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ContentContents
Administrative Law
Agency
Agriculture
Antitrust
Appellate Procedure
Arbitration
Attorney Fees,
Costs
Attorney
General Opinions
Attorney Practice
Banking,
Commercial Paper
Bankruptcy
Bench Judgments
Civil Procedure
Civil Rights
Commerce
Conservatorship
Constitutional Law
Construction Lien
Consumer
Protection
Contracts
Co-ops
Corporations
Courts
Crime, Crim.
Procedure
Debt
Collection
Developmentally Disabled
Discrimination
Elections
Employees
Environment
Evidence,
Civil
Evidence,
Criminal
False
Claims Act
Family Law
Federal
Government
Grazing
Districts
Guardianship
Health Care
Providers
Homeowners
Association
Immigration
Indians
Insurance
Interstate
Commerce
Landlord/Tenant
Legislature
Local
Government
Medicare
Mental
Commitment
Oil/Gas
Partnerships
Property
Qui Tam
Railroads
RICO
Right to
Bear Arms
Schools
Securities
Settlements
Social
Security
State
Government
Taxes
Torts
Trade
Marks
Trade
Secrets
Trusts
Utilities
Verdicts
Water
Workers'
Compensation
Youths
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Administrative Law
Agency
Agriculture
Antitrust
Appellate Procedure
Appealability: (protective
order interlocutory, not appealable)
Kulstad v. Maniaci, 1/2:5
AG notice: (extension to
notify AG of ``unclear'' constitutional challenge to §27-1-703 denied in
appeal of 30% reduction of $7,490,000 verdict for 18 Plaintiffs injured
by CO) Hulstine v. Lennox
Industries, 5/22:1
Attorney fees:
(inconsistent case law clarified that contract fee provisions include
appeal fees) Boyne USA v.
Lone Moose Meadows, 6/19:1
Briefs: (appeal brief
sufficiently comprehensible in citing to record in fact section
(although not argument section per MRAP)
State v. Guill, 4/10:3;
(no brief by successful Appellee)
Mustang Holdings v. Zaveta,
7/3:3
Expedited appeal:
(expedited processing denied for interlocutory appeal of Krueger's class
action certification of long-standing work comp common law bad
faith/fiduciary claims against MPC, NWE, adjuster)
Gonzales v. MPC,
1/16:1
Mediation: (applicable to
appeal of denial of attorney fees sought from insurer in action in which
mother declined to serve as conservator to manage $25,000 settlement for
minor daughter injured in motorcycle accident)
Conservatorship of Adair,
5/29:3
Plain error: (issue not
already decided in prior case in which plain error review declined)
Haagenson, 5/8:3
Postconviction: (no need to
return facially unmeritorious petition so Defendant can supply
``missing'' information)
Haffey, 5/8:6;(claim of actual innocence of endangerment based
on undisclosed new evidence time-barred)
Thomas, 7/3:5
Sanctions: (denied)
Kulstad v. Maniaci, 1/2:5; (denied)
Koeplin v. Crandall,
4/10:2
Standard of review: (de
novo, not abuse of discretion, proper standard as to whether amended
claims arise out of same transaction as in original pleading)
Citizens Awareness Network
v. BER, 1/30:2; (denial of a mistrial reviewed for abuse of
discretion, not clear & convincing evidence)
State v. Norquay,
4/24:1; (rehearing denied)
5/29:6
Sanctions: (denied)
Cooper v. Glaser,
3/20:1
Supervisory control:
(denied as to ``writ of review'' procedures in appeal from Justice
Court, denial of substitution of Judge)
Rogers (Mike's PC Parts) v.
Baugh, 2/27:4; (Plaintiff timely moved for substitution without
payment of fee under Baugh's order that officers of court perform ``all
services'' without demanding fees in advance, order denying supervisory
control of Baugh's denial of substitution reversed on petition for
rehearing, Clerk's notice of substitution of Gustafson reinstated);
(denied as to comparative fault of Plaintiff and non-party and CPA in
school lacrosse stick blinding retrial)
Larchick v. Fagg,
6/12:6; (denied as to whether commercial charge agreement subject to
usury law) Rio v. Macek,
6/12:6; (denied in mineral reservation/trespass rulings)
Genie Land v. Day,
6/19:2
Writ of review v. appeal:
(supervisory control denied as to ``writ of review'' procedures in
appeal from Justice Court, denial of substitution of Judge)
Rogers (Mike's PC Parts) v.
Baugh, 2/27:4
Arbitration
Validity/enforceability:
(bulk grain purchaser failed to establish as matter of law that
purported referenced NGFA arbitration provision is not contract of
adhesion as alleged by producers or that Oregon choice of law is valid,
12(b) motion to dismiss/compel arbitration denied (not final judgment on
merits although difficult to conceive how further litigation would yield
different result), Rule 11 fees denied)
Cline Farms v. Columbia Grain
International, 1/16:3; (Defendants asserted contractual right to
arbitration in answer/jury demand within 90 days of service, separate
motion not required, arbitration not waived by removal to Federal Court,
conducting discovery, agreement not contract of adhesion)
Carlstrom
v. Title Cash of Montana, 2/6:4; (provision in assisted living
facility agreement unenforceable due to ambiguities, lack of mutual
intent) Riehl v. Cambridge
Court GF, 2/13:1
Wrongful discharge: (no
good cause for discharge of 2 veterinary receptionists based on
erroneous conclusion of consultant that they were solely responsible for
increasing accounts receivable, breach of covenant claim rejected,
Plaintiffs entitled to lost wages for 2 years based on their expert's
prediction as to when they will become employed, less unemployment comp,
net $32,689 to one, net $36,688 to one)
Anderson and May v.
Gallatin Veterinary Hospital, 6/19:6
Attorney Fees, Costs
Common fund: (comp lawyer
entitled to $34,654 fees from employer's non-comp medical insurer as 25%
of $138,586 reimbursement resulting from pre-03 comp case, common fund
doctrine not preempted by ERISA)
Fuss v. BCBS, 4/24:4
Contract: (inconsistent
case law clarified that contract fee provisions include appeal fees)
Boyne USA v. Lone Moose
Meadows, 6/19:1
Equitable fees: (improperly
awarded non-party to note) Pruyn v. Axmen Propane, 1/2:3;
(Plaintiffs denied equitable fees, but entitled to costs for property
damage judgment) White v. Keown, 1/30:1
Prevailing party: (customer
improperly considered prevailing party where bank achieved net judgment
($5,000 damages, 77.5% negligence by bank, 22.5% by customer, offset by
$8,186 charge-back = $4,311 net), $48,917 fees improperly awarded to
customer, fees should be awarded to bank for enforcement of charge-back)
Avanta FCU v. Shupak, 1/9:1; (declined $2,500 offer not ``offer
of judgment,'' Defendant unsuccessfully argued ``no contract'' on
appeal, fees properly awarded to Plaintiff as prevailing party,
rehearing denied) Mountain Supply v. Forbes, 1/30:1
Private AG: $315,350 fees
improperly awarded under private AG doctrine, taxpayer funding not
warranted by equitable considerations)
Baxter v. State, 1/9:6
Public defender: ($57,127
public defender trial costs properly imposed, open-ended appeal costs
improper, remanded for specificity)
Stout, 6/26:2
Attorney General Opinions
Attorney Practice
Attorney-at-law:
Proposed Rules for
Regulation of Practice of Law by Attorneys-at-Law, 5/1:1
Attorney discipline: (ODC
failed to prove that criminal defense lawyer violated MRPC by holding/
not disclosing child pornography collected from apartment of client
being prosecuted for sexual abuse of children, COP dismissal
recommendation adopted) Olson, 1/9:4;
(challenge of private admonition accepted as original jurisdiction,
lawyer denied due process by order to appear for private admonition on
alleged RPC 4.2 violation for letter to MMA questioning its lawyers'
representation of hospital in suit by doctor, without prior notice of
specific grounds, opportunity to see or present evidence, cross-examine
witnesses, appeal, COP exceeded authority in acting outside original
complaint to charge violation of different rule with no opportunity to
respond to new charge, disciplinary action dismissed with prejudice)
Best, 3/27:1
Legal malpractice:
(attorney who prepared farm/ranch trust documents for parents and later
discussed with parents amendments to benefit 3 of 5 children owed no
duty to non-client potential beneficiaries to see that amendments were
executed (parents failed to provide legal descriptions))
Harrison v. Lovas,
6/12:1
Unauthorized practice:
(unauthorized practice by non-attorneys to be dealt with by AG Consumer
Protection Office, attorneys not licensed in Montana to be dealt with by
State Bar, ODC, CUPL dissolved)
In re Dissolving CUPL,
4/24:1
Banking, Commercial Paper
Fraudulent check:
(charge-back right cannot be equitably estopped by use of provisional
settlement funds or bank's failure to exercise care in handling check,
risk of loss remains with customer, application of jury's estoppel
verdict to charge-back right rejected, customer permitted to pursue
claims for damages from bank's negligent misrepresentations as to
validity of auto purchase scam check, failure to inform customer of
cross-collateral provisions when he paid vehicle loans not concealment,
but evidence as to negligent misrepresentations as to check's validity
sufficient to establish estoppel, customer improperly considered
prevailing party where bank achieved net judgment ($5,000 damages, 77.5%
negligence by bank, 22.5% by customer, offset by $8,186 charge-back =
$4,311 net), $48,917 fees improperly awarded to customer, fees should be
awarded to bank for enforcement of charge-back) Avanta FCU v. Shupak,
1/9:1
Bankruptcy
Discharge: (Debtor
knowingly/fraudulently made many false oaths on Schedules/SOFA relating
to material facts in complex scheme stemming from mega-house
construction agreement, fraudulent transfer of other house properly
found, no support for claim of reliance on advice of counsel, no
satisfactory explanation of loss of assets to meet liabilities,
discharge properly denied)
Retz, 6/12:7
Bench Judgments
Gravel mine: ($40,282.56
net to gravel mine landowner for damages by company that extracted
gravel for road, construction lien invalid as untimely, Plaintiffs
entitled to lien-related fees/costs)
Kipp v. Ascorp (Debco
Const.), 6/19:3
Insurance: (insurer wrongly
refused to pay fire loss based on allegedly concealed/misrepresented
facts, owner entitled to $225,775 for home that burned shortly before he
was to move it, $8,839 for personal property, $66,474 interest from
proof of loss) Mellum v.
State Farmn Fire & Casualty, 2/13:7
Civil Procedure
Class action: (malice/punitives
claims not fact intensive as to individual class members (unlike fraud
claims), properly included in class action, class properly defined)
Gonzales v. MPC, 5/29:3
Comparative negligence:
(extension to notify AG of ``unclear'' constitutional challenge to
§27-1-703 denied in appeal of 30% reduction of $7,490,000 verdict for 18
Plaintiffs injured by CO)
Hulstine v. Lennox Industries, 5/22:1
Constitutional challenge:
(substantially complied with by notice to AG shortly after serving
Defendant, improperly dismissed with prejudice)
McKinnon v. Western Sugar
Cooperative, 2/13:1
Construction lien:
(subdivision road ``commercial in nature,'' not residential, contractor
not required to give notice of right to claim lien, challenges to
establishment of lien not preserved, attorney fees/interest not relevant
to rejected breach of contract claims, $111,414 fees properly awarded)
JTL Group v. New Outlook 1/9:2
Experts: (supervisory
control denied as to Neill's refusal to exclude in advance of med-mal
trial or hold Daubert hearing on defense expert testimony as to
decedent's alleged pre-surgery marijuana use)
Estate of Kueffler v.
