, conservator’s attorney fees properly paid from conservatorship assets over claim that fees were used to defend conservator against allegations of wrongdoing) JR, 4/23:1
*Constitutional Law
Citizen participation: (critic’s rights to assemble, speak, participate violated by procedure that limited her to speak on animal shelter contract only after Commission voted, 3-minute rule at end of meetings applied only to items not on agenda, officer committed battery, false arrest in removing citizen, handcuffing, placing in room absent violation of penal statute or City ordinance, City not immune from constitutional violations) Overfield v. Great Falls, 7/9:5
Religious exercise: (HB 119 (2009) subjecting Hutterites to WCA unconstitutional (no secular purpose, primary effect to inhibit free exercise, excessive entanglement), also violative of equal protection) Big Sky Colony v. DLI, 10/1:4
Right to know: (due process letter detailing investigation of credit card misuse by PD administrative employee disclosable) Billings Gazette v. Billings, 12/3:3
*Contracts
Concrete subcontract: (subcontractor’s bid constituted binding contract, issues of acceptance, interlineation counter-offer, additional terms, performance, modification (delivery, oral agreement, assent), material breach resolved against general contractor, $88,721 lien amount, $23,318 attorney fees awarded) AAA Const. v. CLR Properties, 10/29:1
Coffee contract: (no standing by shareholder to sue on behalf of corporation over industrial coffee urn, failed to amend to include dissolved corporation, no standing to sue for breach of contract to which neither he nor Defendant was a party) Weaver v. Advanced Refrigeration, 7/30:2
House remodel: (construction lien properly found valid, $15,264 breach of contract verdict affirmed) Loken Builders v. Boyce, 2/19:1
Implied covenant: (supervisory control of Neill as to ruling that breach of implied covenant may be based on agency theory denied) State v. Neill, 11/5:6
Lease/purchase: (tenant/buyers’ breach of contract claims following building fire not viable absent written contract specifying insurance obligations by landlord/sellers, no misconduct or fault by landlord/sellers to support unjust enrichment by insurance proceeds and sale of lot) Hinebauch v. McRae, 11/5:5
MOA: (MOA enforceable, no lack of consent due to duress or menace by lawyer urging resolution or criminal charges, civil suit) Fronk v. Collins, 12/24:3
Plea agreement: (volunteer caretakers who were denied adoption of certain seized dogs not 3rd-party beneficiaries of plea agreement providing for transfer of dogs to rescue organization for adoption because agreement terminated upon sentencing, incidental beneficiaries have no right to enforce contract) Ronning v. Yellowstone Co., 4/30:3
*Copyright
Infringement: (long-standing 9th Circuit precedent that presumes irreparable harm in copyright infringement case upon showing of likelihood of success effectively repealed by recent Supreme Court decisions (“Elvis has left the building.”), reliance on Elvis Presley to grant injunction based on presumption of irreparable harm upon showing of likelihood of success reasonable but erroneous, remanded for findings as to likelihood of irreparable harm) Flexible Lifeline Systems v. Precision Lift, 8/27:6
*Corporations
LLC dissolution: (arbitration compel properly denied where LLC dissolution sought pursuant to statute and no reference in OA to judicial dissolution (first impression)) Gordon v. Kuzara, 1/15:1
*Courts
Acronyms: (documents stricken for failure to comply with orders to use only commonly understood acronyms, to be re-filed in compliance) Wildlands CPR v. FS, 9/24:8
City court: (petition by former JP for writ of prohibition challenging establishment of City Court with CA’s legal assistant as Judge denied) Motta v. Philipsburg, 2/12:3
Contempt: (Plaintiff properly found in civil contempt of protective orders, assessed $9,835 fees) Kortlander v. Nightengale, 4/9:3; (cert denied as to McLean’s imposition of Rule 11 sanctions, granted as to finding of contempt with fine or incarceration) Davenport v. McLean, 7/2:7; (emergency 11th-hour motion for temporary stay of detention of attorney-designee of non-party in citizen-City Commission discovery dispute received just before 5 p.m. day of warrant (Friday), stayed at 7:45 p.m.) Animal Foundation of Great Falls v. Irigoin, 9/24:1; (award by Irigoin of $90,000+ fees/costs for discovery contempt stayed) Animal Foundation of Great Falls v. Irigoin, 10/15:1; (Judge properly decided contempt case without referral to another judge, defiance of discovery orders warranted sanctions, but board member should not have been ordered arrested, particularly without bail, when major obstructive decisions were made by the board, protective order properly denied, but attorney should not have been Rule 11 sanctioned for respectful motion explaining why further redactions warranted, $90,000 fees/costs awarded jointly/severally for contempt overbroad, should be limited to parties in contempt and for time strictly related to contempt, cert granted, Irigoin affirmed, reversed) Animal Foundation of Great Falls v. Irigoin, 11/26:2
Findings: (husband’s testimony to amount paid wife improperly listed in decree as “finding,” no basis in transcript for statement) Marriage of Schroeder, 2/26:2; (oral f&c sufficient for review even though written order contained no specific f&c) Marjorie Q. Ward Revocable Trust, 12/10:1
Judge disqualification: (intent to reject plea bargain not grounds for disqualification of Newman) State v. Robuck, 1/15:4; (disqualification of Curtis for bias or prejudice denied) State v. Winter, 1/15:5
Judge substitution: (When sentencing judge recuses from postconviction proceedings parties may move for substitution pursuant to §3-1-804, State properly allowed substitution after recusal, but Petitioner should have been given opportunity to move for substitution after missing deadline since interplay between 3-1-804 and 46-21-10 was unsettled when he objected to State’s substitution) Patrick v. State, 7/30:3; (sellers’ attorney in failed property sale who was added to buyer’s complaint against sellers should be deemed adverse to sellers, irrelevant whether he is 3rd-party or subsequently joined defendant, timely moved for substitution after service of amended complaint) Ratliff v. Pearson, 10/1:1
Judicial bias: (claims of bias/ex parte by Judge following conversion of jury trial to bench trial and award of damages arising out of mining agreement rejected, but remanded for clarification of judgment) Steele (PR of Remior) v. Robertson, 11/12:2; (no evidence of bias that would require judge disqualification) Cini, 12/10:2
Judicial conduct: (tribal chairman not “elective public office,” JP not required to forfeit position to run for chairman) JSC v.Not Afraid, 1/22:1
Judicial records access: (public has qualified common law right of access to materials filed in support of search warrant applications after investigation terminated, restriction on posting applications on web sites improper without balancing public’s interest against countervailing concerns (first impression)) US v. The Business of the Custer Battlefield Museum & Store, 10/22:7
Jurisdiction: (age/disability discrimination judicial review claims against RR properly removed based on diversity since state agencies only nominal defendants with no stake in outcome, foreign RR only “real party”, jurisdiction amount met by claims in excess of $75,000 over agencies’ claim of 0 per agency denial of claim, no basis for Burford abstention, no 11th Amendment immunity for “non-party” state agencies, agencies dismissed, motion to remand denied) Reinhardt v. MHRB, 1/1:8; (Court not deprived of “jurisdiction” after 14-day deadline in §49-2-505(3)(c), may still consider equitable, constitutional principles) BNSF v. Cringle, 1/8:6; (Wisconsin auto insurers’ applying to do business in Montana, appointing agent for service, insufficient for personal jurisdiction) King v. American Family Mutual Ins., 2/5:4; (judgment following remand not final until post-judgment order setting amount of fees, did not trigger Rule 59 deadlines) Bitterroot River Protective Association v. Bitterroot Conservation Dist., 4/2:1; (jurisdictional argument more properly framed as due process) Watson v. West, 4/9:1; (discretionary jurisdiction declined over declaratory indemnity action involving coverage dispute between Illinois and Ohio insurers as to Texas MVA involving Montana trucking company and Texas state court litigation resulting in $1 million settlement with decedent’s estate, choice of law would require application of unsettled Montana law following confusion wrought by Tucker, abstention also warranted to discourage forum shopping) Great American Assurance v. Discover Property & Casualty Ins., 5/14:5; (Washington Federal Court declines jurisdiction over dec action brought by insurer which involves same issues as in Montana State Court MUTPA action brought by grocery chain ESOP plaintiffs) National Union Fire Ins. of Pittsburgh v. Davis, 6/4:7; (Montana jurisdiction improperly declined over Phoenix armored vehicle maker that sold to Montana business and had repair contracts with other Montanans, testimony from reversed default judgment properly presented on appeal of jurisdiction ruling) Grizzly Security Armored Express v. The Armored Group, 6/18:1; (Appeal of denial of substitution of McKinnon in consolidated cases deprives District Court of jurisdiction in both cases, precluding continued discovery and pre-trial motions by Defendants in 1st case) LaPlante v. Town Pump, 10/15:2; (Federal Court has discretion to hear coverage dec action brought by insurer, but defers to later-filed State Court action by estate of insured with same issues and basic question (whether insurer wrongfully denied benefits), dismissed under Wilton/Brillhart) Central United Life Ins. v. Estate of Gleason, 12/24:8; (claim of lack of jurisdiction because crimes in Fairview and Sidney were committed in “Indian Country” properly rejected) LeMay, 12/31:3
Justice court: (former JP’s claims against Commissioners for reducing office to part-time and reducing pay prior to application to succeed full-time JP properly rejected) Motta v. Granite Co. Commissioners, 6/4:4
Privacy rules: (suspended until electronic filing of documents available) Matter of Temporarily Suspending the Rules for Privacy & Public Access to Court Records, 9/24:3
Public access: (to video depositions in FDCPA case ordered) Cole v. Portfolio Recovery Associates, 1/15:6
Summary judgment: (fact issues as to ATV rollover in construction zone improperly resolved on summary judgment, ATV tracks did not constitute “irrefutable physical evidence” where no imprint or photos were provided with analysis to determine direction, but only witness recollection and diagrams) Fasch v. Weeden Const., 10/22:1
Vacation/changed order: (vacating order denying relationship to DNA father, subsequently granting relationship, improper under Rule 59(b), §40-6-118, judge may not change an order simply because he has changed his mind) Marriage of Johnson, 10/29:3
Venue: (Montana venue analysis for presumed/actual prejudice reconciled with federal, abuse of discretion standard retained, venue change properly denied based on claim of presumed prejudice to Defendant charged with attempted deliberate homicide in bar fight (subsequently convicted of aggravated assault)) Kingman, 11/12:3
*Crime, Criminal Procedure
Aggravated assault: (Judge within discretion in cutting off repetitive voir dire of panelists’ understanding of “protracted injury”) Grant, 5/21:5
Aggravated sex abuse: (life sentence affirmed) Longee, 3/5:6
Appealability: (probable cause challenge waived by nolo plea without reserving right to appeal, probable cause not jurisdictional issue) Spreadbury, 8/6:4
Arson: (venue change based on pretrial publicity properly denied, no double jeopardy by commitment proceeding and criminal trial based on same facts) Sellers, 4/30:5
Assault on minor: (conviction reversed for failure to establish Defendant’s age) Nickerson, 6/4:5
Bank fraud: (insufficient evidence that one bank was federally insured at time of false statements, sufficient evidence that another was at time of fraud, no such crime as aggravated identity theft in furtherance of bankruptcy fraud, convictions affirmed, reversed) Horob, 2/26:7
Brandishing firearm: (although whether firearm was “brandished” is sentencing factor, jury properly instructed on brandishing (both sides wanted instruction) based on statutory definition (merely display) rather than dictionary definition (wave or flourish menacingly or display ostentatiously), conviction of robbery affecting commerce (drug transaction) and use of firearm during crime of violence affirmed) Lettiere, 5/28:6
Certiorari: (9th Circuit order recalling mandate did not restart clock for petitioning Supreme Court for cert, petition untimely, §2255 motion untimely, but Defendant may be entitled to equitable tolling if he can establish that 9th Circuit Clerk provided misinformation as to filing time, dismissal of 2255 motion by Haddon vacated) Buckles, 7/9:6
Child sex abuse: (jury properly instructed on conduct and fact and not circumstances in child porn case, conviction affirmed) Hovey, 1/29:2
Child witness: (provisions for 6-year-old witness to testify via audio-visual constitutional, properly applied, 4-year-old properly precluded from interview by Defendant or testifying at trial) Stock, 6/18:6
Community caretaker: (jurisprudence on “seizure” in context of welfare check reconciled, driver was temporarily reasonably “seized” while officer made contact to inquire about well-being of occupants of car that abruptly stopped on remote road at night, caretaker doctrine properly supported by objective, specific, articulable facts, although officer properly admonished for “extreme” practice of checking everyone stopped on the side of a road, motion to suppress DUI evidence properly denied) Spaulding, 9/10:4
Confrontation: (protected by video deposition of pregnant DNA expert unable to travel rather than continuance of trial) Norquay, 3/5:1
Counsel waiver: (request by homicide defendant not unequivocal, properly denied, ineffective assistance claims more amenable to postconviction) Hamby, 12/17:6
Deliberate homicide: (confrontation rights protected by video deposition of pregnant DNA expert unable to travel rather than continuance of trial, Allen “dynamite” instruction after 7 hours deliberation not objectionably coercive, but MPJIC 1-121 revised to eliminate “final test” language, instruct to take as much time as needed, prosecutorial misconduct claim not reviewed for plain error, conviction affirmed) Norquay, 3/5:1; (evidence of 3rd-party sexual relationship with victim properly excluded) Foster, 7/23:3; (wife’s testimony as to observations of husband at time of murder and communications accompanied by threats toward wife not barred by spousal privilege, although 2009 version of §26-1-802, in effect at time of in limine motion, should have been applied rather than 2001 (based on murder occurring in 2002), no prejudice by counsel’s off-hand comments about lack of preparation in examining wife, ineffective assistance not shown, Judge should have inquired into post-trial motion for new lawyer, but remand unnecessary because Defendant did not allege total lack of communication or that lawyer unable or unwilling to represent him at sentencing, conviction affirmed) Edwards, 9/10:3
Defendant restraint: (Defendant improperly shackled without finding of last resort, but record inadequate to conduct harmless error analysis, remanded for hearing as to harmless error) Hartsoe, 8/13:3
Double jeopardy: (no double jeopardy by commitment proceeding and criminal trial based on same facts) Sellers, 4/30:5; (State Court incest prosecution not double jeopardy vis-à-vis federal child pornography sentence under controlling case law, counsel not ineffective for not raising double jeopardy, postconviction petition properly dismissed) Heddings, 10/1:3
Drugs: (tail light stop properly enlarged by driver’s behavior, search of fanny pack during stop illegal but meth would have inevitably been discovered in jail inventory search based on pepper spray PO violation, suppression properly denied) Pearson, 3/26:4; (dismissal of methadone in syringe following conviction of meth residue on spoon properly denied over claim of same transaction, where both found in same bag but syringe not tested until later) Kopp, 6/18:5
