subjectindex2008

Exclusive radiology contract: (sufficient allegations to support claims of intent to harm competition, actual injury to competition, antitrust injury sufficiently alleged, motion to dismiss denied) Capital Radiology v. St. Peter's Hospital, 3/15:7

Appellate Procedure

Appealability: (appeal from "injunction'' denial dismissed for lack of record, insurer sought injunction to bar evidence/argument of bad faith "post-filing'' conduct, when Judge Neill ruled morning of trial that it would be admitted, assertedly requiring counsel to withdraw and testify as fact witness) Procopio v. Allstate Ins., 2/23:5; (appeal/cross-appeal of property dispute order by Haynes with partition/sale hearing yet to occur premature) LeFeber v. Johnson, 4/12:3; (inadequate 54(b) certification by Lumpus) Kleinke (European Motors) v. Walsten, 4/12:3; (appeal timely within 60 days of entry of judgment (as opposed to signing of judgment)) State v. Clark, 4/19:5; (standing issue properly raised first time on appeal, sanctions not appealable at this stage) Johnson v. Booth, 5/24:1; (appeal of Todd's order reversing LED billboard application denial mooted by LED rulemaking, dismissed on motion of Appellant MDT, appeal of bad faith sanctions against MDT not moot, appeal sanctions denied) Lamar v. MDT, 7/12:4; (appeal not permitted from contempt order, motion to convert to petition for cert denied... cert application premature) Matter of Watkins Revocable Trust, 8/16:4; (theory shift on appeal not significant enough to decline appeal) Becker v. Rosebud Operating Services, 8/23:2; (briefing ordered on first impression questions of appealability of order dismissing an action without prejudice) Farmers Union Mutual Ins. v. Bodell, 9/6:3; (contempt order not reviewable on appeal, petition for rehearing of prior dismissal not appropriate to buy time to hire lawyer) Collins v. Swinger, 9/13:3

Appeal from justice court: (even if MUMCRA, not MRCivP, governs appeal from justice court of dismissal of traffic control/DUI case for State's failure to file response brief, MUMCRA 15 provides many ways to decide appeal, new trial (as requested by State) is only one, Old Fashion Baptist focuses on issues, not remedies, inapplicable here, no motion for reconsideration under MRCivP, motion not treated as Rule 59 motion as State's (questionable) explanation for not filing response brief not newly discovered evidence, merely 2nd bite of apple) State v. Jorgensen, 7/19:6; (State had right to appeal Justice Court grant of motion to suppress) Willis, 8/30:4

Appeal from municipal court: (assuming that misdemeanor Defendant could be lawfully sentenced in absentia, initial oral sentence valid, not subsequent sentence when Defendant appeared on bench warrant, appeal to District Court untimely) Clark, 9/20:4

Appeal time: (30-day appeal time of MRAP supersedes 10-day appeal time of §85-7-1810 for irrigation districts, motions to dismiss "untimely'' appeal denied) Formation of East Bench Irrigation Dist., 6/21:4

Briefing: (claim of failure to base decree on "formal settlement'' following repudiated in-court settlement not supported as required by MRAP) Marriage of Petryszak, 1/12:3; (appeal brief 1 day late not cause for dismissal) Paull v. Park Co., 4/19:1; (amicus briefs not contemplated by Supreme Court original proceedings rule) MR v. Swandal, 5/3:3; (new citations in Plaintiff's reply brief allowed, with Defendant allowed to file supplemental response, whether to allow new annual leave figures to be decided in opinion) Tuttle v. MHP, 8/2:4; (subject jurisdiction issue raised in response brief not reviewable) Clouse v. Lewis & Clark Co., 8/16:3; (overlength brief allowed, but not as long as requested) Crosley, 8/23:6; (appeal briefing allowed to proceed as to Petitioner with unchallenged standing despite challenge as to standing of association) Citizens for Responsible Development v. Sanders Co. Commissioners, 9/13:2

Certification: (inadequate) Kleinke (European Motors) v. Walsten, 4/12:3; (certification of estate dispute proper where served/named defendants dismissed on basis of procedural defect as to proper PR) Adorno v. 131 S. Higgins (The Wilma Bldg.), 4/19:1; (Rule 54(b) v. ARM comp certifications clarified) Reesor v. State Fund, 7/26:6; (certification by Langton improper absent ruling on fees, notwithstanding issue of first impression in summary judgment) Robbins v. Conklin, 7/26:7

Mediation: (joint motions welcomed for designation of categories not identified in MRAP 7) Kuzara v. Musselshell Co., 4/19:1; (Clerk-appointed mediator confirmed over parties' late selection) Hanson v. Cedar Valley Comst., 9/6:3

Mootness: (appeal of mandamus requiring recording of re-aggregated parcels mooted by sale of property) Mills v. Alta Vista Ranch, 6/21:3

Notice of appeal: (Fax filing of notice of appeal not effective, hard copy filing 1 day late, appeal dismissed with prejudice, unidentified "Intervenor's'' separate argument in opposition to motion to dismiss not considered for failure to file notice of appeal) Reedal v. Reedal, 5/24:2

Out-of-time appeal: (based on sending notice to District Court denied) Mountain West Bank v. Western Skys, 2/23:5; (death of attorney's mother not "extraordinary circumstances'' justifying out-of-time appeal) Estate of Lightfield, 3/15:6; (motion for fees filed after notice of appeal timely, Deschamps retains jurisdiction to consider it, motion to dismiss appeal denied, because neither party served notice of entry of judgment, 10 days of 59(g) has not begun to run, costs not ``necessary'' as contemplated in MRAP 4(1)(a) in light of untimely filing of bill, request for costs has no bearing on finality of judgment) Estate of Pruyn v. Axmen Propane, 9/27:2

Pro se: (pro se Appellants failed to meet relaxed burden) Metzger v. Polejewski, 8/30:3

Public access: (public access to certain documents in appeal record precluded, but not under §53-20-134, which applies only to district courts) LS, 5/17:4

Rehearing: (rehearing sought in prosthetic socket coverage/UTPA case rejected, counsel misrepresented record, ``familiarization'' by new counsel with case either wholly inadequate or intentionally hebetudinous, Plaintiffs awarded response fees/costs as sanctions) Lorang v. Fortis Ins., 9/20:2

Sanctions: (appeal damages/costs denied in "close call'') Knowles v. Lincoln National Life Ins., 7/19:8

Standard of review: (newly stated de novo review of whether conviction supported by sufficient evidence not in conflict with traditional deference to trier of fact) State v. Trujillo), 4/19:2

Stay: (no ``safe harbor'' in MRAP 4(5)(ii) which would allow appeal to pend until ripe, request to stay appellate deadlines until this and another case with same parties/issues becomes ripe denied, appeal dismissed without prejudice) Burbank v. Brenntag West, 9/13:3

Supervisory control: (no extraordinary circumstances warranting supervisory control of Swandal in temporary custody dispute) MR v. Swandal, 5/10:3; (denied as to denial of summary judgment) Philipsburg School Dist. v. Dayton, 5/17:5

Transcript: (court reporter ordered to file transcript or face contempt) Roe v. Missoula, 2/2:2; (not properly submitted via closed stay proceeding, but does not change outcome in radiologist/hospital dispute, rehearing denied) St. James Healthcare v. Cole, 3/8:4

Arbitration

Compel: (properly not compelled following year of participation in litigation) Signal Perfection Ltd. v. Blackhawk, 4/12:2; (whether contract with arbitration clause and disputed interest rate was formed must be determined by the Court rather than arbitrator) Thompson v. Lithia of Great Falls, 5/31:3

Attorney Fees, Costs

Award: fees/costs included in claimed consequential damages, not awardable post-trial Petroleum Tank Release Compensation Board v. Federated Service Ins., 1/12:1; (fees improperly awarded based on contract for deed when not asserted in complaint or summary judgment motion, no explanation for alternative basis of "justice so requires'' Walters v. Luloff, 2/2:1; (fees pursuant to contract properly based on 40% contingency rather than hourly rate, Stimac factors properly considered, but recalculation of $358,581 fees necessary to deduct amount based on wage penalty) West v. The Club at Spanish Peaks, 5/31:1; ($277,199.99 fees properly awarded on intertwined claims pursuant to contract despite no prior arbitration, "fees for fees'' also proper) Blue Ridge Homes v. Thein, 6/7:2; ($42,923 fees to Plaintiffs who received all of Defendant's percentage of 1 water right and all but ``trickle of water'' more than their offer on other right, statements with ``block billing'' sufficiently detailed) Kruer v. Three Creeks Ranch, 9/20:1

