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Subject Index -- 2007

Contents

Appellate Procedure

Arbitration

Attorney Fees, Costs

Attorney Practice

Bench Judgments

Civil Procedure

Commerce

Conservatorship

Constitutional Law

Contracts

Courts

Crime, Crim. Procedure

Discrimination

Elections

Employees

Evidence, Civil

Evidence, Criminal

Family Law

Guardianship

Health Care Providers

Indians

Insurance

Landlord/Tenant

Local Government

Mental Commitment

Oil/Gas

Partnerships

Probate

Property

Railroads

Schools

Settlements

State Government

Torts

Trademarks

Trusts

University System

Utilities

Verdicts

Water

Workers' Compensation

Appellate Procedure

Affidavit: (affidavit improperly disclosing attorney-client matters sealed, counsel referred to ODC) Becker v. Rosebud Operating Services, 7/21:4

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

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

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

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

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

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

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 was aware of defenses) Lehman v. Smurfit-Stone, 6/9:7; (fact issues preclude summary judgment as to sex discrimination retaliation claim by fired university head women's basketball coach, no prima facie sex discrimination in hiring male assistant coach as interim head coach) Potera-Haskins v. Gamble, 10/13:6

Sex/pregnancy: (store manager fired after requesting maternity leave extension for pregnancy related surgery which was not disclosed to employer because employer did not disclose practice of granting such extensions, no retaliation in offering new job on condition of releasing discrimination claims, managing partner jointly liable with LLC for firing by retail stores manager, front pay, FAD) Barnett v. Beachers Beauty Supplies (CK One), 4/14:7

Elections

Commissioner of Political Practices: (decision not to prosecute PSC candidate for alleged false swearing, deceptive practices, not subject to mandamus, declaratory judgment, judicial review) Doty v. Commissioner of Political Practices, 12/29:1

Debates: (discrimination claims by Libertarian, Green candidates not improperly excluded from governor debates on university campuses) Jones v. MUS, 3/31:2

Initiatives: (I-151 signatures challenge mooted by election) Montanans for Equal Application of Initiative Laws v. State, 3/24:5

Recall: (petition void due to 3 of 5 allegations against mayor legally insufficient, no basis for knowing which motivated voters to sign, request to block future recall petitions denied) Malesich v. Scott, 9/15:4

Employees

Evidence-Civil

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; (med-mal plaintiff entitled to redacted information about other patient deaths from prescribed pain drugs, supervisory control granted) Estate of Kearney v. Todd, 8/25:2

Experts: (scheduling order requiring expert disclosure negated need for interrogatory, experts properly excluded for failure to disclose) Sunburst School Dist. v. Texaco, 8/11:1; (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) Bieber, 11/3:3

Parol: (parol evidence of alleged promise to pay precluded by unambiguous agreement) Reisbeck v. Farmers Ins. Exchange, 7/21:1

MRE: (amendments adopted for subsequent remedial measures, crime lab reports) Amendment of MRE, 6/23:1

Evidence-Criminal 

Child witness credibility: (Geyman exception to expert testimony of child credibility not applied to young adult) St. Germain, 2/24:6

Circumstantial: (outdated circumstantial instruction properly refused) Misner, 10/13:3

Electronic surveillance: (adequate notice of intent to utilize undercover tapes of drug transaction/prior acts contrary to State's omnibus hearing representation, no need for expert testimony regarding duplication) Champagne, 8/11:7

Expert: (MD properly allowed to testify as expert on stun gun trauma, Daubert inapplicable to medical diagnosis) Price, 11/10:4

Hearsay: (child's hearsay statements nontestimonial, properly admitted) Spencer, 10/13:4

Other acts: (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;  (claims rejected) Price, 11/10:4

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; (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

Family Law

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

Attorney fees: (resolved between psychiatrist and psychotherapist) Carlisle, 5/19:3

Contempt: (motion dismissed) Dirnberger, 4/7:1

Custody: (Montana/Louisiana custody determination improperly based on "dictum'' from prior opinion, PKPA should be applied to resolve conflict between UCCJEA (Montana) and UCCJA (Louisiana)) Fontenot, 3/31:2

Default decree: (claim that husband "misled'' wife not "good cause'' for setting aside default decree) Botwinick and Schaefer, 4/14:2

Default decree: (claim that husband "misled'' wife not "good cause'' for setting aside default decree) Botwinick and Schaefer, 4/14:2

Maintenance: (denied) Dirnberger, 4/7:1;  (resolved between psychiatrist and psychotherapist) Carlisle, 5/19:3; (maintenance award must await correct computation of value/equitable distribution of estate, improperly awarded solely for term equal to length of marriage, improperly awarded retroactively to 3 years before petition) Rudolf, 8/4:5

Order of protection: (Judge properly weighed "he said, she said'' testimony, made temporary order permanent, lack of findings & conclusions cautioned against, but decision supported by transcript) Traci Williams v. Robert Williams, 1/20:3; (inadequate findings/conclusions to support continuing order) Edelen v. Bonamarte, 6/16:4

Property: (ownership interest in car extinguished by divorce/bankruptcy) Lewis, 3/24:6; (house appreciation properly determined, business assets non-marital property) Dirnberger, 4/7:1; (future potential COLs properly considered in valuing retirement accounts, wife's "spendthrift buying behavior'' properly considered in distribution) Jolly, 4/21:3; (resolved between psychiatrist and psychotherapist) Carlisle, 5/19:3; (gifted farm stock properly distributed 20% to wife based on homemaking freeing husband 2 hours/day to work farm, no findings to support distribution of rest of estate) Bartsch, 6/23:2; (significant assets omitted from property division) Rudolf, 8/4:5; (appeal of property distribution "Hobson's choice'' premature) Van Derveer, 10/13:3

Standing: (questionable whether tort plaintiff should have been allowed to intervene in alleged sham divorce, but in any event lacks standing to challenge divorce, request for receiver to protect assets exceeds Court's jurisdiction) Heidema, 2/3:3

Support: (tax exemptions/credits incorrectly assigned for support purposes, work expenses improperly allowed without documentation, support allowance erroneously denied for child from previous marriage) Bowden, 4/21:4

Taxes: (finding that wife paid $87,000 capital gains tax incurred by husband erroneous) Riggin, 3/24:5

Indians

Cyanide gold expansion: (no duty pursuant to statutes or treaties for US to manage non-tribal resources for benefit of Tribes, no standing under APA to challenge cyanide gold expansion) Gros Ventre Tribe v. US, 3/10:4

Jurisdiction: (no Tribal Court jurisdiction over slip & fall by tribal member on way to buy coffee in non-member restaurant on Reservation) Sherman Motor Inn v. Garfield, 6/2:5

Water: (holder of state water right may have opportunity to prove that proposed use change will not adversely affect use of other water rights including tribal reserved rights) CSKT v. DNRC, 3/17:6; (rehearing denied) 6/2:2

