subjectindex2007

Amicus curiae: (non-appealing party to litigation not permitted to appear as amicus on Firemen's Rule) Fisher v. Swift Transportation, 2/17:2; (untimely/unnecessary motion by Insurance Commissioner to appear amicus in case involving Petroleum Tank Release Board denied) Petroleum Tank Release Compensation Board v. Federated Services Ins., 7/21:4

Appealability: (appeal prior to determination of attorney fees premature) Blue Ridge Homes v. Thein, 1/6:1; (interlocutory orders, including order to pay interest on sanction, not appealable, sanctions for unreasonable appeal) Stipe v. FNB Polson, 4/7:2; (negligence inadequately pled, leaving dismissal of defective decking claim ripe for appeal) Halloran v. Trex, 4/21:1; ("final judgment'' from order setting amount of discovery sanction, not from sanction order, appeal timely) Harding v. Garcia, 5/26:2; (appeal premature before determination of amount of attorney fees although award assertedly "incidental'' to dismissal, not based on statute or contract) Webb Financial Group v. BMP Capital Resources, 9/1:2; (appeal of property distribution "Hobson's choice'' premature) Marriage of Van Derveer, 10/13:3; (denial of motion to dismiss for lack of subject jurisdiction appealable prior to final judgment, but standing issue premature, appeal dismissed) Ballas v. Missoula Board of Adjustment, 11/24:3; (injunction pending appeal requires District Court order/bond under new MRAP) Popovich v. Cascade Exploration, 11/24:3; (appeal of $236,811 city pools construction contract verdict premature in light of unresolved claim against surety, dismissed without prejudice) Patterson Enterprises v. The Pool Company, 12/8:2; (order upholding §39-71-710 PTD age limit as to delegation/equal protection improperly certified as final with other issues pending, appeal dismissed without prejudice) Satterlee v. Lumberman's Mutual Casualty, 12/15:2; (notice of appeal sought to appeal non-appealable orders, thus 9th Circuit never had jurisdiction and it was proper for District Court to begin exercising jurisdiction over case transferred from Nevada, discovery extension properly denied, case properly dismissed as sanction for failure to appear at pretrial conference or explain that Defendant would not be appearing because of pending appeal, appeal of denial of motion to extend discovery did not deprive Court of jurisdiction to dismiss complaint, alternative request for mandamus did not destroy District Court jurisdiction) Nascimento v. Dummer, 12/15:6

Bond: (bond request/appeal dismissal denied by Plaintiff claiming difficulty finding assets upon which to levy on bulk of $1,113,276 judgment) Rowden v. American Evangelical Association, 9/15:2

Briefs: (procedural material improperly included in appeal brief appendix, stricken, "shotgun'' briefing, incorporation by reference, rapped, sanctions awarded for appeal errors) Murphy Homes v. Muller, 6/16:1; (overlength brief denied in restrictive covenants appeal) El Dorado Heights Homeowners' Association v. DeWitt, 6/16:5; (pro se appeal claiming separation adultery by wife dismissed for failure to comply with rules, appeal fees/costs denied) Erickson, 7/7:2; (untimely response brief disregarded) Stewart v. Hauptman, 7/14:3; (supplemental briefing allowed on RSA preemption, but simultaneous, not staggered) Smith v. BNSF, 9/1:2

Dismissal: (appeal dismissed without prejudice on Appellant's motion, Respondents awarded fees/costs of "fizzled'' appeal) O'Connor v. DLI, 5/26:2; (motion to dismiss prior to filing of all briefs premature) MBNA America Bank v. Tramelli, 10/20:3

Extension: (motion for extension to file response brief in abuse/neglect appeal fails to meet MRAppelP requirements, but partial extension granted as practical necessity) BB, 3/31:3

Injunction pending appeal: (request remanded to allow opportunity to fulfill MRAP 22(d) requirements in challenge of zoning settlement) Bitterrooters for Planning v. Ravalli Co. Commissioners, 12/1:2; (subdivision challenger failed to seek to preserve status quo pending appeal, appeal moot following final approval and sale of lots) Henesh v. Gallatin Co.Commissioners, 12/15:2; (granted to halt condo sales in light of precipitous district court course and speedy final plat approval, pending expedited resolution of standing issue, no bond at this time) Swan Lakers v. Lake Co. Commissioners, 12/22:4

Pro hac vice: (rules waived to permit out-of-state AUSA to argue as to standard of care in $10,767,120 snowmobile verdict) Oberson (for Musselman) v. FS, 4/21:3

Rehearing: (rehearing reply brief disregarded) State Farm Mutual Auto Ins. v. Gibson, 8/4:2

Extension: (motion for extension to file response brief in abuse/neglect appeal fails to meet MRAppelP requirements, but partial extension granted as practical necessity) BB, 3/31:3

Mediation: (untimely joint motion to substitute appointed mediator denied) Scanlon v. Pazder, 1/6:1; (Court approval of briefing stay stipulation not required) Heinze v. Bekins Van Lines, 2/17:3; (Appellant ordered to pay half mediation fees/costs or face potential sanctions including dismissal of appeal) Owens (Cowboy Bar) v. DOR, 5/19:2; (whether issue raised first time in reply to be decided after review of all briefs) Trust B Under Will of Dunham, 5/19:3; (expedited appeal denied) Paternity of CTE, 5/19:3; (stipulation for substitution of mediator denied as untimely) Marriage of Coffman, 8/11:5; (untimely stipulation for mediator, Clerk to appoint) Marriage of Crilly, 9/15:3

Notice of appeal: (must be properly designated as from Rule 54(b) or not) Matter of Appeals Improperly Certified as final Judgments Entered Pursuant to Rule 54(b), 12/15:2

Pro hac vice: (rules waived to permit out-of-state AUSA to argue as to standard of care in $10,767,120 snowmobile verdict) Oberson (for Musselman) v. FS, 4/21:3; (denied) Cole v. St. James Healthcare, 12/15:3

Rehearing: (rehearing reply brief disregarded) State Farm Mutual Auto Ins. v. Gibson, 8/4:2

Rules: (draft revision circulated) New Rules of Appellate Procedure, 1/13:1

Sanctions: (unreasonable appeal) Stipe v. FNB Polson, 4/7:2; (appeal errors) Murphy Homes v. Muller/Aberle, 6/16:1; (awarded to appraiser as requested, not requested by attorney) Roselle v. Davis, Warren & Hritsco, 6/23:2; (denied) Wolfe v. Newman, 7/28:2; (denied) Clark v. Dwyer, 9/22:2

Standard of review: (de novo, not deferential, review of motion for new trial based on insufficient evidence (clarification of past incompatible standards)) Giambra v. Kelsey, 6/30:2

Supervisory control: (belated petition for supervisory control of Lympus to void orders issued subsequent to refusal to grant substitution denied) Puffer v. Lympus, 1/6:1; (supervisory control despite probable mootness) State v. Lake Co. Justice Court, 1/13:2; (petition sealed to hide medical malpractice settlement amount, redacted petition to be filed, petition dismissed) Norris v. Fritz, 9/29:1

Supplement record: (motion to supplement record with injunction transcript in appeal of summary judgment by Lympus in Flathead Lake erosion case denied) Mattson v. MPC, 10/13:2

Timeliness: ("reconsideration'' motion construed as motion to alter/amend, appeal time from denial of motion, not notice of entry of judgment (never filed by either party), appeal 5 months too late) Marriage of Horton, 8/11:4

Transcript: (Defendant given additional time to file brief due to court reporter on maternity leave) Clark, 6/9:7; (court reporter ordered to show cause why no contempt for failing to complete transcript) Wing, 6/9:7; (lack of transcript precludes review of 0 pain/suffering damages by sledder run over by vehicle, counsel rapped for not providing essential appeal materials, no transcript or record to support claim that judge improperly refused to let jury consider emotional distress/course of life damages) Giambra v. Kelsey, 6/30:2; (partly sealed transcript of hearing ordered unsealed for Plaintiff's appeal of denial of new trial, supervisory control granted) Larchick v. Baugh, 6/30:4; (court reporter ordered to show cause for no contempt for failure to complete transcript) Jackson, 8/4:6