Disputes arbitration: (comments invited on revised rules) Rules on Arbitration of Fee Disputes, 8/23:

Attorney Practice

Bar admission: (failure to timely appear for admission precludes admission to active status) Petition of Olson, 8/2:4

Conflict of interest: (supervisory control of McKittrick denied in challenge of Judge's son being public defender in Judge's court) Cascade Co. Attorney v. McKittrick, 8/2:4

Discipline: (60-day suspension on top of COP's recommendation of censure in excessive/comingled fee/$1 million estate dissipation case) Matter of Engel, 2/9:1; (public censure vacated to allow briefing on subject jurisdiction over ODC complaint) 3/15:5; (Supreme Court has jurisdiction to order discipline despite COP dismissal recommendation, 60 days suspension, censure for excessive/commingled fees affirmed) Matter of Engel, 6/21:1; (stay of suspension/censure for excessive/commingled fees stayed pending US Supreme Court cert petition) Matter of Engel, 8/2:2; (attorney did not violate 8.4(c), 1.5(c), 3.1(a), 3.3, 8.4(d) as alleged by ODC and rejected by COP in connection with fee splitting dispute with Louisiana firm in $869,990 motorcycle verdict, but did violate 8.1 & 8.4(d) as to representations to ODC & COP about asserted oral fee agreement with clients... ``aggravating factor'' of uncharged violation of 1.5(e) not considered in adopting COP's recommendation of public censure rather than private admonition) Matter of Oaas, 8/16:2; (District Court lacks jurisdiction to order disclosure of ODC/COP disciplinary files, reliance on confidentiality of tendered admission in RLDE precludes original petition) Billings Gazette v. COP, 8/23:3

Banking, Commercial Paper

Discharge: (bank auditor's retaliatory discharge claim under WDA not preempted by National Banking Act ``at pleasure'' provision) Fenno v. Mountain West Bank, 8/9:2

Attachment: (secured parties seeking to repossess after default pursuant to §30-9A-609 must follow specific procedures in claim & delivery or prejudgment attachment statutes, claim & delivery statute not strictly complied with, seizure void) Yellowstone Federal Credit Union v. Daniels, 4/12:1

Ag lien/UCC: (chemical supplier's notice of lien given same day to farm satisfied revised "intent to file'' statute with no specified period, UCC Revised Art. 9 (secured transactions) reconciled with non-possessory ag liens: ag lienors must satisfy perfection requirements of §30-9A-310 in addition to perfection requirements of lien statutes to avoid "first in time'' rule and retain "superpriority'' status granted by local law, local law is law of state where farm products located, Montana local law because beets in Montana, not ND where farm corporation based, fertilizer/pesticide liens properly filed with Secretary of State, also satisfied UCC requirements, duplicate filing not required, ag lien properly perfected, chemical creditor's lien on beets continued after they were sold and thus on proceeds from sale, lien properly enforced through negotiation of dual payee checks, chemical supplier had right to assign inchoate ag lien interests to affiliated financer, which was entitled to perfect the lien, ag lienors had superpriority over bank) Stockman Bank of Montana v. AGSCO, 3/8:1

Checks: (checks ambiguous as to whether company/individual payees intended in alternative, are payable alternatively, bank not in error in paying to individual, conversion/negligence claims rejected as to ambiguous checks, 1st impression in Montana) Cabinet Works v. Gilson, 3/1:4

Foreclosure: (loan documents for bed & breakfast not orally modified, deficiency judgment properly granted in foreclosure of personal residence that was never used as bed & breakfast, no fiduciary duty by bank despite friendship of loan officer and debtor) First Security Bank v. Abel, 5/17:2

Livestock repossession: (no damages from bank's failure to immediately file notice of satisfaction after sale, even assuming private right of action or negligence per se, untimely amendment to add economic advantage interference properly denied) Stipe v. FIB Polson, 7/19:2

Retail installment contract: (not loan subject to usury law, no subterfuge to avoid usury law in dealer's 21% interest pre-agreement with paper buyer, usury, civil conspiracy, implied covenant, deceit, CPA counterclaims time-barred (no tolling for alleged fraudulent concealment), no basis for class action, common fund) CitiFinancial Auto v. Hunt, 1/26:6

Bankruptcy

Discharge: (restitution for bad checks not barred by Ch. 7 discharge) State v. McWilliams, 3/29:5

Fraudulent transfer: (unrecorded quitclaims invalid against Trustee's status as bona fide purchaser for value, recorded bankruptcy eve quitclaims avoidable under §547, fraudulent under ND Fraudulent Transfer Act because Debtor was insolvent before transfer and transfer was to insider, concealed, made after being sued, of substantially all Debtor's assets, out of proportion to consideration, 19 jointly owned properties partitioned under Court's equitable powers) Horob Livestock, 4/12:7

Bench Judgments

HVAC contract: Ernst v. Winn, 8/9:4

Knock from 4-wheeler by gate cable: (defense, at least 51% contributory negligence by ranch manager knocked from 4-wheeler by gate cable which he believed someone had put up after he had taken it down but with no memory of incident... low back/bowel/anal fissure) Green v. Future Challenges, 8/16:6

Medical malpractice: ($622,730, VA hospital malpractice, artery transection during laparoscopy, FTCA, Utah injury/law, gross award of $1,192,730 reduced by $450,000 Utah non-economic damages cap) Lamb v. US, 4/19:7

Snowmobile liability: ($10,767,120 net judgment formally affirmed following Montana Supreme Court's determination of ordinary negligence as standard of care for FS trail accident) Oberson (for Musselman) v. Forest Service, 2/9:7

Wrongful discharge: ($240,000, wrongful constructive discharge, sales rep forced to resign after already "vast'' territory expanded to "not doable'' size) Johannsen v. Nike, 1/12:5; ($478,341 for wrongful discharge of debt collector for "excessive absenteeism'' due to injuries, $22,881 penalty for unpaid bonus, $4,548 prejudgment interest, attorney fees/costs) Hall v. Ameriquest Recovery Services, 7/19:5

Civil Procedure

Abuse of process: (no abuse of process in seeking indemnification under contract) Judd v. BNSF, 5/31:3

Choice of law: (Montana law applied to UIM issues) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1

Construction lien: (lien surety (subsequently named party) not adverse, also failed to move for substitution of judge within 10 days of show cause order, substitution properly denied, arbitration award properly enforced against surety, surety, although not properly named participant in model of how not to proceed to judgment against a surety, was afforded adequate notice/opportunity to present case, attorney fees/costs properly awarded pursuant to statute for all proceedings related to lien enforcement, counterclaims dismissed for failure to respond) Eisenhart v. Puffer, 3/15:4; (judgment as matter of law on lien issue (which nevertheless was submitted to jury) reversed without opinion on merits) Crail Creek Associates v. Olson, 7/5:1

Counterclaim: (parties to show cause why all counter/cross-claims should not be dismissed without prejudice) Assurance Co. of America v. McDonald, 5/31:8

Damages: (3% punitives limit only applicable to accurate net worth calculation, $41,700 punitives affirmed in light of inadequate financial statement) Blue Ridge Homes v. Thein, 6/7:2

Deemed denied: (insufficient support for challenge of ruling that motion to alter/amend based on new evidence deemed denied) Meloy v. Murphy, 4/26:2

Default judgment: (sua sponte "reissuing'' predecessor judge's default judgment reinstatement not allowed under MRCivP) ABC Collectors v. Birnel, 2/9:3; (service on employee of company sharing building with joint owner Defendant adequate, no due diligence in moving to set aside even though within Rule 60(b) 60 days, no excusable neglect for failure to monitor, claim of sharp practice in obtaining judgment rejected because of failure to monitor, punitives may be challenged under 60(b)(6), but not first time on appeal, $89,628 compensatory, $100,000 punitives to indoor football team in dispute with league over "Outlaws'' trademark affirmed) Montana Professional Sports v. National Indoor Football League, 3/29:1; (default judgment properly not set aside based on deemed-denied determination that Defendant was properly served at new address) Ford Motor Credit v. Wellnitz, 9/13:1