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

Bad faith: (reasonable basis for contesting malpractice claims by protected person against lawyer for conservator, assessment of "reasonableness'' by judge or jury clarified whether conservator's attorney owed duty to protected person unsettled 2001-02, UTPA claims properly rejected on summary judgment) Redies v. ALPS, 1/20:1; ("cause'' theory adopted for "occurrence'' in liability policies, policy limits of $300,000 for day care overdose death under "one occurrence'' provision, not $600,000 under "multiple occurrences'' theory based on allegations at time of coverage representation, UTPA claims properly rejected) Heggem v. Capitol Indemnity, 3/17:4; (fact issues preclude summary judgment as to UIM bad faith claims) Shelton v. State Farm Mutual Auto Ins., 6/9:1; (insurer effectively denied UIM claim prior to filing of bad faith suit, Rule 35 exam irrelevant to bad faith issues) Pilkington v. Allstate Ins., 6/23:7;  (fact issues preclude summary judgment on bad faith/punitives claims) Employers Mutual Casualty v. Hettick (H Const.) and Tomlinson, 10/20:3; (settlement brochure/letter in fetus deaths med-mal action not inadmissible hearsay in bad faith trial, exclusion requires reversal of defense verdict, new trial, chart of death verdicts based on Montana Law Week search properly admitted in support of insurer's evaluation of underlying claim, overly broad requests for all of malpractice Plaintiffs'/attorneys' files in underlying action properly denied, although not excludable per se in bad faith action, previous relationship between malpractice Plaintiffs' attorneys and insurer properly substantially precluded) Peterson v. The Doctors Company, 10/27:3; (exclusion of preexisting conditions/subsequent accidents on basis of indivisible injuries in 1st phase in which jury found $300,000 UIM damages precluded in bad faith phase under law of case, summary judgment as to bad faith/punitives precluded by fact issues as to reasonableness/malice, bad faith in limine rulings) Procopio v. Allstate Ins., 11/17:5; (bad faith claims not based on §33-18-232 time limits/interest, not precluded by §232 private action bar, complaint pled with sufficient specificity although not referencing subsections) Dunn v. Hartford Life & Accident Ins., 12/22:6

Coverage: (CGL "physical injury'' refers to physical alteration (improper paint) resulting in a detriment (repainting, plant shutdown, loss of value), 1997 rather than 1998 painting subcontractor's policy applies, ambiguous exclusions construed to not apply to general contractor) Swank Enterprises v. All Purpose Services, 3/10:1; ("cause'' theory adopted for "occurrence'' in liability policies, policy limits of $300,000 for day care overdose death under "one occurrence'' provision, not $600,000 under "multiple occurrences'' theory based on allegations at time of coverage representation, UTPA claims properly rejected) Heggem v. Capitol Indemnity, 3/17:4; (Y2K-readiness expenses coverage precluded by "inherent vice/faulty design'' exclusions in pre-7/99 policies, insured had notice of exclusions in "undelivered'' policies) State v. Allendale Mutual Ins., 3/31:1; (no CGL coverage for sexual abuse by deputy) MACO JPIA v. Jacobson, 3/31:5; (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; (company auto policy provided coverage to employee as permissive user at time of death accident despite personnel policy against driving while intoxicated, DUI not absolute revocation of permission under omnibus clause) American Contractors Ins. Co. Risk Retention Group v. Snorteland, 8/18:6; (policy limits coverage to accidental happenings, not results, no coverage for neighbors' claimed damages from insured's gravel pit) Blair v. Mid-Continent Casualty, 8/25:3;  ("Each Person'' UIM applies to wrongful death/survivor claims (first impression)) State Farm Mutual Auto Ins. v. Bowen, 9/8:6; (rural electric claims arise from alleged failures to perform under contracts, excluded by policy notwithstanding reasonable expectations, labeling of counts as "breach of fiduciary duty''/"constructive fraud,'' no obligation to indemnify for $2,001,759 settlement) Upper Missouri G&T Electric Cooperative v. Federated Rural Electric Management, 9/22:6; (insurer correctly determined based on complaint facts that MVA outside garage coverage despite subsequent claim that owner's son removed seatbelts vehicle in shop, not estopped from denying coverage by delay in providing defense, satisfied duty to investigate by reading complaint) Farmers Union Mutual Ins. v. Rumph, 10/6:1; (complaint against home builder invoked coverage under CGL policy, insurer's appearance as counsel at default judgment hearing estops denial of liability on basis of noncoverage, insurer had duty to defend but did not, liable for $622,478 default judgment plus interest and fees in this declaratory action, counterclaimant's motion to compel mostly granted) Employers Mutual Casualty v. Hettick (H Const.) and Tomlinson, 10/20:3; (no coverage for parents' emotional distress claims arising out of death of son since UIM limited to "bodily injury,'' no stacking of 4 policies in name of decedent's brother, no UIM extension by estoppel from replacing canceled policies with brother's policies, expert exclusion on grounds of late disclosure not warranted, case settled in mediation after Cebull advised that he was affirming Ostby's recommendations) Rau v. State Farm Ins., 11/17:6

Jurisdiction: (Caymans excess insurer of Sisters of Charity hospital has sufficient contact with Montana to warrant personal jurisdiction) Jaeger v. Leaven Ins., 12/22:7

Med-pay: (anti-stacking language purporting to limit med-pay to occupants of accident vehicle violative of public policy, Lierboe clarified) State Farm Mutual Auto Ins. v. Gibson, 6/30:1, (rehearing of stacking decision denied, retroactivity of "new rule of law'' previously clarified) 8/4:2

MIGA: (MIGA, but not WGFS, immune from bad faith liability under 2001 Act, 2001 Act applied since claimed injuries occurred before 2005 amendments) Boettcher v. MIGA, 3/17:5

Notice: (burden on insurer to show prejudice from delay in notice of UM claim, "notice'' claimed through newspaper coverage of accident, local agent, discussions with adjuster on another case) Ferguson v. Bacon, 10/13:5

Proration between insurers: (of settlement, not preserved for appeal) Swank Enterprises v. All Purpose Services, 3/10:1

Settlement agreement: (fact issues preclude summary judgment as to meaning of ambiguous oral insurance settlement agreement) Hajenga v. Schwein, 3/24:1

Settlement negotiations: (whether collateral source reduction applicable to settlement offers not justiciable controversy) Miller v. State Farm Mutual Auto Ins., 3/31:1

Subrogation: ($400,000+ Tank Release Comp subrogation claim for petroleum release cleanup time-barred) Montana Petroleum Tank Release Compensation Board v. Mountain West Farm Bureau Mutual Ins., 1/20:3

UM/UIM: (premium on 2nd vehicle discounted to provide only 1 coverage per household is valuable consideration for illusory coverage, 2nd $25,000 must be stacked, Montana law applied over Nevada law to avoid violation of Montana public policy, fees/costs awarded to Plaintiff because insurer filed suit in Nevada during settlement negotiations) Tenas v. Progressive Preferred Ins., 2/17:5; (nonsensical policy with trucking corporation as only named insured "rewritten'' to provide UIM for owner/officer injured when struck by hay bale falling from "substitute'' vehicle) Progressive Casualty Ins. v. Owen, 4/21:7