DUI: (ineffective assistance in not objecting to uncertified PBT and no HGN expert not harmless, conviction reversed, remanded for retrial) Gieser, 1/29:2; (finding that driver straddled center of rural road with no center line provided probable cause for stop, motion to suppress properly denied, 6 months jail all but 2 days suspended for no insurance exceeds statutory maximum of 10 days) Murray, 2/5:3; (pre/post-Miranda statements, Prosecutor’s closing comment, not reviewed under plain error, ineffective assistance more amenable to postconviction, conviction affirmed) Derosier, 2/12:5; (separate implied consent breath tests not unreasonable search & seizure) Nichols, 3/5:4; (particularized suspicion for stopping driver who drove over fog line 3 times near bar closing time, immaterial that driving over fog line not illegal, a defendant’s explanation for conduct has no bearing on whether officer had particularized suspicion, extent to which Morris/Lafferty relied on defendant testimony not discernable, of no precedential value; (federal case improperly relied on to expand business records hearsay exception to encompass record made by entity taking custody rather than entity creating the record, BAC report improperly admitted based on testimony by hospital receiving it, issue preserved for appeal even though parties failed to present developed arguments because Judge sua sponte resolved it, DUI conviction reversed, remanded for new trial) Baze, 3/26:4; (circumstances support particularized suspicion that Defendant was casing business for burglary, officer properly qualified as HGN expert, entire record reviewed, not just undisputed facts and judge’s findings, felony DUI affirmed) Rodriguez, 4/9:6; (challenge to 911 transcripts not preserved by “tactical” general objection to “any evidence that exceeds what was available to the officer at the time of the stop”, particularized suspicion based on citizen reports to 911 relayed to officer) Moore, 4/23:2; (no plain error review of claims of lack of probable cause to arrest at home or untimely Miranda, no review of refusal to grant new trial as Defendant failed to brief, ineffective assistance more properly raised postconviction) Young, 4/30:4; (standard for challenging prior DUIs modified to give defendant heavy burden to establish, with affirmative evidence, that prior conviction infirm, Defendant failed to establish infirmity of 1997 DUI based on alleged ineffective assistance of counsel for failing to raise compulsion defense) Maine, 5/14:4; (community caretaker doctrine properly applied to stop of vehicle on isolated road in early morning) Vaughn, 5/14:4; (officers properly found to have responded to 911 call to check on welfare of driver slumped over with engine running and lights on on cold night, prior DUI properly found not infirm over claim that Defendant had been tried in absentia without notice, felony DUI Defendant properly sentenced as PFO) Burns, 7/23:3; (continuance motion first day of trial based on dispute as to police video properly denied, both sides sanctioned for failure to comply with discovery & omnibus orders by excluding each side’s video evidence, felony DUI Defendant properly sentenced as PFO to 40 years at MSP, 20 suspended) Couture, 7/23:4; (BAC evidence incorrectly suppressed based on Gieser dicta which erroneously referred to weekly certification of breath devices) Johnston, 8/13:4; (circumstantial as well as direct evidence permissible to establish infirmity of prior DUIs, but defendant must show affirmatively that constitutional right was violated, more than ambiguous or silent record, “suspect” record insufficient to rebut presumption of regularity, lack of evidence of validity not proof that conviction invalid, Defendant failed to establish that prior DUIs were infirm, evidentiary hearing within discretion of judge after prima facie showing that challenged conviction invalid, dismissal of felony DUI affirmed, battle need not have been fought had city judges maintained clear paper trail) Chaussee, 8/27:4; (sufficient evidence that driver arrested after he went into truck stop store and stuffed Cheetos into his mouth had been speeding and in control of vehicle while under influence) Stambaugh, 10/22:4; (Defendant not deprived of fair trial by Prosecutor’s comments in voir dire and closing, convictions based on overwhelming evidence) Staebler, 10/29:4; (access to Intoxilyzer trade-secret code for accuracy analysis properly limited to review in Kentucky, subpoena for Intoxilyzer information from Forensics Div. properly limited) Peters, 11/5:6; (driver reported by citizen to be possibly drunk in store parking lot properly questioned and arrested outside his home) Peters, 11/5:7; (no affirmative evidence of invalidity of prior DUIs, 4th-DUI conviction affirmed) Chesterfield, 11/12:4; (particularized suspicion to stop vehicle that repeatedly drifted onto centerline at 1 a.m. Saturday) Cameron, 11/19:5; (hearsay rule not applicable to breath test foundation, State not required to demonstrate that field certifications fell within hearsay exception, 4th-DUI conviction affirmed) Jenkins, 11/19:6; (challenge to “infer”/“rebuttable” instruction based on §61-8-404(2) rejected) Peterson, 11/19:6; (1994 DUI infirm because JP allowed counsel to withdraw and convicted in absentia, remanded for re-sentencing of 4th DUI as misdemeanor) Hass, 12/17:5; (illegal U-turn provided particularized suspicion for stop) LeMay, 12/31:3
Endangerment: (admissions supported charge based on abuse of boyfriend’s child and failure to obtain medical care resulting in blindness, Defendant had relationship akin to parent resulting in common law duty to protect child, Judge properly determined that she had duty to summon aid, properly instructed jury to determine whether duty was breached, conviction affirmed) Hocter, 10/22:3; (restitution for lost summer wages due to MVA proper, maximum of 10 years to DOC all but 180 days suspended for endangerment proper in light of past DUIs, failure to apologize not a factor) Dodson, 12/17:5; (no support for claim that harsher sentence imposed because of pending assault charge) McDonald, 6
Escape: (absconding from pre-release center job-search furlough constituted felony escape under 2007 amendment, vagueness challenge not reviewed for plain error, claim of ineffective assistance for not raising vagueness more amenable to postconviction, claim that Prosecutor sought unusually harsh sentence in response to 2 motions to dismiss, petition for supervisory control, rejected) Roundstone, 10/1:2
Felony murder: (sufficient evidence) Main, 6/18:4
Game: (photos of deer carcass taken 3 days after carcass confiscated properly admitted to show quality of meat, expert testimony based on photos properly admitted to show meat not fit for consumption, waste of game conviction affirmed) Wilmer, 5/21:6
Habeas: (position formally adopted that Supreme Court will not consider appeals from district court denial of habeas or treat appeals as original habeas proceeding, original petition for habeas must be filed for consideration by Supreme Court) Thomas, 11/19:7; (habeas not appropriate for delivering prisoners from consequences of their own behavior, DCCF inmate is imprisoned and therefore subject to Parole Board, claim of deprivation of religious and civil rights not amenable to habeas, habeas not alternative to regular appeal, habeas denied) Whalen, 12/24:5
Habitual traffic offender: (full statutory definition of “motor vehicle” properly applied to 4-wheeler, conviction affirmed) Otten, 4/30:4
Immigration: (Mexican illegal denied entry into Canada after being processed overnight and returned to US port never “legally in” Canada and in some form of custody throughout his presence in Canada, properly convicted of being “found in” US following deportation, mid-guidelines sentence reasonable) Gonzalez-Diaz, 1/29:5
Incest: (provisions for 6-year-old witness to testify via audio-visual constitutional, properly applied, 4-year-old properly precluded from interview by Defendant or testifying at trial, Defendant failed to preserve challenge of summary description of pornographic images found on computer) Stock, 6/18:6; (no ineffective assistance based on failure to challenge competency of child witnesses, admission of their hearsay statements, sentence not augmented based on denial of guilt) Howard, 10/15:3
Ineffective assistance: (failure to object to electronic drug surveillance prior to Goetz not deficient representation) Foston, 1/22:3; (claims as to failure to challenge panelist and felony DUI sentence properly denied) Vaughn, 2/12:6; (claim of ineffective assistance for not filing brief more amenable to postconviction) Savage, 2/26:4; (dismissal not required by untimely hearing, rights protected but waived, counsel not ineffective for not moving for dismissal) Lindsey, 3/26:3; (ineffective assistance more properly raised postconviction) Young, 4/30:4; (ineffective assistance claim as to DNA more amenable to postconviction) Wright, 5/14:3; (counsel was ineffective in not moving for dismissal after 6 months following Justice Court mistrial, Defendant prejudiced by DUI conviction in retrial, no reason for postconviction proceeding as “no plausible justification” discernable for failure to file motion, remanded for dismissal of charges and vacation of conviction) Brown, 5/14:5; (trial claims rejected as to employment of psychologist to show coaching of child sex abuse victims, “vouching” by Prosecutor, mother, detective, hallway meeting of child with Prosecutor and mother before identifying Defendant, appeal claims rejected as to failure to raise other acts evidence, alleged conflict by retained lawyer handling both trial and appeal, postconviction petition properly denied) Rogers, 6/11:6; (claim more suitable for postconviction) Kopp, 6/18:5; (claim denied) Kenfield, 7/23:5; (no prejudice by counsel’s off-hand comments about lack of preparation in examining wife, ineffective assistance not shown, Judge should have inquired into post-trial motion for new lawyer, but remand unnecessary because Defendant did not allege total lack of communication or that lawyer unable or unwilling to represent him at sentencing) Edwards, 9/10:3; (claims by child sex abuse Defendant properly rejected) Riggs, 10/8:2; (no ineffective assistance based on failure to challenge competency of child witnesses, admission of their hearsay statements) Howard, 10/15:3; (claims more amenable to postconviction) Hamby, 12/17:6; (claim of ineffective assistance for failing to investigate case or assertions that Defendant was being racially profiled and illegally harassed rejected) LeMay, 12/31:3
Intimidation: (instruction claims not objected to below waived on appeal, ineffective assistance claims raised in reply brief not reviewed under plain error, separate sentences for intimidation and PFO illegal) Johnson, 1/22:3; (claim more suitable for postconviction) Heavygun, 5/28:3
Jury: (Batson challenge to peremptory dismissal of the only 2 Indian panelists, dismissal for cause of another panelist, properly rejected) Chippewa, 1/1:5; (Judge’s readback to jury of officer’s testimony erroneous after “forgetting” to give intended admonition not to place undue emphasis on it, but did not affect substantial rights) Newhoff, 1/22:5; (Allen “dynamite” instruction after 7 hours deliberation not objectionably coercive, but MPJIC 1-121 revised to eliminate “final test” language, instruct to take as much time as needed) Norquay, 3/5:1; (no abuse of discretion to order deadlocked jury to deliberate longer rather than declare mistrial) Longee, 3/5:6
Justifiable force: (rulings on victim’s character, force in defense of occupied structure, properly applied under HB 228 (2009), deliberate homicide conviction affirmed) Daniels, 11/19:3; (plain error, ineffective assistance review declined on claim that jury should have been instructed as to result-based definition of purposely and knowingly) Gould, 12/3:6
Miranda: (request to “call my mother to call my lawyer” in context of conversation with officer not unequivocal request for lawyer, Miranda waiver not invalid because of intoxication) Main, 6/18:4
Murder/robbery: (testimony of social worker expert properly limited, felony murder supported by evidence that Defendant intended to take victims’ car when he entered house, convictions affirmed) Has The Eagle, 5/28:7
Negligent homicide: (guilty verdict, hit & run, fatality) Garding, 6/25:6
Nuisance abatement: (order limiting dogs affirmed) Ployhar, 2/12:5; (Judge within discretion in cutting off repetitive voir dire of panelists’ understanding of “protracted injury”) Grant, 5/21:5
Out-of-jurisdiction arrest: (requirements clarified, officer must meet standard for private person, then may follow procedures applicable to officers, officer had grounds for welfare check of car parked at night in “day use only” fishing access, ensuing observations would have justified private person making DUI arrest, dismissal/suppression properly denied) Updegraff, 12/24:4
Outrageous government conduct: (dismissal for outrageous conduct based on belief that Indian was white supremacist and biker gang member properly denied) LeMay, 12/31:3
PFMA: (sufficient evidence to support conviction despite wife’s recantation) Finley, 5/14:3
Plea agreement: (Defendant unreasonably interpreted agreement) Barker, 3/5:6; (agreement not undermined or breached by Prosecutor) McDowell, 4/23:4; (not breached by Prosecutor recommending DOC commitment rather than deferred sentence for stalking based on ambiguous MSH contingent recommendation) Arcel, 11/19:6
Plea withdrawal: (based on claimed duress properly denied) Morrissette, 2/12:6; (properly denied) Lindsey, 3/26:3; (lawyer improperly advised Hispanic of belief that he could not get a fair rape trial because of his ethnicity, Defendant improperly denied request to withdraw plea of guilty to sexual assault) Valdez-Mendoza, 9/10:6; (properly denied over claim that counsel failed to adequately investigate before negotiating nolo plea to endangerment) Farrell, 12/3:6; (withdrawal of nolo pleas properly denied) LeMay, 12/31:3
Postconviction: (petition timely filed when filed with Clerk, operative date not when in forma pauperis motion granted 2 days later, pro se petition improperly dismissed because recitation of facts attached to memorandum rather than petition, leave granted to amend to meet procedural requirements) Nava, 5/21:6; (when sentencing judge recuses from postconviction proceedings parties may move for substitution pursuant to §3-1-804, State properly allowed substitution after recusal, but Petitioner should have been given opportunity to move for substitution after missing deadline since interplay between 3-1-804 and 46-21-10 was unsettled when he objected to State’s substitution) Patrick v. State, 7/30:3; (letters challenging revocation orders construed as postconviction petitions, untimely) Bradley, 12/31:6; (postconviction claim of ineffective assistance by appellate counsel not raising record-based claim of ineffective assistance of trial counsel untimely raising double jeopardy claim fails for lack of prejudice) Dodson, 12/31:7
Prisoners: (MSP psychiatrist’s prescription of different meds than prisoner wanted not cruel/unusual, postconviction properly denied) Wilson, 1/15:3; (Montana’s 3-year general PI statute applies in §1983 claim of failure to give credit for jail days, accrued when prisoner knew of injury (failure of MSP to release) more than 7 years prior to suit, not at time of records official’s deposition explanation of calculation, claims time-barred, case designated as strike for in forma pauperis purposes, any in forma pauperis appeal would not be in good faith) Cheetham v. Swanson, 1/15:7; (habeas not appropriate for delivering prisoners from consequences of their own behavior, DCCF inmate is imprisoned and therefore subject to Parole Board, claim of deprivation of religious and civil rights not amenable to habeas, habeas not alternative to regular appeal, habeas denied) Whalen, 12/24:5
Probable cause: (probable cause challenge waived by nolo plea without reserving right to appeal, probable cause not jurisdictional issue) Spreadbury, 8/6:4
Pro se: (Defendant properly allowed to proceed pro se) Hartsoe, 8/13:3
Prosecutorial misconduct: (claim not reviewed for plain error) Norquay, 3/5:1; (Defendant not deprived of fair trial by Prosecutor’s comments in voir dire and closing) Staebler, 10/29:4; (reference to “animal” who “needs to be caged” inappropriate but played no part in imposition of maximum sentence (constitutional “human dignity” claim rejected)) Kingman, 11/12:3
Psychosexual evaluation: (mandamus and injunction properly denied in challenge of procedures for contesting evaluations) Hirt, 12/31:5
Public defender: (OPD may not be appointed in postconviction until after response to petition and determination that hearing will be held or interests of justice otherwise require appointment, supervisory control of H. Brown and Salvagni granted) OPD v. Brown and Salvagni, 6/4:4
Rape: (Prosecutor may have taken some “license” in interpreting DNA testimony but no evidence that she “knowingly” presented false testimony, conviction supported by strong non-DNA evidence as well, due process claim rejected, ineffective assistance claim as to DNA more amenable to postconviction) Wright, 5/14:3
Return of seized property: (“right to possession” of evidence must be established, burden is on person claiming property (not on State to establish that it should not be returned), return of seized deer mounts following conviction of possession of unlawfully killed wildlife properly denied) Torgerson, 7/30:4
Revocation: (proper for failure to report to PO, submit job logs, begin sex treatment, 2009 sentence overall less than 1997 sentence even with “new” conditions, therefore within 1995 sentencing parameters, sex offender designation improperly increased upon revocation, error to not state reasons for not crediting probation time) Tirey, 1/22:2, (Judge Curtis properly stated reasons for not crediting probation time in revocation sentence, State’s petition for rehearing granted) 3/5:3; (revocation proper based on failure to remain law abiding (jumping bail) even though no conditions in original sentence, under 1985 statute applicable to 1987 offense, new conditions added to 2008 bail jumping, not to 1987 sentence, as made clear in oral pronouncement, remanded to conform judgment) Goff, 1/29:3; (§46-18-203(2) does not allow revocation before or after period of suspension or deferral, contrary opinions since 1983 amendment overruled, remanded for vacation of revocation) Stiffarm, 2/5:2; (Warm Springs criminal patient who was conditionally released to community placement improperly revoked and returned to WS without hearing, independent evaluation, opportunity to challenge, admitted ineffective assistance, habeas granted, ordered released to community placement) Peltier, 2/12:6
Right to be present: (no reversible error in omnibus hearing without homicide Defendant, no prejudice to Defendant, so no determination whether omnibus hearing is “critical stage”) Heavygun, 5/28:3
Right to counsel: (substitution of appointed counsel properly denied, Defendant properly allowed to proceed pro se during parts of trial, with standby counsel) Dethman, 1/15:4; (no abuse in not appointing counsel 9 days before trial when Defendant had fired initial appointed counsel and proceeded pro se for 10 months) Stambaugh, 10/22:4; (bizarre defendant mentally capable of proceeding pro se, Judge balanced right to counsel with right to pro se, failure to present competent defense not valid evidence of incompetent waiver) Wilson, 11/19:3