Discovery: (leave granted to file late motion to dismiss untimely disclosure, late-disclosed expert opinions excluded as discovery sanction) Northwood Estates v. Wauer, 7/5:6; (Defendant's motions to compel and for sanctions properly denied, protective order properly granted) Ernst v. Winn, 8/9:4; (doctor, hospital, insurers seeking to rescind $1.1 million med-mal settlement for alleged misrepresentation required to produce documents/privilege log in underlying suit, fees awarded for invalid discovery objections) Bozeman Deaconess Health Services v. Simms, 9/20:4; (bank compelled to produce maintenance records for drive-in teller site which allegedly was cause of motorcycle/truck collision, fees/costs awarded as sanctions) Forsythe v. American Bank, 9/20:5

Dismissal v. summary judgment: (motion for dismissal rather than summary judgment proper vehicle when jurisdictional and substantive issues not intertwined) Nigh v. Forest Service, 3/1:5

Estoppel: (collateral estoppel not applied to contemporaneous suits) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1; (suit against appraiser alleging overvaluation of RV park dismissed because of Plaintiff's switch in long-asserted position from Massachusetts Trust to corporation following ruling against it based on lack of standing as business trust) Olympic Coast Investments v. Seipel (Market Research Group), 9/6:6

Execution on judgment: (prior to final disposition, $69,000 "hold back'' of purchase price obtained from title company by execution on judgment to be moved from IOLTA to Clerk pending final disposition, interest on IOLTA to be resolved by parties and Judge) Crail Creek Associates v. Olson, 7/5:1

Indemnity: (probable cause for claim for indemnity from vegetation sprayer for $485,000 settlement by RR employee who stepped into hole properly resolved for railroad and its lawyers on summary judgment, no abuse of process in seeking indemnification under contract, no intentional infliction for exercising legal right to seek indemnification) Judd v. BNSF, 5/31:3

Injunction: (affirmed, reversed, modified in radiologist/hospital dispute) St. James Healthcare v. Cole, 2/16:2, (transcript not properly submitted via closed stay proceeding, but does not change outcome, rehearing denied) 3/8:4; (appeal from "injunction'' denial dismissed, insurer sought injunction to bar evidence/argument of bad faith "post-filing'' conduct, when Judge Neill ruled morning of trial that it would be admitted, assertedly requiring counsel to withdraw and testify as fact witness) Procopio v. Allstate Ins., 2/23:5; (preliminary injunction against implementation of agreement between County and developers to resolve federal suit over application approval delays while emergency zoning regulations in effect properly denied) Bitterrooters for Planning v. Ravalli Co. Commissioners, 8/9:4

Interest: (Plaintiff entitled to post-judgment interest, not pre-judgment interest) Petroleum Tank Release Compensation Board v. Federated Service Ins., 1/12:1

Interpleader: (insurer's motion to deposit balance of policy limits after settling with some deck collapse claimants and have the Court preside over remaining claims rejected as contrary to interpleader principle, interpleader not "bill of peace,'' cannot be used to avoid consequences of allegedly questionable settlement practices) Assurance Co. of America v. McDonald, 5/31:7

Judgment as matter of law: (properly denied for failure to renew motion within 10 days of judgment) Blue Ridge Homes v. Thein, 6/7:2

Law of case: Farrier v. Teachers' Retirement Board, 9/6:2

New trial: (State v. Clark factors for new trial based on new evidence applied to civil cases, appeal of school eyesight loss defense verdict remanded for analysis of claim of newly discovered evidence of teacher's allegedly false testimony) Larchick v. Diocese of Great Falls-Billings (Billings Central High School), 6/14:1

Partys: (3rd-party contribution Defendant dismissed based on comp exclusivity as to CO exposure Defendant, Plaintiffs allowed to amend to add 3rd-party Defendant as 1st-party Defendant in "extraordinary'' case) Alexander v. Bozeman Ford, 4/19:6

Punitives: (punitives may be challenged under 60(b) (6), but not first time on appeal, $89,628 compensatory, $100,000 punitives to indoor football team in dispute with league over "Outlaws'' trademark affirmed) Montana Professional Sports v. National Indoor Football League, 3/29:1; ($1 million punitives against golf community developer for cutting trees on private property for road reduced to $25,000, 3.8 times $6,500 award for conversion of timber, punitives not allowed as to $350,000 breach of covenant award) McKay v. Wilderness Development, 5/24:4

Relation back: (Comp Court benefits reinstatement not notice of bad faith claim as to support relation back of amended complaint following discovery of successor insurer, claim time-barred, no equitable tolling under federal or state rules) Oens v. Employee Benefits Ins., 1/12:5; Alexander v. Bozeman Ford, 4/19:6;

Relief from judgment: (no abuse in not granting 60(b) relief merely because unopposed extension left only 7 days to rule) Ford Motor Credit v. Wellnitz, 9/13:1

Statute of limitations: (emotional distress Plaintiff failed to bring claim against 3rd-party Defendant within 3-year statute, statute not tolled by motion to intervene or relation-back) Alexander v. Bozeman Ford, 4/19:6

Sanctions: (sanctions could have been imposed for insurer's late disclosure of insured's statement but properly denied as prejudice was minimal) Schuff v. Jackson, 3/15:1; (sanctions against insurer and counsel for vexatious/abusive start-of-trial request for injunction which resulted in aborted bad faith trial, counsel's need to withdraw if evidence of litigation conduct admitted not questioned, but should have been definitively raised in timely manner) Procopio v. Allstate Ins., 3/15:6; (Rule 11/equitable fees improperly awarded without hearing and evaluation of Chase factors) Good Schools Montana v. Missoula Co. School Dist., 7/12:4

Service: (service on employee of company sharing building with joint owner Defendant adequate) Montana Professional Sports v. National Indoor Football League, 3/29:1

Standing: (claims for future police retirement payments/reimbursements fail injury-in-fact component of standing, supplemental jurisdiction declaratory judgment declined) Dillon Police Officers' Association v. Dillon, 1/26:7

Statute of limitations: (minority tolling not applicable to med-mal survival/wrongful death claims... 3-year statute not tolled by ``discovery'' as to cause of son's death following broken leg... ``failure to disclose'' provision of §27-2-205(1) applies only to 5-year statute of repose, not 3-year limitations period) Runstrom v. Allen, 8/16:1

Stay: (properly denied where insurer sought to invoke "first to file'' rule to gain advantage in ND) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1

Commerce

Loan: (phone company "Aid to Construction'' agreement not a loan) Firelight Meadows v. 3 Rivers Telephone Co-op, 6/21:3

Non-conforming good: (purchaser had right to reject non-functioning hay unloader, seller failed to cure, but purchaser failed to hold "with reasonable care,'' seller properly awarded only $2,822 for missing parts rather than requested $18,959 price plus interest/fees) Krause v. Erb, 2/2:1

Conservatorship

Constitutional Law

Right to know: (Miranda-like (no talismanic incantation) all that is required to apprise of waiver of right to information held by agency, PD applicant knowingly waived right to examine confidential background information) Lee v. Missoula PD, 6/7:5

Contracts

Adhesion: (lease not contract of adhesion) Polzin v. Appleway Equipment Leasing, 8/30:2

Aircraft: (fact issues preclude summary judgment as to breach of contract and warranty claims in sale involving nonconforming aircraft and inspection opportunity, tort claims improperly dismissed as precluded by contract claims, if punitives claim can survive summary judgment, Plaintiff entitled to discovery of individual Defendant's finances) Corporate Air v. Edwards Jet Center, 8/23:1

Auto financing: (whether contract with arbitration clause and disputed interest rate was formed must be determined by the Court rather than arbitrator, discovery required to determine whether financing condition precedent satisfied) Thompson v. Lithia of Great Falls, 5/31:3

Breach: (insurer conceded breach by non-performance, but claim of anticipatory breach properly rejected because repudiation not absolute & unequivocal) Lorang v. Fortis Ins., 7/26:1; (rehearing denied) 9/20:2