Landlord/Tenant

Habitability: (damages including $1,500 for deceptive/unfair practices in failing to provide habitable apartment) Thueson v. Swinger, 4/14:1

LLC

Capital contributions: (funds advanced by members to pay concert bands were loans, not capital contributions, repayments to members proper, no breach of loyalty by management members paying themselves before other debts, pro se motion to compel, extend time to file further documents, properly denied) Lynes v. Helm, 9/15:2

Local Government

Building permit: (no basis under wrongful injunction, DJA, §1983 for damages action against Defendants who appealed neighbor's building permit resulting in stop order, $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; (claim that floodplain road upgrade condition eradicates land value must be considered under Takings Clause, not due process, Plaintiffs not similarly situated to other owners, equal protection claim fails, cost of rebuilding road does not transform condition into taking, County not estopped by prior acceptance of road from imposing condition) Ferkovich v. Flathead Co., 10/20:7

Subdivisions: (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, Commissioners properly accepted cash in lieu of park land, legal access to parcels, DEQ review may be completed after preliminary plat approval but before final approval) Fielder v. Sanders Co. Commissioners, 5/26:1; (conditional approval invalid for failure to comply with DEQ standards at preliminary plat stage and inadequate average lot size) Friends of Lake Mary Ronan v. Lake Co. Commissioners, 7/7:4

Zoning: (Board of Adjustment has standing to appeal reversal, Court properly took additional evidence since Board issued no findings after tie vote, setback variance would not impact vehicle safety, denial would result in unnecessary hardship) Arkell v. Middle Cottonwood Board of Zoning Adjustment, 7/14:1;  (non-neighbors had statutory standing to petition for review of Board's lot size variance decision, but dismissal under 12(b)(6) proper, not inconsistent with §76-2-327 certiorari) Druffel v. Missoula Board of Adjustment, 9/8:1

Mental Commitment

Habeas corpus: (denied) NED v. Langton, 1/27:1

Oil/Gas

Participation/farmout agreement: (party to AMI agreement required to offer all subsequently acquired oil/gas leases to P/FA participant, specifically perform, consideration of "newly discovered'' letter properly denied) Stewart v. Hauptman, 7/14:3

Partnerships

Dissolution: (law of case dictates that brother/ sister ranch partners each own 50% of assets but that sister has not paid for her additional 25%, brother not judicially estopped from receiving additional $343,590 by settlement with previous accountants, only simple interest on amount owed absent agreement for compound interest, calf crop split properly set at 70% to partnership, 30% to brother per historical use/industry standards, no support for claimed "rental'' method rather than calf crop share, no support for claim that brother supplied funds to purchase silver for partnership, special master's fee properly allocated half to each partner, asset sale issues mooted by sale) McCoprmick v. Bregiv, 8/18:2; (treatment of property as partnership property controls over bare legal title) Ernest Cerise Descendants v. Viola Cerise (PR of Henry Cerise), 8/18:4

Probate

Life insurance: (claim of agreement to share murder victim's $500,000 insurance dismissed for lack of Probate Court jurisdiction) Wilcock, 12/8:4

PR removal: (husband PR properly removed for conflict of interest in light of $4 million estate dissipation) Anderson-Feeley, 12/22:3

Will: (will intended for estate to be distributed according to estate tax value at time of death, not current market value, Appellant improperly ordered to quitclaim interest in property back to estate, issues appealable, appealability not determined in prior order) Snyder, 6/16:3; (will provision based on testator's mistaken assumption that property was in joint tenancy rather than tenancy in common failed to make valid devise, property passes in intestate succession) Ayers, 6/30:3

Property

Condemnation: (city's offer for road right-of-way met requirements, not prohibited from further offers after action filed, possession prematurely granted following preliminary condemnation order, but condemnees failed to seek appropriate remedies prior to completion of improvements) Bozeman v. Taylen, 10/27:7

Covenants: "Mammoth shop'' on lot adjoining residence lot violative of covenant restricting lot to residential use) Micklon v. Dudley, 11/10:3; (conflicting covenants resolved in favor of Defendants' guest house/pole barn being in harmony with other structures in subdivision as opposed to guest house matching main berm-style house) Czajkowski v. Meyers, 11/17:1

Boundary: (supervisory control of Christopher denied as to remand order in boundary dispute) Rosich v. Christopher, 9/8:1

Condemnation: (city's offer for road right-of-way met requirements, not prohibited from further offers after action filed, possession prematurely granted following preliminary condemnation order, but condemnees failed to seek appropriate remedies prior to completion of improvements) Bozeman v. Taylen, 10/27:7

Covenants: "Mammoth shop'' on lot adjoining residence lot violative of covenant restricting lot to residential use) Micklon v. Dudley, 11/10:3; (conflicting covenants resolved in favor of Defendants' guest house/pole barn being in harmony with other structures in subdivision as opposed to guest house matching main berm-style house) Czajkowski v. Meyers, 11/17:1

Ditch rights: (deeds ambiguous, extrinsic evidence properly used) Wills Cattle v. Shaw, 8/11:3

Easement: (prescriptive easement to use encroaching driveway/garage, boundary determination based on competing surveys not a declaratory action, prevailing party not entitled to attorney fees or full survey/surveyor costs under UDJA) Steiger v. Brown, 2/17:2; ("together with'' does not limit use of fiber optic cable to operating/monitoring pipeline, §1-4-102 "surrounding circumstances'' clarified, ambiguity not created by "surrounding circumstances'') Mary Baker Revocable Trust v. Cenex, 7/7:1; (road, law of case resolved unrestricted access over original jeep trail easement and later coextensive logging road across ranch, Defendant interfered with easement and outfitter contract by restricting use to cattle on jeep trail/logging road, not on non-coinciding logging road, damages to be determined at trial) Harland Ranch v. Anderson Ranch, 7/21:6; (scope properly includes subdivision access, no harm in findings on public use of private easement) Clark v. Dwyer, 9/22:2; (easement across neighbor's Yellowstone Park area property acquired by express reservation in COS, knowledge of buyer's agents as to COS imputed to buyer (a Nevada real estate lawyer) who had due diligence duty, no implied reciprocal easement on Plaintiff's property, gates, rocks, digging out asphalt placed unreasonable burden on easement, constituted trespass, Plaintiff not liable for any damage from bison or DOL control of bison, no evidence of assault/intimidation by Plaintiff, Defendant permanently enjoined from blocking access, $830 damages for removal of gates, asphalt repair, punitives to be awarded for malicious conduct in interfering with easement including vehicular assault, attorney fees awarded under UDA) Koelzer v. Frankewich, 9/22:3; (implied easement by necessity/pre-existing use not established by Defendant for landlocked parcel acquired by tax deed, prescriptive easement established by Plaintiffs for river access across tax deed property) Wolf v. Owens, 12/1:1; (undisputed testimony as to pre-82 use of road inadequately analyzed as to whether private prescriptive easement resulted, public prescriptive easement not established, no easement by grant, reservation, necessity) Leisz v. Avista, 12/22:3