Unpublished orders/opinions: (not to be cited) State v. Oie, 12/29:4

Arbitration

Compel: (clause in shortline RR "Interchange Agreement'' part of unexecuted potential future contract, too narrow to obligate State or assignee to arbitrate future disputes, motion to compel denied) Central Montana Rail v. BNSF, 2/3:5; (credit card debtor's award invalid ab initio because arbitrator not specified in agreement and creditor did not consent to that arbitrator, motion to confirm properly denied) Bank of America v. Dahlquist, 2/10:1; (because individual not signatory to Merchant Application and no basis for binding him to arbitration clause as nonsignatory (estoppel, exploitation of Agreement, third-party beneficiary, agency), Defendants' motion to compel arbitration denied) Scott v. FNB Omaha, 3/10:5; (credit card debtor's award invalid ab initio because arbitrator not specified in agreement and creditor did not consent to that arbitrator, FAA time limitation not triggered) Citibank (SD) v. Dahlquist, 5/19:2

House construction contract: ($105,831 lost profits to builder of $1.9 million house following termination by owners without proper notice of default, opportunity to cure, no prevailing party attorney fees, parties to split arbitration costs) Dispute Between Stilwills and Rocky Mountain Rustics, 12/22:7

Validity: (no waiver of right to challenge award to credit card holder by non-listed arbitrator, award void because agreement not applicable to disputes of less than $250,000 and non-listed arbitrator, summary judgment for $137,437+ debt proper even if incorrectly characterized as "default'') Wells Fargo Bank v. Talmage (Talmage Auto Center), 2/24:3; (insurance agency arbitration clause valid & enforceable, special concurrence in Kloss did not create independent analysis, validity of non-compete/liquidated damages clauses improperly determined by Judge, should be determined by arbitrator) Larsen v. Western States Ins. Agency, 10/27:6

Wrongful discharge: (UPS hub manager, manager did not lie about training of employee whose failure to follow procedures resulted in misrouting of truckload of packages, was insubordinate for failing to immediately disclose who was in room with him during conference call but not grounds for discharge, UPS did not violate its own policies, failure to mitigate) Dean v. UPS, 3/10:6; (legitimate business reason for RIF of hospital assistant administrator in reorganization, seniority policy not applicable to management, "unclean hands'' not applied to removal of documents following termination, claim that HR Director had discretion to interpret policy to allow dispensing with exit interviews rejected, employer violated policy requiring exit interview for involuntary terminated employees, no statutory exception for post-termination decision violations, Plaintiff awarded $125,196 lost earnings after $172,400 offset for potential mitigation, plus $40,336 prejudgment interest, $1,000 sanctions against employer for Plaintiff having to re-open discovery into improperly redacted minutes) Searle v. Livingston Healthcare, 12/1:6

Attorney Fees, Costs

§1983: ($78,527 §1988 discrimination fees at $150/hr "prevailing market rate of relevant community,'' not $205 sought) Carson v. Billings PD, 2/10:4

CJA: ($12,629 request reduced to $10,333, high end of what is justified in meth case but within bounds of reasonableness, but attorney rapped for pattern of excessive vouchers, either padding or inefficient) Sepulveda, 8/18:6

Contingency v. hourly rate: West v. The Club at Spanish Peaks, 3/3:2

Declaratory judgment: (fees improperly awarded to Oregon comp insurer based merely on fact that it prevailed, not on "necessary & proper'' test for declaratory judgments) Martin v. SAIF, 9/15:1

Frivolous action: ($22,484 attorney fees, $1,266 costs to Defendants for frivolous action, Plaintiff did not waive right to object to fees, legal assistant fees denied, additional fees/costs awarded for responding to vexatious motion to file amended complaint) DeVoe v. Missoula, 10/20:5

Hyde: (intent to harass improperly attributed to US in Reservation housing case, Molloy improperly concluded that US did not understand its case, but in any event decision to prosecute not vexatious, $31,881 fee award reversed) US v. Sherburne, 12/15:6

Prevailing party: (neither party prevailed in settlement of lease suit, fees properly denied to Plaintiff, even though offer of judgment not clear in giving notice of waiver of right to pursue fees) Whipps v. Kaufman, Vidal, Hileman & Ramlow, 3/17:6

Private AG: (sufficient incentive to pursue action to ameliorate private rights without possible award of fees, private AG fees improperly awarded) Sunburst School Dist. v. Texaco, 8/11:1; (amendment to request private AG fees properly denied) Rosenthal v. Madison Co., 11/3:1

Wage claim: (fees properly awarded based on Stimac factors rather than 1/3 contingency) Kuhr v. Billings, 8/25:3

Attorney Practice

Discipline: (no due process/equal protection violations in not being permitted to file reply to ODC response brief) Matter of Shea, 3/3:1; (public censure for "assisting'' clients in fraudulent conduct and misrepresentations to Court in $1.2 million probate settlement) Matter of Potts, 3/24:2; (former Justice disbarred for unauthorized practice) Matter of Shea, 3/24:4; (costs order amended to extend time to pay) Matter of Turrin, 4/14:3; (ODC objections to COP recommendation proper without motion for reconsideration, attorney violated RPC by charging excessive $121,545 fee in uncontested CRT termination, contrary to COP decision allowing merger of fee agreements for separate matters into indecipherable whole, "soon-to-be-earned'' fees improperly placed in lawyer's operating account, insufficient evidence of violation of other rules, COP recommendations rejected, adopted, remanded for sanction for excessive/commingled fees) Engel, 7/21:2; (no time limit for ODC statement of costs, discipline/sanctions include fees for professional services (clarification), whether legal services related to prosecutorial investigations must be determined by Adjudicatory Panel, challenge of COP travel expenses borders on frivolous) Potts, 9/22:1; (unprecedented lack of COP quorum because of recusals of 4 lawyers required temporary appointment of former member) Oaas, 10/6:4

Law partnership: (partner's claim to more than $25,000 "bonus'' from another partner's 55% share of Firm's $1.8 million share of GM gas tank settlement fees rejected, bonus partner's claim for breach of written contract directed at released Firm, not at 55%-fee partner who was reserved from release in settlement with Firm and 45%-fee partner, if partnership statutes apply, claim still addressed to Firm, covenant of good faith attached pursuant to Firm Agreement and partnership statutes, but not breached by "secret meetings'' or broken promises, Agreement terms "properly credited as [the partner's] own'' and "earned'' not ambiguous, no basis for conclusion that partners who perform no substantive work on contingent case entitled to share of fee if partners who perform substantive work do not do "enough'', bonus partner's involvement in "origination of the case/client'' too attenuated for percentage of fee, no breach of fiduciary duty in 55/45 split of fee to partners, no unjust enrichment in retaining 55% share, no basis for constructive trust) Phelps v. Frampton, 10/27:1

Legal malpractice: (claims against appraiser and attorney in divorce case rejected) Roselle v. Davis, Warren & Hritsco, 6/23:2; (release of 1st malpractice action with claims related to auto insurance contract, med-pay, bad faith and 2 accidents for $175,000 barred all future claims arising out of lawyer's representation, use of "alleged'' in release did not limit application to claims made prior to settlement) Rich v. Ellingson and ALPS, 12/22:1

Name change: (Court unable to decide name change request on short notice) In re Grubich, 10/6:4

Pro hac vice: (pro hac vice counsel reminded that practice in Montana a privilege) Royal Indemnity v. Colmore and State Farm Fire & Casualty, 1/6:5; (application to represent Appellant denied) Dovey v. BNSF, 10/20:2

Bench Judgments

Access easements: (Plaintiffs may install cattle guard on their access easement, Defendants must leave gates open but may install speed bumps on Plaintiffs' easement, no damages/injuries by any party) Schwager v. Thramer, 5/12:7

Bank officer relocation: (house financing ($100,000 cash plus payment of ongoing expenses pending sale) to help incoming bank officer relocate was sale/purchase, not "advance'' or "loan,'' Statute of Frauds defense rejected, including based on e-mail "writings,'' Regulation O supports purchase conclusion, bank's claim for $151,748, resulting/constructive trust rejected, officer awarded $23,806 under breach of contract/covenant, estoppel counterclaims) Mountain West Bank v. Richards, 1/6:2

Construction lien foreclosure: (argument that delivery dates not in lien not properly raised at trial, sufficient evidence that materials were delivered to Defendant's property, lien amount capable of being made certain for prejudgment interest despite reduction in recovery, no corresponding attorney fee reduction) LHC v. Alvarez, 6/2:1; (fact issues precluded summary judgment on whether contract price paid in full, motion for judgment as matter of law properly denied as untimely and duplicative of prior rulings or contested, "foreseeability'' not applicable to contract case, insufficiently pled) Murphy Homes v. Muller/Aberle, 6/16:1; (evidence on nature of written/oral concrete agreements properly heard, findings/conclusions regarding agreements and amounts owed affirmed, repair/replacement costs correctly apportioned based on contractor's contribution to deficiencies, individual contractor proper lien claimant, dissolved corporation also proper claimant under equitable doctrine of corporation by estoppel, notice issue as to 1.5%/mo interest on residential construction contracts exceeding $400,000 waived, but applicable only to individual contract, not total project, inappropriately imposed as discovery sanction, lien claimant prevailing party for attorney fees/costs) Weimar v. Lyons (Lyons Concrete), 8/4:1