Neill, 1/2:3
Issue preclusion: (claims
in 2nd action in 2nd county barred by claim & issue preclusion of ruling
on same claim in 1st county of exclusive right to supply electricity to
pipeline) NorVal Electric Cooperative v. McCone Electric Cooperative,
1/30:3
Judgment exemptions:
(``moneys'' in ``household checking account'' not exempt ``goods,'' $300
stimulus properly seized along with $75 overdraft charges resulting from
seizure ($154 SSD funds improperly seized, returned after Justice Court
hearing)) Bank of America
v. Ivey, 6/12:2
Judgment exemptions:
(``moneys'' in ``household checking account'' not exempt ``goods,'' $300
stimulus properly seized along with $75 overdraft charges resulting from
seizure ($154 SSD funds improperly seized, returned after Justice Court
hearing)) Bank of America
v. Ivey, 6/12:2
Jury: (Plaintiff deprived
of fair trial by panelists' concerns about preponderance of evidence
standard, Defense counsel urging jurors not to put ``black mark'' on
doctor, new trial should have been granted following defense verdict on
knee replacement claims)
Cooper v. Hanson, 5/29:1; (no prejudice from juror researching
``preponderance'' on Internet, new trial following defense verdict in
siding case properly denied, but judges urged to instruct against
Internet research) Stebner
v. Associated Materials (Alside), 6/26:1
Offer of judgment:
(judgment must be entered on accepted offer and notice of acceptance
regardless of subsequent disagreements as to preclusive effect,
supervisory control of Tucker granted)
Sturgeon v. East Bench
Irrigation Dist., 1/2:2
Relation back:
(relation-back under Rule 15(c) properly addressed before amendment of
affidavit under 15(a)) Citizens Awareness Network v. BER, 1/30:2
Res judicata: (no federal
jurisdiction over State's litigation of shortline RR settlement
agreement with BN, removal by BN improvident, remanded to State Court,
but relief sought by State (reinstitution of per-car payments by BN to
CMR and declaration that BN violated 1984 agreement) barred by res
judicata per prior federal litigation adverse to State and CMR)
Montana v. BNSR, 4/24:7
Right to counsel: (for
claims against State, Legislature, Governor by pro se litigant properly
denied in ``Catch-22'')
Gold v. State, 5/15:2
Rules revisions: (proposed
revisions available for review, comment)
Proposed Revisions to the
MRCivP, 3/6:2
Treating physician:
(treating physician's testimony not limited to his medical records,
strained reading of Rule 26(a)(2)(B) and McCluskey rejected)
St. Vincent v. Werner
Enterprises, 4/17:8
Voluntrary dismissal: (shortline
RR operator as assignee of State not allowed to voluntarily dismiss
long-running Federal Court litigation to allow State to re-litigate in
State Court claims lost in Federal Court)
Central Montana Rail v.
BNSF, 5/1:7
Civil Rights
Commerce
Credit line: (contract
existed, manager ratified by buying on credit and paying bills, meeting
of minds as to seller-inserted $2,500 credit limit, unlimited credit not
denoted by ``?'' in agreement, but existed by buyer charging and seller
allowing in excess of $2,500, sole member of LLC liable only as to
$2,500 plus interest, late fees, fees/costs, not full $56,205 awarded in
bench trial) Mountain Supply v. Forbes, 1/23:1
Note: (note specified
individuals, not company, lender's claim against company rejected, no
showing of misconduct/fault by company to support unjust enrichment
claim) Pruyn v. Axmen Propane, 1/2:3
Conservatorship
Constitutional Law
Privacy: (requiring last 4
digits of SSN on conservation license application rationally related to
State's interests in federal child support enforcement funding,
``conservation'' license is ``recreational'' license under federal law)
Montana Shooting Sports Association v. FWP, 1/23:4
Construction Lien
Consumer Protection
Contracts
Car dealership: (summary
judgment/attorney fees properly awarded Plaintiffs in convoluted
sale/lease transactions) Barth v. Jha, 2/6:1
Commercial lease: (lessee
vacated without attempt to cure default, summary judgment proper for
lessors) Hullett v. Gotcha
Products, 3/20:1
Ski lift operation:
(agreement required owner to pay $50,000/yr ``depreciation'' to operator
beginning 02-03 ski season, without regard to tax definition of
depreciation or reason, no error in not specifying amount of judgment in
ruling from the bench, Defendant knew amount owed under contract)
Boyne USA v. Lone Moose
Meadows, 6/19:1
Co-ops
Corporations
Stock: (agreement
erroneously declared to be pledge of farm shares to secure a loan,
transfer to neighbor improperly invalidated for lack of consideration,
225 shares improperly canceled, punitives based on fraud not properly
pled, $746 punitives improperly awarded, Judge erred in not determining
value of shares as requested by both parties who wished at trial to buy
each other out, $92,686 discharged in Ch. 13 improperly included in
judgment for corporation, fees properly denied)
Siegle v. Helmuth,
1/23:2
Courts
Ex parte contact: (more
amenable for JSC or ODC)
Pruyn v. Axmen Propane, 1/2:3; (Court troubled by ex parte
between Judge and wife's expert (Judge's friend))
Steab v. Luna, 6/5:2
Judicial sale: (terms &
conditions modified to permit return of $15,000 deposit after failed
good-faith effort to obtain financing)
US v. Burtsfield,
1/23:8;
Jurisdiction: (supervisory
control of Dayton and Newman denied as to their finding of jurisdiction
over Kansas manufacturer of fiberglass components of bus that overturned
injuring MSP employees) DAK
Plastics v. Dayton, 3/6:1; (no federal jurisdiction over State's
litigation of shortline RR settlement agreement with BN, removal by BN
improvident, remanded to State Court, but relief sought by State
(reinstitution of per-car payments by BN to CMR and declaration that BN
violated 1984 agreement) barred by res judicata per prior federal
litigation adverse to State and CMR)
Montana v. BNSR, 4/24:7
Judge substitution: (proper
in postconviction proceeding where sentencing judge deceased,
supervisory control of Cybulski granted)
Beach, 3/27:5;
(Plaintiff timely moved for substitution without payment of fee under
Baugh's order that officers of court perform ``all services'' without
demanding fees in advance... order denying supervisory control of
Baugh's denial of substitution reversed on petition for rehearing,
Clerk's notice of substitution of Gustafson reinstated)
Rogers (Mike's PC Parts) v.
Baugh, 4/10:1
Justiciability: (ruling by
Sherlock as to airport authority to lease land non-justiciable after
Defendant decided not to lease)
Plan Helena v. Helena
Regional Airport Authority, 2/13:2
Removal: (majority rule
against removal by 3rd-party defendants followed in product liability
diversity case, removal also improper because 3rd-party Defendant failed
to obtain consents within 30 days, more than 1 year after
``commencement'' of action (from initial complaint, not 3rd-party
complaint, fees/costs in briefing remand motion awarded)
McGuire v. Sheels All
Sports, 6/5:3
Successor judges:
(correctly overruled summary judgment)
Pruyn v. Axmen Propane,
1/2:3
Supreme Court citation
standards: (``date-last'' format for pre-98 opinions encouraged)
Matter of Opinion Forms &
Citation Standards for the Supreme Court of Montana, 3/6:2
Summary judgment:
(``exceptional circumstances'' justified summary denial of subdivision
application without hearing, proper summary judgment standard applied,
additional time for discovery properly denied, challenged affidavit with
documents index properly used only in locating documents)
Richards v. Missoula Co.,
1/9:3
Venue: (Curtis's transfer
from Flathead to L&C under §25-2-201(3) not subject to interlocutory
challenge) BNSF v. DEQ,
3/13:1
Crime, Criminal Procedure
Assault with weapon:
(denial of instruction on misdemeanor assault as lesser-included of
felony assault with weapon improperly took reasonable
apprehension and serious injury out of hands of jury, remanded
for new trial) Feltz,
3/20:4; (judgment of acquittal properly denied as to intentional
striking with specific intent to do harm by whiskey drinking Defendant)
Messerly, 5/22:4
Attempted tampering:
(Defendant did not make unambiguous request for counsel during
interrogation despite several references to ``lawyer,'' suppression
properly denied, amendment from tampering to attempted tampering based
on late-received results of crime lab test indicating DNA of both
Defendant and alleged rape victim on Defendant's fingers (which he stuck
in his mouth in alleged attempt to obliterate DNA) properly allowed,
attempted tampering conviction not inconsistent with rape acquittal)
Scheffer, 4/17:5
Bail jumping:
(constitutional challenge of ``without lawful excuse'' rejected)
Alvarez, 3/27:5
Bank fraud/identity theft:
(restitution to 31 account holders properly calculated at $400 each)
Barnes, 3/27:8
Child pornography:
(description of what repair tech saw on computer demonstrated probable
cause to seize/search computer, sufficient evidence of knowing
possession, 108 months sentence not unreasonable)
Patrick, 3/6:4;
(sufficient indicia of control to show possession & receipt)
Zarn,
3/6:5; (240 months substantively reasonable)
Holden, 3/6:5;
(hearing not required on whether to vacate receipt or possession, or on
new sentence on remand, same sentence on remand)
Brobst, 5/15:7; (97
months prison for receipt substantively reasonable, remanded for
consideration of whether supervised release ban on proximity to children
should allow attendance at school events with Defendant's children, no
cell phone camera reasonable even though photography played no role in
offense, Internet ban usage contravenes Riley, must be amended or
deleted on remand)
Blinkinsop, 5/29:7
Competency: (pretrial
competency determination by Haddon not a final order, collateral order
doctrine not applicable, order not appealable)
No Runner, 1/30:6
Confession: (of 16-year-old
to sex offense was knowing, voluntary, interrogation proper, conflicting
intellect opinions properly weighed)
SMS, 2/27:5
Counsel:
(reimbursement
properly ordered
paid to Clerk,
although other
options)
Brown,
1/23:7
Deliberate homicide:
(exculpatory evidence not denied by test destruction of 2 hairs found on
body, jury could properly infer that knife missing from kitchen was
murder weapon, taping statements uttered while alone in interrogation
room not impermissible, failure to object not ineffective assistance,
sufficient other evidence of guilt, conviction affirmed)
Meredith, 2/13:5;
(expert reports properly allowed in jury room, not violative of common
law rule against submitting testimonial materials for unsupervised
review, evidence of wife's complex campaign to portray husband's
ex-lover as dangerous stalker inextricably linked to charge of killing
husband, properly admitted under transaction rule as evidence of charged
crime (without regard to whether acts occurred ``immediately prior''),
detective properly allowed to opine that body was moved after shot based
on blood analysis, saddlebags of motorcycle in garage properly searched
even though warrant did not specifically list motorcycle, $57,127 public
defender trial costs properly imposed, open-ended appeal costs improper,
remanded for specificity, conviction/life sentence affirmed)
Stout, 6/26:2
Dismissal:
(triple murder
charges
dismissed without
prejudice due to
death of key
witness and lack
of credibility
of another and
new evidence
undermining
proof that
Defendant was in
vicinity)
Weber,
1/30:7
Double jeopardy: (assault
on minor not barred by Alford plea to PFMA)
Weatherell, 2/27:5;
(not violated by revocations of parole and suspended sentence based on
same violative acts, issue not already decided in prior case in which
plain error review declined)
Haagenson, 5/8:3
Drugs: (sufficient evidence