Foreclosure: (no duty on indenture trustees under Small Tract Act to not delegate (to law firm), no facts that title companies violated commercial standards in sale which was voided on erroneous belief by law firm of inadequate notice to IRS, no error in not giving Plaintiff benefit of certain inferences in summary judgment proceeding, no recoverable damages by Plaintiff in voided sale) Knucklehead Land v. Accutitle (American Title & Escrow), 11/24:1

Inverse condemnation: (sufficient evidence for defense verdict on reasonable access to fertilizer plant following street project, juror misconduct claims rejected, agreements with other owners properly excluded, testimony of police chief that trucks no longer allowed to block traffic properly excluded) Williams Feed v. MDOT, 3/24:4

Made land: (fact issues preclude summary judgment as to ownership of land created by road fill in river) Graham v. State, 12/8:3

Real estate: (amendment to assert oral agreement as to purchase of gas station/store inventory/equipment properly denied, summary judgment proper that purchaser paid full buy-sell price) Farmers Cooperative Association v. Amsden LLC, 11/10:2

Railroads

Right-of-way abandonment: (NP abandoned right-of-way on lot along Clark Fork in 1958 when it ceased use/occupancy, retroactive decree precludes County road exception to vestment in successors to original patentee, "adjacent landowner'' centerline claim rejected) Avista v. Sanders Co., 4/7:6

Schools

Settlements

Age discrimination: (college police applicant) Halasa v. MSU, 9/1:8

Excessive force: ($375,000, revision of city/county police policies, excessive force in investigation of attempted purse snatching involving vehicle stop of Montana Chief Federal PO, handcuffing, detention) Cooley v. City of Missoula, 8/25:7

FELA: (high-stand derail, undisclosed terms, shoulder/knee) Davis v. BNSF, 3/10:4

Pursuit: (passenger in vehicle stolen from driver's father injured in pursuit rollover, closed-head) Falls v. Hollander, 9/15:5

State Government

Liquor: (license transfer to casino approved over gambling objections, whether DOR proper party in District Court immaterial) Protests to Transfer of All-Alcoholic Beverages License to Jackrabbit Red's Casino, 8/11:5; (county license for bar within 5 miles of city properly revoked based on erroneous survey despite claimed reliance on zoning officer's distance position) Owens (Dumas Walkers Cowboy Bar & Saloon) v. DOR, 11/24:2

Nurse anesthetists: (authorized by law to administer anesthesia without physician supervision, Nursing Board rule properly amended) Montana Society of Anesthesiologists v. Montana Board of Nursing, 11/17:2

School Trust: (supervisory control of Honzel's pretrial rulings in hydropower riverbeds litigation denied, stay of trial lifted) PPL Montana v. State, 10/6:3

Solid waste transportation: (penalties not self-executing, PSC has no authority to revoke certificate holder for past holder's non-compliance or PSC misconduct, PSC's alleged misconduct/failure to enforce nonjusticiable/moot) Montana Solid Waste Contractors v. PSC, 7/7:2

Unemployment insurance: (properly denied for misconduct (sleeping on job)) Pesek v. Defense Commissary Agency, 4/14:2

Torts

Debt collection: (jurisdiction properly asserted over ambulance service "debt collector,'' "actual malice'' for punitives deemed true based on complaint allegations in default judgment, $100,000 emotional distress damages for wrongful debt collection efforts affirmed, $649,000 punitives in 6.5:4 ratio excessive, remanded for reconsideration of punitives not to exceed 4:1) Bennett v. American Medical Response, 3/31:7

Environmental damages: ($15 million verdict for restoration damages for properties contaminated by leaking refinery gasoline with $2 million pre-damage value appropriate, no CECRA preemption of common law claim for restoration beyond health-based standards, Restatement of Torts §929 adopted for restoration damages, jury improperly instructed on constitutional tort in light of §929, but remand of $226,500 award not necessary because verdict form did not apportion between constitutional tort and public nuisance, and sufficient evidence of public nuisance, scheduling order requiring expert disclosure negated need for interrogatory, experts properly excluded for failure to disclose, after-fact negotiations with DEQ, belated attempts to comply with CECRA, not relevant to scope of damage, properly excluded for that purpose, but improperly excluded for determining punitives, $25 million punitives award vacated, remanded for retrial, sufficient incentive to pursue action to ameliorate private rights without possible award of fees, private AG fees improperly awarded, $16,117,500 compensatory verdict affirmed, $25,000,000 punitives verdict reversed) Sunburst School Dist. v. Texaco, 8/11:1; (constitutional tort precluded by common law/statutory remedies for mine pollution) Shammel v. Canyon Resources, 8/25:5

Malicious prosecution/process abuse: (instruction issues not preserved/supported for appeal in art authentication suit, Defendants not entitled to JML on process abuse claim or new trial on evidentiary rulings (deposition preclusion, post-filing probable cause affidavits, expert testimony), Plaintiff's closing, substantial evidence for $1.1 million compensatories for underlying suit expenses, reputation damage, emotional distress, 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; (probable cause standard for civil malicious prosecution adopted, probable cause in unsuccessful sex discrimination action, no abuse of process in filing HRC complaint) Hughes v. Lynch, 7/28:1; (common law prosecutorial immunity not abrogated by Tort Claims Act, absolute or qualified immunity for filing streambed complaint and later dismissing when expert equivocated, and investigating/referring claim of stalking of public defender to AG, additional discovery based on newly discovered evidence in separate case following appeal in this case properly denied) Rosenthal v. Madison Co., 11/3:1

Medical malpractice: (expert's letter inadequate disclosure, suit properly dismissed) Gettel v. Handwerk, 2/10:1; (plaintiff entitled to redacted information about other patient deaths from prescribed pain drugs, supervisory control granted) Estate of Kearney v. Todd, 8/25:2

Negligence: (counsel's acknowledgment that downspout "probably'' was a contributing factor to ice/ snow slip & fall not judicial admission of causation, jury apparently based negligent but no causation on Defendant's haste/carelessness on recent accumulation, defense verdict affirmed) Seeley v. Kreitzberg Rentals, 4/21:2; (JNOV properly denied following verdict of negligence but no causation in roof fall by roofing supplies deliveryman, deliveryman not loaned servant of roofing contractor, Defendant failed to establish error in dismissing vicarious liability theory based on inherently dangerous activity of placing shingles on apex of roof) Ellington v. Rocky Mountain Homestead, 5/19:1; (no prima facie negligence or negligence per se (based on county "at large'' ordinance) by 3rd-party defendants whose dogs on interstate allegedly caused distraction resulting in rear-end collision dog owners settled for $10,000 with Plaintiffs, Defendant pursued claims against dog owners) Mundt v. Miller, 5/19:5; (tavern dog bite defense judgment affirmed) Watkins v. Blackie's Fresno Tavern, 6/9:3; (directional drilling contractor not liable for injury by rig crew member) Carlsen v. Halliburton Energy Services, 6/16:6; (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, contributory negligence defense not precluded by negligence per se, $8,088 judgment on $13,480 verdict affirmed) Giambra v. Kelsey, 6/30:2; (no duty of care by passenger or school district to jogger who was deliberately run over by student) Emanuel v. Great Falls School Dist., 12/15:5