Sentencing: (separate sentences for intimidation and PFO illegal) Johnson, 1/22:3; (new sentence on remand properly imposed rather than simply striking illegal (weapon enhancement) part of SRD sentence) Lambert, 1/22:4; (inference that pistol in possession of Defendant was found and taken by Defendant from a burglary sufficient for 4-level enhancement of sentence) Newhoff, 1/22:5; (60 months for theft of firearms substantively reasonable) Scarborough, 2/5:5; (Judge lacked authority to amend illegal weapon enhancement out of deliberate homicide sentence, proper procedure for Supreme Court to review and correct illegal part of sentence, motion to withdraw guilty plea properly denied, remanded for striking of enhancement) Petersen, 2/26:3; (no justiciable controversy as to challenge of DOC procedures used to modify conditions of suspended sentence or to conditions of no contact with vulnerable populations and no access to nudity since SIWC Defendant admitted viewing pornography) Savage, 2/26:4; (lifetime supervised release for sex abuse of minor affirmed) Brown, 2/26:7; (24 months following revocation of supervised release affirmed) Jangula, 2/26:7; (prior firearms conviction properly used as basis for enhancement and in calculating criminal history, 68 months for unregistered machine gun substantively reasonable) Byrd, 2/26:7; (open-ended restitution for future counseling of rape victim illegal, remanded for specificity of amount, condition of no contact by Defendant wife with imprisoned Defendant husband passes statutory (rehab/protection) and constitutional (marital rights) muster where wife was controlled by husband to jointly molest his daughter) Guill, 3/5:2; (life sentence for aggravated sex abuse affirmed) Longee, 3/5:6; (Defendant failed to properly brief challenge to §851 information relied on to impose mandatory life sentence) Barker, 3/5:6; (300 months for meth distribution at age 17, career offender designation for Defendant convicted of murder under Montana law, affirmed) Rodriguez, 3/5:7; (60 months, lifetime supervision, for failure to register as sex offender affirmed) Follett, 3/5:7; (State did not breach pre-sentence agreement, re-sentencing for mitigated deliberate homicide on remand from appeal of deliberate homicide conviction not increased sentence, claim of vindictive sentencing for successful appeal rejected) Bullplume, 3/12:2; (lifetime supervised release for child pornography repeat sex offender not cruel/unusual, substantively reasonable) Williams, 3/12:7; (challenge to sex treatment condition of burglary sentence waived by acquiescence, sentence not invalidated by reference to sex offender registration requirement, but offense level improperly imposed for non-sex offense) Holt, 4/9:5; (plea agreement not undermined or breached by Prosecutor, Defendant entitled to credit for time served) McDowell, 4/23:3; (130 months substantively reasonable for sex with sleeping woman) Fasthorse, 4/23:6; (facial challenge to condition of supervised release that Defendant register as sex offender “if required by law” rejected, as-applied challenge not foreclosed) WPL, 4/23:6; (firearm enhancement supported by connection between gun and meth conspiracy, 135 months substantively reasonable even though 120 would also have been reasonable) Zuniga-Sanchez, 5/28:7; (Judge had no discretion to depart downward from 15-year statutory mandatory minimum for attempted sexual exploitation of children absent motion from US, mandatory minimum not violative of 8th Amendment, 180 months affirmed) Wolery, 5/28:8; (sentencing issues waived in plea agreement, appeal dismissed) Davidson, 5/28:8; (psychosexual evaluation properly relied on in sentencing for sexual assault, aggravated assault, criminal endangerment) Nickerson, 6/4:5; (insurance investment fraud Defendant failed to preserve argument that restitution as to annuity transfers improper due to lack of victim affidavits by pre-sentence position that Judge could determine restitution upon hearing, surrender penalty figures accurate, dispute in terms of legal argument as to measure of loss) Johnson, 6/11:6; (sentence for assault of infant not enhanced for refusal to admit guilt) Garcia, 6/18:6; (Attempted sexual assault under Montana law is predicate for enhanced sentencing for federal sex offenses involving minor, sentence properly enhanced to 40 years for pornography based on Montana conviction of attempted sexual assault) Wiles, 7/9:6; (no justiciable controversy as to classification of offense as felony despite deferred jail term, because deferral means no sentence actually imposed) Wilder, 7/30:4; (2005 sentence of 5 years for tampering plus 5 years as PFO illegal under 2010 case law, habeas granted (claim previously rejected on direct appeal), remanded to Rice for resentencing) Larsen, 8/20:5; (60 years parole restriction illegal for Defendant who was minor at time of homicides, judgment and oral pronouncement conflict, remanded for striking restriction; (time served should be credited to current suspended sentence, not to any future revocation commitment) McCaslin, 9/24:4; (claim that Prosecutor sought unusually harsh sentence in response to 2 motions to dismiss, petition for supervisory control, rejected) Roundstone, 10/1:2; (sentence not augmented based on denial of guilt) Howard, 10/15:3; (lost profits may be awarded as part of restitution, but amount of lost profits of cartridge casings improperly calculated, remanded for calculation based on replacement value, drug user properly banned from bars as condition of deferred imposition (although statement that having good time in a bar would not look good when she is owing $159,000 restitution not necessary)) O’Connell, 10/15:5; (religious exemption for marijuana use during supervised release of meth dealer properly denied) Lafley, 10/22:7; (due process not violated by Judge’s reference to “negative behavior” at jail, cutting cross short, Judge properly cited personality disorder and seriousness of providing medical marijuana to non-card holder, distributing pills, insurance fraud, tampering, in imposing 20 years prison, 10 suspended) Simmons, 11/12:5; (sentences for house takeover scheme not augmented by refusal to confess) Wilson, 11/19:3; (aggravated assault Defendant with mental problems properly sentenced to 1 year DOC, 19 years MSP, parole eligible in 5 years, $45,651 restitution) Habets, 11/19:4; (1999 restitution statutes requiring documentation of victim’s pecuniary loss and defendant’s financial resources and ability to pay applicable to Defendant who committed intimidation in 1999, 2003 amendments deleting that documentation not applicable since Defendant did not have unpaid restitution obligation in 2003 (imposed in 2010), but PSI deficiencies waived by failure to object, unspecified restitution for future counseling improper, remanded for correction, challenge of broad restrictions against being around children not preserved for appeal, but if they prove unduly burdensome relief may be sought, sex-related intimidation conviction affirmed) Johnson, 11/19:5; (7 years MSP properly imposed over sex offender evaluation recommendation of 3 years deferred, PSI recommendation of 5 years suspended, for oral sex by teen on Defendant) Carpenter, 12/3:5; (parole conditions should be recommended, not mandatory, statutorily mandated DNA testing, supervision fees, surcharges, counsel costs should be restated as sentencing conditions rather than parole conditions) Niles, 12/3:6; (sex treatment and limitations on sexual materials properly imposed on burglary defendant who admitted entering home with intent to sexually assault (risk designation previously stricken), credit for time on electronic monitoring while released on bond, and for time in jail in another county related to revocation, properly denied) Lamere, 12/31:5; (placement at MSP upon revocation within DOC discretion) Bradley, 12/31:6
Sex offender registration: (Defendant had duty to determine if required to register in Montana after moving from Connecticut where he was registered, testimonial hearsay (statement of Connecticut official to Montana officer that Defendant in violation of Connecticut registration law) improperly admitted but harmless error, plain error review declined as to Prosecutor’s comments that Defendant “knew” he had to register, conviction affirmed) Payne, 4/9:5; (legislative intent for SVORA to apply retroactively to Federal Court adjudication of juvenile sex offender, offender whose federal supervision order has expired has independent duty to register under Montana law, certified question from US Supreme Court) Juvenile Male (SE), 5/21:5; (US not required to prove that sex offender knew failure to register violates SORNA, only that he knew of registration requirement and failed to register) Crowder, 10/22:8
Severance: (burglaries/drugs properly tried together as scheme to victimize women) Kirk, 12/24:5
Sexual abuse: (sufficient evidence that woman was asleep during sex, 130 months substantively reasonable) Fasthorse, 4/23:6
Sexual assault: (dismissal not required by untimely youth transfer-back hearing, rights protected but waived, counsel not ineffective for not moving for dismissal, plea withdrawal properly denied) Lindsey, 3/26:3
Sex offender level: (no abuse of discretion in assigning level II to child molester when evaluations indicated level I) Gaub, 12/31:5
Silence: (Prosecutor’s cross/arguments properly focused on pre-Miranda statements at DUI scene to show inconsistencies with trial account, did not comment on post-Miranda silence or take advantage of silence to infer guilt) Schaff, 2/19:4
SORNA: (interstate movement as unregistered sex offender concluded in 4/08, several months before registration requirement applied to him, conviction reversed) Dietrich, 2/26:7
Speeding: (sufficient evidence that driver arrested after he went into truck stop store and stuffed Cheetos into his mouth had been speeding and in control of vehicle while under influence) Stambaugh, 10/22:4
Speedy trial: (465 days, rejected) Burns, 7/23:3
Spousal immunity: (wife’s testimony as to observations of husband at time of murder and communications accompanied by threats toward wife not barred by spousal privilege, although 2009 version of §26-1-802, in effect at time of in limine motion, should have been applied rather than 2001 (based on murder occurring in 2002)) Edwards, 9/10:3
SVORA: (sex offender registration only required during deferral period, order to register for life reversed) Dilley, 2/5:3; (sex offender properly convicted of failure to timely notify of new address whether required to appear in person within 3 days under 2007 law or in writing within 10 days under 2005 law and notwithstanding Registration Form advice of 10 days, “mailing” v. “delivering”) Pearrow, 2/19:3; (Judge properly determined as matter of law that Washington assault with sexual motivation was “sex offense” requiring registration in Montana, State properly allowed continuance 5 days before trial to amend to add transient registration statute, conviction affirmed) DaSilva, 8/13:4
Theft: (cattle) Holen, 4/2:5
Traffic stop: (challenge of stop for 29 mph in “15 mph school zone” despite no such zone in County and that “pacing” insufficient to establish 4 mph over actual limit of 25 mph and officer’s concession that he likely would not have stopped had he known limit was 25 rejected) Pablo, 2/26:4
Walsh Act: (release conditions (curfew, electronic monitoring) for child porn Defendant not facially unconstitutional, nor as applied in light of discretion in applying to individual circumstances) Peeples, 1/29:4
*Debt Collection
FDCPA: (debt collection law firm’s bona fide error defense to prosecution of time-barred claim properly rejected on summary judgment, generic evidence that all credit cards contain fee provisions insufficient to create fact issue for jury as to firms’ contractual entitlement to fees, summary judgment proper that firm violated FDCPA by seeking fees in collection complaint, requests for admission asking Debtor to admit untrue facts (concede case) violative of FDCPA, testimony of other debtors’ experiences with collection firm properly admitted, challenge of expert attorneys’ testimony not preserved for appeal, firm opened door for admission of list of all of its Montana suits, challenge to instructions not preserved for appeal, malicious prosecution supported by lack of probable cause for collection suit and by malice, abuse of process supported by substantial evidence, $250,000 verdict for emotional distress not based on speculation & guesswork, no evidence that jury blurred emotional distress and $60,000 punitives award, $311,000 verdict affirmed ($107,770 fees/costs also awarded, not appealed)) McCollough v. Johnson, Rodenburg & Lauinger, 3/12:3
*Developmental Disabilities
Involuntary medication: (authorizing involuntary medication “pursuant to MDC policy” gratuitous surplusage since judge not authorized to order particular treatment) DKD, 4/23:2
Standard of review: (clearly erroneous findings/correct conclusions proper review standard) DKD, 4/23:2
*Discrimination
Disability: (claims by cement plant supervisor involving heart condition/night shift stress rejected, termination voluntary) Welch v. Holcim, 4/30:7; (obesity impairment certified question from Molloy accepted in federal challenge of $494,641 HRC award to obese RR applicant) BNSF v. Feit, 8/27:3; (original $36,405 to oil rig operator with learning disability for failure to help with paperwork properly increased on remand from HRC to $178,546.33 including $50,000 for severe emotional distress for loss of livelihood, lost wages for 2 years (not 4) even with SSD, hostile environment created by supervisor’s verbal abuse, insistence on impossible task of completing paperwork) Trumble v. Glacier Well Works, 12/3:7
National origin: (discrimination/retaliation claims by Turkish speaker who was limited to 3 minutes at City Council meeting rejected) Kalinyaprak v. Polson, 4/23:8
Procedure: (Court not deprived of “jurisdiction” after 14-day deadline in §49-2-505(3)(c), may still consider equitable, constitutional principles, RR seeking judicial review of $368,240 HRC award to obese track laborer applicant entitled to present claim that Notice of Decision misfiled, dismissal for lack of jurisdiction reversed) BNSF v. Cringle, 1/8:6; (no equitable reasons for tolling judicial review petition time in challenge of casino banishment) Shriner v. DLI, 11/19:2
Sex: ($110,652 plus life policy, union assistant subjected to hostile work environment through BM’s vulgar language, relentless pornographic emails received on shared computer system, constructively discharged) Morris v. IBEW, 3/19:7; ($39,291, tuition refund, emotional distress, taxidermy student, default judgment) Travis v. Faechner, 4/9:8; ($193,502.47, Eagles Club employee subjected to hostile work environment at club and on trips, supervisor’s claims of “joking around” rejected, employee constructively discharged, $44,069 lost wages, $69,246 front pay, $75,000 emotional distress, Faragher/Ellerth defense rejected, complaint timely) Groven v. Havre Eagles Club, 4/30:6, ($75,000 inadequate emotional distress compensation for employee subjected to hostile work environment by Eagles Club GM with collusion of trustees, remanded for reconsideration, $44,069 lost wages, $69,246 front pay affirmed) 8/13:8; ($75,000 for emotional distress of employee subjected to hostile work environment by Eagles Club GM with collusion of trustees increased to $100,000 on remand from HRC, $44,069 wages, $69,246 front pay affirmed) Groven v. Havre Eagles Club, 12/17:8
*Elections
Ballot access: (summary judgment against standing to challenge Montana ballot access scheme for independent and minor-party candidates precluded by dispute as to whether Plaintiff decided to run for Senate before or after filing suit, in any event Plaintiffs have standing as registered voters) Kelly v. Montana Secretary of State, 2/5:5
*Employees
CBA: (Billings PD CBAs unambiguous that longevity shall be added to officers’ hourly rate) Watters v. Billings, 7/16:7
Contract: ($42,000 for 6 months to new age corporate developer correctly based on instructions on remand from reversed $730,000 default judgment, jurisdictional argument more properly framed as due process, Defendant not deprived of due process by award) Watson v. West, 4/9:1
ERISA: (insurer’s request for $100,000 fees after prevailing in group health premium challenge by farmers denied) Fossen v. BCBS of Montana, 1/29:7, (claim that Montana HIPAA prohibits requiring an individual to pay a premium greater than premiums of similarly situated individuals based on health status preempted by ERISA, but Montana unfair discrimination claim not preempted), 11/12:8; (claim that employee failed to exhaust remedies rejected, “prudential exhaustion” not applied, plan failed to notify of consequences on retirement benefits of refusal of comparable job when plant shut down, ambiguity/omission construed against employer, Plaintiff continued as employee, not independent contractor, under “consulting agreement,” accrued requisite 80 years combined age and employment that entitle him to 70/80 retirement benefits, claim for penalties for alleged failure to timely provide plan documents waived by failure to timely assert) Eldredge v. Asarco, 4/30:1
Non-compete covenant: (employer must establish legitimate business interest as threshold to analysis of reasonableness of covenant (1st impression), disfavor of covenants heightens when the employer ends the relationship, legitimate business interest applies to both terminated and expired contract, no misconduct by CPA or facts that would constitute legitimate interest by accounting firm to enforce covenant where firm terminated the CPA, declaration that firm can enforce covenant reversed) Wrigg v. Junkermeier, Clark, Campanella, Stevens, 11/26:4