Default judgment: ($522,478 property damage, $100,000 emotional distress in connection with failed dream home construction, judgment entered to allow Plaintiff to pursue claims against CGL insurer, but not against bankrupt builder) Tomlinson v. Hettick, 1/6:4

Neighbor harassment: ($50,000 compensatory damages properly awarded to Defendants for IIED by Plaintiff neighbors, $10,000 punitives for outrageous behavior, $10,840 fees) Czajkowski v. Meyers, 11/17:1

Pretrial detainee per diem: ($5 per diem on pretrial detainee violative of §1983 substantive due process, challenge not mooted by voluntary rescission. no compensatory damages since no actual injury, but $1 nominal damages, settlement by 3 others for apology letter and $400... attorney fees/costs) Tucker v. Evans, 4/7:7

Civil Procedure

Amendment: (belated assertion of statute of frauds properly denied) Bitterroot International Systems v. Western Star Trucks, 2/24:1

Bifurcation: (supervisory control of Todd denied on refusal to bifurcate med-mal liability/damages) Shulz v. Todd, 8/4:3

Choice of law: Montana rather than Massachusetts law applied to counterclaims) LEAF Funding v. Burch Enterprises, 12/8:5

Class action: (class action settlement precluded claims against decking manufacturer and seller) Halloran v. Trex, 4/21:1

Complaint filing: (complaint sent by UPS timely arrived at Clerk's office last day for appealing preliminary plat approval, even though "filed'' stamp dated 4 days later) Fielder v. Sanders Co. Commissioners, 5/26:1

Compulsory counterclaim: (Rule 13(a) "reply to a counterclaim'' is a pleading that triggers need for replying party to assert all counterclaims arising out of same transaction that is subject of initial counterclaim (first impression), Plaintiff's inventory/equipment claim in subsequently filed action barred by failure to assert in first action) Farmers Cooperative Association v. Amsden LLC, 11/10:2

Construction lien foreclosure: (lien valid (owner of record served, property adequately described, owner rather than owner's trust properly named, trust not authorized to do business in Montana), owner breached contract by failing to pay for work performed, 18% interest pursuant to contract not usurious, contractor entitled to attorney fees below and on appeal for lien foreclosure) AFM Contracting v. Palmer, 4/28:1

Damages: (lost volume theory of damages adopted, applied to services as well as sale of goods) Bitterroot International Systems v. Western Star Trucks, 2/24:1; (current punitives cap not applicable to cause which accrued prior to 10/03 enactment, jury properly considered Defendants' financial condition in punitives proceedings, California law firm properly held liable for its attorneys' (including "of counsel''/ex-partner's) actions, federal due process law properly applied to punitives award against firm for "legal thuggery,'' $20 million verdict against firm properly reduced to $9.9 million, no analysis for challenge of $250,000 punitives against individuals) Seltzer v. Morton, 3/17:1; (6.5:4 ratio excessive, remanded for reconsideration of punitives not to exceed 4:1) Bennett v. American Medical Response, 3/31:7; (punitives review) Malcolm v. Evenflo, 11/3:5

Declaratory judgment: (whether fence is "spite fence'' involves disputed fact questions, not amenable to declaratory judgment, law unsettled as to whether nuisance claim may accompany spite fence claim, left for jury, but no double recovery) Tarlton v. Kaufman, 7/28:4

Default: (County's failure to appear in wrongful discharge suit because Commissioner neglected to deliver summons/complaint to Co. Attorney willful, but prejudice/meritorious defense factors should be considered in motion to set aside default, whether $90,532 verdict reaffirmed or retried on liability dependent on default reconsideration) Engelsberger v. Lake Co., 9/1:1; (improperly not set aside where out-of-state company improperly served, judgment void for lack of personal jurisdiction) Nikolaisen v. Advance Transformer, 12/22:2

Discovery: (Plaintiff failed to establish need for additional discovery time, summary judgment not precipitous) Silvestrone v. Park Co., 10/20:1

Estoppel: (3rd parties not named/served in divorce proceeding, not precluded from quiet title defense of interest in "concealed'' marital property found to be property of estate) Kubacki v. Molchan, 12/1:1

Discovery: (dubious responses, unartful requests rapped, but sanctions denied) Royal Indemnity v. Colmore and State Farm Fire & Casualty, 1/6:5; (complaint of pedestrian/auto Plaintiff with "memory deficits'' properly dismissed with prejudice for failure to comply with discovery requests regarding prior accidents) Linn v. Whitaker and Argus Services, 2/24:2; (majority proposal to amend MRCivP as to electronic discovery adopted) Proposed Revisions to the MRCivP With Respect to Discovery of Electronic Information, 3/3:1; (discovery on issues relating to policy interpretation properly denied for failure to file necessity affidavit) Heggem v. Capitol Indemnity, 3/17:4; (Wal-Mart compelled to produce all suits involving electric shopping cart pushers for 5 years prior to accident at its stores nationwide, discovery granted in part, denied in part, fees denied) Walker v. Wal-Mart Stores, 4/7:6; (motion to compel properly granted but amount of attorney fees improperly determined without hearing) Rothing (Diamond R Enterprises) v. Kallestad, 5/12:1; (supervisory control denied as to grant of 5th-Amendment right to refuse to answer questions in court-supervised deposition as to validity of attorney's notary) Estate of Bouma, 6/9:4; (motion to compel granted in house defects suit, fees awarded, protective order denied for medical/psychological records, attorney/client DVD with sound redacted, except those subject to privilege claimed in privilege logs, insurance records not shown to be outside of control of Defendant) Julius v. Martushev, 7/21:4

IME: (counsel properly excluded from exam of alleged sex abuse victim and mother, supervisory control denied) Evins v. McNeil, 6/30:4

Impeachment: (Plaintiff allowed to impeach witness as to prior statements, but neglected to take full advantage of opportunity) Mayer v. Billings Nissan, 8/4:4

Injunction: (injunction request for alleged pre-approval water appropriation violations moot following final approval) Faust v. Utility Solutions, 12/15:3; (preliminary injunction granted ordering sellers to apply for extension of preliminary plat approval expiration and deadline for final plat approval, $3,000 bond required to cover application fees/costs) Firth v. Cannata, 12/22:5

Interest: (prejudgment interest improperly denied based on disputed entitlement to damages) Swank Enterprises v. All Purpose Services, 3/10:1

Intervention: (unsuccessful intervenor not "party'' to litigation, not entitled to notice of entry of judgment, obligated to monitor litigation and file timely appeal, motion to dismiss appeal denied) Clark Fork Coalition v. DEQ, 7/28:2

Justiciability: (whether collateral source reduction applicable to settlement offers not justiciable controversy) Miller v. State Farm Mutual Auto Ins., 3/31:1; (no justiciable controversy as to probable cause for forfeiture seizure) Clark, 3/31:5

Jury: (misconduct claims rejected) Williams Feed v. MDOT, 3/24:4

New trial: (Defendant's factual admissions of guilt and failed statutory duty to investigate impact and render aid to pedestrian who was subsequently also hit by another car constitute negligence as matter of law, Court erred in not instructing that Defendant was negligent and a cause of death, Defense verdict set aside, new trial granted on contributory negligence, apportionment of damages) Kanevskaya, 3/31:6

Order of protection: (improperly made permanent without Respondent's presence or representation or taking evidence) Keller v. Trull, 5/12:4

Parties: (individual and his company claiming credit damage for refusal to pay $2,632 fee on $71,000 credit card transaction which was at first accepted and then rejected by processing bank allowed to dismiss company over Defendants' objection) Scott v. FNB Omaha, 3/10:5

Pleading: (emotional distress claim improperly pled but tried with "implied consent'') Byrum v. Andren, 5/5:2

JNOV: ($800,000 verdict for breach of fiduciary duty by DPHHS to adopted girl set aside for lack of expert testimony as to causation of mental condition resulting from placement, theory changed post-trial) Orednick v. DPHHS, 1/27:4

Protective order: (helicopter parts failure exhibit mostly public information, only 1 page proprietary) Fisk v. Rotair Industries, 1/27:5