House construction: (judgment as matter of law properly denied for failure to renew motion within 10 days of judgment, $417,000 verdict for defamation from homeowner's letters to businesses affirmed, improper reference to restraining order de minimis, jury properly not instructed as to contract ambiguity, State Building Code, sufficient evidence of breach of contract, 3% punitives limit only applicable to accurate net worth calculation, $41,700 punitives affirmed in light of inadequate financial statement, $277,199.99 fees properly awarded on intertwined claims pursuant to contract despite no prior arbitration, "fees for fees'' also proper, $605,500 net verdict plus fees/costs/interest affirmed) Blue Ridge Homes v. Thein, 6/7:2

Indemnity: (indemnity provision of agreement invalid for not stating that Symphony Society agrees to indemnify school district for district's own negligence) Main v. Bozeman Symphony Society, 9/6:5

Corporations

Dissolution: (individual lacks standing on behalf of entities to challenge Macek's redesignation of custodian as receiver, appeal dismissed for lack of standing) Johnson v. Booth, 5/24:1

Courts

Access: (petition seeking clarification/delay of proposed rules denied, referred to task force) Public Access & Privacy to Court Records in Montana, 1/19:1; (rules adopted) 6/28:2

Comity: (Montana not required by comity to defer to ND rulings) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1

Forum non conveniens: (as to negligence mooted by resolution of deceased as insured under farm policy) Modroo v. Nationwide Mutual Fire Ins., 8/9:1

Full faith & credit: (not applied to ND declaratory judgments on choice of law and stacking obtained by insurer taking advantage of Estate allowing extensions to respond to demands) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1; (Montanans opposing Georgia default judgment failed to demonstrate that Georgia court did not fully/fairly consider jurisdiction) Genuine Parts v. Rascal's Auto Parts, 9/13:2

Judicial conduct: (proposed code circulated for comment) Proposed 2008 Montana Code of Judicial Conduct, 4/26:4; (JSC not a ``court'' over which Supreme Court can exercise supervisory control) Hicks v. Judicial Standards Commission, 8/23:3

Judicial substitution: (§3-1-804 only applies to district courts, not lower jurisdiction, but time from "initiating document'' is 10 consecutive days, not 10 business days, untimely in this case, substitution properly denied, supervisory control denied) Huntley v. Phillips, 1/26:1; (lien surety (subsequently named party) not adverse, also failed to move for substitution within 10 days of show cause order, substitution properly denied) Eisenhart v. Puffer, 3/15:4; (Judge had no jurisdiction over motion other than to determine timeliness, service issues inapplicable, timely motion improperly denied, supervisory control of Tucker granted) Mellum v. Tucker, 8/2:3; (application without filing fee for indigent of no effect, so 2nd application with fee not ``2nd bite,'' improperly denied, supervisory control of Phillips granted) JB v. Phillips, 8/2:3

Judge disqualification: (former lawyer's habeas challenge of Judge Fagg presiding over client funds theft case and requesting withdrawal of nolo pleas based on new evidence following appeal denied) Holt v. State, 5/10:4

Judgment on pleadings: (matters outside pleadings not considered in judgment on pleadings, contention that agreement is loan is not factual allegation that judge must accept as true in judgment on pleadings, but question of law) Firelight Meadows v. 3 Rivers Telephone Co-op, 6/21:3

Jurisdiction: (personal jurisdiction over ND insurer in $600,000 UIM stacking case) Estate of Wamsley v. Nodak Mutual Ins., 2/23:1; (claim against MSP of strict liability/negligent design/manufacturer/assembly of chair dismissed for failure to file tort claim despite State's prior acceptance of jurisdiction) Klotzer v. Town Pump, 7/5:6; (no agency relationship between cattle buyer and Defendant that wired money for purchase, no other grounds for personal jurisdiction over Oklahoma Defendant) Semenza v. Kniss, 8/9:3; (personal jurisdiction defense not waived by participating in litigation and complying with ordered procedures pursuant to FRCivP, insufficient prima facie showing that Alabama trucking company or Florida contractor services directed allegedly tortious disability insurance activities at Montana where insured trucker was residing at time of injury, no showing that Defendants purposely availed themselves of doing business in Montana, Defendants dismissed) Germain v. AIG, 8/9:6; (railroad environmental remediation manager could be liable to property owners, not fraudulently joined, remanded to State Court) Anderson v. BNSF, 8/23:6; (railroad's invocation of All Writs Act to enjoin Intervenors in 1989 consent decree from pursuing environmental restoration damages in State Court denied as premature) DEQ v. BNSF, 8/23:7

Justice court: (full briefing required for some claims challenging Commissioners' resolution making Justice Court a court of record, other claims rejected) Hernandez v. Yellowstone Co. Commissioners, 2/23:6; ("abbreviated'' trials frowned upon) State v. Barron, 3/8:5: ("justice's courts of record'' not unconstitutional) Hernandez v. Yellowstone Co. Commissioners, 7/19:3

Removal: (co-defendant not required to join in removal due to lack of service, status as nominal party) Knowles v. Lincoln National Life Ins., 7/19:8

Summary judgment: (properly granted buyers with inadequate well based on lack of response by sellers to summary judgment motion (not default) Walters v. Luloff, 2/2:1

UDCR: (proposed amendments adopted, rejected) Proposed Amendments to UDCR, 3/22:3; 9/13:3

Venue: (interpretation of LR 1.11(a)(1) as to proper Montana division for FTCA med-mal case in face of conflicting rulings reserved for closer to trial) Henderson-Matthews v. US, 5/17:7; (truck lease forum selection clause valid, lessor properly opted to change venue from Montana to Washington, lease not contract of adhesion) Polzin v. Appleway Equipment Leasing, 8/30:2

Crime, Criminal Procedure

Accomplice corroboration: (sufficient evidence to corroborate testimony that Defendant conspired to rob casino, no need to determine whether other witness was also accomplice) Marler, 2/2:5

Arrest: (warrant valid despite offense wrongly named as bail violation rather than lab) Torgeson, 8/30:4

Assault on officer: Robinson, 2/16:6

Bad checks: (charges based on post-dated/stopped checks to deferred deposit lender and subcontractor properly prosecuted and tried, motion for directed verdict properly denominated motion for dismissal for insufficient evidence, properly denied, no JNOV in criminal law, judge may modify/change verdict by finding defendant guilty of lesser included or not guilty, motion for JNOV or new trial properly denied, challenge of Prosecutor's comments waived by failure to contemporaneously object, restitution not barred by Ch. 7 discharge) McWilliams, 3/29:5

Burglary: (aggravated, sufficient circumstantial evidence) Rosling, 4/5:6

Check solicitation: McOmber, 1/19:2

Child pornography: (mandatory 5 years for mentally retarded Defendant would be disproportionate to culpability, violative of 8th-Amendment) Larson, 6/14:6

Confrontation: (Defendant forfeited right to confront victim about death threat claim (forfeiture-by-wrongdoing) when he deliberately killed her) Sanchez, 2/9:4

Counsel: (11th-hour request to replace appointed counsel with retained properly denied) Kramer, 2/9:6; (Judge reasonably requested "appropriate'' written request from Defendant before appointing counsel after prior refusals of appointed counsel and whimsical document requesting appointed counsel, Rios distinguished, OSPD expected to be more resourceful in resolving appointment conflicts and working with judges in respectful manner, never appropriate to toss statute book over bench toward judge, supervisory control of Johnson denied) Compton, 3/8:5; (waiver invalid for failure to conduct inquiry into request to proceed pro se, stand-by counsel not adequate substitute for counsel, remanded for retrial of postconviction petition) Halley, 9/13:4

Criminal mischief accountability: (accountability for trashing of mobile home sufficiently established by circumstantial & direct evidence) Maetche, 9/27:3

Deaf interpreters: (cst of team of interpreters to be borne by County pursuant to statute, not OSPD... first impression) Alkire v. Townsend, 8/16:4

Deliberate homicide: (statements attributable to Defendant not hearsay, statements attributable to victim and victim's note referencing Defendant's death threat not admissible under hearsay exceptions but error harmless in light of other testimony, Defendant forfeited right to confront victim about death threat claim (forfeiture-by-wrongdoing) when he deliberately killed her, Prosecutor improperly argued that to find mitigated deliberate homicide jury had to find Defendant's response to extreme emotional distress reasonable rather than that reasonable explanation existed for distress, but comments did not deprive Defendant of fair trial, "lesser included offense'' language in mitigated deliberate homicide instruction did not impermissibly allow jury to consider sentencing) Sanchez, 2/9:4; (sufficient circumstantial evidence) Rosling, 4/5:6; (Defendant properly sentenced to life with no parole for 55 years, retribution a proper factor, no error in PSI referring to victim as lawyer and Supreme Court law clerk, "all or nothing'' parole restrictions rejected) Kirkbride, 5/31:5