for search warrant for drugs without challenged phone recordings that
preceded wired buys, not necessary to address request to extend Goetz
to phone recordings)
Harlow, 3/27:5; (106 months proper for meth manufacture with
child crawling underfoot)
Davison, 5/15:7
DUI: (sufficient
particularized
suspicion based
on driving to
stop marijuana
smoker, beyond
stated reason of
snow-obscured
plate)
Cooper,
1/30:4;
(patrolman had
caretaker duty
to determine if
person outside
car on shoulder
in remote area
of Interstate at
dusk needed help
or was in peril,
observations
provided
particularized
suspicion for
field tests of
passenger who
admitted driving
after drinking,
eventually
developed into
probable cause
for arrest,
suppression
properly denied)
Doyle,
1/30:5; (JP
waiver form made
clear that
16-year-old had
right to
attorney and he
signed below
affirmation that
he did not want
attorney, form
clarified rather
than made
contradictory by
JP crossing out
inapplicable
statements that
attorney would
be appointed for
indigent and
jail ``can and
probably will''
result from
guilty plea, 4th
DUI affirmed)
Risk, 1/30:5;
(claim of infirm prior ND DUIs rejected)
Reinhard, 2/20:6;
(particularized suspicion for stop)
Smith, 2/27:7;
(burden for license reinstatement not met, particularized suspicion,
probable cause, denial of request to read consent form)
Fitzgerald, 3/6:3;
(sufficient evidence of ``under the influence'')
Heron, 3/20:4;
(particularized suspicion to stop)
Sotomayor, 3/20:5;
(driver traveled on way of State to reach ranch driveway, no abuse of
discretion in not taking judicial notice of JP disallowance of prior
DUI, unsigned forms insufficient to overcome presumption of regularity,
circumstantial evidence instruction proper, dismissal of trespass (which
Defendant argues would preclude DUI) not preserved for appeal, new trial
motion based on claims that jurors were ``rushed'' by foreman properly
denied as untimely, felony DUI affirmed)
Sirles, 5/8:2; (no
right to lawyer for field tests without interrogation, DUI properly
inferred from refusal to do field tests)
Stanczak, 5/15:4; (reasonable grounds to stop based on
erratic driving over claim of cautious driving, license reinstatement
properly denied) Cockrell,
5/29:5
Endangering welfare of
child: (insufficient evidence that father knowingly endangered child by
tying to bed by ankle to prevent harming sister, conviction reversed)
Epler, 5/29:4
Endangerment:
(statute not
unconstitutionally
vague as applied
to DUI Defendant
who crashed into
vehicle causing
injuries)
G'Stohl,
1/23:7;
(interview video ``statements'' admissible as adopted by Defendant or
not hearsay, corroborating circumstantial evidence of criminal mischief
conspiracy in addition to co-conspirator testimony, instruction on
negligent endangerment as lesser-included of criminal endangerment for
shooting BB gun at cars and pedestrian properly refused, jury properly
instructed on ``serious bodily injury'' in context of criminal
endangerment even though no actual injury, convictions of youth in
vandalism spree affirmed)
TJB, 5/29:5
Felon in possession:
(hearsay as to confidential informant's role in investigation harmless
error) Moddison, 3/6:6;
(§922(g)(1) not unconstitutional after Heller, burglary discharge
date properly determined for base level, enhancement proper for
pre-sentence escape, reduction properly denied for acceptance of
responsibility) Schwindt,
5/15:7
Felony child abuse:
(properly defined by state law, not unconstitutionally vague)
Other Medicine, 3/6:4
Game: (charge of
unlawful
possession of
game animals
properly not
dismissed,
seasonal rules
exempted from
MAPA
publication,
officers' entry
onto property to
post notice of
sheriff's sale
not illegal
trespass (except
peek into
freezer),
sufficient basis
for search
warrant,
conviction
affirmed)
Crites,
1/30:6
Incest: (claim that
imprisoned Defendant recently learned State failed to prove victim
legally ``stepdaughter'' rejected, mandamus denied)
Stubbert, 2/27:6;
Guill, 4/10:3
Ineffective assistance:
(taping statements uttered while alone in interrogation room not
impermissible, failure to object not ineffective assistance, sufficient
other evidence of guilt)
Meredith, 2/13:5; (claims by incest Defendant rejected)
Hamilton, 2/13:6;
(attorney ineffective by not investigating double murder and client's
mental state or discussing defenses with client who insisted on pleading
guilty and requesting death, but defenses unlikely to succeed and
Defendant adamant on pleading guilty and never claimed innocence)
Smith v. Mahoney,
3/13:5; (not shown by not polling jury as to exposure to newspaper
account of trial, nor by breakdown in communication initiated by
Defendant, substitution of appointed counsel properly denied,
postconviction relief properly denied)
Robinson, 3/20:4;
(no prejudice by lawyer not advising during plea negotiations that
Defendant could not be convicted of both rape and sexual assault since
concurrent 30 years imposed for each, no ``good cause'' to withdraw
Alford pleas) Williams,
3/27:3; (petition for rehearing granted on claim by Defendant of
improper ineffective assistance prejudice standard (certainty v.
reasonable probability of acquittal), opinion withdrawn)
5/1:3; (rape/incest
Defendant not prejudiced by counsel's unfulfilled promise in opening to
call sex offense expert, counsel met professional responsibilities in
attempting to ascertain credentials of State's expert whose PhD turned
out to be from unaccredited school, ineffective assistance claims
properly rejected) Worthan,
5/8:4; (no prejudice shown by appellate lawyer failing to raise
Defendant's absence from jury query meeting, outcome would not have been
different, postconviction petition properly denied)
Becker, 5/8:4;
(Defendant failed to demonstrate counsel ineffective by not polling
jurors as to newspaper account of trial, nor by breakdown in
communication initiated by Defendant, substitution of counsel properly
denied, postconviction relief properly denied, replacement opinion)
Robinson, 5/15:3;
(revocation proceeding following 72-hour hold & release not 2nd
sanction/double jeopardy, lawyer not ineffective by failing to raise
issues) Maynard, 5/29:4;(expert
reports properly allowed in jury room, not violative of common law rule
against submitting testimonial materials for unsupervised review,
evidence of wife's complex campaign to portray husband's ex-lover as
dangerous stalker inextricably linked to charge of killing husband,
properly admitted under transaction rule as evidence of charged crime
(without regard to whether acts occurred ``immediately prior''),
detective properly allowed to opine that body was moved after shot based
on blood analysis, saddlebags of motorcycle in garage properly searched
even though warrant did not specifically list motorcycle, $57,127 public
defender trial costs properly imposed, open-ended appeal costs improper,
remanded for specificity, conviction/life sentence affirmed)
Stout, 6/26:2
Jury: (mistrial
properly denied
based on panelist
blurting out
that defense
witness had
raped)
Schmidt,
1/16:1;
(Defendant failed to demonstrate Judge abused discretion in interpreting
ambiguous statute as new panel list must include drivers in ``ensuing
calendar year'' rather than ``beginning in June,'' mistrial properly
denied) Norquay, 4/24:1;
(rehearing denied) 5/29:6;
(expert reports properly allowed in jury room, not violative of common
law rule against submitting testimonial materials for unsupervised
review) Stout, 6/26:2
Justifiable force:
(victim's prior behavior, unknown to Defendant, offered in support of
justifiable defense, properly excluded, jury properly instructed on
justifiable force) Henson,
6/26:5
Machine gun: (sufficient
circumstantial evidence that Defendant knew he possessed a machine gun)
Anderson, 3/20:6;
(new trial motion based on claims that jurors were ``rushed'' by foreman
properly denied as untimely)
Sirles, 5/8:2
Major Crimes Act:
(defendants with Indian blood who are not members of a federally
recognized tribe not amenable to prosecution under MCA, sex
abuse/assault convictions reversed)
Maggi, 3/27:8
Mitigated deliberate
homicide: (jury correctly instructed on mitigated deliberate as
lesser-included of deliberate, presumed to follow instruction despite
erroneous verdict form similar to one proposed by Defendant, no
Demontiney error, aggravated assault lesser-included instruction
properly denied, Miranda properly explained, confession
suppression properly denied, testimony of witness that victim brandished
a knife earlier properly excluded, mistrial properly denied based on
panelist blurting out that defense witness had raped daughter, photo of
victim's ``intense eyes'' properly excluded, directed verdict properly
denied, jury properly instructed on weapon enhancement, restitution
properly ordered for funeral despite lack of affidavit) Schmidt,
1/16:1; (victim's prior behavior, unknown to Defendant, offered in
support of justifiable defense, properly excluded, psychiatric testimony
properly excluded as based on untimely report, no prejudice since jury
convicted of mitigated rather than deliberate homicide, jury properly
instructed on justifiable force, conviction affirmed)
Henson, 6/26:5
Obstruction: (Defendant and
partner's lesbian relationship improperly referenced at trial, partner
properly treated as hostile witness, although better practice to
establish hostility on direct rather than prior to testimony)
Miller, 3/27:4
Parole: (no abuse of
discretion in repeatedly denying parole for Defendant convicted of
murder in 1973, infrequent reviews)
Hawkins, 2/6:4
Physician assisted suicide:
(not violative of public policy exception to consent as defense to
homicide, terminally ill patient's consent to physician aid in dying
constitutes statutory defense to charge of homicide against doctor when
no other exceptions apply, not necessary to reach constitutional issues,
$315,350 fees improperly awarded under private AG doctrine, taxpayer
funding not warranted by equitable considerations)
Baxter v. State,
1/9:6
Plea agreement: (Judge did
not breach agreement by rejecting it after accepting guilty pleas to DUI
hit & run pedestrians death/injuries based on Boot Camp rejection, PSI
concerns, Judge did not improperly insert himself into negotiations so
as to induce guilty plea, State not put in breach of agreement by Boot
Camp rejection) Petersen,
2/20:5
Plea withdrawal: (Judge had
no obligation to advise of collateral effect of pleading guilty to PFMA,
including loss of gun rights, withdrawal properly denied)
Twichel,
2/6:2; (no misrepresentation by Judge, Prosecutor, counsel that felony
arson Defendant with prior felony was entitled to deferred sentence, no
``good cause'' for withdrawal of Alford plea)
Ellison,
2/6:2; (plea agreement ``understanding'' that State would not recommend
parole restriction not breached by Prosecutor's objection to SRD as to
removal of restriction) Shepard, 2/6:3;
(no prejudice by lawyer not advising during plea negotiations that
Defendant could not be convicted of both rape and sexual assault since
concurrent 30 years imposed for each, no ``good cause'' to withdraw
Alford pleas) Williams,
3/27:3; (properly denied over claims of no memory of plea agreement
or plea, failure to advise of misdemeanor theft as lesser-included of
felony theft, failure to establish value of stolen items, ineffective
assistance) McKnight,
4/24:3
Preaccusation delay:
(motion to dismiss for preaccusation delay not necessarily untimely
after deadlines for other pretrial motions, but no substantial prejudice
by 3 years between allegations by girls and investigation of pastor)
Passmore, 2/20:2
Presence at trial: (claim
that due process denied by self-imposed exclusion from courtroom during