Relief from judgment: (denied on claims of fraud on court) Higgins v. Vortex Fishing Systems, 4/21:2; gross neglect by lawyer in not filing client's survey objections in boundary dispute) Skogen v. Murray, 5/5:1; (60(b)(6) relief from assault/battery exclusion declaratory judgment for insurer in bar fight suit following $159,500 judgment on PI verdict improperly granted, Defendants failed to address 1st 5 subsections or establish extraordinary circumstances, timeliness, blamelessness, judgment against insurer for verdict reversed) Essex Ins. v. Moose's Saloon, 8/18:1

Sanctions: (no findings to support sanctions... counterclaims improperly dismissed without findings/conclusions, sanctions may be awarded for both Rule 11 violation and statutory fees/costs (first impression)) Byrum v. Andren, 5/5:2

Service: (complaint dismissed for failure to "accomplish service'' within 3 years pursuant to Rule 4E and rationale of cases construing former 41(e)) Schymon v. Plum Creek MDF, 9/1:4; (dental malpractice complaint dismissed for failure to "accomplish service'' within 3 years pursuant to Rule 4E and rationale of cases construing former 41(e), motion to enlarge time by 1 day denied) Pesarik v. Perjessy, 9/15:4

Settlement agreement: (Plaintiffs' allegations of breach of ditch settlement agreement properly rejected, counterclaims improperly dismissed without findings/conclusions) Byrum v. Andren, 5/5:2

Statute of limitations: (120-day state claims tolling statute not unconstitutionally vague as to "receipt'' of claim, 3-year tort statute properly calculated, expired 1 day before suit filing) Wing v. State, 3/17:5

Commerce

UCC: (hay that allegedly caused botulism deaths of horses governed by UCC without regard to foreseeability, breach of contract claim improperly dismissed based on lack of foreseeability) Rothing (Diamond R Enterprises) v. Kallestad, 5/12:1

Conservatorship

Gambling addiction: (supervisory control denied as to summary judgment rulings in gambling addiction suit) Ft. Rockwell v. Jones, 9/1:1

Ostensible authority: (lessee relied on co-conservator's ostensible authority to act for conservatorship, "displeased'' co-conservator failed to warn of alleged violations of lease, lessee entitled to specific performance of option to buy farm land) Bodner, 4/14:1

Constitutional Law

Free speech: (university head women's basketball coach's memos made as public official, not insulated from employer discipline, summary judgment for Defendants on free speech claim) Potera-Haskins v. Gamble, 10/13:6

Right to know: (PD applicant granted access to background investigation file, allowed to correct/clarify, pursuant to remand order, $21,500 attorney fees/costs) Billings PD v. Owen, 3/31:7; (newspaper has standing to challenge refusal to disclose student disciplinary records, redacted disclosure not prohibited by FERPA, not outweighed by privacy) Cut Bank Public Schools Trustees v. Cut Bank Pioneer Press, 5/19:2; (floodplain documents filed with City not protected from copying) Billmayer Engineering v. Kalispell and Schwarz, 5/19:1

Contracts

Advertising: (summary judgment precluded by fact issues regarding terms of contract, amount of damages for breach cannot be determined from evidence presented, parol evidence not precluded as to claim of oral settlement or accord & satisfaction) Independent Publishing v. Bi-Lo Foods, 7/14:7

Construction: (owner breached contract by failing to pay for work performed, 18% interest pursuant to contract not usurious) AFM Contracting v. Palmer, 4/28:1

Horse sale: (unenforceable labor barter in horse sale contract resolved by DLI wage ruling) Wolfe v. Newman, 7/28:2

Fraud on court: (relief from judgment denied) Higgins v. Vortex Fishing Systems, 4/21:2

Non-compete covenant: (does not preclude seller of concrete business from doing business in non-compete territory or require it to charge a particular price or provide a customer list, extrinsic evidence not required to interpret unambiguous contract) Richards v. JTL Group, 1/6:1

Option contract: (buyers breached by failure to pay $50,000 initial payment based on erroneous legal advice of impossibility of performance, owe as expectancy damages full $200,000 option price that was to go toward purchase of $2.1 million residence plus attorney fees, parties settled for $230,000) Adams v. Holtvedt, 7/7:5

Photo min-lab: (successor to seller of photo "mini-lab'' not liable for alleged breach of seller's service agreement, revocation of acceptance of equipment not available for alleged default under service contracts to which successor not party, Montana rather than Massachusetts law applied to counterclaims) LEAF Funding v. Burch Enterprises, 12/8:5

Transportation logistics: (personal jurisdiction over Canadian truck company doing business in Montana, transportation logistics contract formation properly determined pre-trial, belated assertion of statute of frauds properly denied, lost volume theory of damages adopted, applied to services as well as sale of goods, $2,311,575 verdict affirmed) Bitterroot International Systems v. Western Star Trucks, 2/24:1

Truck lease: (binding oral agreement for rental of 40-ton truck, lessee not liable under contract for its $250,000 "agreed value,'' lessor not entitled to more than $126,000 replacement value determined by insurer, lessor failed to show more than 3 months necessary to repair/replace truck) Performance Machinery v. Yellowstone Mountain Club, 10/6:2

Courts

Bias: (bias in favor of defense counsel, postconviction claims based partly on claimed mental illness rejected) Shreves, 7/28:4

Consolidation: (petitions for judicial review of HRC decision filed in separate courts may not be consolidated (first impression), venue to be changed from Yellowstone to Lewis & Clark (same result as consolidation)) Yellowstone Co. v. HRC, 6/9:3

De novo trial: (trial de novo in Gallatin Co. District Court required for case (properly) transferred from Three Forks City Court to Madison Co. Justice Court for jury trial, rather than remand to City Court) Three Forks v. Schillinger, 12/15:4

Fraud on court: (relief from judgment denied) Higgins v. Vortex Fishing Systems, 4/21:2

Full faith & credit: (properly given Oregon judgment as to subrogation of Montana tort settlement (full faith & credit v. comity)) Martin v. SAIF, 9/15:1; (extended to Illinois dismissal of FELA suit on forum non conveniens) Cook v. SOO Line, 11/10:5

Judgment as matter of law: (legal question subject to de novo review, not abuse of discretion) Johnson v. Costco Wholesale, 2/17:1

Judicial Personnel Plan: (District Court lacks jurisdiction over challenge to Judicial Personnel Plan) Boe v. Court Administrator, 1/13:1

Judicial disqualification: (appeal not interlocutory, but disqualification request untimely, individual Appellant may not represent corporate Defendants, award of fees/costs proper, appeal dismissed) Anderson v. Stokes, 6/2:2

Judicial substitution: (belated petition for supervisory control of Lympus to void orders issued subsequent to refusal to grant substitution denied) Puffer v. Lympus, 1/6:1

Jurisdiction: (personal jurisdiction over Canadian truck company doing business in Montana) Bitterroot International Systems v. Western Star Trucks, 2/24:1; (no Montana personal jurisdiction over Texas law firm sued by wife of former Texas lawyer who allegedly caused accident in Texas while working for firm but now lives in Montana) Florendine v. Florendine, 4/14:5; (Illinois orthodontist consented in forum "venue'' clause to Montana jurisdiction for disputes over employment agreement with Montana orthodontist) Milanovich v. Schnibben, 6/23:1; (District Court properly exercised jurisdiction over Justice Court protective order restricting husband's access to ice business when he petitioned to dismiss it in separate divorce proceeding, within Court's discretion to deny motions to amend/dismiss even though adverse party failed to file answer brief, order improperly contradicted or went beyond matters discussed at hearing or stipulated by the parties via their proposed orders) Marriage of Lundstrom, 12/8:2; (notice of appeal sought to appeal non-appealable orders, thus 9th Circuit never had jurisdiction and it was proper for District Court to begin exercising jurisdiction over case transferred from Nevada, discovery extension properly denied, case properly dismissed as sanction for failure to appear at pretrial conference or explain that Defendant would not be appearing because of pending appeal, appeal of denial of motion to extend discovery did not deprive Court of jurisdiction to dismiss complaint, alternative request for mandamus did not destroy District Court jurisdiction) Nascimento v. Dummer, 12/15:6; (Caymans excess insurer of Sisters of Charity hospital has sufficient contact with Montana to warrant personal jurisdiction) Jaeger v. Leaven Ins., 12/22:7

Public Access Rules: (amended, implementation deadline extended) Matter of Adopting rules for Public Access & Privacy in Court Records in Montana, 12/15:3