Directed verdict: (motion for directed verdict properly denominated motion for dismissal for insufficient evidence) McWilliams, 3/29:5

Disorderly conduct: (obscene/abusive language, throwing items, yelling, honking horn excessively, can be found to "disturb the peace'' when directed solely at officers) Ashmore, 1/26:4

Double jeopardy: (sufficient evidence in 1st trial that property worth more than $1,000, no double jeopardy by re-trial based on inadequate instructions in 1st trial) Ingram, 3/1:4; (3rd misdemeanor DUI trial not precluded following 2 mistrials due to City's failure to redact inadmissible statement from arrest video, "fundamental fairness'' argument not preserved for appeal) Mouat, 3/8:4; (not implicated by "continuance'' of "abbreviated'' Justice Court bench trial, although "abbreviated'' trials frowned upon, interim appeal of double jeopardy allowed) Barron, 3/8:5; (not violated by negligent vehicular assault charge following DUI conviction from same incident) Condo, 4/19:3; (remanded for re-sentencing on double jeopardy (possession and possession with intent to distribute) as requested by Defendant and concurred in by State without addressing merits) Wing, 6/28:2

Drugs: Gittens, 2/23:6; Rosling, 4/5:6; (probable cause for search based on controlled buy even aside from informant's questioned reliability, Prosecutor's reference to acts/evidence outside scope of information cured by cautionary instruction, counsel's allowing tape containing conversation not admitted at trial into jury room not prejudicial, remanded for re-sentencing on double jeopardy (possession and possession with intent to distribute) as requested by Defendant and concurred in by State without addressing merits) Wing, 6/28:2

DUI: (no particularized suspicion to investigate parked vehicle with couple engaged in "inappropriate'' but not unlawful behavior, concern about "inappropriate'' behavior not justification for community caretaker stop, DUI evidence should have been suppressed) Graham, 1/5:3; (sufficient evidence that Defendant in control of accident vehicle) Dean, 2/16:6; (felony DUI, prior in absentia conviction not entered in violation of right to be present, State's proposed rule that prior conviction "conclusively valid'' if not challenged on appeal/postconviction not raised below, not considered on appeal) Weaver, 3/22:4; (no foundation for officer's HGN testimony, State failed to prove harmless error, reversed & remanded for new trial, rebuttable inference from refusal to take BAC test constitutional) Michaud, 3/29:4; (instruction on rebuttable presumption from refusal to submit to BAC test proper, 1995 DUI amendments not ex post facto as to 1992 BAC conviction, 4th-offense DUI affirmed) Anderson, 4/19:3; (Judge improperly relied on officer's opinion that Defendant was under arrest when handcuffed rather than making independent legal determination, officer had particularized suspicion that driver traveling 50 miles wrong side of Interstate oblivious to traffic and delayed response to pursuit was DUI even before driver stopped, probable cause to immediately arrest for DUI before observing driver or conducting field tests, driver lawfully under arrest when asked to take breath test, suspended license improperly reinstated) Cybulski, 4/26:5; (university officer had jurisdiction under statutorily authorized memoranda of understanding with City/County to stop driver for running red light off campus, Close Pursuit Act inapplicable) Howard, 5/17:5

Embezzlement: (prosecutorial misconduct claims waived by failure to object, videotape admission challenge waived by counsel's agreement that it was admissible) Blome, 2/23:7

Felon in possession of firearms: (new trial based on inadvertent display of police photo of photo depicting Defendant holding firearms denied) Ritchie, 3/22:7

Felony murder: (life for accomplice in stabbing death of Supreme Court law clerk not cruel/unusual, retribution properly considered, 55-year parole restriction (as opposed to all or none) proper) Rickman, 5/3:3

Game/wild bird possession: (no error established in refusal to suppress evidence obtained by search warrant, admission of accomplice wife's testimony, sufficient evidence for misdemeanor convictions) Torgerson, 9/13:5

Habeas: (good cause adopted for appointment of counsel for habeas petitioners, no good cause in challenge of 20 years for kidnap when information and plea agreement stated maximum of 10 years, sentence not illegal, habeas denied) Dyer, 4/19:4

Ineffective assistance: (failure to sever sexual assault (touching) and sexual abuse (child pornography) charges so prejudicial to sexual assault case as to "seriously undermine'' verdict, trial counsel ineffective in failing to allege nature of prejudice in motion to sever, appellate counsel ineffective in raising ineffective assistance of trial counsel) Yecovenko, 1/5:4; (appellate counsel not ineffective for not raising other crimes on direct appeal) Adgerson, 1/5:5; (claim record-based, not amenable to postconviction, but in any event failure to reiterate at sentencing that prior convictions had been vacated not ineffective) McLees, 1/19:3; (strategic decision to not challenge DNA testimony of technician who did not conduct tests, hearsay proper as excited utterance, medical treatment, reasonable reasons for not challenging prospective jurors, evidentiary hearing not required on all claims) Notti, 2/2:3; (counsel not ineffective for relying on antiquated case with still relevant factors or not challenging plea withdrawal colloquy) McFarlane, 2/2:4; (counsel's allowing tape containing conversation not admitted at trial into jury room not prejudicial) Wing, 6/28:2; (reasonableness test reaffirmed, circumstances surrounding evaluation of panelists do not establish that original assessment was unreasonable, despite second thoughts) Whitlow, 7/19:4; Maldonado, 9/6:4

JNOV: (no JNOV in criminal law, judge may modify/change verdict by finding defendant guilty of lesser included or not guilty) McWilliams, 3/29:5

Jury: (prospective juror with conflicted views of presumption of innocence properly not excused for cause) Robinson, 2/16:6; (no abuse in limiting voir dire of 12-member panel to 15 minutes each side in 6-person jury misdemeanor case following extensive voir dire by Judge, although limits in name of expeditiousness not encouraged) Michaud, 3/29:4; (serious questions as to panelist's ability to act without prejudice to presumption of innocence and right to not testify required dismissal for cause, remanded for new burglary trial) Braunreiter, 6/14:4; (panelist with "unqualified opinion'' improperly not dismissed for cause, $77,410 condo verdict reversed, issue of supplemental verdict form after jury returned initial verdict not resolved) Crail Creek Associates v. Olson, 7/5:1; (extraneous information cured by cautionary instruction, no prejudice in light of overwhelming evidence of deliberate homicide guilt) White, 7/12:5; (erroneous instruction not law of case) Azure, 7/19:3; (UDCR amended to reflect law providing for jurors to be selected from lists of drivers and ID holders as well as voters) Amendments to the UDCR, 8/23:4

Kidnap: (aggravated, sufficient circumstantial evidence, distinct factual bases for deliberate homicide and kidnap) Rosling, 4/5:6

Lesser included: ("lesser included offense'' language in mitigated deliberate homicide instruction did not impermissibly allow jury to consider sentencing) Sanchez, 2/9:4

Miranda: (adequate evidence of Miranda warning/ rights waiver despite failure of patrol car audio recorder and no written waiver) Gittens, 2/23:6

MIP: (officer properly allowed to testify as HGN expert) Harris, 8/30:6

Mitigated deliberate homicide: (Prosecutor improperly argued that to find mitigated deliberate homicide jury had to find Defendant's response to extreme emotional distress reasonable rather than that reasonable explanation existed for distress, but comments did not deprive Defendant of fair trial) Sanchez, 2/9:4

Parole: (alcohol/gambling conditions for forgery prisoner within Board's authority) Bliss, 5/10:4; (Sex program requirement within Board's statutory authority, not ex post facto) Brown, 5/17:6

PFMA: (long-past relationship covered by §45-5-206, conviction affirmed) Dunn, 8/30:6

Plea bargain: (plea agreement existed but limited to key terms, not all terms in ``Acknowledgment,'' Alford plea to deliberate homicide knowing/voluntary) Maldonado, 9/6:4