Recreational Use Statute: (grizzlies are "condition of the property,'' State immune for grizzly attack death) Hilston v. State, 6/2:1; (not applicable to snowmobile liability) Oberson v. FS, 11/10:1

Scaffold Act: (work on makeshift scaffold not inherently dangerous pursuant to Plaintiff's admission, but fact issues preclude summary judgment as to control by owner) Cunnington v. Gaub, 1/27:1; (step fall Plaintiff not entitled to more discovery, summary judgment not premature, employer, not Defendant, was "builder'' subject to Act, owner not liable under "retained control'' theory, sandblasting grit did not create inherently dangerous activity, no nondelegable duty pursuant to contract, disputed facts not material in light of no liability) Fabich v. PPL Montana, 10/13:1

Snowmobile liability: (statute's 1996 "gross negligence'' standard violative of equal protection, duty of ordinary care applies to FS trail accident, certified questions by 9th Circuit answered resulting in affirmance of $10,767,120 net award) Oberson v. FS, 11/10:1

Tortious interference: (any damages to oncologist not from tortious interference by therapist, but by smiley faces on breast) Hughes v. Lynch, 7/28:1

Tortious interference with easement: (not "improper'' for DOT lawyer to suggest that owner of potential right-of-way seek legal advice about status of 3rd-party easement or offer more if easement clear, conduct only remotely related to suit by owner to extinguish or limit easement) Stokes v. DOT, 7/14:2; Wrongful arrest: (claim against county for JP arrest warrant/incarceration for failure to pay fine despite District Court remand for trial barred by judicial immunity, challenge of §2-9-112 constitutionality waived by failure to raise below) Silvestrone v. Park Co., 10/20:1

Wrongful discharge: (MDOT employee not entitled to 120-day extension of 1-year filing time because BPA grievance procedure not MDOT's written internal procedure) Campanella v. MDOT, 1/13:1; (JML improperly granted as to good cause for firing bakery worker for "grazing'' in light of evidence of arbitrary treatment, proper as to pretext/personnel policy) Johnson v. Costco Wholesale, 2/17:1; (Plaintiff allowed to impeach witness as to prior statements, but neglected to take full advantage of opportunity, Defense verdict on auto dealer finance/insurance manager's claim of termination for objecting to finance "padding'' of used cars affirmed) Mayer v. Billings Nissan, 8/4:4; (patrolman properly discharged rather than progressively disciplined for misconduct) Tuttle v. MHP, 8/25:1

Trademarks

Infringement: (kayaking film Plaintiff failed to plead common law trademark infringement, summary judgment for Defendant proper, 3rd trial properly vacated, following previous $161,322 copyright judgment, en banc rehearing denied) Polar Bear Productions v. Timex, 9/29:7

Undue influence: (no undue influence in leaving $500,000+ revocable trust to former son-in-law/lawyer, his drafting the testamentary documents not presumptive of breach of duty, charity not improperly cut out) Stanton v. Wells Fargo Bank Montana, 2/3:1

Fiduciary duty: (no fiduciary duty by bank to charity, trustor had capacity to amend charity out of trust) Stanton v. Wells Fargo Bank Montana, 2/3:1

University System

Student elections: (student election spending caps reasonable furtherance of educational opportunities, not violative of free speech) Flint v. UM, 6/30:5

Utilities

PSC: (PSC's request for information as to accuracy of annual report not ripe for judicial review, PSC may investigate utilities in any manner necessary to effectuate its statutory duties) Qwest v. PSC, 12/22:4

Stranded benefits: (PSC lost jurisdiction to order PacifiCorp to distribute stranded benefits as "negative transition costs'') Consumer Counsel v. PSC, 4/21:3

Taxes: (valuation of PPLM property not violative of equal protection, deference to STAB's lowering of appraisal) DOR v. PPL Montana, 12/8:4

Verdicts

Adoption: (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) Orednick v. DPHHS, 1/27:4

Architectural malpractice/breach of contract: (jail construction/law enforcement facility renovation damages due to alleged architectural malpractice/breach of contract, claims speculative, not proven to reasonable certainty, architect's counterclaims settled for $89,943 and agreement by County to waive appeal of directed verdict) Butte-Silver Bow Co. v. Integrus Architecture, 6/2:3

Auto: (trucks, summary judgment liability, fractured facet/ribs/ankle), Brown v. Frare (Frare Trucking), 1/6:5; (rear-end auto, admitted negligence, chronic myofascial pain/back spasms/whiplash) Johnston v. Nelson-Moncure, 1/13:2; (low impact rear-end auto, UIM, neck) Procopio v. Allstate Ins., 2/17:6; (intersection semi/auto, admitted liability, CRPS) Fish v. Harris and Maclay & Sons, 2/24:7; (intersection auto, unique light sequencing, lumbar/cervical) Harris v. Spear, 3/24:7; (low-impact rear-end auto (3 cars), admitted liability, disputed causation, whiplash/neck pain/postconcussive syndrome/conversion disorder/depression/lost ability to work) Osborne v. Goetz, 6/30:5;($60,377.36 net (26.42/73.58), uncontrolled intersection auto, L5-S1 fusion, BSB not negligent for view-blocking hedge) Heard v. Fisher, 9/22:6; (bus/auto, admitted negligence, soft-tissue back/neck/shoulders) Andrews v. Balsley, 10/6:5; ($50,173 total damages, to be reduced by $50,000 paid by tortfeasor's liability insurer, UIM, failure to yield, 2 Plaintiffs, shoulder/neck/arm/ low back pain, chronic headaches/neck) pain/fibromyalgia exacerbation, admitted liability) Gonzales v. Safeco, 12/8:6

Bar fight: (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

Bridge collapse: (university student-made bridge collapse, wrist/closed head) Mastandrea v. State, 9/29:5

Buy/sell bad faith: Hanes v. RM Builders, 3/24:8

City pools construction contract: Patterson Enterprises v. The Pool Co., 7/21:8

Construction lien foreclosure: ($366,100 compensatory/ $366,000 punitives verdict affirmed (plus $164,395 fees/ costs and $337,258 post verdict interest), 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, challenge to bifurcated trial with 6 months gap previously rejected on application for supervisory control, inconsistent financial statements properly allowed in liability phase as impeachment/discovery sanction, instructions based on Federal Claims Court law properly refused, insufficient argument that "Prompt Payment Act'' 1½%/mo interest not applicable, 3% punitives cap not applicable to pre-10/03 events) Murphy Homes v. Muller/Aberle, 6/16:1

Death: (voluntary dismissal on appeal of $700,000 verdict for alleged positional asphyxia death of infant who had been placed on pillows) Rackley v. Anderson, 6/16:7