Summary judgment: (each party's cross-motion for summary judgment must be evaluated on own merits) Hajenga v. Schwein, 3/24:1; (judgment not required on cross-motions) Sands v. West Yellowstone, 5/12:3; (motion to dismiss improperly converted to summary judgment) Meagher v. BSB, 6/16:5; (Plaintiff failed to establish need for additional discovery time, summary judgment not precipitous) Silvestrone v. Park Co., 10/20:1; (no error in not converting Defendant's motion to dismiss to motion for summary judgment after considering Plaintiff's motion to consolidate similar cases) Farmers Cooperative Association v. Amsden, 11/10:2

Venue: (petitions for judicial review of HRC decision filed in separate courts may not be consolidated (first impression), venue to be changed from Yellowstone to Lewis & Clark (same result as consolidation)) Yellowstone Co. v. Drew, 6/9:3; (proper in father's county in parenting interference case) State v. Wilson, 12/29:3

Crime, Criminal Procedure

Aggravated assault: (jury properly instructed that Defendant had burden of raising doubt of guilt based on justifiable force defense, use of gun in assault was separate jury finding, properly used to enhance sentence, jury properly instructed as to unanimity, alternative assault definitions do not define different offenses, marijuana on victim properly excluded) Matz, 1/20:3; (as lesser included of attempted deliberate homicide) Adams, 2/17:3

Aggravated burglary: (claim that victim's estranged wife gave Defendant permission to enter victim's home and take items properly rejected) Ramsey, 2/24:4

Asbestos prosecution: (pretrial rulings affirmed/reversed) US v. W.R. Grace, 9/29:8

Attempted sexual abuse of children: (past "honey lick''/"humping'' admissible under transaction rule exception to Just to show sufficient evidence of "material step'' and "sexual conduct'' to defeat directed verdict) Marshall, 9/1:2

Amend: (substantial rights not violated by failure to include proposed amended information with motion to amend) Harlson, 3/31:3

Appointed counsel: (improper "sliding scale'' payment form, supervisory control granted) Stanford, 6/30:5

Armed robbery: (sufficient evidence supports 4 challenged convictions out of 7 armed robbery convictions, 159-year mandatory prison sentence upheld) Hungerford, 2/10:5

Assault on minor: (abuse v. discipline) Meyers, 9/29:1

Assault: (with weapon) Upshaw, 1/27:3; (sufficient evidence that weapon was involved in phone threats without direct perception, directed verdict properly denied) Swann, 6/9:5; (stun gun) Price, 11/10:4

Bail: (habeas petitions for release on bail, filed directly in Supreme Court, to be considered independent of detention proceeding, no prima facie showing that rights violated by refusal to lower bail or release negligent homicide defendant on recognizance) Miller, 4/14:4

Burglary: (aggravated) Upshaw, 1/27:3

Child pornography: (conviction for receipt/possession affirmed, but sentence improperly based in part on images in computer cache not known to Defendant (resentenced to 63 months rather than 70 months), receipt and possession convictions double jeopardy if based on same acts (determined on remand not based on same acts)) Kuchinski, 9/1:6; (state sexual assault conviction qualifies as predicate offense for enhancement) Sinerius, 9/29:8

Confession: (evidentiary hearing on suppression motion ordered despite lack of brief under UDCR 2, supervisory control granted) Passmore v. Phillips, 4/14:4

Confrontation right: (not violated) Doyle, 6/9:5

Continuance: (Defendant's request for continuance to allow for trial preparation despite counsel's stated readiness to proceed properly denied) Molder, 2/17:4

Counsel: (substitution wrongly denied) Hendershot, 4/7:3; (no right to unlicensed counsel) Ritrovato, 7/7:4; (determination of no conflict improperly made without findings/conclusions and separate counsel) Glick, 8/11:6

Deliberate homicide by accountability: (sufficient evidence of deliberate homicide by accountability despite no conviction of deliberate homicide, jury properly instructed on purposely/knowingly, instruction properly denied on criminal endangerment, negligent homicide as lesser includeds) Doyle, 6/9:5; (prosecutorial misconduct claim waived by failure to object, but no ineffective assistance since comments not improper and new trial properly denied on merits, outdated circumstantial instruction properly refused) Misner, 10/13:3; (claim of ineffective assistance for not challenging juror for cause or striking venire not reviewable based solely on trial record, counsel explaining newspaper report that labeled him "liar'' not ineffective assistance, failure to object to gun powder testimony not ineffective assistance, sufficient evidence that Defendant purposely caused death in alleged struggle over gun, express waiver not required pursuant to statute for absence during settling of instructions, tape of Defendant's profanity properly played at sentencing hearing without preview, conviction affirmed) Roedel, 11/24:4; (not calling medical expert to support justifiable force not ineffective assistance, pattern instruction on reasonable doubt proper) McClanahan, 12/1:3

Directed verdict: (de novo review adopted for denial of motion for directed verdict of acquittal) Swann, 6/9:6

Discovery: (emergency supervisory control of Honzel, stay of murder trial, granted to review claims of inadequate discovery) Giddings, 1/13:2

Double jeopardy: (record sufficient to determine issue despite not being raised prior to guilty plea, Washington conviction of possessing vehicle stolen in Montana (16 months) precluded Montana charge of theft of vehicle (10 years)) Cech, 8/11:5

Driver's license suspension: (provision for suspending license for failure to pay traffic fine not violative of due process) Pyette, 5/26:3

Drugs: Upshaw, 1/27:3; Stombaugh, 5/12:4; Gomez, 5/12:5; (jury could find that Defendant constructively possessed vial of meth attached to "dropped'' keys) Runningfisher, 7/7:3; (no support for contention that lawyer not prepared for voir dire or unable to present any evidence or effectively cross-examine, dismissal/continuance properly denied) Ibarra-Salas, 7/28:3; (sufficient evidence of meth offenses to withstand judgment of acquittal, dismissed state drug conviction properly used to enhance sentence) Norbury, 9/1:5; (statutory sentence enhancement for death downstream from original Oxycodone distributor not unconstitutionally vague) Brubaker, 10/13:8; (police misconduct claim waived by failure to raise below, ineffective assistance hearing waived by failure to request substitution of counsel, voir dire ineffective assistance claims more appropriate for postconviction, no ineffective assistance in offering circumstantial evidence instruction, challenge of Prosecutor's vouching for officer not preserved for appeal) Racz, 11/3:4

DUI: (particularized suspicion for stop based on observing drinking followed by slow driving, weaving, crossing fog line) Luckett, 3/10:3; Harlson, 3/31:3; (motion to suppress properly denied for lack of brief, motion for acquittal too late) Vincent, 4/14:3; ("road'' to private subdivision was way of State) LeMaster, 4/28:2; (particularized suspicion to investigate vehicle parked in drive-through lane of closed restaurant with no visible occupant) Gutierrez, 4/28:3; (no coercion of blood test for Defendant claiming fear of needles) Price, 4/28:3; (driving with wheels over center/fog lines grounds for stop) Johnson, 7/7:3; (community caretaker stop proper, properly escalated into DUI investigation) Vaughn, 7/14:4; (PAST properly excluded for lack of foundation of reliability, Defendant intended to suggest that difference between PAST and Intoxilyzer indicated rising BAC) Reavely, 7/14:5; (Montanan put on notice of consequences of refusal to take BAC test despite error in reading non-resident rather than resident part of advisory, denial of reinstatement petition affirmed) Anderson, 9/29:2; (no findings, conclusion, judgment to review stop in reinstatement petition) Goldsmith, 9/29:2

Endangerment: (probable cause to support charge of speeding through downtown), Harlson, 3/31:3; (daycare DPH) Bieber, 11/3:3

Failure to appear: (No authority under §46-17-311(5) to dismiss appeal from Justice Court for failure to appear personally in District Court since counsel appeared and was ready to proceed) Clark, 3/24:7

Felon/drug user in possession of firearms: (Defense judgment, dismissal of firearm charges or evidentiary sanctions based on destruction of prints by needless test-firing denied, statements during traffic stop after first request for attorney suppressed, subsequent telephonic statements not suppressed as fruits of poisonous tree, statements not in violation of due process rights because of rambling driven by mental illness or susceptibility to suggestion, right to counsel not violated because state possession and federal drug use while possessing gun elements differ, no ethical violation in authorizing taped call to Defendant, but insufficient evidence that Defendant knowingly possessed gun at time of traffic stop, Defendant acquitted) Heinberg, 7/28:6

Forfeiture: (when forfeiture petition was dismissed after withdrawal by Task Force in deference to US following burning of bar, owner was entitled to release of property (liquor license) as far as Montana law concerned, no justiciable controversy as to probable cause for seizure) Clark, 3/31:5; (insufficient rebuttal of presumption of forfeiture, including story of obtaining money in illegal poker game) $129,970 and Payne, 6/23:3