Plea withdrawal: (voluntary) McFarlane, 2/2:4; (challenge to $85 assessment for Community Service Program reviewed on merits despite State's concession, plea withdrawal based on contention that $85 fine not contemplated by plea agreement properly denied, $85 fine illegal, stricken) Stephenson, 4/12:3; (former lawyer's habeas challenge of Judge Fagg presiding over client funds theft case and requesting withdrawal of nolo pleas based on new evidence following appeal denied) Holt, 5/10:4; (Defendant induced to enter agreement based on illegal 10-year DOC commitment, good cause for withdrawal) Deserly, 7/19:4

Police stop: (particularized suspicion to stop pedestrian suspected of stealing truck) Adams, 2/9:6

Postconviction relief: (failure to sever sexual assault (touching) and sexual abuse (child pornography) charges so prejudicial to sexual assault case as to "seriously undermine'' verdict, trial counsel ineffective in failing to allege nature of prejudice in motion to sever, appellate counsel ineffective in raising ineffective assistance of trial counsel, sexual assault conviction reversed, remanded for retrial) Yecovenko, 1/5:4; (other crimes issue barred for failure to raise on direct appeal, not amenable to plain error review, appellate counsel not ineffective for not raising other crimes on direct appeal) Adgerson, 1/5:5; (1-year ``jurisdictional'' bar recast as ``time prescription'' that can be equitably tolled) Davis, 8/23:5

Prosecutorial misconduct: (challenge of Prosecutor's comments waived by failure to contemporaneously object) McWilliams, 3/29:5; (Prosecutor's reference to acts/evidence outside scope of information cured by cautionary instruction) Wing, 6/28:2

Resisting arrest: Robinson, 2/16:6

Restitution: (felony non-support Defendant reasonably notified that he could be required to pay full amount owed, knowingly pled guilty, restitution order affirmed) Milligan, 2/23:7; (restitution for bad checks not barred by Ch. 7 discharge) McWilliams, 3/29:5; (restitution obligations not "discharged'' upon discharge of sentences, DOC authorized to garnish prison wages from current conviction to collect restitution for discharged sentences) Brown, 4/19:5; (Defendant charged with theft for helping drive stolen vehicle to California not liable for prior damage to vehicle caused by original thief driving into haystack) Breeding, 5/17:5

Restraints during trial: (Defendant improperly shackled during jury trial based on request by officer and absent justifying facts) Merrill, 5/3:4

Revocation: (Judge had authority to revoke 5-year suspended DUI sentence prior to its commencement while Defendant still in suspended part of 13-month DOC placement, 1983 amendment did not abrogate authority to revoke on petition filed prior to commencement of suspended sentence, change of theory on appeal de minimis) Morrison, 2/2:6; (new condition of MSP sex treatment for parole eligibility improper under 1999 statute, Defendant properly found to have violated suspended sentence by having sex with underage girl even though acquitted) Knudson, 2/16:7; (sufficient reason based on post-intervention lie even if interventions improperly considered) Martinez, 7/19:4

Sentencing: (total sentences including for persistent offender within statutory parameters) Robinson, 2/16:6; (felony non-support Defendant reasonably notified that he could be required to pay full amount owed, knowingly pled guilty, restitution order affirmed) Milligan, 2/23:7; (repayment of Defense investigative costs properly ordered as condition of deferred sentence under 2003 law) Holland, 3/1:4; (Ommundson "nexus'' rule expanded to include offender as well as offense, revised standard for reviewing conditions, alcohol/gambling not proper "stock'' conditions, alcohol restriction not "reasonably related'' to bad check offense or Defendant with no alcohol problem, gambling restriction proper to help manage financial irresponsibility even though Defendant has no gambling history) Ashby, 3/22:3; (life without parole not illegal, Prosecutor's reference to swastika tattoo not amenable to plain-error review) Rosling, 4/5:6; (no-gambling improper probation condition for drugs with intent to sell, but no-alcohol proper for reducing temptation to use drugs) Brotherton, 4/19:3; (no good cause in challenge of 20 years for kidnap when information and plea agreement stated maximum of 10 years, sentence not illegal, habeas denied) Dyer, 4/19:4; (no judicial authority to impose parole conditions notwithstanding Parole Board rule, all conditions proper on suspended sentence, improper on parole, except pornography restriction proper on parole as "reasonable employment prohibition'', suspended sentence properly revoked before Defendant began serving it) Burch, 4/19:4; (electronic monitoring time while released on bond properly not credited) Greenwood, 4/19:5; (no credit for pre-trial time on house arrest) Clark, 4/19:5; (mental impairment exception to mandatory minimum for meth distribution properly not applied despite eligibility, non-violent offender prison alternatives not raised below, sufficient reasons in oral pronouncement) Novak, 5/17:6; (drug/alcohol/curfew/GED conditions proper for youth sex offender) DAS, 5/24:3; (life for accomplice in stabbing death of Supreme Court law clerk not cruel/unusual, retribution properly considered, 55-year parole restriction (as opposed to all or none) proper) Rickman, 5/3:3; (Defendant properly sentenced to life with no parole for 55 years, retribution a proper factor, no error in PSI referring to victim as lawyer and Supreme Court law clerk, "all or nothing'' parole restrictions rejected) Kirkbride, 5/31:5; (lack of remorse aspect of sentencing not affirmatively tied to Defendant's actions/statements, remanded for re-sentencing) Duncan, 7/12:4; (alleged failure to follow §46-8-114 in ordering payment of appointed counsel in revocation proceeding objectionable, not illegal, not reviewable first time on appeal) Kirkland, 7/19:4; (time served must be credited against DUI incarceration, not suspended sentence, habeas granted) McDonald, 8/2:4; (revoked defendant improperly sentenced to more than original suspended sentences, sentences exceed DOC limit under 1999 law, habeas granted) Deardorff, 8/2:4; (parole restriction by Langton improper in DOC commitment, remanded for resentencing) Warr, 8/16:5; (Defendant waived ex post facto argument to application of §46-23-1011 (2001) to impose sex treatment probation condition 22 years after sentence by not explicitly raising it below) LaFreniere, 8/23:5; (alcohol/gambling conditions improper in carved bear theft case, but drug-testing proper in light of Defendant's background & characteristics) Lessard, 9/13:6; (alcohol/drug conditions proper on employer theft Defendant, mental health counseling improper, random testing proper to monitor drug/alcohol condition) Greensweight, 9/13:7; (assuming that misdemeanor Defendant could be lawfully sentenced in absentia, initial oral sentence valid, not subsequent sentence when Defendant appeared on bench warrant, appeal to District Court untimely) Clark, 9/20:4

Severance: (failure to sever sexual assault (touching) and sexual abuse (child pornography) charges so prejudicial to sexual assault case as to "seriously undermine'' verdict) Yecovenko, 1/5:4; (Community Service Program "fine'' illegal, stricken) Stephenson, 4/12:3; (Alcohol/intoxicants/casinos/gambling conditions sufficient nexus to meth conviction) Winkel, 7/12:6

Sex offender designation: (challenge not amenable to supervisory control) Hirt, 4/19:5

Sex offender registration: (failure to register) Robinson, 2/16:6

Sexual abuse: (child pornography) Yecovenko, 1/5:4

Sexual assault: (touching) Yecovenko, 1/5:4; (destroyed comforter (and inability to test for DNA) not grounds for dismissing charges as to one girl, charges as to 3 girls properly not severed, continuance properly denied, sufficient evidence of sexual assault, lack of remorse aspect of sentencing not affirmatively tied to Defendant's actions/statements, remanded for re-sentencing) Duncan, 7/12:4; (sufficient evidence of sexual assault of child despite acquittal of attempted rape, therapist's statement validity assessment properly admitted, Daubert-related arguments rejected) Bomar, 8/30:3; (acts from prior conviction properly admitted, sufficient evidence to convict of assault of ``pretend'' sleeper) Swenson, 9/13:4; (habeas not available to Defendant who has exhausted remedy of appeal to challenge conviction based on equal protection vis-à-vis failure to also prosecute ``consenting'' victim) Nauman, 9/27:4

Speedy trial: (remanded for analysis of speedy trial claim under Ariegwe) Smith, 1/26:3; (remanded for analysis under Ariegwe) Madplume, 2/23:8; (remanded for analysis under Ariegwe) Howard, 5/17:5; (remanded for consideration of Ariegwe) Scofield, 6/7:6; (felony DUI Defendant unduly prejudiced by 278-day delay largely caused by officer in military training, properly dismissed) Billman, 9/27:3