*Endangered Species
Wolf protections: (despite separation of powers, rule of law concerns, 9th Circuit law dictates upholding rider to appropriations bill that directs FWS to re-issue rule that removed wolf protections which Court had vacated) Alliance for the Wild Rockies v. FWS, 8/13:6
*Environment
Fire salvage: (amended preliminary injunction emergency fire salvage opinion withdrawn, replaced, rehearing by Panel and en banc denied) Alliance for the Wild Rockies v. FS, 1/29:4
Forest travel plan: (2007 L&C Forest Travel Plan conforms to MWSA and NEPA) Great Falls Snowmobile Club v. FS, 10/22:7
Hyalite WSA travel plan: (ignores impact of increased motorized/mechanized use on current users’ ability to seek quiet & solitude, FS failed to consider this aspect of its duty to maintain the 1977 wilderness character, properly enjoined from continued implementation of travel plan) MWA v. FS, 12/10:7
Mountain States Transmission Intertie: (County not entitled to mandamus or injunctive relief requiring additional consultation with DEQ prior to DEIS in power line permitting process) Jefferson Co. v. DEQ, 10/29:3
Rock Creek: (Rock Creek of unique ecological significance because of impacts on bull trout and local conditions at proposed discharge site, general DEQ permit for road construction for proposed mine voided, mining company enjoined from discharging sediment relating to road construction under general permit, must pursue individual permits under WQA including public participation, compliance with nondegradation policy) Clark Fork Coalition v. DEQ, 8/27:5; (no adverse modification to bull trout critical habitat from Rock Creek Mine, no jeopardy to grizzlies) Rock Creek Alliance v. FWS, 11/19:8
Smelter cleanup: (request to terminate 2007 East Helena ASARCO smelter cleanup trust and return remaining $1.2 million in light of 2009 bankruptcy custodial trust properly denied) US v. ASARCO, 12/10:7
Upper Missouri River Breaks National Monument: (management decisions approved) In re Montana Wilderness Association, 8/13:7
Wildlife: (Yellowstone grizzly delisting rule properly vacated for lack of support that whitebark pine declines did not threaten the bear, but existing regulatory mechanisms not adequate to protect recovered population) Greater Yellowstone Coalition v. FWS, 12/10:8
*Evidence, Civil
Damages: (Plaintiff allowed to present limited evidence of lag in conceding liability in train collision, other liability evidence in damages phase) Perszyk v. BNSF, 5/21:7
Hearsay: (federal case improperly relied on to expand business records hearsay exception to encompass record made by entity taking custody rather than entity creating the record, BAC report improperly admitted based on testimony by hospital receiving it) State v. Baze, 3/26:4; (report speculating on unwitnessed silo blowout which injured operator not admissible under business record hearsay exception, otherwise untrustworthy, hearsay within hearsay) Ficek v. Kolberg-Pioneer, 4/23:5
Seatbelt use/non-use: (seatbelt use/non-use inadmissible as to guardrail negligence, evidence of ejection circuitous way of showing decedent not wearing seatbelt, similarly inadmissible) Watts v. MDOT, 3/19:3; (intent of §61-13-106 to bar seatbelt evidence so it would not create a defense in MVAs, not to bar it in product liability (seatbelt defect) cases, Plaintiff must drop negligence claims or not be allowed to present seatbelt use) Stokes v. FMC, 3/26:5; (evidence of seatbelt use by decedent in collision-induced rollover partial ejection not prohibited by §61-13-106 in negligence and product liability claims against vehicle manufacturer and rental agency (first impression), where claim is combined with claim against other driver, jury should be instructed that seatbelt evidence may be considered only for determining whether defective vehicle design was cause of enhanced injuries, not whether Plaintiff was at fault or seatbelt use or nonuse caused injury, ruling by Fagg that if Plaintiff planned to use seatbelt use or nonuse in product liability claims he must drop all negligence claims reversed on supervisory control) Stokes (PR for Carter) v. Fagg, 8/6:2
Subsequent remedial: (impeachment exception to Rule 407 narrowly interpreted to allow subsequent remedial measures if defendant attempts exaggerated claims that original condition safest possible, highway construction parties made no such claims, impeachment not at issue, evidence of post-MVA “no left turn” sign properly excluded) United Tool Rental v. Riverside Contracting, 9/3:1
*Evidence, Criminal
DNA: (Prosecutor may have taken some “license” in interpreting DNA testimony but no evidence that she “knowingly” presented false testimony, conviction supported by strong non-DNA evidence as well) Wright, 5/14:3
Search & seizure: (search of fanny pack during stop illegal but meth would have inevitably been discovered in jail inventory search based on pepper spray PO violation, suppression properly denied) Pearson, 3/26:4; (suppression of seizure of cattle on trust lands properly denied over argument that lease required 5 days notice) Holen, 4/2:5; (Defendant’s wife’s PO legally accessed open safe in their bedroom, motion to suppress meth found in safe properly denied) Finley, 9/24:4
Hearsay: (federal case improperly relied on to expand business records hearsay exception to encompass record made by entity taking custody rather than entity creating the record, BAC report improperly admitted based on testimony by hospital receiving it) State v. Baze, 3/26:4; (testimonial hearsay (statement of Connecticut official to Montana officer that Defendant in violation of Connecticut registration law) improperly admitted but harmless error) State v. Payne, 4/9:5
Reverse 404(b): (no supervisory control of Salvagni as to denial of “reverse 404(b)” evidence to show that grandfather was perpetrator of sex crimes and that Defendant was framed) Crowe v. Salvagni, 4/23:4
*Family Law
Adoption: (claims of fraud in failure of pre-placement evaluation to disclose adoptive parents’ medical conditions/religion rejected, revocation of consent to adopt properly denied) SRT, 9/24:3
Attorney: (mentally ill husband properly allowed to proceed pro se with GAL) Kessler, 4/2:3
Attorney fees: (denied) Lowry, 4/2:4; (granted) Stevens, 6/18:3; (fees properly awarded to wife as prevailing party under PSA) Cini, 12/10:3; ($30,167 fees properly awarded to husband based on support agreement) Damschen, 12/10:3; (properly denied to wife) Upshaw, 12/24:4
Custody: (father properly made primary parent despite child’s wishes to live with mother) NS, 5/21:4; (supervisory control of Newman to effectively appeal from interim order denied) Prichard v. Newman, 6/25:3; (Montana is child’s “home state” under UCCJEA, significant connection to Montana, Kentucky would not be more convenient for further custody proceedings, ex parte order requiring transfer to Montana not reviewed under circumstances) Lloyd, 7/9:3; (some of husband’s proposed modifications to parenting plan improperly adopted without support in oral rulings) Kennedy, 7/16:6; (custody of child properly awarded to wife (allegation of intimidation by husband, travel distance) Chamberlin, 11/12:2
Jurisdiction: (Texas properly allowed to address divorce where wife filed in Texas and husband filed in Montana and both domiciled in their states for 90 days but wife filed first, but Montana only state with jurisdiction over custody of child, but remanded for consideration of forum non conveniens factors) Myrland, 1/22:1
Maintenance: (denied to husband) Lucy, 7/16:6; (husband’s maintenance obligation terminated pursuant to §40-4-208(4) upon wife’s marriage since divorce agreement did not expressly provide otherwise and “cohabitation” in agreement not synonymous with marriage, effect of declaration of invalidity of new marriage not preserved for appeal) Wolf, 8/13:2; (property properly awarded in lieu of maintenance) Upshaw, 12/24:4
Parental relationship: (vacating order denying relationship to DNA father, subsequently granting relationship, improper under Rule 59(b), §40-6-118, judge may not change an order simply because he has changed his mind) Johnson, 10/29:3
Parental termination: (sufficient evidence of truth of 6-year-old’s accusations of sex abuse by father despite psychologist’s theory of social worker coercion, termination proper) MD, 1/1:5; (Father had right to cross-examine attorney-GAL who submitted factual report, but exclusion of her testimony did not cause substantial injustice since no new information in report, parents’ rights properly terminated) RMT, 7/16:7
Parenting plan: (§40-4-301(2) absolute bar to mediation where “reason to suspect” abuse, no conflict with §40-4-234(4) which affords discretion in ordering mediation (first impression), sufficient “reason to suspect” emotional abuse by husband, alternative dispute resolution improperly ordered) Hendershott, 4/23:3
Pension: (time rule valuation should have been applied where age at retirement, salary, length of service cannot be applied until retirement) Spawn and McGowan, 11/19:2
Property: (wife properly allowed to submit evidence and valuation testimony on remand for reconsideration of sanctions and distribution, husband should not have been surprised, premarital properties correctly found not part of estate, but Court unable to determine why wife was relieved of obligation to pay on $242,357 note) Lundstrom and Sholz, 1/15:2, (wife properly relieved of obligation to pay on $242,357 note to husband under Judge’s broad discretion to equitably apportion on remand for clarification of decree) 11/12:3; (house properly included in estate despite wife’s quitclaim, properly valued at time of sale by husband 2 years after separation, decree properly amended to set deadline for payment, appeal from year-old orders timely since no notice of entry) Alexander, 1/29:1; (property/debts properly allocated, parenting plan properly adopted) Brown, 2/12:4; (husband’s testimony to amount paid wife improperly listed in decree as “finding,” no basis in transcript for statement, this and other issues to be clarified on remand) Marriage of Schroeder, 2/26:2; (CSRS benefits, investment accounts, properly distributed) Kessler, 4/2:3; (evidence of abusive relationship properly excluded from property trial, claim of dissipation of estate by husband except for destroyed personal property rejected, no abuse of discretion in distribution) Lowry, 4/2:4; (new trial not required on remand for reapportionment of estate and recalculation of support on existing record, judicial substitution properly denied, income from close corporation again on remand improperly excluded from support calculation based on erroneous reasoning that it had never been used to enhance children’s standard of living, remanded for determination per guidelines, husband improperly allowed to defer payment of wife’s interest in business to 2024-25 on rationale that business “locked up,” §40-4-202 requires final, equitable apportionment) Williams, 4/23:2; (lawyer’s failure to present evidence of value of house resulting in adoption of $22,423 tax notice amount merited 60(b)(6) relief) Orcutt, 6/18:3; (appeal of refusal to hold wife in contempt for violating economic restraining order reviewable because order violated husband’s right to possession and title of truck, Judge within discretion in not holding wife in contempt, but erred in modifying decree by awarding husband value of truck rather than enforcing decree (since wife had obtained bank lien on truck) without notice of hearing to incarcerated husband, but husband not prejudiced since he has 10 years to execute on judgment) Stevens, 7/9:3; (wife properly awarded premarital funds used to purchase house, husband properly denied credit for claimed contributions from his premarital property, rental value of house during time wife lives in it pending sale) Lucy, 7/16:6; (property properly distributed (loan v. gift to purchase premarital house, wife’s contributions, wife’s car paid with home equity loan)) Chamberlin, 11/12:2; (arbitration of businesses dispute properly denied, husband properly found in contempt for violating PSA, no evidence of bias that would require judge disqualification, fees properly awarded to wife as prevailing party under PSA) Cini, 12/10:2; (prisoner’s request for mandamus ordering hearing to show entitlement to ranch lost in 1981 default divorce and thereby show actual innocence of intimidation denied) Lance, 12/10:4; (wife’s appeal of property ownership claim from divorce moot by sale after appeal filed and satisfaction of liens) Miller v. CBSI, 12/17:4
Support: (properly awarded retroactive to decree after parties failed to agree on amount, order not modification of support, but related back to decree which did not specify amount) Brinley, 1/15:3; (income properly imputed in difficult work situation of Australian husband traveling to US for visitation, sufficient expenses allowed for long-distance visitation, medical insurance cost properly not included in support based on evidence at trial, wife may seek modification if she obtains insurance at her own expense, no error in not awarding retroactive support given disputed amount of past support paid and substantial costs incurred to travel to US to respond to petition) Frick, 3/12:1; (statements in 2000 pleading and proposed but not adopted findings in connection with motion to amend parenting plan as to children’s residency that husband current in support properly found to be judicial admissions precluding claim for back support for that period, basis for fees as sanctions for inconsistent pleadings unclear, remanded for clarification, expert testimony supports finding that husband owed no back support, husband entitled to all fees & costs as prevailing party pursuant to settlement agreement, not just those awarded as sanction) Hart, 5/21:3; (parenting plan requires support payments from deceased father’s estate without credit for SS death benefits) Hicks, 5/21:4; (income properly imputed to mother for support purposes but EIC improperly added) NS, 5/21:4; (income for support properly calculated based on odd oil rig schedule and 2nd family, children’s insurance paid by husband, although not specifically known at trial, should be factored into support) Stevens, 6/18:3; (husband’s support obligation properly modified based on changed circumstances, $30,167 fees properly awarded to husband based on support agreement) Damschen, 12/10:3; (UCCJEA improperly applied to find lack of jurisdiction over support for forum nonconveniens — UCCJEA applies to custody, UIFSA, with no nonconveniens counterpart, applies to support) Ervin v. Estopare, 12/17:5; (challenge to driver’s license suspension for failure to pay support properly rejected) McAdam v. CSED, 12/31:3
Third-party parenting: (step-father parenting, sister visitation, properly granted) APP, 4/2:4
*Federal Government
Yellowstone Park bison: (injunction against brucellosis slaughter denied) Western Watersheds Project v. NPS, 2/19:7
*Guardianship
Appointment: (of daughter as full guardian affirmed) MCR, 4/2:2
*Indians
Jurisdiction: (Blackfeet Tribal Court has exclusive jurisdiction over probate of member’s estate within Reservation because Montana and Tribal Court have not taken steps required by PL-280 for Montana to assume civil jurisdiction over Reservation, Iron Bear replaced with approach for determining jurisdiction over Reservation disputes in both regulatory and adjudicatory actions: whether state jurisdiction is preempted by federal law or, if not, whether it infringes on tribal self-government, disputed tribal membership of heir resolved in favor of membership, jurisdiction challenge not precluded by failure to object) Estate of Big Spring, 5/21:2; (no federal jurisdiction over suit between Montana corporations alleging state law claims arising from dispute over trust lands) K2 America v. Roland Oil & Gas, 9/10:7; (Tribal Court jurisdiction claim in tenant eviction rejected) Roberts v. Lame Deer School Dist., 10/22:2; (ICWA requires acceptance of transfer of parental termination proceeding from State Court by Tribal Court, not Tribes) Matter of JWC, 12/24:4
Tribal chairman: (not “elective public office,” JP not required to forfeit position to run for chairman) JSC v. Not Afraid, 1/22:1
*Insurance
Application fraud: (fact issues as to whether applicant misrepresented apartment house as single-family precluded estopping insurer from defending against rejection of fire claim, insurer’s rep properly allowed to testify to recollection of applicant’s phone statements under hearsay exception, insurer properly allowed to present fraudulent application defense despite ruling that excluded screen shots did not constitute “application”,. insureds properly ordered to provide trial transcripts, verdict entitling insurer to $119,726.84 for payments to lender and advance to insureds affirmed) Schindler v. United Services Automobile Association, 6/11:1
Attorney fees: (Montana law recognizes insured’s right to recoup attorney fees in successful declaratory action against its insurer, Brewer is the authoritative case on the “obligatory insurance exception” to the American Rule) Gotham Ins. v. Allegiance Benefit Plan Management, 8/13:6
Bad faith: (UTPA/bad faith claims against insurer of collection law firm which resulted in $311,000 verdict for credit card holder survive motion for judgment on pleadings as to policy obligations, Supremacy Clause) McCollough v. Minnesota Lawyers Mutual Ins., 10/29:6
Bifurcation: (bifurcation of claims against tortfeasor and UIM insurer to avoid mention of insurance denied) Matich v. Briggs, 6/25:7