order of protection violation trial rejected)
Huffine, 4/3:4
Prisoners: (jail mandated
to allow private attorney-client contact visits, over policy limiting
visits to no-contact area during flu season)
OPD v. McMeekin,
1/2:7
Prosecutorial misconduct:
(no prosecutorial misconduct/conflict by CA filing charges after suing
accuser to recover rent deposit (actual prosecution by Asst. AG),
charges allegedly filed in response to urging by attorney in suit
against Defendant (settled for undisclosed amount))
Passmore, 2/20:2
Rape: (evidence that
Defendant plied other young men with intoxicants and made sexual
advances to them improperly admitted under transaction rule, State
failed to show error harmless, conviction reversed, remanded for new
trial) Lacey, 1/23:5; (claims of prosecutorial misconduct,
ineffective assistance, insufficient evidence, testimony of victim's
boyfriend, public defender fee, rejected, conviction of 3 counts of rape
of intoxicated woman affirmed) Gauss, 1/23:6;
(motion to dismiss for preaccusation delay not necessarily untimely
after deadlines for other pretrial motions, but no substantial prejudice
by 3 years between allegations by girls and investigation of pastor, no
prosecutorial misconduct/conflict by CA filing charges after suing
accuser to recover rent deposit (actual prosecution by Asst. AG),
charges allegedly filed in response to urging by attorney in suit
against Defendant (settled for undisclosed amount), contradiction
evidence to be governed by Rules 401 & 403 and other evidence rules,
contradiction evidence that accuser told friend she had fantasy of being
bound with tape and tickled with a feather while naked unfairly
prejudicial, limited probative value, no per se rule as to admissibility
of sex offender profile testimony, probative value of testimony that
Defendant lacked sex offender traits outweighed by danger of confusing
issues, misleading jury, convictions affirmed)
Passmore, 2/20:2;
(sexual assault is lesser-included of rape under §46-11-410(2)(a) (1st
impression), Defendant improperly charged with both rape and sexual
assault where charges arose from same alleged attack, sexual assault
conviction vacated, rape conviction retained, statutory double jeopardy
claim raised first time on appeal reviewed in context of ineffective
assistance claim, no prejudice by lawyer not advising during plea
negotiations that Defendant could not be convicted of both rape and
sexual assault since concurrent 30 years imposed for each, no ``good
cause'' to withdraw Alford pleas, restitution for ``reasonable''
medical/counseling vacated for failure to specify amount)
Williams, 3/27:3;
Guill, 4/10:3;
(Deputy's comment that accuser's story ``seemed credible'' not
impermissible vouching warranting plain-error review, Prosecutor's
``vouching'' must be viewed in light of conflicting testimony,
cautionary instruction requested by Defendant, victim's age (15) settled
``without consent'' element of SIWC even though charges/evidence alleged
force, ``other acts'' ``blow job'' testimony waived by failure to
object, participation in questioning)
Thorp, 5/1:2;
(failure to do rape exam of massage client who claimed digital
penetration not amenable to plain-error review, claim of ineffective
assistance for not moving to dismiss or reduce charges based on lack of
exam more suited for postconviction, mistrial not warranted by brief
appearance of group in black & blue uniforms, severance of charges
properly denied, conviction affirmed)
Taylor, 5/8:5
RCRA: (officer liable along
with corporation, conviction affirmed)
Reis, 3/6:4
Restitution (properly
ordered for funeral despite lack of affidavit)
Schmidt, 1/16:1;
(restitution for ``reasonable'' medical/counseling vacated for failure
to specify amount)
Williams, 3/27:3; (restitution to 31 account holders for bank
fraud/identity theft properly calculated at $400 each)
Barnes, 3/27:8;
(forgery accountability defendant properly ordered to pay $739,312
embezzled from State by his mother and passed to him for gambling, even
though he purportedly believed it came from his step-father's business,
full restitution without consideration of ability to pay proper under
2003 law, claim of unfairness in State's late-filed restitution
memorandum rejected for declining offer of continuance)
Brownback, 5/8:5
Revocation: (Defendant
forewarned of prison, not denied due process by proceeding directly to
disposition without continuance for psychological assessment)
Palagi, 2/20:6;
(revocation proceeding following 72-hour hold & release not 2nd
sanction/double jeopardy, lawyer not ineffective by failing to raise
issues) Maynard, 5/29:4
Seized property: (hearing
must be held as to interest in deer antlers and mounts introduced at
trial, ownership not established by affirmation of sentence)
Torgerson, 1/2:6
Sentencing: (Defendant
waived objection to proceeding with sentencing based on alleged
erroneous PSI) Morrison, 1/2:5; (discretionary curfew proper for
adult drug dealer) Deese, 1/30:6;
(restitution proper for bankruptcy fraud/false statement to bank despite
prior bankruptcy settlement with creditors, 5 years probation, $102,696
restitution substantively reasonable)
Edwards, 2/20:7;
(``clearly inadequate or excessive'' standard valid (over Petitioners'
argument for equitable review), but supervisory control granted to
correct SRD's position on cruel & unusual punishment)
Driver v. SRD, 3/13:2;
(removal of pet cats & dog proper condition of conviction for
maintaining public nuisance in order to reduce likelihood of feeding
feral cats which constituted the nuisance)
State v. Zimmerman,
3/13:3; (attorney ineffective by not investigating double murder and
client's mental state or discussing defenses with client who insisted on
pleading guilty and requesting death, but defenses unlikely to succeed
and Defendant adamant on pleading guilty and never claimed innocence,
disproportionality is not mitigation, claim of bias by Judge Larson
insufficiently developed, 8th-Amendment claim that 25 years on death row
satisfied retribution/deterrence rejected, clemency province of
Executive, habeas correctly denied)
Smith v. Mahoney,
3/13:5; (habeas Petitioner failed to show ``actual innocence'' of
deliberate homicide, new evidence not significantly different from what
jury considered, not necessary to decide if ``actual innocence'' can
overcome 1-year AEDPA statute)
Weaver, 3/20:6; (sufficient evidence of intent to warrant
4-level enhancement for assault resulting in serious bodily injury, 48
months substantively reasonable)
Guardipee, 3/20:7;
(sufficient evidence of intent to warrant 4-level enhancement for
assault resulting in serious injury, 5-level enhancement for serious
injury, 48 months substantively reasonable)
Blackman, 3/20:7;
(no prejudice from amended PSR 5 days before hearing, with hearing
continued 1 week, no error in failure to resolve ability-to-pay disputes
since temporal term not affected, reasons for sentence adequately
explained, no error in not appointing psychologist)
Stoltz, 3/20:7;
(mandatory minimum for aggravated sex abuse of minor not violative of
equal protection as applied to Indian, not cruel & unusual)
Lyons, 3/20:7; (98
months for possession of stolen guns substantively reasonable)
McKnight, 3/20:8;
(Defendant properly qualified as career offender)
Dewey, 4/3:5;
(Commission commentary amendment to resolve circuit conflict precludes
enhancement for influencing minor to prohibited sex when ``minor'' is
undercover officer, applied retroactively to Defendant, remanded for
resentencing) Christensen,
4/3:5; (293 months for aggravated sex abuse affirmed)
Whiteman, 4/3:6;
(168 months for 2nd-degree murder vacated, remanded for explanation as
to claimed mitigating circumstances)
Melbourne, 4/3:6;
(210 months for receipt of child pornography affirmed)
Ruddle, 4/3:6; (32
months for credit card fraud/identity theft affirmed)
Heater, 4/3:6; (300
months for conspiracy to distribute meth affirmed)
Book, 4/3:6;
(sentence of 180 months for conspiracy to distribute meth remanded to
Shanstrom for further proceedings in light of Ameline)
Florez, 4/3:7; (6
months imposed upon revocation affirmed)
Tendoy, 4/3:7;
(Justice Court costs improperly imposed in District Court suspended
sentence conditions... remanded for resentencing)
Bustle, 4/10:4; (no
abuse of discretion in refusing to seal Defendant's psychosexual report,
405 months for aggravated sexual assault not unreasonable)
Big Leggins, 4/17:7;
(Defendant entitled to credit against new drug sentence of 224 days in
jail from arrest to sentencing without regard to Parole Board decision
that entire time on parole would be counted toward prior assault
sentence) Hornstein,
4/24:2; (Maryland docket sheet entries sufficient proof that
Maryland ``child abuse'' conviction involved sexual conduct predicate
for child pornography sentencing enhancement (no analysis of
appropriateness of also relying on sex offender registrations), Lovell
affirmed en banc following panel affirmance)
Strickland, 4/24:6;
(life without parole for rape Defendant previously convicted of rape
within statute, not cruel/unusual)
Thorp, 5/1:2;
(parole conditions illegal, may be restated as recommendations, $225,149
restitution of past medicals proper, unspecified amount of future
medicals improper, consistent approach adopted for partly illegal
sentences: remand to correct illegal part or strike if cannot be
corrected) Heafner,
5/1:3; (54 months for re-entry of alien affirmed)
Alvarado-Isordia, 5/1:5;
(presentence incarceration attributable to prior convictions for which
bail not available properly not credited to subsequent ``concurrent''
sentence) Pavey, 5/8:7;
(hearing not required on whether to vacate child pornography receipt or
possession, or on new sentence on remand, same sentence on remand)
Brobst, 5/15:7;
(106 months proper for meth manufacture with child crawling underfoot)
Davison, 5/15:7;
(§922(g)(1) not unconstitutional after Heller, burglary discharge
date properly determined for base level, enhancement proper for
pre-sentence escape, reduction properly denied for acceptance of
responsibility) Schwindt,
5/15:7; (15 years to DOC with no time suspended proper upon finding
violation of original suspended sentence for felony DUI, marijuana use
not improperly considered in revocation)
Roberts, 5/22:2;
(prisoner should be credited with 193 days street time, ordered
released, habeas granted)
Thomas, 5/22:3; (97 months prison for receipt of child
pornography substantively reasonable, remanded for consideration of
whether supervised release ban on proximity to children should allow
attendance at school events with Defendant's children, no cell phone
camera reasonable even though photography played no role in offense,
Internet ban usage contravenes Riley, must be amended or deleted
on remand) Blinkinsop,
5/29:7
Sexual assault: (motion to
dismiss for preaccusation delay not necessarily untimely after deadlines
for other pretrial motions, but no substantial prejudice by 3 years
between allegations by girls and investigation of pastor, no
prosecutorial misconduct/conflict by CA filing charges after suing
accuser to recover rent deposit (actual prosecution by Asst. AG),
charges allegedly filed in response to urging by attorney in suit
against Defendant (settled for undisclosed amount), contradiction
evidence to be governed by Rules 401 & 403 and other evidence rules,
contradiction evidence that accuser told friend she had fantasy of being
bound with tape and tickled with a feather while naked unfairly
prejudicial, limited probative value, no per se rule as to admissibility
of sex offender profile testimony, probative value of testimony that
Defendant lacked sex offender traits outweighed by danger of confusing
issues, misleading jury, convictions affirmed)