Stay of trial: (granted in DUI case on State's claim that arresting officer needs 2 weeks to arrange for return from Iraq) Spaulding, 2/16:8

Tampering: (sufficient circumstantial evidence) Rosling, 4/5:6

Theft: (sticker switching/refund schemes properly prosecuted as unauthorized control) Meeks, 2/16:7; (sufficient evidence in 1st trial that property worth more than $1,000, no double jeopardy by re-trial based on inadequate instructions in 1st trial) Ingram, 3/1:4

Traffic stop: (particularized suspicion to stop woman in parked truck in front of drug probationer's house who turned out to also be probationer) Thomas, 6/21:5; (sufficient suspicion to stop vehicle suspected in remote cabin burglaries) Flemings, 7/5:4; (sufficient suspicion for investigative stop of suspected drug dealer based on ``rubber-necking'' at officer at location known for drug deals relayed to officer who was familiar with suspect's reputation and observed erratic driving) McMaster, 8/30:5; (anonymous 911 call of speeding/ passing vehicle insufficient basis for stop, statements/evidence underlying charges of drug user/firearm/domestic violence suppressed) Falcon, 9/6:7

Trespass: (main access points to private property on other side of ridge effective notice against 4-wheelers, hunter responsible for knowing about postings and on legal notice of them, knowingly entered private property, statement of neighbor that he could enter as long as he did not pass gate no excuse, hunter violated Plum Creek's "open lands'' policy by 4-wheeling on roads not open to public or by driving off-road) Trujillo, 4/19:2

Violent offender registration: (duty triggered upon release from "confinement,'' not "confinement and supervision,'' erroneous jury instruction not law of case, sufficient evidence to convict) Azure, 7/19:3

Youth: (challenge of application of Youth Court Act to 9-year-old not amenable to supervisory control) GM, 9/27:3

Developmental Disabilities

Commitment: (public access to certain documents in appeal record precluded, but not under §53-20-134, which applies only to district courts) LS, 5/17:4

Discrimination

Age: (Court unable to determine on post-trial motion constitutionality of statutory age limitation for firefighters absent presentation of BFOQ fact question to jury, which found Plaintiff not unlawfully denied employment because of age) Jaksha v. Butte-Silver Bow Co., 7/12:6

Discrimination v. torts: (low IQ employee's tort claims of non-consensual sex against employer restaurant/supervisor not barred by HRA exclusivity, "gravamen'' of complaint depends on nature of alleged conduct, not technical format/procedure, determination of whether "gravamen'' sexual harassment or criminal assault for the Court, sexual assault claim properly denominated "battery'', respondeat superior not free-standing claim, fact issues preclude summary judgment as to ability to consent to sex, allegations of non-consensual sex sound in tort, not discrimination, summary judgment proper for employer as to discrimination claim, premature to determine whether employer liable for $500,000 consent judgment against supervisor) Saucier by Mallory v. McDonald's Restaurants of Montana, 3/1:1

Procedure: (stipulation required to extend 12-month deadline under 2005 HRA) Indian Health Board of Billings v. HRC, 2/23:6

Sex: (quid pro quo harassment by insurance agent who made continued employment contingent on resumption of affair, $30,155 lost wages and emotional distress) Williams v. Lowther Ins. Agency, 2/16:1; (sex/retaliation, $335,000 for 2 housekeepers who objected to nude massage/masturbation of employer, semen DNA evidence, default of Defendants) Lock v. Portlock Corp., 5/10:6

WDA exclusivity: (WDA claim not dependent on establishing discrimination, not precluded by HRA exclusivity) Vettel-Becker v. Deaconess Billings Clinic, 2/16:2

Elections

Employees

Employee/contractor: (Insurance agent/PFC independent contractor, not entitled to reimbursement for expenses) Knowles v. Lincoln National Life Ins., 7/19:8

Employment agreement: (agreement ambiguous as to whether resort salesman would be paid trailing commissions if terminated for cause, properly submitted to jury, lis pendens on lot improperly filed, summary judgment to salesman proper on slander of title, negligence, interference with economic advantage, proposed separation agreement properly admitted under "another purpose'' exception to Rule 408 to show that firing was pretextual, Rule 37 sanction properly imposed limiting Defendant's ability to dispute Plaintiff's $464,953 calculation of termination damages (included in $734,046 verdict), sufficient evidence that resort breached agreement to let salesman buy lot at discount, testimony of realtor as to trailing commissions properly excluded for failure to disclose as expert, 55% wage penalty ($255,7198) improperly imposed on commissions due following termination, fees pursuant to contract properly based on 40% contingency rather than hourly rate, Stimac factors properly considered, but recalculation of $358,581 fees necessary to deduct amount based on wage penalty) West v. The Club at Spanish Peaks, 5/31:1

ERISA: (Insurance Commissioner's disapproval of discretionary clauses not preempted) Standard Ins. v. Morrison, 3/8:8; (UTPA/punitives claim preempted by ERISA... insurer's alleged failure to advise employer or employee that it was providing ERISA plan does not meet ``safe harbor'' provision) ABC Collectors v. Birnel, 8/16:5

Non-compete covenant: (agreement 4 months after beginning employment unenforceable for lack of consideration, continuing employment not consideration) Access Organics v. Hernandez, 1/5:1

Wage claim: (online printing company's Technical Service Representative awarded $8,680 unpaid overtime wages, $8,680 liquidated damages under FLSA, award followed employer's appeal of DLI award of $3,044 overtime wages, no liquidated damages) Kenney v. PrintingForLess.com Inc., 5/10:7; (55% wage penalty improperly imposed on commissions due following termination) West v. The Club at Spanish Peaks, 5/31:1; (rulings as to longevity pay for sheriff's deputies and ``repeated violations'' by County affirmed, increase of HO's 55% penalty to 110% reversed) Clouse v. Lewis & Clark Co., 8/16:3

Workforce Drug/Alcohol Act: (not preempted by FMCSA regulation, RLA) Marshall v. Frank, 5/3:5

Evidence-Civil

Affidavits: (strict compliance with 56(e), not reviewable for abuse of discretion, rule adopted for admitting exhibits in affidavits not based on personal knowledge, RR exhibits as to federal funding improperly considered in summary judgment for RR on preemption in crossing death case, summary judgment reversed) Smith v. BNSF, 6/28:1

Experts: (psychiatrist's allocation of current and preexisting problems in UIM case precluded as not scientifically sound) McGreevey v. State Farm Fire & Casualty, 4/5:7; (supervisory control of Sandefur denied as to restrictions on MVA Defense experts based on insufficient disclosures, supervisory control granted and denied as to disclosure of IME physician incomes) Bell v. Sandefur, 6/7:1; (Plaintiffs not required to file 26(b)(4) disclosures for treating physicians) Sims v. State, 7/5:5

Voluminous material: (federal foundation standard adopted for Rule 1006 (summary of voluminous material), met in this case over hearsay objection) Petroleum Tank Release Compensation Board v. Federated Service Ins., 1/12:1

Evidence-Criminal

Expert: (therapist's statement validity assessment properly admitted, Daubert-related arguments rejected) Bomar, 8/30:3

Hearsay: (statements attributable to Defendant not hearsay, statements attributable to victim and victim's note referencing Defendant's death threat not admissible under hearsay exceptions but error harmless in light of other testimony) Sanchez, 2/9:4

Other crimes: (statements properly admitted under transaction exception) Gittens, 2/23:6

Other issue: (barred for failure to raise on direct appeal, not amenable to plain error review) Adgerson, 1/5:5

Prior consistent statements: (statements made before alleged motive to fabricate arose, improperly admitted, but harmless trial error, check solicitation conviction affirmed) McOmber, 1/19:2

Search & seizure: (search of Defendant's residence occupied by probationer who failed to report address change and failed drug test justified probationary search where drugs were found) Smith, 1/26:3; (exigent circumstances for warrantless entry including belief that large quantity of meth was present (even though it was not) and suspects knew they were being watched) Ruggirello, 1/26:3; (sua sponte review of "inevitable discovery'' doctrine adopted, drug items in bathroom would have inevitably been discovered upon return with warrant obtained pursuant to items observed in bedroom where officers were lawfully present and Defendant's suspicious behavior) Dickinson, 5/24:2; (probable cause for search based on controlled buy even aside from informant's questioned reliability) Wing, 6/28:2; (warrantless wired monitoring & recording of conversations in drug stings in Defendants' home and informant's car violative of Art. II §§ 10 & 11) Goetz, 8/23:4