Class certification: (insured daughter lacks standing for class certification of unjust enrichment claims based on failure to stack UM/UIM since she paid no premium, policyholder father lacks standing because they settled underlying claim prior to Hardy, summary judgment against reopening to assert stacking) LaMere v. Farmers Ins. Exchange, 3/19:3; (insured daughter lacks standing for class certification of unjust enrichment claims based on failure to stack UM/UIM since she paid no premium, policyholder father lacks standing because they settled underlying claim prior to Hardy, summary judgment against reopening to assert stacking) LaMere v. Farmers Ins. Exchange, 3/19:3; (Hardy not applied to 2001 UM settlement to permit stacking claims, dispute need not be litigated — as opposed to settled — before retroactive limitations apply, Plaintiffs with no med-pay coverage have no standing to assert med-pay claims individually or for class, no standing to assert claims for unjust enrichment, disgorgement of premiums because daughter paid no premium and father not entitled to stack at time daughter settled) LaMere v. Farmers Ins. Exchange, 11/5:1; (improperly denied) Diaz v. BCBS, 12/24:1
CLUE: (summary judgment proper that buyers terminated buy-sell based on financing contingency, not CLUE reference to water in basement, seller not damaged by CLUE report, insurer entitled to investigate/defend claims against it without that defense becoming allegation in the case, not necessary to address whether seller was CPA “consumer” vis-à-vis insurer since no ascertainable damages) Ternes v. State Farm Fire & Casualty, 7/2:1
Coverage: (repairman not “employee” of owners, injury not excluded under rental policy, whether repairman with amnesia was working on house or just checking on it not material to exclusion issue) State Farm Fire & Casualty v. Locke, 1/15:5; (helicopter policy covered fuel truck crash under “arising out of the ownership, maintenance or use of the aircraft”, helicopter insurer not prejudiced by late notice, truck insurer’s “equitable contribution” claim against helicopter insurer barred by “selective tender” rule) XL Specialty Ins. v. Progressive Casualty Ins., 2/5:4; (RR tunnel not a “building,” damages from collapse not covered in Railroad Protective Liability policy) MRL v. Travelers Indemnity, 2/12:7; (discretionary jurisdiction declined over declaratory indemnity action involving coverage dispute between Illinois and Ohio insurers as to Texas MVA involving Montana trucking company and Texas state court litigation resulting in $1 million settlement with decedent’s estate, choice of law would require application of unsettled Montana law following confusion wrought by Tucker, abstention also warranted to discourage forum shopping) Great American Assurance v. Discover Property & Casualty Ins., 5/14:5; (owned vehicle UIM exclusion void as against public policy for lack of reasonable notice of amendatory endorsement and as contrary to reasonable expectations) Kreger v. Safeco Ins. of Ill., 6/18:6; (insured’s conduct in altercation with Patrolman intentional as determined in bench trial, coverage of suit by Patrolman barred by exclusion) Cascade Farmers Mutual Ins. v. Rodriguez, 7/16:4; (policy provided to well driller pursuant to contract with operator covers wrongful death claim by PR of driller employee against operator, operator qualifies as additional insured, coverage as additional insured not nullified by comp exclusivity, survivors’ distress/consortium claims not covered) Liberty Mutual Ins. v. Continental Resources, 7/30:5; (no coverage for 3rd-party claimants’ $1,879,205 home construction default judgment where builder failed to notify insurer of claims as required by policy, claimants had no duty to notify insurer, but could have avoided effects of policy violation by notifying insurer when it was apparent builder not going to appear) Steadele v. Colony Ins., 9/3:5; (no duty by CGL insurer to defend negligent construction claims against builder based on complaint claims of breach of contract, breach of implied covenant, constructive fraud, conversion, but duty to defend negligent defects claim triggered when insurer received discovery responses and letter 2 years later indicating that sheetrocker might have caused wall crack pursuant to subcontractor exception to “your work” exclusion, based on interpretation of “abandoned” as requiring only that builder who walked off “abandoned” the project, in relation to products-completed operations hazard provision, underlying suit resulted in defense verdict for builder, who claims indemnification for $82,983 fees/costs, fees/costs of this suit pursuant to Brewer, damages for fraud/UTPA) Thomas v. Nautilus Ins., 9/24:5; (subcontractor at job site backed over and dragged under truck was not “occupying” truck under “reasonable connection” test, coverage for decedent’s medicals properly denied) Estate of Richerson, 11/5:2
Defend/indemnity: (no duty by CGL insurer to defend negligent construction claims against builder based on complaint claims of breach of contract, breach of implied covenant, constructive fraud, conversion, but duty to defend negligent defects claim triggered when insurer received discovery responses and letter 2 years later indicating that sheetrocker might have caused wall crack pursuant to subcontractor exception to “your work” exclusion, based on interpretsation of “abandoned” as requiring only that builder who walked off “abandoned” the project, in relation to products-completed operations hazard provision, underlying suit resulted in defense verdict for builder, who claims indemnification for $82,983 fees/costs, fees/costs of this suit pursuant to Brewer, damages for fraud/UTPA) Thomas v. Nautilus Ins., 9/24:5
Distribution: (umbrella policy, as pure excess policy, is secondary, not activated until all primary policies exhausted (first impression in Montana), $500,000 MVA settlement proceeds properly distributed (no pro rata coverage based on “other insurance” clauses)) Safeco Ins. of Ill. v. Hartford Ins. of the Midwest, 1/1:6
Jurisdiction: (Washington Federal Court declines jurisdiction over dec action brought by insurer which involves same issues as in Montana State Court MUTPA action brought by grocery chain ESOP plaintiffs) National Union Fire Ins. of Pittsburgh v. Davis, 6/4:7; (Court has discretion to hear coverage dec action brought by insurer, but defers to later-filed State Court action by estate of insured with same issues and basic question (whether insurer wrongfully denied benefits), dismissed under Wilton/Brillhart) Central United Life Ins. v. Estate of Gleason, 12/24:8
RDV: (RDV not type of Ridley claim that must be paid in advance, UTPA claim for RDV not ripe for named representative, no typicality for class action) Hop v. Safeco Ins., 9/3:6
Release: (release in return for $250,000 MVA settlement ambiguous as to whether right to pursue additional funds from umbrella carrier reserved, summary judgment for Defendants improvident, remanded for consideration of parol evidence of parties’ intent) Adams v. Maynard, 6/4:1
Renewal: (ex-agent’s receipt of premium did not impute timely receipt by insurer when insureds knew of agent’s termination, “mailbox rule” by which mailing of payment to agent or mailing by agent to insurer inapplicable as reinstatement offer stated “payment” must be “received” to constitute acceptance, insurer’s investigation of fire claim did not constitute admission that policy existed, statements in conversation between agent’s and insurer’s employees improperly disregarded as inadmissible hearsay, typed name on money order did not constitute “signature,” but whether insured submitted “payment” depends on whether unsigned money order would have been honored, not mere fact of no signature, as money order is similar to check, summary judgment to insurer improper based on invalid payment for policy reinstatement around time of house fire in light of dispute as to whether money order would have been honored if presented) Smith v. FUMI, 9/3:3
Stacking: (insured daughter lacks standing for class certification of unjust enrichment claims based on failure to stack UM/UIM since she paid no premium, policyholder father lacks standing because they settled underlying claim prior to Hardy, summary judgment against reopening to assert stacking) LaMere v. Farmers Ins. Exchange, 3/19:3; (Hardy not applied to 2001 UM settlement to permit stacking claims, dispute need not be litigated — as opposed to settled — before retroactive limitations apply, Plaintiffs with no med-pay coverage have no standing to assert med-pay claims individually or for class, no standing to assert claims for unjust enrichment, disgorgement of premiums because daughter paid no premium and father not entitled to stack at time daughter settled) LaMere v. Farmers Ins. Exchange, 11/5:1
Title insurance: (no statutory right of access to mining claim, only right to initiate judicial proceedings and potentially obtain right of way, access exception in 2008 preliminary title commitment not unreasonable, tort claims arising from original 1991 title policy accrued when counsel retained to obtain recorded easement, not later when Plaintiff learned that prospective buyers would not complete purchase despite removal of exception for lack of legal access from 2008 commitment, barred by 3-year tort statute) Harpole v. Powell Co. Title, 8/20:6; (§33-25-214 search/examination requirements not applicable to preliminary title commitments, summary judgment for title companies on negligence per se, summary judgment on negligent misrepresentation and dependent NIED claim precluded by fact issues as to whether title company misrepresented that road was not county road) Harpole v. Powell Co. title, 10/8:5
*Landlord/Tenant
Attorney fees: (fees properly denied in default damages dispute — fee clause in rental agreement only for eviction, discretionary fees of $20,000+ also properly denied on $2,300 judgment — but costs to prevailing party in jury trial mandatory including for losing issue, default judgment properly set aside based on lack of notice and attorney’s false assurance of no default during negotiations) Benintendi v. Hein, 12/17:1
Eviction: (terminated teacher properly evicted from school district housing, assessed $19,791 past due rent, late fees, attorney fees) Roberts v. Lame Deer School Dist., 10/22:2
Jurisdiction: (claims may be brought in justice or district court, meritless claim by landlord against lawyer for bringing claims in District Court (where landlord prevailed) rather than Justice Court properly dismissed, appeal sanctions) Fick v. Brown, 7/9:1
Rent nonpayment: ($4,304 judgment against tenant who acknowledged rent non-payment affirmed, appeal fees awarded, $7,196 appeal fees/costs awarded) Real Estate Management Group v. Chowdhury, 12/3:5
*Legislature
Veto: (no restriction on Governor’s veto power when he chose to not sign rather than veto HB 676, lacks standing to challenge multiple subjects) Schweitzer v. 61st Legislative Assembly, 1/15:6
*Local Government
Sanitary regulations: (septic use from added yoga studio and craft buildings to floodplain property may have resulted in “increased effluent flow” from the residence in violation of Health Code, incinerating toilet requires permit as “wastewater treatment and disposal system”) Headapohl v. Missoula City-County Board of Health, 9/10:2
Subdivision: (Service nearly 3 years after denial of application technically timely under SPA but not “prompt” as MAPA suggests, depositions of Commissioners 5 years after vote, intended to show reliance on their beliefs rather than evidence, properly refused, denial of subdivision not arbitrary, capricious, unlawful, Commission not required to consult developer as to mitigation preferences since it did not “require” mitigation under §76-3-608(5)(b)) MM&I v. Gallatin Co. Commission, 1/15:1; (individuals and association have standing to challenge proposed subdivision, approval properly overturned for lack of substantial compliance with comprehensive plan) Heffernan v. Missoula, 5/14:1
Zoning: (Commission’s failure to act within statutory time rendered gravel pit zoning challenge moot, no “capable of repetition” exception because whether protest provisions of §76-2-205(6) constitute unconstitutional delegation of legislative authority to private parties never ripened) Gateway Opencut Mining Action Group v. Gallatin Co. Commission, 8/27:2
*Medical Incapacity
Forced hysterectomy: (order by Townsend for woman diagnosed with cancer to undergo hysterectomy over objections based on religion and desire to have children stayed, expedited appeal granted) OSPD on behalf of LK v. Townsend, 3/12:1
*Medicaid
Available resource limit: (§2-4-623 requirement of decision within 90 days after case deemed submitted not violated because BPA’s decision, not HO’s decision, was “final decision”, wife’s interest in family partnership properly found to exceed $3,000 available resource limit, husband properly required to repay $22,657 benefits) Micone v. DPHHS, 8/6:3
Reimbursements: (5-year statute (not 8-year) applied to retroactive application of Ahlborn in class action alleging excessive 3rd-party Medicaid reimbursements, retroactive to all class members because “case” is the pending case, not administrative claims of members, statute of limitations may be asserted against individual members’ claims, DPHHS required to compile all ordered data on class members’ claims, no interest against DPHHS until 2 years after judgment, “third party” includes all other medical assistance including private insurance and recipient’s UM/UIM, “made whole” inapplicable in light of Ahlborn) Blanton v. DPHHS, 5/28:2
*Mental Commitment
Commitment: (of homeless woman, involuntary medication, affirmed) MS, 2/12:3; (person properly found to have mental disorder posing risk of harm based on wild & bizarre behavior, no support for claim that behavior caused by substance abuse, appeal following commitment expiration not moot) TJF, 2/26:1; (invalid for failure to state detailed supporting facts) MSH, 11/19:1; (no requirement that oral pronouncement controls over conflicting written pronouncement, but revocation of conditional release and commitment to MSH supported by written pronouncement, clear evidence that mental health had deteriorated despite “deterioration” not used in oral pronouncement) BH, 12/31:2; (substantial evidence for jury finding that brain damaged man unable to provide for needs due to dementia) MW, 12/31:2
Jury waiver: (no evidence in record of chaotic hearing of concurrence of Friend and Professional in State’s and counsel’s waiver of demanded jury trial, commitment reversed) LK, 2/19:2
Presence at hearing: (absence from security hearing not denial of right to be present at hearing on petition, lawyer not ineffective for not objecting to security hearing held outside person’s presence) TJF, 2/26:1
Pronouncement: (no requirement that oral pronouncement controls over conflicting written pronouncement, but revocation of conditional release and commitment to MSH supported by written pronouncement, clear evidence that mental health had deteriorated despite “deterioration” not used in oral pronouncement) BH, 12/31:2
Restraints: (restraints in commitment proceeding without jury requires showing that they are needed (1st impression), properly ordered to maintain order) TJF, 2/26:1
*Oil/Gas
Pore space compensation: (surface owner failed to establish entitlement to compensation for use of pore space under abandoned well for disposal of wastewater) Burlington Resources Oil & Gas v. Lang & Sons, 8/27:2
*Minerals
Mining: (intent of agreement and judgment to preserve 30 buffer for “lateral support” for neighboring property, not to allow excavation that would consume the buffer by slumping into the pit, no legal distinction between “excavating” and “excavation” that would allow for causing earth to fall into pit up to property line, contempt improperly denied, fees improperly awarded to miner) Levens v. Ballard, 7/2:4
*Probate
Settlement: (settlement agreement in will/partition dispute correctly construed as requiring grandchildren to give up all interests in 200-acre property in exchange for 40 acres granted by Estate,. Estate properly awarded $11,130 fees as prevailing party under agreement, entitled to fees for defending appeal, not to fees for cross-appeal, Estate’s position that grandchildren’s rights under settlement should be forfeited because settlement not timely finalized not preserved for appeal, denial of contempt claim not appealable) Burrell, 1/1:3; (murdered woman’s father not entitled to share of settlement of $500,000 insurance reached by named beneficiaries) Wilcock, 11/19:1
Will: (no evidence that 1983 will ever revoked, properly found valid) Irvine, 3/5:1; (challenges rejected) Calvert v. Geiger, 4/2:2; (parts of affidavits in support of contention that will was result of undue influence properly excluded as inadmissible hearsay, summary judgment properly granted son on basis of admitted evidence, claim of discovery abuses rejected, summary judgment continuance properly denied, remanded for determination of fees/costs for successful defense of will) Harmon, 4/30:2, (opinion withdrawn) 6/4:4; (evidence exclusion in will challenge affirmed) Knudson, 11/19:1; (will challenge improperly dismissed for lack of standing before opportunity to establish whether “dependent relative revocation” should apply if claimed prior will is produced through discovery, challenger has standing to contest cattle contracts if he can establish previous will as valid and that it devises to him some share of the personal property or that he is a devisee of the residual estate) Glennie, 11/26:5
*Property
Access: (no statutory right of access to mining claim, only right to initiate judicial proceedings and potentially obtain right of way, access exception in 2008 preliminary title commitment not unreasonable, tort claims arising from original 1991 title policy accrued when counsel retained to obtain recorded easement, not later when Plaintiff learned that prospective buyers would not complete purchase despite removal of exception for lack of legal access from 2008 commitment, barred by 3-year tort statute) Harpole v. Powell Co. Title, 8/20:6; (proof of existing residence required to create road from highway to landlocked property, existence/necessity generally jury questions, but Judge properly decided issue where undisputed that cabin not habitable) Myers v. Dee, 10/8:1