Passmore, 2/20:2; (sexual assault is lesser-included of rape
under §46-11-410(2)(a) (1st impression), Defendant improperly charged
with both rape and sexual assault where charges arose from same alleged
attack, sexual assault conviction vacated, rape conviction retained)
Williams, 3/27:3;
Guill, 4/10:3;
Speedy trial: (3,137 days
between warrant and arrest not violative of speedy trial given
Defendant's apparent avoidance of apprehension, although State could
have done more knowing he was crossing Mexican border multiple times)
Lacey, 1/23:5;(difficult pregnancy of eyewitness to alleged
reckless driving good cause for delaying misdemeanor trial past 6 months
even though she ultimately was not called)
Roan, 2/20:5;
(Defendant who pled guilty and waived speedy trial in acknowledgment/
waiver in 1st plea change and during colloquy in 2nd plea change failed
to preserve issue for appeal)
Pavey, 5/8:7
SVORA: (amendment from
``street address'' to ``residence'' 1st day of trial insufficient to
reverse failure to register conviction) Bahr, 1/2:7; (declaratory
judgment to resolve purported equal protection inconsistency between
District Court retroactivity rulings denied)
Dunsmore, 4/3:4
Vouching: (Deputy's comment
that accuser's story ``seemed credible'' not impermissible vouching
warranting plain-error review, Prosecutor's ``vouching'' must be viewed
in light of conflicting testimony, cautionary instruction requested by
Defendant) Thorp, 5/1:3
Venue: (change to Oregon
properly denied in child pornography case)
Bitner, 3/20:8
Violent offender
registration: (amendment from ``street address'' to ``residence'' 1st
day of trial insufficient to reverse failure to register conviction)
Bahr, 1/2:7
Youth: (equal protection
not implicated by youth incompetency based on immaturity vis-à-vis adult
mental disease, substantial evidence that 9-year-old house fire starter
competent for trial, youth in need of intervention to accountability to
negligent arson affirmed) GTM, 1/2:6;
(constitutional challenge of notice to not trespass on public housing
property not preserved for appeal (although housing authority may
exclude persons), probable cause to present fact question to jury as to
whether youth knowingly entered housing authority property when he could
be arrested) KJ, 3/6:2;
(prior juvenile adjudication for sexual assault properly admitted in
trial for sexual assault)
Caplette, 3/6:6; (youth may be committed to Pine Hills if he
commits 4 misdemeanors within ``12 months'', waived challenge to RN as
proper evaluator, substantial evidence of danger to public, specific
calculation of placement properly left to DOC)
KMG, 4/24:2
Debt Collection
Developmentally Disabled
Discrimination
Age: (DOR did not illegally
discriminate by denying older tax auditor full credit for prior
experience due to pay plan IBP ``capping'')
Duncan v. DOR, 4/10:8;
(finding of legitimate reason for termination affirmed)
Reinhardt v. BNSF, 6/5:6
Disability: (finding of
legitimate reason for termination affirmed)
Reinhardt v. BNSF, 6/5:6;
(Spear's award of $36,405 to oil rig operator with learning disability
for failure to help with paperwork remanded for damages for severe
emotional distress for loss of livelihood, future earnings, lost wages
for period reasonably designed to make whole (6-month cap improper),
hostile environment created by supervisor's verbal abuse, insistence on
impossible task of completing paperwork)
Trumble v. Glacier Well
Service, 6/19:7; (claim based on failure to enlarge handicap
parking in front of house properly dismissed)
Kitts v. Livingston,
6/19:8
FSA loan applicant: (claims
rejected) Shiplet v. USDA,
6/19:4
Marital:
(marital/retaliation claims by casino employee rejected)
Hansen v. Lucky Me Casino,
4/10:8
National origin: (DLI
improperly dismissed claim of Turkish-origin speaker limited to 3
minutes at City Council meeting)
Kalinyaprak v. Polson,
6/5:6
Political: (political
discrimination/wage claims of 6 deputies who supported losing sheriff
candidate upheld, rejected) Edwards v. Cascade Co. Sheriff's Dept.,
1/9:5
Procedure: (54(b)
certification granted for 1 of 2 police interrogation charging parties
with similar claims but significantly different disabilities)
Meuli v. Billings PD,
6/19:8
Race/religion/government
services: (claims relating to prisoner sweat lodge ceremonies rejected)
Knows His Gun v. DOC,
4/10:8
Race (employment):
(construction company discriminated against African-American by allowing
racial epithets, but no retaliation for firing for repeated accidents,
$30,000 for emotional distress from epithets, 0 for discharge)
Wazoua v. Ames Const.,
6/5:5
Retaliation: (claim by
teacher rejected) Tatsey v.
Browning Public Schools, 6/19:8
Sex: ($108,003 for
inappropriate contact with employee, including ripping top off, during
``business'' trip, discharging her in retaliation for complaining...
Respondent failed to appear at hearing)
Smith v. Synergy
Advertising, 4/10:7
Elections
Nominations: (independent
candidate for Senate and potential voter lacked standing at time of
complaint (when decision to run had not been made) to challenge Montana
nominating scheme) Kelly v. McCulloch, 2/6:7
Employees
Contractor/employee: (4 of
5 transmission mechanics were independent contractors during audit
period (1 was employee as part of voc-rehab training), ICCU erred in
finding all employees)
Hallquist (P&M Transmission) v. ICCU, 6/19:6
ERISA: (employees' failure to make
pre-suit demand for action on ESOP or officers of Washington-based
grocery should be analyzed as to whether demand would have been futile
(per new Washington ruling), ERISA does not preempt state law claim
(following $575,000 ESOP settlement) that officers violated corporate
duties) Nagrone v. Davis,
3/6:3
FLSA: (fact issues as to overtime status
precluded summary judgment/directed verdict, liquidated damages proper
despite jury finding no willfulness, $95,738/ $90,675 fees properly
awarded without contemporaneous billing records, but counsel urged to
provide time records in fee-shifting cases, FLSA costs provision
controls over Montana statute, $267,330 judgment on $35,220 verdict
affirmed) Tacke v. Energy
West, 2/27:1
Environment
Air quality permit:
(untimely motion to amend affidavit challenging air quality permit
related back to original affidavit, amendment wrongly denied)
Citizens Awarness Network v. BER, 1/30:2
CWA: (CWA's pre-discharge
treatment standards apply to Montana, CBM permits improperly granted
without pre-discharge standards)
Northern Cheyenne Tribe v.
Fidelity Exploration & Production, 5/22:2
FS travel plan: (Travel
Plan for L&C Forest violative of NEPA and MWSA, which mandates no change
in 1977 wilderness character)
Russell Country Sportsmen v. FS, 3/13:7
Grazing impact: (FS erred
in using nonexistent sage grouse to assess grazing impact)
Native Ecosystems Council
v. FS, 3/20:6
Rock Creek Mine project:
(approval vacated) Rock
Creek Alliance v . FS, 5/15:8
Salvage harvest: (Cow Fly
Salvage Harvest project properly approved)
Alliance for the Wild
Rockies v. FS, 3/27:7
Evidence, Civil
Sanctions: (``reckless''
spoliation of arrest video warrants designation (default judgment) that
officers used unreasonable force)
Peschel v. Missoula, 1/16:4
Evidence, Criminal
Co-conspirator testimony:
(corroborating circumstantial evidence of criminal mischief conspiracy
in addition to co-conspirator testimony)
TJB, 5/29:5
Child witness: (``face to
face'' challenge of audio-video testimony improvidently considered,
poorly briefed, inadequately supported by record) Knowles, 2/6:3
Contradiction evidence: (to
be governed by Rules 401 & 403 and other evidence rules, contradiction
evidence that accuser told friend she had fantasy of being bound with
tape and tickled with a feather while naked unfairly prejudicial,
limited probative value)
Passmore, 2/20:2
Electronic recording:
(taping statements uttered while alone in interrogation room not
impermissible) Meredith,
2/13:5
Exculpatory: (exculpatory
evidence not denied by test destruction of 2 hairs found on body)
Meredith, 2/13:5
Expert: (detective properly
allowed to opine that body was moved after shot based on blood analysis)
Stout, 6/26:2
Hearsay: (interview video
``statements'' admissible as adopted by Defendant or not hearsay)
TJB, 5/29:5
Postconviction DNA: (hit &
run driver identity was significant issue, but DNA testing of bloody
envelope found on passenger side would not establish whether Defendant
was the driver, (first impression, de novo review standard), no need to
return facially unmeritorious petition so Defendant can supply
``missing'' information)
Haffey, 5/8:6
Search & seizure:
(officers' entry onto property to post notice of sheriff's sale not
illegal trespass (except peek into freezer), sufficient basis for search
warrant, conviction affirmed) Crites, 1/30:6;
(sufficient evidence for search warrant for drugs without challenged
phone recordings that preceded wired buys, not necessary to address
request to extend Goetz to phone recordings)
Harlow, 3/27:5; (saddlebags of motorcycle in garage properly
searched even though warrant did not specifically list motorcycle)
Stout, 6/26:2
Transaction rule: (evidence
that Defendant plied other young men with intoxicants and made sexual
advances to them improperly admitted under transaction rule, State
failed to show error harmless, conviction reversed, remanded for new
trial) Lacey, 1/23:5;
(uncharged misconduct properly admitted as ``inextricably linked'' to
charges of sex with daughter over extended period in environment of
religious control and violence by father, both as to acts of which
daughter was aware and acts of which she was not aware (door opened for
one incident, one incident not preserved for appeal))
Guill, 4/10:3;
(evidence of wife's complex campaign to portray husband's ex-lover as
dangerous stalker inextricably linked to charge of killing husband,
properly admitted under transaction rule as evidence of charged crime
(without regard to whether acts occurred ``immediately prior''))
Stout, 6/26:2
False Claims Act
Family Law
Custody: (supervisory control of Larson, Deschamps, GAL, CFS,
psychologists, Board of Psychology denied in civil and criminal custody
cases in which girls confessed to falsely accusing father of sexual
abuse at urging of mother, and mother convicted of custodial
interference by absconding with girls, 16 file boxes of documents &
copies unprecedented tsunami of information, Court refuses to mine for
meritorious arguments) LM v. Larson, 3/13:1;
(no jurisdiction by Montana Court to modify Idaho parenting plan)
Koeplin v. Crandall,
4/10:2; (Louisiana more appropriate for PKPA custody dispute now,
even if Montana was more appropriate in 2004)
Fontenot, 5/1:2;
(wife on remand again wrongly penalized in amended parenting plan for
decision to move)
Plaisted-Harman, 5/8:2; (due process denied by modification of
parenting plan without proper notice that husband sought primary
custody, Court troubled by ex parte between Judge and wife's expert
(Judge's friend), clarification that parental modifications involving
lack of notice implicate due process, not jurisdiction, modification
reversed) Steab, 6/5:2
Grandparent
custody/contact:
(paternal
grandmother
abandoned claim
for custody,
properly awarded
contact with
children
conditioned on
respect for
mother's wishes,
Rule 11 fees
properly not
awarded to
mother)
JDB,
2/27:4
International
child abduction:
(no showing of
``grave risk of
harm'' under
Hague Convention
that would
preclude return
of child
abducted by
Montana father
to her mother in
Panama, Panama
living
conditions,
legal system,
health issues,
attachment to US
and father, who
is best suited
for custody,
improper grounds
to defeat
return, prompt
return to mother
ordered)
Cuellar v.