Impeachment: (wife properly impeached with evidence of prior assault, counsel's failure to object not ineffective assistance) Parker, 10/27:8

Incest: (sufficient evidence of incest with stepdaughter at age 17+, no juror misconduct for failure to disclose bias, but sentence improperly based on lack of remorse/acknowledgment) Rennaker, 1/27:2; Molder, 2/17:4; St. Germain, 2/24:6; (Defendant need not raise sufficiency of evidence below to preserve for appeal, sufficient circumstantial evidence of arousal to defeat directed verdict, sufficient evidence of paternity, including uncorroborated testimony of accuser, to defeat directed verdict, impeachment of detective through alleged prior inconsistent statements of accuser properly precluded on basis of hearsay, Judge's "the Supremes can read it'' reply to defense counsel's request to put objection on record not compromise of judicial process) Skinner, 7/28:2

Ineffective assistance: (claims more appropriate for postconviction proceeding) Upshaw, 1/27:3; (claim likewise best suited for postconviction proceeding) Lewis, 2/3:5; (claims more appropriate for postconviction) St. Germain, 2/24:6; (Gillham motions may be filed in district court) Marble, 4/21:6; (whether counsel improperly declined inquiry into juror-witness contact more appropriate for postconviction, not ineffective in not objecting to lack of notice of rebuttal when Defendant did not raise affirmative defense, directed verdict properly refused whether counsel argued perjury or unreliable testimony) Duval, 5/26:4; (claims by massage therapist convicted of sexual contact with clients rejected, counsel not ineffective for precluding Defendant from testifying (that sexual contact with all complaining clients was consensual)) Stevens, 6/23:4; (claims rejected in police pursuit case, Defendant waived right to out-of-time appeal, strategic reason for not moving to suppress statements, sufficient evidence to convict without them, tactical reason for not moving to preclude "newly discovered'' 911 tape of pursuit tactical reason to portray officers positively in voir dire and remove officer with peremptory rather than cause) Hartinger, 6/23:5; Vaughn, 7/14:4; (postconviction claims based partly on claimed mental illness rejected) Shreves, 7/28:4; (claim of ineffective assistance for not objecting to alleged prior bad acts testimony more appropriate for postconviction) Meyers, 9/29:1; (prosecutorial misconduct claim waived by failure to object, but no ineffective assistance since comments not improper and new trial properly denied on merits) Misner, 10/13:3; (claim of ineffective assistance for withdrawing "cause'' challenge of former law officer more appropriate for postconviction, Prosecutor's closing statements exaggerating psychiatrist's warning of sleep apnea consequences and personal opinion on the apnea defense improper but not prejudicial, failure to object not ineffective assistance, erratic driving prior to head-on death collision relevant, failure to object not ineffective assistance) Tennell, 11/3:4; (ineffective assistance hearing waived by failure to request substitution of counsel, voir dire ineffective assistance claims more appropriate for postconviction, no ineffective assistance in offering circumstantial evidence instruction) Racz, 11/3:4; (claim that counsel ineffective for not presenting defense of parental discipline to charge of PFMA against daughter more appropriate for postconviction, if facts supporting it can be shown) Fender, 11/10:5; (claim of ineffective assistance for not challenging juror for cause or striking venire not reviewable based solely on trial record, counsel explaining newspaper report that labeled him "liar'' not ineffective assistance, failure to object to gun powder testimony not ineffective assistance) Roedel, 11/24:4; (not calling medical expert to support justifiable force not ineffective assistance), McClanahan, 12/1:3; (prejudicial error to not raise on direct appeal issue of Defendant's absence from in-chambers meetings, remanded for new appeal of ineffective assistance claim) Price, 12/1:3

Information: (aggravated burglary/ kidnap/assault charges dismissed with prejudice for State's failure to timely file information) Goggles, 12/22:5

Jail for nonpayment of fine: (seatbelt offense non-jailable, no judgment requiring jail until fine paid, Defendant illegally sent to jail immediately without notice) Clark, 2/24:7

Jury: (Art. II §26 requires consent by State as well as Defendant to waive jury, supervisory control despite probable mootness) State v. Lake Co. Justice Court, 1/13:2; (no misconduct for failure to disclose bias) Rennaker, 1/27:2; (no plain-error review of unanimity issue as there is no uncertainty as to unanimous verdict) Dasen, 4/7:2; (mistrial properly denied on claim of jury pressure) Doyle, 6/9:5; (federal considerations for requiring voir dire into racial/ethnic bias adopted, Hispanic not denied effective assistance by failure to voir dire about possible ethnic bias/prejudice) Ibarra-Salas, 7/28:3; (removal of reluctant prospective juror for cause properly denied) Rogers, 9/22:2; (further instruction in response to jury query properly refused, no improper Allen instruction) Bieber, 11/3:3; (trial de novo in Gallatin Co. District Court required for case (properly) transferred from Three Forks City Court to Madison Co. Justice Court for jury trial, rather than remand to City Court) Three Forks v. Schillinger, 12/15:4

Justifiable force: (Graves instruction may be more comprehensive but §45-3-102 language adequate) Archambault, 2/10:2

Negligent homicide: (claim of subterfuge investigation into daycare death rejected, Daubert hearing not required for challenge to expert's postmortem DPH blood level conclusions (not methodology), evidence of bulk DPH purchases admissible under transaction rule, proposed Defense instructions, further instruction in response to jury query, properly refused, no improper Allen instruction) Bieber, 11/3:3; (claim of ineffective assistance for withdrawing "cause'' challenge of former law officer more appropriate for postconviction, Prosecutor's closing statements exaggerating psychiatrist's warning of sleep apnea consequences and personal opinion on the apnea defense improper but not prejudicial, failure to object not ineffective assistance, erratic driving prior to head-on death collision relevant, failure to object not ineffective assistance) Tennell, 11/3:4

Parenting interference: (venue proper in father's county, paternity evidence established parenting rights and supported interference verdict against single mother, alcohol/casino restrictions improper sentence conditions, mental evaluation proper, restitution improper as to father of first child, procedures not followed as to subject father) Young, 12/29:3

Parole: (Board obligated to consider all evidence at hearing and make findings pursuant to 1985 statutes in request by homicide prisoner) DeMers, 8/18:5

PFMA: (wife properly impeached with evidence of prior assault, counsel's failure to object not ineffective assistance) Parker, 10/27:8; (parental discipline defense) Fender, 11/10:5

Plea agreement: (voluntariness, breach of agreement) Evert, 2/24:5; (not breached by jail phone transcripts attached to PSI which portrayed assault-on-minor Defendant negatively, or by allowing testimony by social worker as to custody treatment plan compliance) Bartosh, 4/14:4

Plea withdrawal: (plea colloquy inadequate in failing to require explanation of factual basis of offense (PFMA), colloquy issues adequately raised in pro se motion to withdraw plea, motion wrongly denied) Frazier, 2/24:4; (nolo to attempted kidnap voluntarily entered in place of attempted sexual assault, no need to inform of lesser-included of attempted kidnap, no evidence of mental incapacity) Infornaro, 3/24:7; ("illegal'' release of Tribal juvenile sex offense file discovered after appeal time, postconviction petition allowed, no prejudice from consideration in sex evaluation/ PSI, plea withdrawal properly denied) Phillips, 5/19:3; (presumption of regularity not overcome in belated attempt to overturn shoplifting conviction) Davenport, 5/19:4; (Defendants not improperly discouraged from justifiable force defense) Christman, 7/7:3

Polygraph: (admonished against) Evert, 2/24:6

Postconviction relief: (Defendant allowed on previous failure-to-appeal ruling to raise in postconviction any issue that could have been raised on direct appeal, ineffective assistance claims rejected as to failure to raise speedy trial or object to aggravated assault as lesser included of attempted deliberate homicide, Apprendi applied retroactively to cases on direct appeal, harmless error to not present jury with issue of weapon use for sentence enhancement) Adams, 2/17:3; (all claims (voluntariness of guilty plea, breach of plea agreement, consideration of sex offender evaluation polygraph at sentencing) could have been raised on direct appeal, procedurally barred) Evert, 2/24:5; (DNA testing denial, prosecutorial misconduct, ineffective assistance, delayed written judgment, agent bias claims rejected in fabrication/tampering/threats case) Clifford, 3/3:1; (challenge by deliberate homicide defendant of denial of intoxication defense procedurally barred) Smith, 4/21:5; ("illegal'' release of Tribal juvenile sex offense file discovered after appeal time, postconviction petition allowed) Phillips, 5/19:3; (sentencing judge should preside over postconviction despite substitution of initial judge in underlying case) Jordan, 7/14:6; (challenge of indecent exposure procedurally barred) Smith, 8/18:5; (pro se's request for appointed counsel properly denied because no postconviction petition filed, although within time) Davis, 9/15:3