Boundary: (earlier deed in chain of title and COS referenced in subject deed not extrinsic evidence of grantor’s intent vis-à-vis subject deed, boundary correctly characterized as meandering line along creek rather than fixed, declaratory claim not barred by statute of limitations, laches, equitable estoppel, no need to join other owners on creek even though they may have interest in interpretation of surveys, adverse possession claim to creek access property properly rejected, fees properly denied as lacking equitable considerations where both parties believed they owned land) Ethen v. River Resource Outfitters, 6/25:1; (Judge properly determined that Plaintiffs own 27 acres with corrals which Defendants have used since 1943 and that Defendants failed to prove ownership outright of 10 acres or prescriptive easement for cattle operation in convoluted boundary dispute involving contradictory surveyor opinions, fees properly denied under §25-7-105 (offer of settlement) for failure to establish value less than $50,000, although important questions raised in light of timing of offer, costs improperly denied for maps prepared for trial) Larsen v. Richardson, 8/20:2
Condemnation: (no legislative authority for electric line developer to take property of nonconsenting landowner) MATL v. Salois, 1/15:5, (HB 198 conflicts with order holding no legislative authority for private electric line developer to take property of nonconsenting landowner, applies retroactively) 6/11:5; (supervisory control of McKinnon denied to reject challenges of HB 198) MATL v. McKinnon, 7/2:6
Deed: (contentions that deed transferring marital property was forged and wife was induced by fraud to sign frivolous) Braun v. Wells Fargo Bank, 2/5:1
Easement: (lake access rights not extinguished based on speculative overburdening, incompatible acts, scope includes maintenance/improvement of access, ruling that proposed dock would not unduly burden premature) Steed v. Solso, 1/1:1; (historical rights by big truck user accommodated by requiring subdivision developers to alter new road including easing corner angles, prevailing easement holders entitled to fees pursuant to HOA agreement, HOA that had been dissolved but was reinstated by time of trial had standing, private easements independent of any public right to use road per dedication, prior easement not extinguished by annexation or subdivision) Gibson v. Paramount Homes, 5/28:1; (culvert and rock bridge installed without written permission unreasonably interfered with secondary easement rights to maintenance/ repair of ditch) Musselshell Ranch v. Seidel-Joukova, 9/17:3; (unity of title existed back to 1864 RR land grant giving rise to ostensible necessity for implied easement, but easement by necessity negated by US’ power of eminent domain) Yellowstone River LLC v. Meriwether Land Fund, 11/5:6
Eviction: (no documents in record evidencing chain of title, Court unable to review whether Plaintiff was title holder with standing to maintain eviction action, summary judgment for Plaintiff reversed, remanded) Federal National Mortgage Association, 1/1:4; (easement properly found, but punitives improperly awarded in form of attorney fees without findings on all statutory punitives factors) Osman v. Cavalier, 4/23:2
Foreclosure: (Defendants produced copies of note and trust deed along with affidavit that counsel in possession of originals, Plaintiffs claiming that no Defendant is holder of original note failed to respond, summary judgment for Defendants) Page v. ReconTrust, 1/15:6; (mobile home park seller not required to assert nonjudicial foreclosure as counterclaim in prior negligent nondisclosure action brought by the buyer which resulted in a defense verdict, buyer, as Plaintiff in 2nd case alleging that note was unenforceable because seller failed to counterclaim for enforcement, cannot assert fraud or compel seller to commence judicial action so he may raise affirmative defense, seller entitled to fees below and on appeal pursuant to note and buy-sell) Deschamps v. Treasure State Trailer Court, 6/11:3
Quiet Title Act: (Plaintiff has standing to bring QTA claim to determine ownership of disputed RR right of way, but no jurisdiction to determine ownership between US and 3rd party) Avista v. Sanders Co., 2/5:5
Real estate: (summary judgment proper that buyers terminated buy-sell based on financing contingency, not CLUE reference to water in basement, seller not damaged by CLUE report, insurer entitled to investigate/defend claims against it without that defense becoming allegation in the case, not necessary to address whether seller was CPA “consumer” vis-à-vis insurer since no ascertainable damages, no error in pretrial proceedings in complex litigation) Ternes v. State Farm Fire & Casualty, 7/2:1
Road access: (claims of adverse possession to, lack of jurisdiction over, old truck trail across non-member fee land within Reservation rejected) Peterson v. Roods, 2/12:2; (public road/easement properly resolved in favor of Defendants) Schroeder v. L&C Co., 12/3:5; (public road/easement issues similar to previously litigated other road properly resolved in favor of access association) PLAA v. Jones, 12/10:2
*Railroads
FELA: (LIA claim that locomotive not in condition to move train through tunnel in which engineer claimed CO injuries improperly dismissed, testimony from treating physician as to PET scan properly excluded for failure to call neurologist, defense verdict reversed, remanded for retrial) Weber v. BNSF, 9/17:1
Shortline: (arbitration award in shortline dispute properly confirmed, Rule 41(a)(2) voluntary dismissal properly denied, summary judgment properly granted for BN) Central Montana Rail v. State of Montana, 3/26:6
*Schools
Reassignment: (“teacher,” “principal” are “comparable positions” under §20-4-203(1), Board did not violate statute in reassigning high school principal to elementary teacher with reduced hours and increased pay, notice/ hearing not required for reassignment) King v. Hays/Lodge Pole School Dist., 8/27:3
Territory transfer: (denied) Petition to Transfer Territory from Dutton/Brady K-12 School Dist. to Conrad High School & Elementary Dists.,
7/2:5
*Securities
Investment breach: (claims of individual shareholders of farm corporation against brokerage alleging damages from shareholder’s trading of ETFs dismissed for lack of standing, NIED claims of individuals and corporation also dismissed (although Citizens United indicates that corporations may one day be said to have feelings), Plaintiffs can properly allege breach of contract vis-à-vis violation of laws & regulations based solely on breach of implied covenants, ETFs not “products,” monetary losses not “physical harm” for product liability, scienter not required for §30-10-301 claim, negligence per se based on violation of 30-10-301 viable) Cobb Charolais Ranch v. D.A. Davidson, 10/8:3
*Settlements
Asbestosis: ($43 million, asbestos disease claims by 1,383 claimants against State stemming from Libby mine, including 1/3 contingent fee, approved) Orr v. State, 9/24:4
Auto: ($650,000, intersection auto, FAA employee tortfeasor, admitted negligence, cervical fusion, lumbar disk replacement) Isbell v. DOT/FAA, 6/25:7
City Commission citizen speech/arrest: ($500,000, trial on damages pending following ruling by Irigoin that citizen’s rights to assemble, speak, participate violated by City Commission limiting her to speak on animal shelter contract only after vote, 3-minute rule at end of meetings applied only to items not on agenda, officer who removed citizen committed battery, false arrest, and City not immune from constitutional violations) Overfield v. Great Falls, 10/15:7
Staples assistant store managers: (21 Montanans part of $42 million nationwide settlement of class action of Staples assistant managers, $11.5 million fees, $327,552 expenses) Staples Wage & Hour Employment Practices Litigation, 12/17:7
*Social Security
SSD: (Claimant denied “full & fair hearing” by ALJ not developing likelihood of VA disability rating, VA Court harmless error rule applied to SS cases, ALJ’s failure to help Claimant put VA rating in record is “good cause” and “material” so case should be remanded to SSA for additional evidence) McLeod, 1/22:4; (SSD/SSI claims properly rejected) Gerard, 3/5:5; (pain/mental claims properly rejected, but stand/walk/sit assessments require clarification) McCawley, 5/28:5
SSI: (PASS properly denied) Lauren, 2/26:7
*State Government
Board of Dentistry: (challenge of ARM proscription against fitting dentures over implants barred by res judicata of 2006 decision upholding constitutionality of BOD’s partial denture regulation of denturists) Wiser v. Board of Dentistry, 4/2:2
CHIP: (CHIP is public assistance, not “insurance” governed by “made whole” doctrine, BCBS not “insurer” for purposes of administering) Shattuck v. KRMC, 9/17:3
Climate change: (petition to require State to enforce greenhouse gas mitigation denied) Barhaugh v. State, 6/18:4
Grazing lease: (ARM/statutes properly relied on in concluding that new lessees not required to purchase movable improvements, order for remand to require DNRC to recalculate value of improvements constitutes appealable final order) Grenz v. DNRC, 2/19:1
Highway oversize permits: (preliminary injunction granted under 27-19-201(1) & (3) (applicant appears entitled to relief, judgment would be potentially ineffectual) based on alleged MEPA violations, enjoining MDT permits to transport oversize loads across Montana to Alberta oil sands, denied under 201(2) (irreparable injury)) Missoula Co. v. MDT, 8/6:5
Medicaid: (claims against hospital for seeking payment for MVA brain injury patient from insurers rather than Medicaid properly rejected, claims against healthcare advocacy service properly rejected) Estate of Donald v. Kalispell Regional Medical Center, 7/16:1
UI: (Judge improperly substituted findings for BLA findings, improperly concluded Claimant quit for good cause, BLA’s findings that trucker did not give employer reasonable opportunity to correct drive-time issue reinstated, UI properly denied, “good cause” to delay appeal from UID determination) Johnson v. Western Transport, 2/12:2
State healthcare plan: (TPAs not subject to made-whole laws under subrogation statutes or 3rd-party beneficiary theory, class certification improperly denied (as to State)) Diaz v. BCBS, 12/24:1
State pay system: (MDOT Technician IV/Specialist III pay difference justified by differing qualifications and earning power, within scope of DOT’s pay decision authority) Fellows v. BPA, 4/30:4
Tobacco settlement: (stay of dec action to determine if State diligently enforcing qualifying statute pending nationwide arbitration improvident, supervisory control of Sherlock granted) State v. Sherlock, 6/4:2
*Taxes
Property: (STAB may assess utility’s market value in amount that exceeds DOR’s original assessment) Puget Sound Energy v. DOR, 7/9:2; (Petitioners challenging cyclical ag reappraisal did not fail to commence action as class action despite lack of artful pleading for Rule 23(a) certification, but proposed class so ambiguous as to require mini-trials to identify, certification denied, also lack of commonality, typicality, adequate representation, failure to satisfy 23(b)) Lucas v. DOR, 11/12:6
Tax deed: (Rule 6(3) 3-day additional mailing time not applicable to 2 weeks for paying delinquent taxes following notice of purchase of tax sale certificate, case falls within general principle that a day is indivisible, claim that payment 2 hours 45 minutes short of full 2 weeks was too early rejected, summary judgment for tax deed purchaser affirmed) Tacke v. Montana Lakeshore Properties, 8/20:3; (delinquent owners with $74,000 household income not indigent even though not able to write check for deposit, not excused from order to deposit $38,000) Certain v. Tonn, 10/22:3; (request for reimbursement of taxes, penalties, interest, costs following trial ruling that tax deeds are void not preserved for appeal) Showell v. Schmart LLC, 12/17:3
*Torts
Accountant negligence: (3rd-party “Professional Negligence” claims against accounting firm more properly classified as negligent misrepresentation, Restatement of Torts §552 applied to bank holding company’s claim against accountant for audit reports as to condition of mortgage company which holding company acquired (mortgage company’s CFO had manipulated records to conceal $7.2 million diversion), holding company failed to establish that accountant should have identified it as one that might rely on audits provided for mortgage company’s warehouse lending agreement, summary judgment proper for accountant on holding company’s negligent misrepresentation claim, holding company’s fraudulent misrepresentation claim properly rejected for failure to plead with particularity, subsidiary bank properly pled fraudulent & negligent misrepresentation by accountant, improper instruction on near-privity due to improper classification as professional negligence, defense verdict (70% negligence by bank, 30% by accountant) reversed, remanded for new trial on bank’s negligent misrepresentation claim under §552) Western Security Bank v. Eide Bailly, 1/8:4
Chiropractic malpractice: (supervisory control of Deschamps denied as to allowance of CPA claim against chiropractor) Lambert v. Deschamps, 4/23:1
Civil conspiracy: (no reasonable inference from minimal factual allegations that Defendant liable for civil conspiracy, tortious interference with contract & inheritance, undue influence, fraud, breach of fiduciary duty, killing James LeFeber, intentional spoliation, dismissed with prejudice, attorney fees to Defendant from vexatious Claimant) Scottrade v. Davenport, 10/29:7
Contamination: (certified question from Judge Cebull accepted as to continuing tort doctrine for trespass/nuisance property damage claims against RR) Burley v. BNSF, 1/29:1
Defamation: (defamation time-barred, statements either true or no defamatory meaning, Plaintiffs properly sanctioned for abusing Defendant and Defendant’s counsel in depositions and discovery and abusing the system) Polejewski v. Metzger, 12/17:2
Fraudulent foreclosure: (quiet title claim viable against subprime mortgage servicing entity seeking to foreclose trust deed following bankruptcy/shutdown of original servicing entity, MUTP-CPA allegations sufficient to state plausible claim, entity’s claim that it is not a debt collector under FDCPA more properly raised as affirmative defense than in motion to dismiss, in any event allegations state plausible claim, no judicial notice of underlying note and cancelation of trustee sale) Lang v. Ocwen Financial Services, 3/26:6
Home construction defects: (Plaintiffs on notice of defects prior to running of negligence/CPA statutes, not tolled until inspection report indicated full extent of problems, claims also barred by release by predecessors covering all claims) Johnston v. Centennial Log Homes, 12/24:6
Hospital negligence: (no agency or joint venture to support vicarious liability by hospital in claim of negligence by OB/GYN, CPA claim denied for lack of entrepreneurial nature of hospital privileges (1st impression), negligent credentialing claim requires expert testimony as to standard and breach (1st impression), which Plaintiff’s expert failed to provide) Brookins v. Mineral Community Hospital, 12/10:4
Medical malpractice: (summary judgment proper for hospital and doctor on causation of death of cancer patient (metastasized breast cancer and acute aspiration pneumonia, not narcotics), default judgment properly denied as sanction for routine destruction of Narcotic Count Record (but issue properly framed as discovery sanction, not tort of spoliation), providers cautioned to retain all records that may be implicated in treatment once notice of claim is given, loss of chance, survival claims not preserved) Willson v. Addison, 8/6:1; (claim that failure to wear mask during myelogram resulted in lethal infection dismissed because expert not qualified to testify as to radiologist standard) Beehler v. Eastern Radiological Associates, 10/15:5
Negligence: (drug label/information, cross-jurisdictional class action tolling rule adopted, suit against maker of cancer drug Zometa tolled during federal class action, nof claim is given, loss of chance, survival claims not preserved) Willson v. Addison, 8/6:1; (claim that failure to wear mask during myelogram resulted in lethal infection dismissed because expert not qualified to testify as to radiologist standard) Beehler v. Eastern Radiological Associates, 10/15:5
Negligence: (drug label/information, cross-jurisdictional class action toll$?N23
N24