Joyce,
2/27:7; (pro
bono attorneys
who succeeded in
return of child
abducted by
Montana father
to Panama mother
entitled to
fees/costs,
appellate
commissioner to
determine
amount)
Cuellar v.
Joyce,
5/15:5
Maintenance:
(husband from
1st marriage
properly denied
intervention of
right in wife's
remarriage
annulment action
to contest
continued
maintenance
obligation, may
contest it in
original divorce
court)
Loftis,
3/20:2
Parental
rights: (young
unmarried father
did not
willfully
abandon son,
made significant
efforts to meet
support
obligations,
being in arrears
does not
necessitate
termination,
regardless of
whether CSED
order is ``court
order,'' failure
to comply does
not mean rights
must be
terminated,
regardless of
whether
grandfather's
contributions
are support on
behalf of
father, father
made significant
payments on his
own,
termination/stepparent
adoption
petition
properly denied)
BWZ,
1/23:4; (mother
unlikely to
change within
reasonable time,
father's
ineffective
assistance
claims
unsupportable)
AJW,
3/20:3
Property:
(pre-nup
encompassed only
property at time
of marriage,
substantial
improvements by
wife over 27
years equitably
distributed,
pension properly
divided)
Deschamps,
1/23:4; (rulings
by Stadler
following first
appeal of decree
dividing farms
affirmed)
Snell,
1/30:3; (half of
antiques
business
inventory
improperly
awarded to new
husband rather
than ex-husband
in distribution
in convoluted
remarriage/common
law
marriage/partnership,
all of house
which wife
received in 1st
divorce
improperly
awarded to wife
in 2nd divorce
when former
husband
contributed to
mortgage
payments)
Arnold,
2/13:4;
(husband
forfeited right
to use ex-wife's
property for
auto dealership
by transferring
free rent right
to buyer of
dealership,
properly
required to pay
$2,500/mo rent
after partial
transfer of
dealership,
$68,476 fees at
$175/hr properly
awarded pursuant
to settlement
agreement)
Szafryk,
5/1:1;
(separation date
improperly
adopted as 5/01
as contended at
hearing by
husband rather
than 5/06 per
pleadings,
wife's Fen-Phen
settlement
improperly
included in
estate, value of
wife's leased
trust land
improperly
included in
estate)
Baker,
6/5:3
Federal Government
Grazing Districts
Guardianship
Health Care Providers
Homeowners Association
Immigration
Indians
Jurisdiction:
(non-member
widow of member
had right to sue
in State Court
for med-mal
allegedly
occurring on CSK
Reservation)
Morigeau v.
Gorman,
2/27:2; (CFSD
had jurisdiction
for child abuse/
neglect
substantiation
proceedings
against tribal
member for
alleged acts on
Reservation
against Indian
child)
Fair Hearing
of Hanna,
2/27:3
Tribal names:
(Supreme Court
to utilize
original tribe
names, Sélish &
Ktunaxa here)
Marriage of
Baker, 6/5:3
Insurance
Agency: ``Independent
soliciting agent'' not agent as to alleged negligent procurement before
policy at issue selected, but was agent as to alleged negligence in
failure to procure higher limits after insurer selected)
Monroe v. Cogswell Agency,
6/12:4
Consent judgment: (UIM
insurer had opportunity to participate in settlement negotiations,
notice of proposed consent judgment, documentary evidence to support
amount, attempt to void death judgment and demand jury trial on damages
rejected... all claims including UTPA subsequently settled)
Modroo v. Nationwide Mutual
Fire Ins., 4/10:4
Coverage: (snow-collapsed
carport not covered in apartment complex policy despite insured's claim
that he requested and was told he was purchasing coverage of all
structures) Park Place
Apartments v. Farmers Union Mutual Ins., 4/17;7(ambiguous CGL
endorsements construed against insurer so that general contractor is
additional insured with blanket coverage under policy obtained by
supplier, ``intended use'' exclusion not applicable where clips had not
been installed to secure newly installed grating from which employee
fell, insurer breached duty to defend, liable for defense costs)
Ames Const. v. Intermountain
Industrial, 5/1:6
Duty to defend: (satisfied
by attendance of adjuster rather than attorney at pre-litigation
mediation) Farmers Ins. Exchange v. Johnson, 1/2:1
Duty to procure: agent had
no duty to procure coverage for carport absent specific request and
promise) Park Place
Apartments v. Farmers Union Mutual Ins., 4/17:7
Proceeds: (dispute between
former cohabitants over insurance proceeds for stolen items properly
resolved by Small Claims Court, District Court)
Carsen v. Horton,
2/13:4
Reformation: (Policy
properly reformed to reflect mutual intent to delete accident vehicle
(subject of $400,000 consent judgment))
Johnson v. American Ins.,
5/1:5
Surety: (proper notices not
given to contractor as to provision of equipment under construction
equipment leases, surety not liable for defaults)
RDO Equipment v. Chief
Construction Specialties, 4/3:7
UIM: (vehicle owned by
husband & wife in which wife injured while husband driving within
``insured auto'' exception to ``underinsured auto,'' wife's UIM claim
following release of husband for $300,000 liability limits rejected,
insurer not ``agent'' in on-line policy sale, no breach of contract,
failure to provide/procure insurance, §33-15-302 (policy must contain
entire contract) does not preclude claim for fraud in sale of policy,
regardless of whether policy misrepresentation claim is at common law or
pursuant to UTPA, insurer did not misrepresent UIM policy terms in
coverage description, form, option form, website)
Kaufmann v. Geico
General Ins., 2/6:6: Agency: ``Independent soliciting agent''
not agent as to alleged negligent procurement before policy at issue
selected, but was agent as to alleged negligence in failure to procure
higher limits after insurer selected)
Monroe v. Cogswell Agency,
6/12:4
Interstate Commerce
Landlord/Tenant
Legislature
Immunity: (legislators
immune as to statements made in legislative function regardless of
content, defamation claims against legislator barred, first impression,
no appeal sanctions) Cooper
v. Glaser, 3/20:1
Local Government
Airport: (fact issues
preclude summary judgment as to whether City wrongfully restricted
access to airplane business with security fence)
Talmage (Montana
Diamond Aire) v. Kalispell, 1/2:5
Deputy termination:
(extra-statutory ulterior reasons for termination not precluded,
judicial misconduct claim not supported, $95,998 verdict for deputy
fired for allegedly spreading rumor as to jailers' romantic
entanglement, refusal to tell source, affirmed)
Blatter v. Park Co.
Sheriff's Office, 2/20:1
Subdivision: (post-trial
intervention by developer proper after City Commission declined to
appeal, contiguous owner had standing to challenge subdivision, standing
by one landowner sufficient, preliminary plat approval properly
overturned based on Commission's failure to give EA ``hard look'')
Aspen Trails Ranch v.
Simmons, 4/17:3; (application for major subdivision properly
denied due to impacts on ranch, schools, public health/safety, County
properly awarded $30,197 for experts/attorney hired to process
application, objection to lack of compulsory counterclaim waived for
failure to raise in pretrial order, claim properly pursued in main
action in any event, insufficient rationale for denying costs to County)
Hansen v. Granite Co.,
5/15:1
Zoning: (actions to
preserve setback variance for modular home rejected)
Cooley v.
Missoula, 1/30:2
Medicare
Mental Commitment
Commitment: (properly
ordered for man with dementia)
MCD, 2/13:3; (sufficient recent overt acts, Judge's comment
on refusal to talk to professional was ``advice,'' not improper comment
on silence, commitment affirmed)
JWL, 2/13:3;
(properly ordered) VR,
2/13:4; (paranoia, grandiose thoughts, extreme religious ideation,
suspicion of helpers supported finding of bipolar for commitment,
foreseeability that illness would deteriorate sufficient for finding
that Defendant could not provide basic needs)
LR, 4/17:5; (commitment of person who made
threatening/abusive calls to Governor's Office affirmed)
TM, 5/15:2
Forced medication: (forced
medication prior to hearing proper in emergency detention (conflicting
statutes reconciled)) LR,
4/17:5
Oil/Gas
Ownership interest: (12.5%
ownership interest in lease properly awarded non-party, rehearing
denied) Textana v. Klabzuba Oil & Gas, 1/23:4
Partnerships
Receivership: (receiver
properly appointed to operate resort, Plaintiffs properly ordered to
vacate premises) Blakley v.