Discrimination: (age, fireman) Jaksha v. Butte-Silver Bow Co., 1/13:3; (racial, Indian nursing student) Hohman v. MSU, 10/13:7

Dog bite: (tavern dog bite defense judgment affirmed) Watkins v. Blackie's Fresno Tavern, 6/9:3

Dram shop: ($2,636,263.63 gross compensatories against Defendant bar (49% negligence by decedent, 26% by Defendant bar, 20% by empty chair bar, 5% by empty chair co-drinker), $450,000 punitives, dram shop death) Pressler v. Trail Stop Enterprises (Buffalo Station), 11/3:7

Employment contract/wages: ($358,571 fees based on 40% contingency rather than hourly rate, $20,137 costs, following $734,046 verdict, $255,718 wage penalty, $61,624 prejudgment interest, for resort marketing VP, post-trial motions denied except stay pending appeal following filing of $1,680,000 bond) West v. The Club at Spanish Peaks, 3/3:2

Environmental damages: ($15 million verdict for restoration damages for properties contaminated by leaking refinery gasoline with $2 million pre-damage value appropriate, no CECRA preemption of common law claim for restoration beyond health-based standards, Restatement of Torts §929 adopted for restoration damages, jury improperly instructed on constitutional tort in light of §929, but remand of $226,500 award not necessary because verdict form did not apportion between constitutional tort and public nuisance, and sufficient evidence of public nuisance, scheduling order requiring expert disclosure negated need for interrogatory, experts properly excluded for failure to disclose, after-fact negotiations with DEQ, belated attempts to comply with CECRA, not relevant to scope of damage, properly excluded for that purpose, but improperly excluded for determining punitives, $25 million punitives award vacated, remanded for retrial, sufficient incentive to pursue action to ameliorate private rights without possible award of fees, private AG fees improperly awarded, $16,117,500 compensatory verdict affirmed, $25,000,000 punitives verdict reversed) Sunburst School Dist. v. Texaco, 8/11:1

Equal protection: (City's denial of Reasonable Use Exemption to build on steep lakeshore slope) Walton v. Whitefish, 7/21:7

Excessive force: (pepper spray) Clark v. Mineral Co., 9/29:6

False arrest/imprisonment: Dean v. Sanders Co., 7/7:5

FELA: (admitted violation of Safety Appliance Act (broken handhold), back) Ames v. UP, 4/21:6; (mechanic, crushed leg, admitted liability) Wells v. BNSF, 9/15:5; ($1,013,500, FELA, track laborer, hard fall, cumulative trauma, cervical/back, directed verdict against contributory negligence, for causation) Roney v. BNSF, 9/22:5; ($1,761,222, FELA, Wyoming runaway train crash, admitted liability, knee/wrists/neck/low back) Smith v. BNSF, 11/24:5

Fence/lights: (Defendants' fence not nuisance/spite fence, Plaintiffs' lights not nuisance, but jury "recommends'' that Plaintiffs replace mercury vapor lights, Defendants remove fence) Tarlton v. Kaufman, 7/28:4

Foster parent negligence: (alleged failure to provide medical care) Cobb v. Peterson, 12/22:5

Hospital bills: ($24,924.59 owed for hospital/clinic medical services, $4,640 for air ambulance services, amounts not released in release of separate debt) Deaconess Billings Clinic v. Hawkins, 3/3:5

Lemon Law/CPA: (defective motor home) Vader v. Fleetwood Motor Homes of California, 4/21:6

Loan: (lender's contract counterclaim, homeowner's claim on contract/statutory claims), delinquent note) Wilber v. GMAC Mortgage Corp., 5/26:5

Malicious prosecution/process abuse: (art authentication dispute) Seltzer v. Morton, 3/17:1

Medical malpractice: (alleged failure by radiologists to diagnose breast cancer) Harris v. Hanson, 2/10:3

Police officer retaliation: (whistleblower) Feuerstein, 8/11:7; (post-trial rulings, whistleblower asserted at least 2 "claims,'' verdict form failed to apportion award, jury could have awarded $750,000 municipal cap for each which would exceed $1.3 million awarded, or possible that most of damages arose under §1983 claim which would not be subject to the limitation, or equally from all 4 claims which would not limit total award to $750,000, new trial/verdict reduction denied, $292,050 attorney fees, $17,437 costs awarded) 9/29:3

Ski resort negligence: (snowboarder collision with 6-year-old, skull/nose/eye) Stamey v. Winter Sports (Big Mountain Ski Resort), 3/17:7

Slip & fall: (defense, ice slip & fall, fractured wrist) Holm v. Big Cat Inc. (The Rex), 2/10:3; (defense, swimming pool deck slip & fall, coccyx/cervical) King v. The Duck Inn, 11/10:5

Strip mine rock fall: (closed head/paraplegia, sons' consortium, Wyoming case, Montana lawyers) Butts v. Hannifan, 3/3:8

Transportation logistics services: Bitterroot International Systems v. Western Star Trucks, 2/24:1

Retirement contracts: ($21.4 million (including $4 million "group'' punitives), bad faith breach of 15 power company employees' supplemental retirement benefits contracts, abuse of process, malicious prosecution) Ammondson v. NorthWestern Corp., 3/3:4

RR construction subcontractor employee: (crushed leg/foot/ankle/PTSD) Olson v. Shumaker Trucking & Excavating Contractors, 3/10:3

Trailer jack crush: (foot fractures) Durham v. Olson, 10/13:5

TV fall onto comedy show patron: (TMJ, admitted negligence), Fidler v. Outlaw Lounge & Casino,10/6:5

UIM: (low back/neck, admitted liability, judgment of $79,578 plus costs after deducting advanced payments and summary judgment that stacking of 7 vehicles not permitted) Robertus v. Farmers Union Mutual Ins., 1/27:4; (wrongful death) Tucker v. Farmers Ins. Exchange, 4/14:6; (mild traumatic brain/cervical neuropathy) Burkett v. State Farm Mutual Auto Ins., 4/14:6; ($148,427 judgment on $250,000 UIM verdict: $100,000 policy limits, $40,000 attorney fees, $1,857 costs, $6,570 supplemental relief) 6/23:7;

Wheat seeder: ($14,149 net (85/15) negligence as to additional planting costs/crop losses from dealer's failure to improperly configure seeder, $47,500 for cost of seeder, $80,000 for profits lost in 2003 because of additional planting costs, $78 prejudgment interest, total judgment, $144,272, no prejudgment interest from disputed date of tender of return of seeder, no revision of negligence verdict based on alleged jury error) Appelt v. Triple W Equipment, 3/3:6

Workplace psychological injuries: (deputy sheriff, delayed onset PTSD) Crawford v. Ravalli Co., 7/14:8

Wrongful death: (defense, oil field death, inherently dangerous activity, negligent control, product liability) Stensaker v. Flying J Oil & Gas, 9/15:6