ling rule adopted, suit against maker of cancer drug Zometa tolled during federal class action, not necessary to address whether drug maker properly substituted for fictitious defendant, jury properly instructed as to label adequacy, not necessary to decide propriety of alternative as to “learned intermediary” although Court tends to conclude it was proper, amendment to apportion liability between drug maker and settling doctor properly denied for lack of timeliness, statements by Plaintiff in pleadings prior to drug maker’s joinder properly excluded (not judicial admissions, not subject to judicial estoppel, “admissions against interest” raised first time on appeal not addressed), any error in excluding inconsistent statement by oral surgeon in MLP proceeding as to alternatives to tooth extraction harmless because no prejudice, testimony by oncology office manager as to change in label properly offered in support of change in office protocol, not impermissible subsequent remedial measure by drug maker, JML properly denied drug maker as to causation relating to tooth extraction, 11th hour request to add punitives claim properly denied, $3.2 million general damages verdict improperly offset by SSD) Stevens v. Novartis Pharmaceuticals, 1/8:2; (jury improperly instructed as to “better way” and “prescience” as to barn roof blowing off, cutting power line, starting fire, Jacobsen to contrary overruled, defense verdict reversed, remanded for new trial) Goles v. Neumann, 2/12:1; (no duty by landowners to prevent obstructions by shelter belt and bus stop shed in case involving intersection collision, first impression) Wold v. Wheeler, 6/25:3; (contractual obligations of project engineer in town wastewater project did not include duty to see that sign that was taken down for project was re-erected with ordinary skill & care necessary to prevent injury, in case in which part of sign was blown through windshield, injuring driver) Ayotte v. State, 6/25:4; (no special relationship between Plaintiff and medical examiner that would create exception to public duty doctrine in claim involving erroneous autopsy conclusion that child died by homicide rather than falling under bus, constitutional challenge of public duty doctrine rejected, while noting that Supreme Court makeup continues to change and minority view may become majority view one day, no claim for negligent investigation in Montana, no special relationship exception to public duty via child abuse statutes for babysitter wrongly accused of homicide, false imprisonment claim rejected where agents acted on finding of probable cause, all claims against State and County dismissed) Kichnet v. BSB, 6/25:5; (preexisting conditions/injuries other than MVA back injuries properly admitted after Plaintiff opened door in opening, motion to exclude IME psychiatrist on grounds of ties with insurance industry and defense bar properly denied as untimely and for failure to demonstrate lack of independence, report properly admitted, psychiatrist’s summary of IME neurologist’s report properly allowed over hearsay objection, general rather than special verdict form properly used, $26,000 verdict affirmed) Johnson v. Chambers, 7/16:2; (impeachment exception to Rule 407 narrowly interpreted to allow subsequent remedial measures if defendant attempts exaggerated claims that original condition safest possible, highway construction parties made no such claims, impeachment not at issue, evidence of post-MVA “no left turn” sign properly excluded, counsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N24
N25 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N25
N26 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N26
N27 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N27
N28 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N28
N29 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N29
N30 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N30
N31 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N31
N32 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N32
N33 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N33
N34 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N34
N35 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N35
N36 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N36
N37 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement bycounsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender $?N37
N38 driver, defense verdict (no contribution from construction parties in $1,046,189 settlement by trucker with pregnant woman injured in construction zone) affirmed) United Tool Rental v. Riverside Contracting, 9/3:1; (verdict/judgment finding death suicide, rejecting claims of negligence in investigation and inquiry, affirmed) Jorgensen v. Gallatin Co., 9/3:2; (claims against County for deputies not confiscating assault pistol used by recently released mental patient to kill, turning it over to parents, viable under theories of common law negligence, violation of federal statutes, negligent entrustment) Woods v. MSH, 10/22:5; (County failed to seek ruling on duty to report meth house under §75-10-1306(1) vis-à-vis its 10/1/05 effective date, waived right to appeal duty issue following $563,592 verdict to buyers of house, $187,864 attorney fees from County in unopposed bill of costs properly denied, as well as on claim that defense was frivolous or in bad faith) Slack v. L&C Co., 11/26:1; (negligent entrustment in MVA properly rejected, affidavit averring mother’s knowledge of daughter’s driving abilities not based on affiant’s personal knowledge but from what he was told by his lawyer, family purpose doctrine again rejected, evidence of counsel’s formal complaint against Trooper, his report, and conclusions of MHP investigation of the complaint inadmissible hearsay, ill Trooper’s deposition properly allowed rather than attendance at trial, new trial not required because Defense counsel named wrong officer as to claim that officer was told Defendant did not stop at sign, defense verdict legal (over claim of failure to drive on right or unsafe lane change), supported by substantial evidence (jury resolved disputes as to whether Plaintiff stopped, whether Defendant swerved into other lane to avoid collision)) Styren Farms v. Roos, 12/3:1
Product liability: (house fire caused by owner modification of stove, not welds applied by welder, product liability, implied warranty of fitness, negligence claims properly rejected on summary judgment) Craddock v. Bob’s Welding Shop, 7/23:1; (failure to warn of increased ball speeds from aluminum bat properly submitted to jury, JML following $850,000 verdict for death of “bystander” pitcher struck by ball properly denied because there was not complete lack of evidence he would have heeded a warning, assumption of risk properly denied for lack of evidence pitcher knew he would be seriously injured or killed pitching to aluminum bat, jury properly instructed, verdict affirmed) Patch v. Hillerich & Bradsby (Louisville Slugger), 7/30:1; (affirmative defenses of misuse, assumption of risk, contributory/comparative negligence where truck driver struck between eyes by whipping handle of load binder when releasing binder which had been tightened with winch bar asserts design defects, failure to warn, rejected, punitives claim rejected) Dunn v. Ancra International, 10/1:7; (Plaintiff who fell from loader bucket is the only “user” under product liability law, whether supervisor or co-worker read or understood warnings against riding in bucket irrelevant, up to jury whether, if product was defective, that defect was substantial factor in injury, manufacturer may not argue that actions/inactions of instructor or co-worker caused injuries, manufacturer not entitled to unreasonable misuse defense since it was admittedly reasonably foreseeable that someone might ride in bucket, highly unlikely that manufacturer will be able to introduce evidence supporting assumption of risk defense instruction, but ruling reserved, rulings on affirmative defenses of manufacturer’s acts/omissions not substantial contributory factor, compliance with statutes/regulations) Holland v. CNH America, 10/8:6
Wrongful death: (supervisory control challenging Cybulski’s refusal to add fraudulent conveyance to death claim denied) Norby v. Cybulski, 1/1:5
Wrongful discharge: (while evaluation that led to transfer to different plant and job that Plaintiff could not satisfactorily perform may have been flawed, reassignment not constructive discharge since he did not quit, failure to meet production standards at new job reasonable job-related grounds for discharge) Williams v. Plum Creek Timber, 1/1:6; (contract for specific term which also allows termination at will is not “written contract for a specific term” under §39-2-912, employee not precluded from bringing claim under WDA, first impression) Brown v. Yellowstone Club, 7/2:2; (preclusion of MDT employee’s claim from WDA in favor of BPA grievance not violative of equal protection) Kershaw v. MDT, 7/23:2; (summary judgment for employer precluded by fact questions as to whether transfer evaluation form was part of written personnel policy which employer violated by failing to apply it consistently to all employees and wrongfully demoted & transferred long-term employee to another mill and job for which he lacked experience and which led to his discharge) Williams v. Plum Creek Timber, 11/5:3; (common law claims of LPN fired for being surrogate mother for employer’s patients not “for discharge” or “inextricably intertwined” with WDA claim, survive 12(b)(6) motion) Acosta-Yearick v. Billings Clinic, 12/10:5
*Trusts
Bankruptcy discharge: (debt discharged in Ch. 7 properly reduced from share of trust upon trustor’s death under pre-discharge trust terms) Marjorie Q. Ward Revocable Trust, 12/10:1
Business trust: (Court had jurisdiction to declare invalid “pseudo-legal gibberish” business trusts purporting to convey Montana property to new age guru, order return of $10,000 trust fee plus interest, attorney fees for violation of Securities Act) Estate of Reeder, 6/4:3
Settlement approval: (no abuse of discretion in denying 2nd continuance of settlement hearing to find lawyer, no prejudice to trust beneficiary by approval of settlement petitions) Testamentary Trust under the Will of Victor Finco for the Benefit of Arlene Finco, 12/31:1
*Utilities
Electric: (Hospital “customer” may receive electricity from city wholesaler, PSC properly reversed, Seeley affirmed) Great Falls v. PSC, 7/2:5
*Verdicts
Accountant negligence: (3rd-party “Professional Negligence” claims against accounting firm more properly classified as negligent misrepresentation, Restatement of Torts §552 applied to bank holding company’s claim against accountant for audit reports as to condition of mortgage company which holding company acquired (mortgage company’s CFO had manipulated records to conceal $7.2 million diversion), holding company failed to establish that accountant should have identified it as one that might rely on audits provided for mortgage company’s warehouse lending agreement, summary judgment proper for accountant on holding company’s negligent misrepresentation claim, holding company’s fraudulent misrepresentation claim properly rejected for failure to plead with particularity, subsidiary bank properly pled fraudulent & negligent misrepresentation by accountant, improper instruction on near-privity due to improper classification as professional negligence, defense verdict (70% negligence by bank, 30% by accountant) reversed, remanded for new trial on bank’s negligent misrepresentation claim under §552) Western Security Bank v. Eide Bailly, 1/8:4
Auto: ($1,450,000, intersection auto, admitted liability, brain/cervical fusion, future lumbar surgery) Keller v. Baszler, 5/28:4; ($100,000, rear-end auto, admitted liability, cervical whiplash) Texter v. Howard, 6/4:6; (trial to determine driver in MVA in which insurer interpled $25,000 limits) Progressive Direct Ins. v. Stuivenga and Evans, 6/4:7; (preexisting conditions/injuries other than MVA back injuries properly admitted after Plaintiff opened door in opening, motion to exclude IME psychiatrist on grounds of ties with insurance industry and defense bar properly denied as untimely and for failure to demonstrate lack of independence, report properly admitted, psychiatrist’s summary of IME neurologist’s report properly allowed over hearsay objection, general rather than special verdict form properly used, $26,000 verdict affirmed) Johnson v. Chambers, 7/16:2; (impeachment exception to Rule 407 narrowly interpreted to allow subsequent remedial measures if defendant attempts exaggerated claims that original condition safest possible, highway construction parties made no such claims, impeachment not at issue, evidence of post-MVA “no left turn” sign properly excluded, counsel properly allowed to ask admittedly inattentive driver about chew tobacco use while driving, claim of improper use of deposition at trial not developed for appeal, claim of improper comments by counsel not preserved for appeal, verdict not defective because jury failed to answer all queries and proceeded to end of form and entered 0% negligent for construction defendants and 100% negligent for rear-ender driver, defense verdict (no contribution from construction parties in $1,046,189 settlement by trucker with pregnant woman injured in construction zone) affirmed) United Tool Rental v. Riverside Contracting, 9/3:1; ($27,000, single-vehicle MVA, backseat passenger, admitted negligence, shoulder decompression surgery, lost baseball scholarship) Murray v. Whitcraft, 9/3:7; (defense, rollover death, safety canopy claims against vehicle manufacturer, rental agency, admitted liability by other driver, $300,000 from other driver, $965,000 UIM from decedent’s employer) Stokes (Pr for Carter) v. Ford Motor, 10/1:5; (defense, triples semi rollover, injured co-driver, fractured ribs/soft-tissue neck/hematoma) Long v. FedEx Ground Package System, 10/8:7; ($150,611.17/$10,760 ($134,416.73 net after advance), T-bone pickups, admitted liability, knee contusion, soft-tissue knee/back/whiplash) Nau v. Soteros, 10/15:7; (negligent entrustment in MVA properly rejected, affidavit averring mother’s knowledge of daughter’s driving abilities not based on affiant’s personal knowledge but from what he was told by his lawyer, family purpose doctrine again rejected, evidence of counsel’s formal complaint against Trooper, his report, and conclusions of MHP investigation of the complaint inadmissible hearsay, ill Trooper’s deposition properly allowed rather than attendance at trial, new trial not required because Defense counsel named wrong officer as to claim that officer was told Defendant did not stop at sign, defense verdict legal (over claim of failure to drive on right or unsafe lane change), supported by substantial evidence (jury resolved disputes as to whether Plaintiff stopped, whether Defendant swerved into other lane to avoid collision)) Styren Farms v. Roos, 12/3:1
Blasting: ($6,244.84 net (49/51 liability, $50,000 gross for damaged excavator, $19,255.16 due Defendant on contract), road blasting mishap) Patterson Enterprises v. Archie Johnson Contracting, 1/1:7; ($53,969.41, red-light rear-end MVA, cervical strain, summary judgment liability) Hodge v. Toole, 12/10:7
Burned trees: (JML should have been granted on claim for restoration damages for burned trees where Plaintiff presented undisputed evidence of temporary nature of injury and “reasons personal” for seeking to restore property and Defendant only argued that damage to trees will naturally restore, $250,000 verdict reversed, remanded for new trial on claim of $1,050,000 to restore) Lampi v. Speed, 9/17:2
Business venture: (objection to “and/or” instruction as to 2 defendants inadequate & untimely after business venture case tried on joint & several theory, $185,000 judgment affirmed) Sands v. Universal Casettes, 7/16:4
Chiropractic malpractice: ($140,000, chiropractic malpractice, shoulder/elbow injuries during extremity adjustment) Turner v. Pernsteiner, 1/1:7
CO exposure: (defense, claims by RV salesman against employer/sales managers as to CO exposure from ventless heater, intentional mental/emotional harm to mother, following Supreme Court reversal of summary judgment for Defendants based on comp exclusivity) Nicole Alexander as PR of Mike Alexander v. Bozeman Ford, 9/17:10
Computer repairs: (defense verdict on claimed computer repairs, award of fees to Defendants, properly upheld by District Court) Rogers (Mike’s PC Parts) v. Baum, 12/17:4
Diesel engine damage: (defense, catastrophic heavy equipment engine damages due to alleged water-contaminated fuel) Horn v. Bull River Country Store Properties, 10/29:6
Drug Label/information negligence: (cross-jurisdictional class action tolling rule adopted, suit against maker of cancer drug Zometa tolled during federal class action, not necessary to address whether drug maker properly substituted for fictitious defendant, jury properly instructed as to label adequacy, not necessary to decide propriety of alternative as to “learned intermediary” although Court tends to conclude it was proper, amendment to apportion liability between drug maker and settling doctor properly denied for lack of timeliness, statements by Plaintiff in pleadings prior to drug maker’s joinder properly excluded (not judicial admissions, not subject to judicial estoppel, “admissions against interest” raised first time on appeal not addressed), any error in excluding inconsistent statement by oral surgeon in MLP proceeding as to alternatives to tooth extraction harmless because no prejudice, testimony by oncology office manager as to change in label properly offered in support of change in office protocol, not impermissible subsequent remedial measure by drug maker, JML properly denied drug maker as to causation relating to tooth extraction, 11th hour request to add punitives claim properly denied, $3.2 million general damages verdict improperly offset by SSD) Stevens v. Novartis Pharmaceuticals, 1/8:2
Excavation fall: ($92,424.37 net (45/55), fall into airport excavation, soft-tissue lower back) Rogers v. Anderson Const., 6/4:6
Excessive force arrest: (defense, excessive force arrest/detention claims by PFMA victim, negligence by deputies in connection with use of force, but negligence not cause of claimed aggravation of prior back injury/pain) Bonogofsky v. Big Horn Co. Sheriff’s Dept., 7/30:5; (defense) Jackson v. Craigen, 10/8:8; (defense, claim of excessive force in shooting death of shotgun-wielding 13-year-old following high-speed pursuit for gas drive-off) Keeley v. State, 11/12:7