Rehurek, 5/22:1
Probate
§72-2-814(2)(a)(i):
(automatically revoked ex-wife's pour-over living trust that had named
former husband's children as devisees, declaratory judgment proper
without requiring wife to file pleading and name husband's children as
parties) Marchwick,
6/12:6
Property
Boundary: ($27,103.50 to
purchasers of lot encroached by adjacent owners due to unrecorded
boundary change equitable, as opposed to removing house for $400,000,
damages to be paid by seller who failed to record change, Plaintiffs
denied equitable fees, but entitled to costs for property damage
judgment) White v. Keown, 1/30:1
Easement: (State-owned
river bed between Plaintiff's parcel and parcels on public road defeats
claim of easement by necessity because there was never unity of
ownership between lands separated by river)
Frame v. Huber, 4/10:1;
(easement by necessity properly established from public road to parcel
that was landlocked at time of County severance, old road properly
established as public way, easement scope not unlimited as Plaintiffs
sought, more expansive than Defendants urged, although elements of
easement arose in 30s, interference not possible before it was
established by order) Ashby
v. Maechling-Alcosser, 4/17:4; (negative, referenced plat's
``Building restriction line'' bars garage on side of line with label,
garage properly ordered removed)
Conway v. Miller, 5/8:1;
(prescriptive easement not abandoned by predecessors' nonuse or
Defendant's construction of alternative access)
Leisz v. Avista, 5/15:2
Old county road: (public
access established to corner of State land via right-of-way to overgrown
but not abandoned road) Only
A Mile LLP v. State, 5/8:1
Partition: (partition/sale
proper resolution of dispute as to property conveyed by deed from father
to 5 children contrary to divorce agreement to divide among children,
son who lived on property not 3rd-party beneficiary to agreement,
adverse possession barred by failure to pay taxes)
McDowell v. McDowell,
2/20:2; (house and construction entity properly divided)
Wedge v. Millard, 4/3:4
Real estate buy-sell:
(fraud claims properly dismissed based on Plaintiff's acknowledgment
that Defendants had pre-qualified for conventional financing for condo
even though financing failed when lender changed terms, buy-sell
terminated when buyers could not obtain specified financing, earnest
money must be returned, default properly set aside to correct oversight
that Defendant had responded to discovery requests)
Mill Creek LP v. Lodge,
4/3:3; (alleged oral agreements/statements outside buy-sell as to
claims for negligent misrepresentation/breach of implied covenant as to
trailer court water system barred as parol evidence, not within fraud in
inducement exception, fraud claims also time-barred, no error in
refusing to grant purchase money mortgagee/ seller a deficiency, defense
verdict as to failure to disclose water system defects to buyer) Deschamps
v. Treasure State Trailer Court,
4/17:1
Qui Tam
Railroads
FELA: (RR met burden for
mitigation instructions as to injured laborer who refused modified
position, Plaintiff failed to object to adequacy of pattern
instructions, new trial denied following $184,856 admitted liability
verdict for elbow condition)
Vincent v. BNSF, 3/27:1; (injured welder raised triable fact
issue as to whether subsidiary car company was employer under ``subservant''
of RR theory) Schmidt v.
BNSF, 5/22:3; (evidence of previous verdicts in which repetitive
motion claims were rejected (without informing jury 1 million+ awarded
on other claims) resulted in unfair trial, new trial properly granted
following defense verdict on repetitive motion claim)
Bircher v. BNSF, 6/5:1
Shortline RR: (Shortline
operator (CMR) as assignee of State not allowed to voluntarily dismiss
long-running Federal Court litigation to allow State to re-litigate in
State Court claims lost in Federal Court, claims for $9.8-$56.6 million
for lost shipments due to BN's alleged breach of contract by allegedly
sabotaging grain negotiations rejected and summary judgment granted to
BN because CMR is not 3rd-party beneficiary of 1984 State-BN agreement,
claims for $1.6-$2 million on behalf of State for increased highway
damage rejected, case dimissed, final judgment entered)
Central Montana Rail v.
BNSF, 5/1:7
RICO
Right to Bear Arms
Schools
Securities
Settlements
Excessive force arrest:
($365,000) Peschel v. Missoula, 1/16:4
Social Security
Disability: (ALJ
Hartford failed
to explain why
he discounted
VA's 100%
disability
rating as
required by
McCartey,
sentence 4
remand)
Clark,
1/16:7; (ALJ
Prothro erred in
not specifically
discussing
evidence,
explaining why
Claimant's
impairment did
not meet or
equal a listing)
Campbell,
1/16:7
Overpayment
repayment:
(waiver properly
denied)
Gossens,
5/1:5
State Government
Bridge repair: (MDT
entitled to $27,380 ``indirect costs''--12.25% of contractor's charge
for repairing interstate overpass damaged by oversized truck, first
impression) MDT v. Hanser Wrecker, 1/16:4
Conservation license:
(requiring last 4 digits of SSN on conservation license application
rationally related to State's interests in federal child support
enforcement funding, ``conservation'' license is ``recreational''
license under federal law) Montana Shooting Sports Association v. FWP,
1/23:4
Riverbeds: (are public
trust lands, not school lands, $40,956,180 judgment against PPL for use
of riverbeds at Missouri, Madison, Clark Fork hydro sites 2000-07
affirmed) PPL Montana v.
State, 4/3:2
Securities/insurance:
(substantial evidence of violations in dealings with elderly, hearsay
objections not preserved, not necessary to address whether failure to
file exceptions failure to exhaust)
Matter of Bower, 2/27:3
Taxes
TIFD: (DOR has authority to
adopt increment financing rules)
Fallon Co. v. DOR, 1/23:3
Torts
Dram shop: (rehearing
denied on upholding 180-day notice for suing bars)
Rohlfs v. Stumble Inn,
3/27:3
Excessive force/negligent
arrest: (no special duty under domestic abuse statutes protecting victim
from officers' negligence/excessive force negating Public Duty Doctrine,
but special relationship exists during period of custody, but not time
before custody) Bonogofsky v. Big Horn Sheriff's Dept., 1/9:8;
(``reckless'' spoliation of arrest video warrants designation (default
judgment) that officers used unreasonable force, reserving for jury
causation, injury, damages, whether taser used, whether officers acted
with malice, absence of bad faith precludes award of fees,
reconsideration denied based on claim that more than ``recklessness''
required and officers' due process claims, unlawful arrest claim
previously rejected, settled for $365,000
Immunity: (qualified
immunity properly granted to officer who arrested drug suspect in bar
parking lot whose arrest was overturned by Montana Supreme Court for
lack of probable cause, County Defendants not collaterally estopped from
relitigating probable cause, review of dismissal of other County
Defendants and State waived by failure to brief)
Ellington v. Cashell,
3/27:6
Lost industrial park
opportunity: (claim for lost profits in City's takeover of property not
subject to $750,000 cap, discovery sanction that City liable to
developer precluded evidence of cause of injury, jury properly
instructed to award some amount for lost profits in light of unrefuted
evidence that there would be some profit when the land was developed,
expert testimony as to lost profits not mere speculation, $3 million
verdict affirmed) Delaney v. Bozeman, 1/2:1
Medical malpractice:
(med-mal claim dismissed for failure to exhaust Panel, Hill-Burton claim
dismissed for failing to allege discrimination by clinic)
Jones v. Deaconess Billings
Clinic, 3/6:3; (Plaintiff deprived of fair trial by panelists'
concerns about preponderance of evidence standard, Defense counsel
urging jurors not to put ``black mark'' on doctor, new trial should have
been granted following defense verdict on knee replacement claims)
Cooper v. Hanson,
5/29:1; (Defendant's summary judgment motion improperly addressed
(and granted) before Plaintiffs' motion to amend to add claim for lack
of informed consent as to alternatives to surgery for PTC based on
neurosurgeon's deposition 2 days after summary judgment hearing (due to
scheduling conflict), motion to amend improperly denied as futile in
light of summary judgment, remanded for evaluation on its own merits,
neuro-ophthalmologist competent to opine on standard for informed
consent as to alternatives to PTC surgery by neurosurgeon, allegations
as to failure to exhaust alternatives encompassed within surgery
negligence allegations under liberal notice pleading, claim improperly
rejected on summary judgment)
Griffin v. Moseley, 6/12:1
Nuisance/trespass:
(Challenge to shooting range not precluded by specific exemptions,
neighbors may further develop civil public nuisance claim, private
nuisance analysis should focus on noise injuries alleged by specific
plaintiffs rather than group, intangible invasion trespass recognized,
Plaintiffs improperly denied opportunity to establish damage, Plaintiffs
improperly denied opportunity to develop threat of irreparable injury
under attractive nuisance theory, claims under constitutional
environment, public education provisions properly dismissed, not
necessary to determine whether §76-9-105 safety hazard provides for
private action, individual who bought land and transferred it to LLC
improperly dismissed (shotgun blasts while he owned the property),
Plaintiffs able to pursue LLC based on its continued operation of
shooting range) Tally
Bissell Neighbors v. Eyrie Shotrun Ranch, 4/3:1
Recreational use: (no
liability for injuries by ``500'' player who inadvertently crossed onto
neighbor's property while running to catch ball and struck hidden
wellhead) Kapphan v. Vincent, 2/6:1
Securities: (claim as to
phantom auto contracts not timely under 2-year statute which does not
allow for discovery, properly dismissed following $70,000 verdict based
on jury finding as to date when agent was ``offerer'', jury correctly
found that broker was not ``control person'' in independent sales of
securities, defense judgment affirmed, $3,162,103 default judgment
against Ponzi operator)
Mosley v. Ameriprise Financial, 4/17:2
Wrongful discharge:
(defense, wrongful discharge, sporting goods employee, slander,
punitives claims directed out)
Jones v. Sheels All Sports, 2/6:5; (§39-2-915 challenge not
preserved for appeal, failure to make findings/conclusions as to fees
not reversible as Plath factors addressed at hearing, finding
that Plaintiff refused arbitration implicit in fact that arbitration
never occurred, matter proceeded to trial, no motion to strike fees
prayer, Plaintiff not prejudiced by lawyer's post-verdict withdrawal,
Defendant's failure to give UDCR 10 notice, as no ``further
proceedings'' after fees hearing, $33,920 fees/costs following defense
verdict) Prescott v.
Innovative Resource Group (APS Healthcare Midwest), 2/20:1;
(County employee caught using county equipment at home, and whose
termination was later set aside, received sufficient pre-termination due
process) Bonney v.
VanDaveer, 3/6:4; (terminated Plaintiff's claims that he was
fraudulently recruited from previous bank not preempted by WDA, fact
issues as to whether contract claims preempted by WDA, tort claims not
preempted by NBA, disputed fact issues as to whether Plaintiff was
``officer'' subject to NBA ``at pleasure'' or merely ``commercial
lender,'' whether parent company was employer)
Leuthold v. First National
Bancorp, 3/27:6; (HR Manager's probation began on date she was
``owed compensation'' pursuant to §40-5-901(1), not from when she may
have provided uncompensated advice before she began working for
hospital, terminated within 6 months while still on probation, request
to carve exception to ``for any reason or for no reason '' for
probationary employees terminated for refusing to violate public policy
declined) Blehm v. St.
John's Lutheran Hospital, 4/24:3
Trade Marks
Trade Secrets
Trusts
Utilities
Territorial integrity:
(claims in 2nd action in 2nd county barred by claim & issue preclusion
of ruling on same claim in 1st county of exclusive right to supply
electricity to pipeline) NorVal Electric Cooperative v. McCone
Electric Cooperative, 1/30:3
Windpower wholesale rate:
(properly remanded to PSC for redetermination)
Whitehall Wind v. PSC,
1/9:7
Verdicts
Auto: ($26,000,
intersection auto, thoracic disk, emotional, admitted liability, 0
consortium for husband)
Johnson v. Chambers, 5/15:4
Auto/pedestrian: (defense
(95/5), pedestrian/auto, head/ neck/ribs/pelvis, $52,000 settlement from
State and City) Maestas v.
Leto, 6/19:3
FLSA: (fact issues as to
overtime status precluded summary judgment/directed verdict, liquidated
damages proper despite jury finding no willfulness, $95,738/ $90,675
fees properly awarded without contemporaneous billing records, but
counsel urged to provide time records in fee-shifting cases, FLSA costs
provision controls over Montana statute, $267,330 judgment on $35,220
verdict affirmed) Tacke v.