Presence at critical stages: (Right to be present at all critical stages not infringed by not being advised of right to call juror into chambers to inquire into hallway conversations) St. Germain, 2/24:6; (express waiver not required pursuant to statute for absence during settling of instructions) Roedel, 11/24:4; (State Public Defender may not be appointed prior to filing of petition, supervisory control granted) State Public Defender v. Fagg, 12/15:4

Prisoners: (pre-99 prisoners' rights not violated by regional/private incarceration) Quigg, 3/24:7; (insufficient evidence of failure to exhaust prison administrative remedies in small claims suit for paralegal "services lost'') Brown, 8/25:7

Property return: (convicted check writer entitled to return of property despite concern that he may appeal) Mondragon, 4/21:5

Prosecutorial misconduct: (prosecutorial misconduct claim waived by failure to object) Misner, 10/13:3

Prostitution: (challenge to subsequent-felony prostitution counts not preserved for appeal) Dasen, 4/7:2

Rape: Molder, 2/17:4; St. Germain, 2/24:6; Phillips, 5/19:3; (Prosecutor's misstatements about DNA/vaginal fluid cured by curative instruction, challenge to misstatements about blanket fibers on underwear not preserved) Ariegwe, 8/25:6; (child's hearsay statements nontestimonial, properly admitted, STM "corroborating evidence'' factor not implicated, but Crawford requires that Confrontation Clause and hearsay challenges again be considered independently, testimony that Defendant did not meet pedophile criteria properly excluded) Spencer,10/13:4; (prejudicial error to not raise on direct appeal issue of Defendant's absence from in-chambers meetings, remanded for new appeal of ineffective assistance claim) Price, 12/1:3

Restitution: (restitution based on market value of snowmobile affirmed, resolution of conflicting standards of review reserved for future case) Jumper, 4/21:5; (restitution improper as to father of first child in parenting interference case, procedures not followed as to subject father) Young, 12/29:3

Revocation: (2 admitted violations of numerous alleged sufficient to revoke, §46-18-101(2) policies not applicable to new sentence) Canal, 8/11:7

Revocation: (2 admitted violations of numerous alleged sufficient to revoke, §46-18-101(2) policies not applicable to new sentence) Canal, 8/11:7; (Judge had no authority to revoke for failure to complete sex treatment by age 25 because Defendant not 25, no authority to revoke based on other conditions imposed by DOC after sentencing, dispositive issue raised sua sponte) Andersen-Conway, 11/24:5; (felony DUI revocations limited to remainder of probation sentence under 1999 specific statute, not sentence imposed as under general revocation statute) Oie, 12/29:4

Search & seizure: (warrant that was not signed by magistrate or indicated that it was officially authorized, even though application/affidavit signed by magistrate, resulted in warrantless search of residence for child pornography, good faith exception not applicable to patently deficient warrant, evidence must be suppressed, statements made during search were product of illegal search, also suppressed) Evans, 1/20:4; (exigent circumstances for warrantless swab of prisoner's hands for DNA of alleged rape victim) Madplume, 2/3:3; (illegal search of coat/bag in courtroom on way to jail for failure to pay seatbelt fine, seatbelt offense non-jailable, no judgment requiring jail until fine paid, Defendant illegally sent to jail immediately without notice meth residue evidence suppressed, felony possession dismissed) Clark, 2/24:7; (adequate notice of intent to seek persistent offender status) Ramsey, 2/24:4; (probable cause based on meth precursors purchases, staleness argument rejected, independent police corroboration) Dutton, 3/10:2; (weapons pat-down by transporting officer proper following pat-down by arresting officers, meth pipe properly seized) Cooney, 3/31:4; (information for 2nd search warrants sufficiently independent of invalid search, judge had jurisdiction to issue warrants following substitution) Dasen, 4/7:2;(meth obtained in private search not subject to exclusionary rule) Malkuch, 4/21:4; (particularized suspicion for dog sniff from family report of drug use, Washington charges, urgency in wanting car towed to next county, pill on dashboard, search permission limitations properly not considered, Miranda claims properly denied in verbal findings, but judges urged to resolve suppression issues by written order, probable cause for car search) Stombaugh, 5/12:4; (exigent circumstances for opening locked bag without warrant during meth lab takedown) Gomez, 5/12:5; (money/alcohol on truant youth properly seized pursuant to lawful "arrest,'' confession in custodial interrogation without Miranda warning or presence of parents should be suppressed, confession after arrival of parents should be suppressed in light of no tangible evidence of claimed Miranda warning, Defendant preserved right to appeal suppression issue) ZM, 6/9:4; (search of property in rental car proper after speeder arrested for DUI and rental company consent to remove items, detention not a pretext to retain items long enough to obtain search warrant, affidavit adequately described "United States currency'' for seizure of $129,970 in tool box and sufficient facts for probable cause) $129,970 and Payne, 6/23:3; (officers had particularized suspicion to continue investigation past completion of traffic stop, driver, while legally detained on traffic stop, voluntarily consented to vehicle search, motion to suppress drugs properly denied) Case, 8/4:5; (Defendant "in custody'' during home "interview,'' interview was "interrogation,'' Defendant not first Mirandized, statements about paraphernalia should have been suppressed, consent to search not freely given without duress, obtained with psychological tactics designed to wear Defendant down, meth/paraphernalia should have been suppressed) Munson, 9/8:2; (evidence properly seized in initial entry into burning apartment and re-entry to take photos, improperly seized in subsequent entries after fire suppressed, warrantless entry into burned structures not lawful per se if officer merely trying to ascertain cause of fire) Lewis, 11/17:3; (no reasonable privacy expectation in backyard where 4 a.m. party noise triggered complaint, intrusion reasonable, suppression of drug evidence properly denied) Dunn, 11/24:3; (warrantless entry by bail agents not justification for pulling gun on officers regardless of whether agents were state or private actors, evidence properly not suppressed) Rookhuizen, 12/8:5

Sentencing: (sentence improperly based on lack of remorse/acknowledgment) Rennaker, 1/27:2; (presumption of deferred sentence for possession correctly considered/rejected) Upshaw, 1/27:3; (no colorable claim that sentence fell outside statutory parameters to warrant review under Lenihan) Kotwicki, 1/27:3; (alcohol/gambling restrictions not related to assault/mischief, illegally imposed) Armstrong, 2/3:4; (21-year-old properly designated persistent based on district court conviction at age 16, statutes not unconstitutionally vague) Mainwaring, 2/3:4; (probation home visit condition proper, alcohol restriction unrelated to identify theft, stricken) Greeson, 2/10:3; (159-year mandatory prison sentence for use of firearm in robberies upheld) Hungerford, 2/10:5;(Apprendi applied retroactively to cases on direct appeal, harmless error to not present jury with issue of weapon use for sentence enhancement) Adams, 2/17:3; (adequate notice of intent to seek persistent offender status) Ramsey, 2/24:4; (discretion in revocation resentencing constrained by illegal original sentences) Seals, 3/24:6; (no credit for Indiana incarceration against Montana suspended commitment) Miller, 3/31:5; (US must make good faith determination at sentencing whether assistance warrants §5K1.1 motion) Jackson, 4/14:6; (custodial commitment after transfer to District Court breach of stipulation) HCR, 5/5:4; (felony nature of subsequent marijuana charge lost in District Court when prior City Court deferred sentence was dismissed following guilty plea in District Court, but District Court retained jurisdiction over the now misdemeanor 2nd charge) Tomaskie, 5/12:6; (judge must at least solicit input from counsel in writing under Ameline before deciding whether post-Guidelines resentencing is required) Fifield, 5/12:7; (even if Judge erred in failing to apply mandatory §3553(f) safety valve, Defendant waived right in plea agreement to appeal legal sentence) Bibler, 5/12:8; (meth lab sentence properly included violent offender registration) Olson, 5/26:4; (musical memorandum) McCormack, 6/2:5; (death penalty precluded by failure to file notice of intent within 60 days of arraignment, supervisory control granted) Miller, 6/23:6; (sentence to 50 years as persistent offender not violative of right to trial by jury) Vaughn, 7/14:4; (habeas proper for illegal DOC commitment, State judicially estopped from contesting challenge of resentencing, resentencing from 6-year DOC commitment to 6 years at MSP illegally more burdensome, remanded for DOC commitment with all but 5 years suspended) Jackson, 8/18:4; (restitution illegally imposed without evidence of resources/ability to pay) Ariegwe, 8/25:6; (Defendant waived right to contest bail bond restitution by acquiescence/participation in order, PSI uncharged conduct properly considered) Walker, 9/1:3; (appointed counsel recoupment statute not violative of equal protection, challenge properly considered on appeal despite change in constitutional theory, Defendant has standing as result of "direct economic injury'' of $2,398 costs) Ellis, 9/1:4; (consideration of financial resources required in imposing fine, not violative of prohibition against social factors, Defendant not penalized with larger fine in violation of right to remain silent for failing to disclose information about drug operation, absence of evidence of ill-gotten gains properly considered) Adams, 9/1:5; ($30 per check "service fee''/"fine'' stricken pursuant to State's concession based on failure to file memorandum) Melton, 9/15:3; (restriction from living in County proper, but "open-ended'' restitution improper) Meyers, 9/29:1; (no authority for ordering payment of "assessments'' by sexual assault defendant to community organizations that help sex abuse victims, illegal part stricken) Krum, 10/6:4; (statutory enhancement for death downstream from original Oxycodone distributor not unconstitutionally vague) Brubaker, 10/6:6; (Defendant illegally sentenced under DOC commitment statute in effect at time of sentencing rather than time of offenses, improperly revoked after discharging legal part of sentences, review of claimed facially illegal sentence not barred by res judicata, failure to object) Southwick, 10/27:7; (Defendant found unable to pay fine improperly ordered to pay appointed attorney cost) Starr, 11/10:5; (tape of Defendant's profanity properly played at sentencing hearing without preview) Roedel, 11/24:4; (oral pronouncement, written judgment not in conflict) Garland, 12/1:4; (incest sentence properly modified upon supervised release to include ISP) Griffin, 12/1:4; (no additional credit against revoked sentence for time served relating to separate offense for which Defendant received consecutive sentence credited with same time served, sufficient reasons for allowing and rejecting credit against revoked sentence for time which elapsed prior to revocation) Damon, 12/1:5; (alcohol/casino restrictions improper sentence conditions for parenting interference conviction, mental evaluation proper) Young, 12/29:3