Wrongful discharge: (constructive, DOR POINTS employee) Sullivan v. DOR, 1/13:3; (orthopedic surgeon) Buechsenschuetz v. Northern Rockies Orthopaedic Specialists, 2/17:6; Harding v. Garcia, 5/26:2; (county administrative assistant) Dean v. Sanders Co., 7/7:5; (defense verdict on auto dealer finance/insurance manager's claim of termination for objecting to finance "padding'' of used cars affirmed) Mayer v. Billings Nissan, 8/4:4

Water

Change of use: (holder of state water right may have opportunity to prove that proposed use change will not adversely affect use of other water rights including tribal reserved rights) CSKT v. DNRC, 3/17:6

Water Use Act: (injunction request for alleged pre-approval appropriation violations moot following final approval, request for fees under Water Act/private AG doctrine moot, no private right to enforce Act's civil penalty provisions) Faust v. Utility Solutions, 12/15:3

Workers' Compensation

Accident occurrence: (no evidence in medical records of fall at work until 2 years after quitting, claim of specific injury to back not credible, Claimant also at MMI with 0% impairment rating and released to work without restriction, not entitled to ongoing care or reinstatement of TTD) Johnson v. Liberty Mutual Fire Ins., 1/20:6

Aggravation: (right knee condition significantly aggravated by overuse from left knee condition sustained while working as electrician, not by subsequent work as minister, electrical employer's insurer liable, knee not at MMI, Petitioner entitled to TTD, not PTD) Lanes v. State Fund, 9/22:7; (Petitioner failed to prove chiropractic treatment aggravated cervical condition) Porter v. Liberty Northwest Ins., 11/10:6; (2005 job injury permanently aggravated 1998 back injury, doctor who treated more times and more recently given more weight) Healy v. Liberty Northwest Ins., 11/24:8;  (fee dispute to be resolved by WCC, not DLI) Pinnow v. State Fund, 12/15:1; (interim fees granted in PTD impairment case, procedure for determining established) Rausch v. State Fund, 12/15:7

Attorney fees/costs: (costs but no fees from employer/UEF) Cardwell v. UEF, 6/23:7; (no attorney fees for past work by former counsel) Markovich v. Liberty Northwest, 6/23:8; (costs application timely considering mail days) Cardwell v. UEF, 7/28:8; (insurer not entitled to costs as prevailing party) Heffner v. State Fund, 8/11:8; (private AG fees improperly awarded) Thompson v. State, 8/25:4; (particularization for fees/penalty not timely filed, but issues adequately raised in pretrial order) Lanes v. State Fund, 9/22:7; (denial of fusion as recommended by treating physician unreasonable, penalty assessed, but no fees/costs since insurer authorized surgery following trial at which Judge announced what ruling would be but before claim adjudged compensable) Vanbouchaute v. State Fund, 11/24:7; (fee dispute to be resolved by WCC, not DLI) Pinnow v. State Fund, 12/15:1; (interim fees granted in PTD impairment case, procedure for determining established) Rausch v. State Fund, 12/15:7

Causation: (COPD not proven to be caused by auto body job exposures, lack of medical opinion as to causation, Petitioner's expert not qualified in this matter) Hinman v. State Fund, 1/27:6; (no medical support for claim that arm infection result of altercation in ejecting apartment house trespasser) Heckel v. UEF, 3/17:8; (knee conditions related to 1998 accident, not progression of 1983 injury, subsequent insurer liable) Hunter v. Hartford Ins., 3/31:8; (Petitioner suffered compensable injury in 10/05 related to heavy lifting of patient, but not in 2/05) Johnson v. MHAWCT, 6/2:6; (avascular necrosis not related to job injury or arthroscopy, repeat meniscal tear not established) Foster v. MSGIA, 6/16:7; (insurer liable for CTS, arm/shoulder condition, cervical spondylosis, DDD, not for syrinx or herniated disk) Evans v. Liberty Northwest Ins., 6/30:8; (2004 disk herniation not causally related to 1980 injury, insurer not liable for surgery) Heffner v. State Fund, 7/21:8; (reconsideration of negative causation finding denied, medical possibility v. more-probable-than-not) 9/15:7; (no causation between injury/surgeries and pain, no increased impairment rating for pain) Stewart v. Liberty Northwest Ins., 9/22:8; (COPD claim by cigarette smoking auto mechanic rejected) Hinman v. State Fund, 11/3:2; (cognitive impairment related to job back injury and subsequent falls, depression, chronic pain, fibromyalgia, not from minor MVA) Uffalussy v. St. Patrick Hospital, 11/24:7; (shoulder problems caused by 8/01 job accident, Claimant entitled to continuing care under 8/01 date of injury including rotator cuff surgery) Feuerherm v. Liberty Northwest Ins., 12/15:8

Claims file: (no jurisdiction to set forth claims file guidelines because no jurisdiction over claim pre-petition, but a claimant forced to petition to obtain claims file would be considered in reasonableness of adjustment) Porter v. Liberty Northwest Ins., 11/10:6

Compensability: Somerville v. MACWCT, 6/16:8; (reconsideration denied) 8/25:8

Course & scope: (employee injured at company picnic in course & scope) Michalak v. Liberty Northwest Ins., 4/14:7; (MVA during authorized late break on return from caring for dog not substantial deviation, compensable) BeVan v. Liberty Northwest Ins., 12/29:1

Credibility: (credibility concerns with all witnesses, insurer's witnesses slightly more credible, Petitioner failed to meet burden of proving compensable injury) Foster v. MSGIA, 6/16:8; 8/25:8; (Claimant not credible) MMIA v. Roche, 11/24:6

Disability: (petitioner PTD even without considering subsequent Hepatitis C complications, since insurer failed to establish suitable physician-approved job) Benhart v. Liberty Northwest, 1/20:5

Discovery: (requests by one insurer of another could reasonably lead to admissible evidence, motion to compel, attorney fees, granted) The St. Paul Travelers Companies v. Liberty Northwest Ins., 11/10:7

Duty to defend: (untimely filing of Montana comp claim by Oklahoman injured in Montana relieved State Fund of duty to defend employer in Oklahoma comp action, employer's contract/bad faith claim against State Fund properly dismissed) Hogenson Const. v. State Fund, 11/3:2

Employee: (apartment house tenant was employee due to rent reduction in exchange for tasks) Heckel v. UEF, 3/17:8

Employee/contractor: (woodcarver injured first day at work independent contractor, not employee) Kinney v. UEF, 3/17:8; (sheetrocker was employee of uninsured employer, not independent contractor) Cardwell v. UEF, 6/23:7

Employer notice: (actual notice of injury) Heckel v. UEF, 3/17:8

IME: (follow-up IME warranted where Petitioner amended claim from PPD to TTD, husband may not be present but counsel for both sides may be present in light of Petitioner's experience with IME doctor in 1st exam, exam to be recorded by fixed video camera) Haman v. Wausau Ins., 12/8:7

Impairment: (treating physician's 93% impairment rating for asbestos respiratory disorder adopted over IME physician's 58%) Mack v. Transportation Ins., 6/2:5