Family Law

Common-law marriage: (claim rejected) Vig v. Estate of Hutcheson, 3/1:3

Maintenance: (maintenance award unsupported, lifetime maintenance improperly awarded without consideration of ability to meet needs long-term) Jackson, 2/16:4; (maintenance agreement lacked remarriage termination provision, maintenance terminated by operation of law upon wife's remarriage) Cortese, 2/16:5

Order of protection: (Justice Court v. District Court jurisdiction, subject v. personal jurisdiction, right to show cause hearing waived by stipulation, dismissal of order of protection properly denied in light of stipulation and 5-year delay in transferring to District Court) Shoonen v. Reichle, 2/2:3

Parental rights: (statutes relating to termination of rights based on prior termination of sibling if circumstances have not changed constitutional (first impression), termination proper) AP, 1/19:2; (termination proper based on prior terminations as to siblings) TSB, 2/2:2; (termination proper based on SIWC, alternative bases not raised in petition moot) ST, 2/2:2

Property: (destroyed bed of de minimis value, 36 months proper for wife to remove husband from mortgage) Jackson, 2/16:4

Settlement agreement: (claim of failure to base decree on "formal settlement'' following repudiated in-court settlement not supported as required by MRAP) Petryszak, 1/12:3; (property properly split 50/50 following ``de facto separation'' of ``lord of house'' and ``unseen domestic worker'') Guill, 8/23:4

Federal Government

VA: (probationary radiologist not entitled to judicial review of Back Pay Act claim following summary review board discharge) Weber v. VA, 1/26:7

Guardianship

Homeowners Association

Disclosure: (member's request for cash receipts recording dues collections and records of expenditures for last 3 years granted, Board's denial in good faith, fees/costs denied) Abbott v. Gallatin River Ranch Homeowner's Association, 8/9:5

Water/sewer association: (properly prohibited private irrigation wells) Eastgate Village Water & Sewer Association v. Davis, 4/26:2

Indians

Insurance

Attorney-client privilege: (jumbled factual picture stemming from lack of firewall between claim processing and potential litigation preparation precludes supervisory control of order by Phillips denying motion for protective order and to quash subpoena of communications with outside counsel in bad faith case stemming from air ambulance crash deaths) American Family Life Assurance of Columbus v. Phillips, 4/5:1

Attorney fees: ($40,000 incurred to obtain full benefit of $100,000 UIM policy awarded pursuant to Brewer (denied pursuant to §27-1-813 and Buxbaum), costs denied) Splain v. State Farm Mutual Auto Ins., 6/21:7

Bad faith: (Comp Court benefits reinstatement not notice of bad faith claim as to support relation back of amended complaint following discovery of successor insurer, claim time-barred, no equitable tolling under federal or state rules) Oens v. Employee Benefits Ins., 1/12:5; (Ridley claim asserted after insurer tendered policy limits a UTPA claim disguised as Ridley claim, insurer's payment and Plaintiffs acceptance constituted "settlement,'' 3rd-party UTPA claim time-barred, common law bad faith claim not time-barred, 3rd-party insured's excess liability and Plaintiff's measure of damages resulting from insurer's tortious conduct directly related, Plaintiffs barred by insured's bankruptcy from prosecuting excess judgment claim against insured, insured waived attorney-client privilege in deposition in this case and testimony in Bankruptcy Court, Plaintiffs not required by hypertechnical application of Fode to resolve in preliminary trial what is in effect nothing more than an issue of bad faith damages) Mayer v. Patterson, 3/29:7; (insured which purchased "Executive Safeguard'' policy with "past acts'' exclusion and falsified application has unclean hands in breach of contract/bad faith suit following $1,352,250 ESOP/ERISA judgment, duty to defend moot because insurer paid fees/costs in underlying litigation, no duty to indemnify since insured maintained control of litigation and insurer agreed to pay defense fees/costs under reservation of rights, and issue moot because insurer defended anyway, Defense Within Limits provision admittedly illegal, but no damages under policy as written or as reformed, no damages as to issue of appeal bond which was procured under arbitrated agreement, not policy, eve-of-trial summary judgment for insurer) Donaldson Bros. Ready Mix v. Philadelphia Ins. Companies, 5/24:5; (medical/ funeral expenses precluded as element of bad faith, other bad faith claims to go to jury) Roebling v. Farmers Ins. Exchange, 6/28:4; (evidence from settled suit over coverage of prosthetic replacement sockets not precluded in suit involving same policy and legal theories, parties' prior dealings admissible as to claims of failure to conduct reasonable investigation, attempt in good faith to settle, malice, and certain aspects of defense, not to suggest that insurer liable for pre-settlement conduct, insurer conceded breach by non-performance, but claim of anticipatory breach properly rejected because repudiation not absolute & unequivocal, Plaintiffs entitled to summary judgment on UTPA misrepresentation as to coverage of prosthetics, investigation unreasonable per se if information is "forgotten'' by adjuster, good faith attempt to settle not limited to compromise agreement, fact issues preclude summary judgment as to good faith settlement attempts, Sacco "serious/severe'' standard not applicable to UTPA emotional distress claim, measure of damages for jury, subject jurisdiction vis-à-vis prior Federal Court settlement resolved by 2005 9th Circuit ruling while this appeal pending) Lorang v. Fortis Ins., 7/26:1

Breach of contract: (evidence from settled suit over coverage of prosthetic replacement sockets not precluded in suit involving same policy and legal theories, insurer conceded breach by non-performance, but claim of anticipatory breach properly rejected because repudiation not absolute & unequivocal) Lorang v. Fortis Ins., 7/26:1

Coverage: (leaking diesel a "pollutant'' in standard pollution exclusion clause) Petroleum Tank Release Compensation Board v. Federated Service Ins., 1/12:1; (collision with rollover vehicle 1 minute after rollover constituted 2 accidents for insurance purposes, request for declaratory judgment on coverage justiciable even though duty to indemnify insured not determined, fees awarded to Plaintiff) Buford v. State Farm Mutual Auto Ins., 1/12:4; (landlord's policy ambiguous, construed to cover tenant's personal property fire loss) Lammers v. Allstate Ins., 2/23:3; (no UM for individual under corporate policy covering non-occupied vehicles, also precluded by 38-month delay in reporting claim, summary judgment for insurer on claim for payment of $1 million default judgment against tortfeasor) Lee v. Great Divide Ins., 3/15:3; (fact issues preclude summary judgment as to whether defendant in suit by injured police officer was prejudiced by insurer's failure to timely assert defense of uninsured under parents' homeowners policy, whether insurer was prejudiced by insured's 8-month delay in giving notice of incident, insurer cannot rely on intentional act exclusion to refuse defense where injuries suffered while trying to subdue Defendant not intentional per se, jury could find that Defendant did not intend to injure, coverage not precluded by illegal act exclusion where jury could find that officer's injury did not arise from Defendant's illegal act but by his negligence in failing to consider risk to officer) Fiscus v. Safeco Ins., 3/22:5; (non-named officer using non-company truck not covered under unambiguous corporate auto policy with no human named-insured when struck by hale bale falling from vehicle) Progressive Casualty Ins. v. Owen, 4/12:6; (duty to defend mega-house construction suit precluded by "business pursuits,'' "intentional acts'' exclusions) Abbey v. The Chubb Corp., 4/26:7; Abbey v. The Chubb Corp., 4/26:7; (work comp med-pay offset/exclusion not ambiguous or violative of public policy as to reasonable expectations/consideration) Newbury v. State Farm Fire & Casualty Ins., 5/10:1; (well tubing damaged while being installed excluded under "care, custody, control'' and definition of "insured'' provisions) Lambert Well Service v. Wellington Specialty Ins., 6/21:2; (tortfeasor's and Decedent's policies cover "bodily injury'' under consortium, emotional, and relationship injuries alleged by Estate, widow, 2 children, aggregate limits apply to these 4 claimants) Roebling v. Farmers Ins. Exchange, 6/28:4<