Severance: (denied, theft, endangerment, DUI) Harlson, 3/31:3

Sex abuse of children: (Defendant not prevented from mistake of age defense) Dasen, 4/7:2

Sex offender designation: (Defendant designated Level III in 1999 may petition for re-designation under 1999 statute, 2005 statute which precludes re-designation of III offenders improperly applied to 2006 petition) Bullman, 12/29:2

Sex offender evaluation: (claims of unprofessional conduct, challenge of CHCRT process rejected) Hirt v. Health Care Licensing Bureau, 5/12:7

Sex offender registration: (2005 amendment requiring out-of-state offenders who are required to register where they were convicted to register in Montana applies retroactively) Hamilton, 7/14:5; (Defendant not "sexual offender'' because he was not "convicted'' in Youth Court adjudication, not required to register for life or any time after commitment discharged) Hastings, 11/17:4; (2005 Act requiring notice of change of "address'' (as opposed to "residence'' under prior Act) unconstitutionally vague as applied to Defendant who listed mail address and changed residence but not mail address) Knudson, 12/29:2

Sex offender treatment: (denial of guilt not valid reason for not completing program designed for "deniers,'' Defendant properly revoked) Osborne, 9/8:4; (properly imposed because of underwear masturbation during burglary) Marshall, 9/8:5

Sexual assault of on children: (removal of reluctant prospective juror for cause properly denied, sufficient evidence to infer arousal from sexual contact, directed verdict properly denied, no record support for alleged "dynamite instruction'', mandatory minimum not applicable where sentence exceeded minimum, no basis for claim of harsher sentence for refusal to answer incriminating questions in evaluation) Rogers, 9/22:2

Silence: (No Doyle error by brief mention of Defendant's choice to remain silent, no plain error) Upshaw, 1/27:3

Speedy trial: (record silent as to speedy trial issues other than 13 months between arrest and trial, not appropriate for plain-error review) Lewis, 2/3:5; (claims rejected) Adams, 2/17:3; (claims rejected) Harlson, 3/31:3; (claim rejected) Spang, 4/7:4; (claims denied, delay of mental evaluation requested by counsel attributable to Defendant even though opposed by Defendant) LaGree, 4/14:3; (speedy trial claim properly rejected based on lack of prejudice despite failure to specifically allocate days) Doyle, 6/9:5; (speedy trial test clarified/modified, defendant not deprived of speedy trial) Ariegwe, 8/25:6

SS fraud/theft: (Rule 29 dismissal of theft charge, jury acquittal of fraud as to one Defendant, hung jury as to other, judgment of acquittal as to both) Hoyt,10/13:7

Tampering: (Information properly amended at trial to add tampering with gun to tampering with car and contents, right to unanimous verdict not compromised by including gun and car in deliberations, motives of witness not improperly limited) Wilson, 12/29:3

Theft: Harlson, 3/31:3

Youth: (custodial commitment after transfer to District Court breach of stipulation) HCR, 5/5:4; (transfer hearing delay not prejudicial, statutory error not preclusive of jurisdiction) Lindgren, 5/19:4; (money/alcohol on truant youth properly seized pursuant to lawful "arrest,'' confession in custodial interrogation without Miranda warning or presence of parents should be suppressed... confession after arrival of parents should be suppressed in light of no tangible evidence of claimed Miranda warning) ZM, 6/9:4; (social background finding violence in transfer determination contrary to record as to no domestic violence, not supported by record as to comparison to other Indian youths) Juvenile Male, 9/1:6

Discrimination

Age: (summary judgment proper given Rule 36(a) "admission'' that selection committee did not discriminate) Ramer v. Billings, 6/30:4; (discrimination/retaliation claims by city court clerk applicant rejected, no judicial immunity for hiring decision) Raiha v. Butte-Silver Bow Co., 9/15:8

Denial of motel room: (§§ 1981/1982 claims stemming from denial of motel room to Indian following altercation rejected) Bullchild v. Larsen (Brooks Street Motor Inn), 12/1:5

Disability: (withdrawal of conditional offer of RR conductor trainee position based on obesity without individualized assessment, back pay, enhanced front pay, emotional distress, interest, loss of previous job, divorce, inability to relocate) O'Dea v. BNSF, 5/26:5; (Montana discrimination law applies to DPHHS/CFSD's method of exercising child safety powers, CFSD exercised police power against mother in selectively harsher fashion because of her disability, retaliated for resisting discrimination) Glass v. DPHHS, 12/29:5

Marital: Ray v. Montana Tech of UM, 2/3:2

Offer of judgment: (specific affirmative relief reflecting complaint allegations interposed in Rule 68 offer, in addition to $20,000 plus attorney fees/costs ($19,423), for sex discrimination against building inspector) Fleming v. Grenz, 5/5:6

Political: (no political/marital status discrimination or §1983 free speech/due process violations in not renewing environmental activist university department head, no property interest in renewal, no due process notice violation) Ray v. Montana Tech of UM, 2/3:2

Pregnancy: ($60,283 (past lost earnings, 4 years of front pay, emotional distress, 401k early withdrawal penalties, prejudgment interest), newspaper salesperson, admitted discrimination) Chebul v. Montana Standard/Lee, 5/19:5; ($15,770, including $15,000 for emotional distress, gift shop employee, UI misconduct not controlling) Mason-Watson v. Nancy's Hallmark, 9/15:7

Procedure: (supervisory control of Hearings Bureau proceedings denied in challenge of continued investigation despite non-cooperation) O'Connor v. DLI, 2/10:2; (appeal in challenge of continued investigation despite lack of cooperation dismissed without prejudice on Appellant's motion, Respondents awarded fees/costs of "fizzled'' appeal) O'Connor v. DLI, 5/26:2; (under 2007 amendment HRC has no authority to consider objections/appeals from denial of request to dismiss) Bodine v. Yellowstone Co. Sheriff's Office, 10/13:8

Religious: (claims by school athlete properly dismissed) Erekson v. Billings High School Dist. 2, 4/14:2

Retaliation: ($240,424/$126,494, adverse actions against church employees after discovery of pastor's access to pornographic web sites, revised FAD on remand from HRC reversal of original defense FAD) Wilson v. Catholic Diocese of Great Falls-Billings, 1/13:4; (no adverse employment action/ causal link in alleged shift change in retaliation for filing sexual harassment grievances, allegations not deemed admitted due to untimely answer since Plaintiff failed to move for default and