Incarceration: (PPD lapsed during incarceration pursuant to §39-71-744, statute constitutional) McCuin v. State Fund, 1/27:5

Intentional tort: (certified question from 9th Circuit as to 2001 intentional tort amendment constitutionality accepted after previous refusals of question from US District Court) Brady v. PPL, 3/24:4

Jurisdiction: (denial of benefits in entirety indicates jurisdiction-conferring dispute concerning all benefits, including medicals despite lack of mediation) Baker v. Transportation Ins., 2/10:6; (WCC not "court of record,'' not empowered to issue declaratory judgment on medical disclosure waiver challenge in this case, private AG fees improperly awarded) Thompson v. State, 8/25:4; (district judges not authorized to sit in place of WCC judge, orders entered by Sherlock since McCarter's recusal in 5/05 of no effect, fee dispute to be resolved by WCC, not DLI) Pinnow v. State Fund, 12/15:1

Lump sum: (denied) Sanchez v. State Fund, 6/30:7

Medicals: (no tolling of "60-month rule'' statute of repose for medical benefits) Palmer v. Safeco, 1/27:5

MMI: (Petitioner not at MMI from head injury/exacerbated depression despite treating physician's opinion, not given opportunity for further treatment, TTD reinstated) Copeland v. State Fund, 1/13:3; (Petitioner not at MMI, entitled to retroactive TTD) Porter v. Liberty Northwest Ins., 11/10:6

Notice: (security officer's claim time-barred for failure to notify employer within 30 days of when he learned that altercation with trespasser was probable cause of injury, "incident reports'' not sufficient notice) Siebken v. Liberty Northwest Ins., 12/8:7

OD: (neck pain more likely OD than injury, OD claim timely adequately presented in First Report) Cardwell v. UEF, 6/23:7; (carpenter's employment significantly aggravated or contributed to thumb condition, OD compensable, 51% threshold rejected) Oksendahl v. Liberty Northwest Ins., 6/30:7; (CTS claim timely filed within 1 year of when it was diagnosed by doctor, not from earlier "diagnosis'' by wife, insurer liable for CTS, arm/shoulder condition, cervical spondylosis, DDD) Evans v. Liberty Northwest Ins., 6/30:8; (employer of last injurious exposure liable for wrists OD, job aggravated any injury from motorcycle accident, statute of limitations defense waived by failure to state in pleadings) Kratovil v. Liberty Northwest Ins., 9/15:6; (2-year statute for filing OD claim under 1999 WCA (repealed 2005) does not begin to run until after OC evaluation report) Kessel v. Liberty Northwest Ins., 12/1:2; (2001 district court complaint alleging asbestosis reveals knowledge of OD, 2006 claim untimely) Shelley v. American Home Assurance, 12/22:8

Penalty: (denied) Mack v. Transportation Ins., 6/2:5; (denied) Markovich v. Liberty Northwest, 6/23:8; (denied) Lanes v. State Fund, 9/22:7; (refusal to reinstate TTD unreasonable, adjustment unreasonable, penalty/fees assessed) Porter v. Liberty Northwest Ins., 11/10:6; (denial of fusion as recommended by treating physician unreasonable, penalty assessed, but no fees/costs since insurer authorized surgery following trial at which Judge announced what ruling would be but before claim adjudged compensable, insurer responsible for MCO contractor's recommendation) Vanbouchaute v. State Fund, 11/24:7

PPD: (§39-71-703 denial of PPD for age, education, lifting to claimants who do not suffer wage loss constitutional, classes not similarly situated) Wilkes v. State Fund, 3/3:7

PTD: (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

Preauthorization rule: (preauthorization rule to change physicians for surgery not applicable where condition unknown at time of settlement, not causally connected to job accident until after surgery) Gamble v. Sears, 6/9:2

Procedure: (stay of execution denied for failure to post appeal bond) Sturchio v. Wausau Underwriters, 3/17:8; (order amended nunc pro tunc to correct clerical error despite appeal, stay pending appeal granted) Michalak v. Liberty Northwest Ins., 4/28:6; (Schmill retroactivity rulings) Schmill v. Liberty Northwest Ins., 7/14:8; (insurer's motion to stay judgment and waive appeal bond granted) Evans v. Liberty Northwest Ins., 7/28:8; (appeal bond waived for insurer) Oksendahl v. Liberty Northwest, 8/11:8

Retirement: (insurer not required to pay TTD during period of medical instability resulting from OD for retiree who had not worked for 11 years) Aldrich v. State Fund, 12/29:4

Reverse offset: (§424a creates benefits "ceiling'' (not "floor'') precluding more than 80% of ACE, no federal preemption of State reverse offset) Siaperas v. State Fund, 4/7:5

Settlement: (Petitioner not compelled to reveal disputed liability asbestosis settlement with co-respondent employer, no judicial estoppel) Johnson v. Liberty Northwest Ins., 2/17:7; (confidential) Howard v. Benefis Healthcare, 6/16:8

Settlement reopen: (cervical fracture occurred in 1997, not discovered until 2004, 2001 settlement properly set aside for mutual mistake, preauthorization rule to change physicians for surgery not applicable where condition unknown at time of settlement, not causally connected to job accident until after surgery, deference to judge as to factual disputes) Gamble v. Sears, 6/9:2; (proposed stipulated judgment foreclosing future unknown claims or rescission of settlement with interest denied as contrary to statute/public policy) Jones v. Albertsons, 6/30:6

UEF: (mediation time not unconstitutional (classes of insured/uninsured employers not similarly situated), employer failed to appeal UEF determination to mediation within 90 days, not entitled to review Claimant's medical records for suspected improperly paid benefits) Horizon Custom Homes v. UEF (Flink), 2/17:8; (date corrections) 2/24:8;

Voc-rehab: (no additional voc-rehab beyond 84-week college plan despite change in goals) Markovich v. Liberty Northwest, 6/23:8

Wages: (Petitioner hired for single day's work, unemployment benefits not "wages,'' exchanging unemployment benefits for comp not violative of substantive due process, §39-71-123 not unconstitutional) Negathon v. State Fund, 1/6:6; (different wage calculations for each of 5 concurrent employments, aggregated) Sturchio v. Wausau Underwriters, 2/3:6; (calves born from cattle given by employer not wages for total disability rate, pasture, hay, vet services, breeding bulls for cattle are wages under 1991 law, first impression) Hand v. UEF, 8/4:8; (claimant received wage from business despite lack of profitability on tax returns, must repay $45,273 TTD, WCC has jurisdiction to order restitution despite no allegation of fraud, Claimant not credible) MMIA v. Roche, 11/24:6

Wage loss: (Petitioner qualified to earn more than at time of injury, not entitled to PPD wage loss) Markovich v. Liberty Northwest, 6/23:8; (RN properly placed in transitional job and then recruiter position, termination due to behavior not injury, no wage loss as result of injury, no PPD/rehab) Stancil v. MHAWCT, 12/29:4