FDCPA: (debt collection law firm’s bona fide error defense to prosecution of time-barred claim properly rejected on summary judgment, generic evidence that all credit cards contain fee provisions insufficient to create fact issue for jury as to firms’ contractual entitlement to fees, summary judgment proper that firm violated FDCPA by seeking fees in collection complaint, requests for admission asking Debtor to admit untrue facts (concede case) violative of FDCPA, testimony of other debtors’ experiences with collection firm properly admitted, challenge of expert attorneys’ testimony not preserved for appeal, firm opened door for admission of list of all of its Montana suits, challenge to instructions not preserved for appeal, malicious prosecution supported by lack of probable cause for collection suit and by malice, abuse of process supported by substantial evidence, $250,000 verdict for emotional distress not based on speculation & guesswork, no evidence that jury blurred emotional distress and $60,000 punitives award, $311,000 verdict affirmed ($107,770 fees/costs also awarded, not appealed)) McCollough v. Johnson, Rodenburg & Lauinger, 3/12:3
FELA: (defense, conductor, “helper” engine maneuver, cervical spine) Boude v. UP, 4/23:5; (defense, conductor’s claimed mental condition from train collision) Perszyk v. BNSF, 6/4:6; ($2 million, FELA, conductor, low back, liability imposed and contributory fault stricken due to spoliation, retrial following prior $235,000 judgment) Silliker v. BNSF, 9/3:6; (LIA claim that locomotive not in condition to move train through tunnel in which engineer claimed CO injuries improperly dismissed, testimony from treating physician as to PET scan properly excluded for failure to call neurologist, defense verdict reversed, remanded for retrial) Weber v. BNSF, 9/17:1; ($1.7 million, FELA, engineer, defective locomotive seat, low back/neck, summary judgment for Plaintiff on LIA violation) Boyles v. BNSF, 11/5:7; ($320,000, carman, dislocated knee) Underwood v. BNSF, 11/19:7
Fire caused by barn roof blown off and cutting wire: (jury improperly instructed as to “better way” and “prescience”, Jacobsen to contrary overruled, defense verdict reversed, remanded for new trial) Goles v. Neumann, 2/12:1
Flooring defects: (defense verdict against flooring supplier, settlement by general contractor and installer, failed hardwood flooring on below-grade concrete) B Bar J Ranch v. Carlisle Wide Plank Floors, 4/23:4
House construction: ($100,000 for negligent log home construction, misrepresentations, deceptive practices, no breach of contract or fraud, construction lien invalidated, damages doubled under UTPCPA, $116,354 attorney fees, $3,097 costs, $319,450.79 total judgment) Beauchamp v. Lekse, 3/19:4; (house defect claims against broker not frivolous, fees properly denied following defense verdict for broker ($80,000 against builder and salesperson)) Harmon v. Fiscus Realty, 9/24:1
House fire: (defense, home fire alleging unattended heaters used by stucco contractor) Sager v. Cornerstone Wall Systems, 10/1:6
House remodel: (construction lien properly found valid, $15,264 breach of contract verdict affirmed) Loken Builders v. Boyce, 2/19:1
Lending breach: (defense) XL Enterprises v. First Interstate Bank, 3/12:3; (defense, subdivision developers) Oakwood Properties v. Yellowstone Bank, 6/11:8
Medical malpractice: ($1,720,000, med-mal death, failure of primary care physician to refer patient with heart condition to cardiologist following chest pain episode, retrial following reversal of defense verdict) Heidt v. Argani, 2/26:5; (defense, medical malpractice, death from medication for pain & disability allegedly caused by nerve injury from spinal shunt) Griffin v. Moseley, 4/23:5; ($750,000, medical malpractice, infection/ CSF leak/nerve scarring following wrong level lumbar surgeries, failure to obtain informed consent by relaying erroneous nerve conduction studies finding) Nash v. Brewington, 12/10:6
Meth house: (County failed to seek ruling on duty to report meth house under §75-10-1306(1) vis-à-vis its 10/1/05 effective date, waived right to appeal duty issue following $563,592 verdict to buyers of house, $187,864 attorney fees from County in unopposed bill of costs properly denied, as well as on claim that defense was frivolous or in bad faith) Slack v. L&C Co., 11/26:1
Nuisance: (DEQ documents/testimony as to its interpretations of MVRDA/SWMA properly excluded as invading province of judge, contract claim against adjacent owner with junk properly rejected based on lack of consideration between owners, where owner had buy-sell contingent on owner with junk removing junk, no negligence per se by owner with junk for failure to comply with MVRDA or by County for failure to enforce statute with no private right of action, 5 days for filing costs memorandum is 5 business days, one Defendant waived costs by filing 6th business day, defense verdict affirmed) Doyle v. Clark, 6/11:4
Oil/gas surface damage: ($439,400, oil/gas surface damage to ranch by exploration company, breach of contract) McEwen v. MCR, 11/5:8
Parking garage breezeway fall: (defense, fatal City parking garage breezeway fall, per se negligence because guard walls 41, not 42 per IBC) Grove v. Helena, 4/23:4
Plumbing subcontract: ($43,547 to plumbing subcontractor on college building contract claim against general contractor, Prompt Payment Act violation, no unjust enrichment or tortious interference with contract, no breach of contract by plumbing subcontractor) 4-G Plumbing & Heating v. Oswood Const., 4/23:4
Podiatry malpractice: (defense, hammer toe surgery, retrial following reversal of prior defense verdict) Willing v. Quebedeaux, 8/13:5
Police “on-call” time: (defense, “on-call” time by town officers not compensable) Stubblefield v. West Yellowstone, 11/26:8
Septic tank drowning: (defense, wrongful death/ product liability, drowning of child in unsecured septic tank, $250,000 settlement with one Defendant) Stahlberg v. Mohl Concrete Products, 11/26:7
Sewer subcontract: ($250,000, breach of sewer subcontract) Schellinger Const. v. Western Municipal Const., 12/24:7
Slip & fall: (defense, store restroom slip & fall, hip/ back/neck) Aviles v. Costco Wholesale, 5/28:5; (defense, townhouse stairs fall, ACL) Watts v. Havener (Rose Condos), 9/3:7
Suicide v. murder: (verdict/judgment finding death suicide, rejecting claims of negligence in investigation and inquiry, affirmed) Jorgensen v. Gallatin Co., 9/3:2
Trench fall: (Plaintiff failed to preserve objection to assumption of risk defense to trench fall strict liability claim, acquiesced in availability of the defense, 60/40 defense verdict affirmed) Bell v. Cummings, 6/4:1
Vehicular homicide: (not guilty of vehicular homicide, guilty of DUI, rolled vehicle with boyfriend in topper unbeknownst to Defendant) State v. Kramer, 11/19:7
Wrongful death: (failure to warn of increased ball speeds from aluminum bat properly submitted to jury, JML following $850,000 verdict for death of “bystander” pitcher struck by ball properly denied because there was not complete lack of evidence he would have heeded a warning, assumption of risk properly denied for lack of evidence pitcher knew he would be seriously injured or killed pitching to aluminum bat, jury properly instructed, verdict affirmed) Patch v. Hillerich & Bradsby (Louisville Slugger), 7/30:1
Wrongful discharge: ($134,435 less $36,400 mitigation, wrongful discharge, auto dealer HR director) Nicholson v. Rimrock Automotive, 5/21:7; (defense, HRA, GCFP, wrongful discharge, DOR Liquor Licensing Bureau Chief, FMLA claim dismissed on grounds of state sovereign immunity) Wood v. DOR, 12/17:6
*Water
Standing: (no restriction on who may object to water right claim in temporary preliminary decree, Trout Unlimited improperly precluded from objecting and requesting hearing) Montana Trout Unlimited v. Beaverhead Water, 7/2:5
*Workers’ Compensation
Causation: (no causal relationship between cervical condition and employment, motion for sanctions against insurer for “wasting time” by not defending denied) Chapman v. Twin City Fire Ins., 1/22:8; (small amount of CO from water heater at restaurant not linked to symptoms) Ingle v. MSF, 2/19:7; (injury from idiopathic fall onto level floor does not arise out of employment, not compensable, first impression) McLeish v. Rochdale Ins., 7/30:7; (Petitioner failed to establish cervical disk condition caused/aggravated by job accident, subjective complaints associated with injury do not correlate with objective medical findings for which he seeks surgery, no entitlement to TTD since no doctor disputes that he is able to work without restrictions) Ford v. Sentry Casualty, 8/6:7; (Petitioner failed to prove injury result of job accident, evidence of probation violation or invocation of Fifth excluded as irrelevant, Petitioner’s motion to compel investigative report denied as work product) Martin v. MSF, 9/3:8
Employer: (Petitioner was employee of mill even though he worked in subsidiary’s powerhouse, mill properly identified as employer for OD claim) Peck v. International Paper, 1/15:8; (Claimant injured feeding grizzly was employee of bear park, not volunteer, marijuana not “major contributing cause”) Hopkins v. UEF, 3/26:1
Evidence: (surveillance videos of Claimant following $610,000 settlement disseminated in violation of CJIA, doctors’ opinions based on videos excluded in declaratory action as to entitlement to allegedly fraudulent settlement) MSF v. Simms, 1/22:6; (invocation of 5th makes co-worker “unavailable,” but statements to 3rd parties that he shot Petitioner in self-defense not against interest, not admissible) Lira v. Ins. Co. of State of Pa., 2/5:6
Exclusivity: ($3,000 statutory death payment to non-dependent parent constitutional over exclusivity/quid pro quo challenges) Walters v. Flathead Concrete Products, 3/19:1; (supervisory control denied as to Watters’s refusal to dismiss 3rd-party complaint) Western Sugar Cooperative v. Watters, 7/2:6
Filing time: (MCCF’s denial of specific medical bill cannot be construed as denial of benefits and dispute over liability as to claim in general which would trigger 2-year period for petition, MCCF’s motion to strike MSF’s brief in opposition to MCCF’s summary judgment denied despite no cross-claims between them, likelihood of summary judgment for Claimant on statute of limitations exclusive of disputed denial letter raised sua sponte) Bell v. MSF, 8/6:8
Going & coming rule: (MVA on way to construction job site not exception to going & coming rule, not compensable) Charlson v. MSF, 3/12:7
Healthcare information disclosure: (§§ 39-71-604(3) & 50-16-527(5) unconstitutional under Art. II §10 as applied to Claimant seeking notice & participation in insurer’s request for provider information to ensure that it is relevant, private AG fees foreclosed by prior stipulation for judgment waiving fees) Malcomson v. Liberty Northwest, 3/5:8, reconsideration, 4/30:5
Hiring preference: (fact issue as to qualifying injury for hiring preference where Petitioner settled on disputed liability basis) McLaughlin v. NWE, 4/2:8; (equitable estoppel defense based on attorney’s demand letter assertion that settlement would include giving up preference rejected) McLaughlin v. NWE, 7/16:8
IME: (insurer entitled to current IME where condition has changed, Claimant relies on Rule 35, insurer on §605) Salazar v. MSF, 3/19:6; (not precluded by work relationship with industrial hygienist at CO Claimant’s workplace) Svendsen v. MSF, 6/18:8; (motion to compel IME in Portland denied) Perlinski v. MSGIA, 7/2:7; (insurer failed to establish claimed memory loss a new condition, motion to compel 3rd IME denied) Dodge v. MIGA, 8/6:7
Impairment: (correct edition of Guides for impairment rating is most recent edition at MMI) Drake v. MSF, 2/5:6
Indemnification: (MSF entitled to indemnification for payments which were properly & primarily owed by Liberty in non-Belton case) Liberty Northwest Ins. v. MSF, 3/26:8
Last injurious exposure: (Respondent not liable under “last injurious exposure rule” where Claimant worked “same type and kind” of jobs concurrently until quitting Respondent’s insured) Banco v. Liberty Northwest Ins., 6/18:7
MMI: (Claimant who may have been at MMI in past no longer at MMI due to need for pain management and reduced pain meds, meds dependency precludes working, Claimant entitled to TTD, TTD start date moved back to date of doctor’s notes rather than deposition opinion that meds rendered Claimant incapable of work, not moved farther back as requested by Claimant, rulings on motions for reconsideration of previous rulings) Sherwood v. Watkins & Shepard, 2/26:8
OD: (aggravation of arthritic condition compensable even though §39-71-407(2)(a) specifically refers only to “injury” rather than OD, cause may be “leading cause” without being majority cause, truck driver’s work leading cause of arthritic conditions in hands, precluded from returning to work, entitled to TTD, medicals, costs) Grande v. MSF, 6/25:8, (claimant met burden as to general questions framed as to whether he suffered OD arising out of work and whether he was entitled to related TTD and medicals, did not establish entitlement to medicals specific to treatment of temporary aggravation of arthritis, motion to amend denied), 7/30:7
Pain evaluation: (no evidence that new evaluation by doctor would yield different results from 2009 evaluation, placement in Washington for pain drug addiction to be evaluated in Montana if possible, bench ruling) Sherwood v. Watkins & Shepard Trucking, 2/5:6
Petition timeliness: (asbestosis petition more than 2 years after denial of benefits untimely, no equitable estoppel by further investigation following unequivocal denial, statute not tolled by failure to investigate, not “reset” by post-denial investigation or 2nd denial letter) Johnson v. MSF, 7/30:7
Privacy: (response allowed for challenge to ex parte dissemination to MSF of confidential criminal justice information) Matter of RPC and Dissemination of Confidential Criminal Justice Information, 8/20:4, (declaratory/injunctive relief/supervisory control of 1st Dist. judges as to ex parte dissemination to MSF of confidential criminal justice information denied without prejudice to consideration on fully developed district court record)
Procedure: (Rule 6(e) time for service by mail not applicable to 60 days for petitioning after mailing of mediation report, untimely petition dismissed) Bailey v. UEF, 1/15:7; (amendment of response to petition for trial to add 30-day notice defense granted) Murphy v. MSF, 1/15:8; (fact issues as to MMI in light of neurological dysfunction and neurobehavioral status preclude summary judgment on indemnity/medicals termination) Newman v. MSF, 5/21:7; (claimant met burden as to general questions framed as to whether he suffered OD arising out of work and whether he was entitled to related TTD and medicals, did not establish entitlement to medicals specific to treatment of temporary aggravation of arthritis, motion to amend denied) Grande v. MSF, 7/30:7; (Flynn Order “paid in full” properly applies Dempsey retroactivity principles) Flynn v. MSF, 12/3:2
Rehab: (§39-71-710 rehab age limit violates equal protection in deeming disabled workers ineligible for rehab based on SS eligibility) Caldwell v. MWCT, 7/16:3
Rescission: (incorrect burden in denying petition to rescind settlements, reliance on misdiagnosis can suffice for mutual mistake, parties can be “unconsciously ignorant,” need not be “entirely” ignorant of fact, remanded for findings as to “vital facts” underlying settlement, application of correct standard for mutual mistake, as well as whether misdiagnosis material, statute of limitations triable) Keller v. Liberty Northwest, 1/1:3
Settlement: (parties entered into binding settlement, not mere “agreement to settle” as claimed by Claimant, WCC has jurisdiction to review validity over claims of fraud) MSF v. Simms, 1/22:6
SSD offset: (SSD for 11 “severe” conditions not “because of” comp injury (1st impression), no offset) MAWCoWCT v. Klinkam, 12/17:7
Statute of limitations: (summary judgment on asbestosis claim precluded by statute of limitations fact issues) Lanman v. MMIA, 12/31:7
Treating physician: (diagnosis by unauthorized Wyoming orthopedist whose Montana license expired prior to trial properly considered even though not treating physician under statute, properly given more weight than pain specialist treating physician) Wright v. ACE American Ins., 3/19:2
UEF: (equitable tolling applies to 60-day deadline in ambiguous statute following mediator’s recommendation that UEF claim be settled, UEF’s motion to dismiss correctly denied (but on equitable tolling, not constitutionally vague basis), WCC has jurisdiction to toll, Californian operated purported Montana “vacation” house with profit motive, uninsured worker not in casual employment, UEF required to pay medicals, employer responsible for indemnification) Weidow v. UEF, 1/8:7; (§39-71-520 (2009) time limits for appeal from UEF denial, petition to WCC, did not exist on date of 1993 injury, not applicable to missed §520 deadlines even if statute treated as procedural) Dostal v. UEF, 1/29:8; (§39-71-520(1) bar not tolled for claimed financial/ health problems, Petition dismissed for failure to request mediation within 90 days of UEF determination) Florence v. Morales, 3/12:8; (uninsured employers dismissed from 1st-party action by employee for lack of jurisdiction) Jensen v. UEF, 8/20:8
Wage: (seasonal logger’s average weekly wage correctly calculated using 1-year period) Leigh v. MSF, 1/29:8
Work product: (inadvertently disclosed reserve information is protected work-product, not relevant to alleged unreasonableness of settlement offer for purposes of penalty and fee statutes, may not be used as trial exhibits) Salazar v. MSF, 12/31:7
*Youths
Jurisdiction: (burglar who absconded from Youth Court supervision before petition to transfer to District Court was acted on should have been released when he turned 21 pursuant to §41-5-205(1)) JA, 7/9:5
Out-of-state program: (return to out-of-state program upon revocation not punitively motivated, comports with YCA rehab, return to family) Daniel M, 4/23:4
Sex offender: (requirement to register to age 21 or 25 reasonable under ambiguous disposition statute) DCN, 6/11:7
Transfer-back hearing: (dismissal not required by untimely hearing, rights protected but waived, counsel not ineffective for not moving for dismissal) Lindsey, 3/26:3