Energy West, 2/27:1
House remodel contract:
($15,264.04, breach of contract/lien foreclosure)
Loken Builders v. Boyce,
3/13:4
House waterline
freeze/flood: (defense)
Burleson v. Ranger Plumbing & Heating, 6/26:7
Lost industrial park
opportunity: (claim for lost profits in City's takeover of property not
subject to $750,000 cap, discovery sanction that City liable to
developer precluded evidence of cause of injury, jury properly
instructed to award some amount for lost profits in light of unrefuted
evidence that there would be some profit when the land was developed,
expert testimony as to lost profits not mere speculation, $3 million
verdict affirmed) Delaney v. Bozeman, 1/2:1
Medical malpractice: ($501,007.68 net (51/49), naturopath
malpractice, failure to refer patient with chest pain to cardiac
specialist, negligence by patient in failing to continue chelation,
heart attack death) Sisson v. Schlechten, 2/13:8;
(Plaintiff deprived of fair trial by panelists' concerns about
preponderance of evidence standard, Defense counsel urging jurors not to
put ``black mark'' on doctor, new trial should have been granted
following defense verdict on knee replacement claims)
Cooper v. Hanson,
5/29:1
Motorcycle/van: ($27,151.95
net (50/50) to motorcyclist Plaintiff for foot crush fractures, $800
(50/50) net to Defendant for van damage)
Beggins v. Kaiser,
5/29:6
Railroads: (RR met burden for mitigation instructions as to injured
laborer who refused modified position, Plaintiff failed to object to
adequacy of pattern instructions, new trial denied following $184,856
admitted liability verdict for elbow condition)
Vincent v. BNSF,
3/27:1; (defense, RR tunnel CO exposure, engineer)
Weber v. BNSF, 5/15:5;
(evidence of previous verdicts in which repetitive motion claims were
rejected (without informing jury 1 million+ awarded on other claims)
resulted in unfair trial, new trial properly granted following defense
verdict on repetitive motion claim)
Bircher v. BNSF, 6/5:1
Semis crush: ($867,000, claimed crush between semis, lumbar/ribs
fractures) Soanes v. Heidecker, 3/20:5
Sexual molestation/assault:
(defense, failure to control child in alleged ``Dare-Dare,'' $100,000 to
mother and son Defendants on infliction of emotional distress
counterclaim) TAS v. MF,
4/24:5
Siding warranty: (no
prejudice from juror researching ``preponderance'' on Internet, new
trial following defense verdict in siding case properly denied, but
judges urged to instruct against Internet research)
Stebner v. Associated
Materials (Alside), 6/26:1
Suicide v. homicide: (defense, Coroner correctly ruled death was
suicide) Jorgensen v. Gallatin Co., 3/13:5
Wildland
fire: ($250,000,
burned trees)
Lampi v. Speed,
3/13:4
Wrongful discharge:
(defense, wrongful discharge, sporting goods employee, slander,
punitives claims directed out) Jones v. Sheels All Sports, 2/6:5;
(§39-2-915 challenge not preserved for appeal, failure to make
findings/conclusions as to fees not reversible as Plath factors
addressed at hearing, finding that Plaintiff refused arbitration
implicit in fact that arbitration never occurred, matter proceeded to
trial, no motion to strike fees prayer, Plaintiff not prejudiced by
lawyer's post-verdict withdrawal, Defendant's failure to give UDCR 10
notice, as no ``further proceedings'' after fees hearing, $33,920
fees/costs following defense verdict)
Prescott v. Innovative
Resource Group (APS Healthcare Midwest), 2/20:1; (defense,
wrongful discharge, lodge activity director)
Lokteva-Quenzer v. Great
Montana Adventure Co., 6/26:7
Water
Dissatisfied user
complaint: (properly rejected based on finding that pond
non-consumptive, water quality, other issues, not within jurisdiction of
informal proceeding) Kelly,
2/13:2
Workers' Compensation
Aggravation: (PE teacher
suffered permanent aggravation of preexisting condition when knocked
down by student, insurer liable for further benefits, Arizona IME
doctor's unsolicited opinion inconsistent with deposition, denial based
on IME opinion following initial acceptance not unreasonable because
insurer attempted to obtain Arizona treating physicians' opinions as to
IME report) Fleming v.
MSGIA, 6/19:4
Attorney fees/costs:
(Claimant not entitled to fees merely because he cannot afford to pay
out of any award, no claim of unreasonableness that would warrant fees
or penalty, unspecified ``additional relief'' denied)
Wright v. ACE American
Ins., 5/29:7
Bad faith: (malice/punitives
claims not fact intensive as to individual class members (unlike fraud
claims), properly included in class action, class properly defined)
Gonzales v. MPC, 5/29:3;
(bad faith claims may proceed following stipulated judgment as to
liability while claim for future medicals is ongoing, possibly for life,
Plaintiff entitled to original claim files to prove bad faith case
(subject to specific objection), supervisory control of McLean granted,
indefinite stay of bad faith case reversed)
Lamb v. McLean, 6/26:1
Casual employment: (use of
purported vacation home for tax purposes part of usual course of
business, Claimant's carpentry work not ``casual employment,'' not
exempt from comp) Weidow v. UEF, 1/30:8
Constructive discharge:
(Claimant voluntarily resigned, not constructively discharged, failed to
prove total loss of wages as result of injury after resignation, not
entitled to TTD for post-resignation cubital tunnel surgery allegedly
resulting from pre-resignation injury)
Pugh v. Charter Oak Fire Ins.,
1/16:8
Disability: (Petitioner
likely to improve with additional treatment, not at MMI, not entitled to
TTD) Wright v. ACE American
Ins., 5/29:7
Discovery: (insurer's
retaliatory discovery denied in penalty case as to whether it was
unreasonable in ``un-accepting'' and later re-accepting claim,
Claimant's discovery as to IME doctor limited to Fjelstad
parameters) Connors v.
USF&G, 4/3:7
Drug use: (use of marijuana
ill-advised or mind-bogglingly stupid but not ``major contributing
cause'' of attack) Hopkins
v. UEF, 5/8:7
Employee/volunteer:
(Claimant injured while feeding grizzly was employee of bear park, not
volunteer) Hopkins v. UEF,
5/8:7
Employment termination:
(Petitioner terminated due to RIF/restructure, not injury, chose not to
apply for other positions for which she was qualified, not entitled to
TTD, additional PPD, fees/costs/penalty)
Carey v. American Home
Assurance, 2/6:8
Exclusivity: (exclusivity
claim improperly dismissed under 12(b)(6) without opportunity for
discovery to establish intentional conduct, 39-71-413 constitutional
challenge substantially complied with by notice to AG shortly after
serving Defendant, improperly dismissed with prejudice)
McKinnon v. Western Sugar
Cooperative, 2/13:1; (forklift death claims against employer
barred by exclusivity, constitutional challenge rejected)
Walters v. Flathead
Concrete Products, 3/13:4; (deliberate & intentional conduct may
be inferred from allegations that employer knew employee was being
harmed, failed to warn, intentionally continued to expose (``actual
knowledge'' of certainty of injury also required), summary judgment
properly granted as to 1st employee exposed to CO from stove, improperly
granted as to 2nd, §39-71-413 challenges rejected)
Alexander v. Bozeman
Motors, 6/12:3; (no exception for employee who lost hand while
extracting boards from inside running notcher)
Morgan v. Fox Lumber,
6/19:2; (no exception for employee who lost ear & scalp from hair
being pulled into crack of gear guard on fingerjointer, pre-Alexander
challenge to 39-71-413 denied (1 day after Alexander), no grounds
for piercing corporate veil)
Banks v. Fox Lumber, 6/19:2
Heart attack: (Work
activities not primary cause of myocardial infarction, greater weight to
treating cardiologist)
Petritz v. MSF, 6/19:5
Indemnity: (Claimant failed
to establish entitlement to indemnity at this time)
Weidow v. UEF,
1/30:8
Jurisdiction: (although
potential liability is with insurer, Court may exercise jurisdiction
over TPA, but no reason to do so here)
Ivie v. MUS Self Funded
Workers' Compensation Program, 6/19:6
Lump sum: (approved for
purchase of feed lot by head-injured Claimant who was successful feed
lot manager) Murphy v.
State Fund, 3/13:7
OD: (insurer liable for OD
from hairstyling repetitive trauma, Claimant entitled to TTD retroactive
to when employer ceased modified position, less waiting period)
Brown
v. Hartford Ins., 1/2:7
Medicals: (drug-seeking
Claimant not entitled to retroactive TTD, entitled to 4 months
retroactive TPD, failed to prove unauthorized medical bills were for
undisputedly necessary treatment... costs but no fees)
Hart v. Hartford Ins. of
the Midwest, 4/10:6
Penalty: (awarded)
Brown
v. Hartford Ins., 1/2:7
Procedure: (petition barred
by failure to file within 2 years of denial of liability for shoulder
condition as unrelated to accident based on early medical reports,
Claimant not prevented from filing until unequivocal causation opinion,
``mistake'' statute inapplicable in face of specific comp statute, claim
not saved by discovery rule in any event)
Boyd v. Zurich American
Ins., 3/20:2; (identical issue element of collateral estoppel
not met in petition for continued payment for pain patch vis-à-vis prior
impairment rating denial judgment, summary judgment precluded by
doctor's affidavit opining relationship between injury and pain,
jurisdiction challenge based on equity rejected)
Stewart v. Liberty
Northwest Ins., 6/19:5
Reopen: (denied, no mutual
mistake of fact) Stokes v. Liberty Mutual, 1/2:8;
(no mutual mistake as to medical condition at time of settlements,
re-open denied) Keller v.
Liberty Northwest Ins., 2/20:8
Treating physician: (former
Montana orthopedist now practicing in Wyoming, although not ``treating
physician'' per WCA, given more weight as to likely causes and potential
treatment of shoulder than pain management specialist, orthopedist's
further diagnosis of cervical condition not accepted without further
consultation, but insurer not liable for doctor shopping)
Wright v. ACE American
Ins., 5/29:7
UEF: (UEF liable for
medicals, with indemnification from uninsured employer)
Weidow v. UEF,
1/30:8; (facts which occurred prior to UEF's 3rd-party petition may
be considered in summary judgment, putative employer failed to appeal
liability decision to mediation within 90 days, present claim untimely)
Wilson v. UEF, 3/13:8;
(3rd-party respondent not entitled to fees)
MSF v. UEF, 5/15:8
Wage loss: (Claimant failed
to prove total loss of wages as result of injury after resignation, not
entitled to TTD for post-resignation cubital tunnel surgery allegedly
resulting from pre-resignation injury)
Pugh v. Charter Oak Fire Ins.,
1/16:8
Wages: (weekly wage
properly calculated using regular-time rather than overtime rate,
ambiguous §39-71-123(1)(a) construed in light of rejection of amendment
Youths
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