Archive | February, 2015

State v. Violette

State v. Violette, 2015 MT 67 (Feb. 24, 2015) (McKinnon, J.) (5-0, appeal dismissed)

Issue: Whether state was required to elect between two offenses to avoid violating defendant’s protection from double jeopardy.

Short answer: No.

Appeal dismissed without prejudice

Facts: State charged Violette with aggravated assault and elder abuse.

Procedural Posture & Holding: Violette moved lower court for order that state had to elect between those offenses, arguing that prosecution for both offenses violated his protection from double jeopardy and Montana’s “multiple charges” statute, 46-11-410, MCA. District court denied motion, holding that elder abuse is neither lesser-included offense of aggravated assault nor specific instance of aggravated assault. Violette appeals, arguing that elder abuse is specific instance of aggravated assault, and the Supreme Court dismisses the appeal without prejudice and remands for trial.…

State v. Urziceanu

State v. Urziceanu, 2015 MT 58 (Feb. 24, 2015) (Baker, J.) (5-0, aff’d)

Issue: Whether deputies violated defendant’s constitutional rights by entering his property to assist with a civil standby.

Short Answer: No, based on the plain view doctrine.

Affirmed 

Facts: Sheriff’s deputies accompanied Christine Robutka to a 15-acre rural property so that she could remove her belongings. Robutka lived with two men at the property, one of them Urziceanu, and was worried they might cause trouble upon her moving out.

The property is fenced and marked with no trespassing signs, with the house at the end of a 100-foot private driveway. Three deputies in two vehicles drove halfway up the driveway behind Robutka, and parked. One testified that upon getting out of his car, he saw a glassed-in porch in which he saw several marijuana plants.…

In re the Parenting of MC

In re the Parenting of MC, 2015 MT 57 (Feb. 24, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether the district court violated mother’s fundamental right to travel by ordering that parties’ minor child should reside in Montana.

Short Answer: No.

Affirmed

Facts: MC was born to Pirkle and Mitchell Collie in Missoula in 2012, and lived there until March 2013 with her parents, who were not married. Pirkle was from Ohio, and moved here to attend the university. She had difficulty finding work after MC was born, and was MC’s primary caregiver.

In March 2013, Pirkle took MC to Ohio to attend a family wedding. After several reasons for not returning, Pirkle told Collie in April 2013 that she and MC were going to stay in Ohio.…

State v. Henderson

State v. Henderson, 2015 MT 56 (Feb. 24, 2015) (Cotter, J.) (5-0, aff’d)

Issue: Whether defendant who pled guilty to felony insurance fraud and theft was properly ordered to pay restitution.

Short Answer: Yes.

Affirmed

Facts: Fire Insurance Exchange insured Henderson’s home from 2000-2008. Henderson moved out of state in 2005, leaving behind many personal items in the house. She made a claim in 2007 that her home had been broken into and robbed on two separate occasions. First robbery was reported to and investigated by sheriff; second robbery not reported.

FIE paid Henderson $22,602 in 2008. She submitted supplemental claim in 2009 for $23,103 for replacement cost of items. FIE denied claim and referred for criminal charges.

Henderson was charged in 2012 with felony insurance fraud and theft.…

Citizens for Open Government, Inc. v. City of Polson

Citizens for Open Government, Inc. v. City of Polson, 2015 MT 55 (Feb. 24, 2015) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether citizens’ group was denied its right under Montana’s open meeting laws to participate in an executive session of the City Commission; (2) whether the district court abused its discretion by declining to void the city’s decision to present an offer letter to a city manager candidate; and (3) whether the district court properly determined facts in a summary judgment proceeding without an evidentiary hearing on the merits.

Short Answer: (1) Yes; (2) no; and (3) yes, as there were no genuine disputes of material fact.

Affirmed

Facts: The city of Polson began the process of hiring a new city manager in the spring of 2013.…

Estate of Lawlor

Estate of Lawlor, 2015 MT 54 (Feb. 24, 2015) (Wheat, J.; McKinnon, J. dissenting) (5-2, aff’d & rev’d)

Issue: (1) Whether the district court erred in holding that Audrey lacked standing to contest Dennis’s will, and (2) whether the district court erred in determining that Audrey lacked standing to petition for the removal of the PR for cause.

Short Answer: (1) yes, and (2) no.

Reversed on (1), affirmed on (2)

Facts: Dennis Lawlor executed a will on Dec. 6, 2012, and died the next day. He had no children, and was survived by three siblings, Antoinette, Mary, and John. His sister Joan predeceased him, and was survived by her daughter, Audrey, and Audrey’s son, John. The will devised all of Dennis’s estate to his living sisters, Antoinette and Mary.…

MC, Inc. v. Cascade City-County Board of Health

MC, Inc. v. Cascade City-County Bd. Of Health, 2015 MT 52 (Feb. 24, 2015) (Rice, J.) (5-0, rev’d)

Issue: (1) Whether the district court properly granted summary judgment to Casino Owners regarding their compliance with the Montana Clean Indoor Air Act, and (2) whether the district court abused its discretion by awarding attorneys’ fees to Casino Owners for the preliminary injunction proceeding.

Short Answer: (1) No, and (2) yes.

Reversed and remanded for entry of judgment in the board’s favor

Facts: In 2011, Casino Owners built smoking shelters attached to their two casinos. The shelters have four walls, including a common wall with the casinos, multiple large glass windows, inside entrances, a roof, carpeting, heating, air conditioning, electricity, and gaming machines.…

State v. Morse

State v. Morse, 2015 MT 51 (Feb. 23, 2015) (McKinnon, J.) (4-1, rev’d, Rice, J., dissenting)

Issue: (1) Whether the district court erred in denying Morse’s untimely motion for new trial and directing Morse to pursue postconviction relief; and (2) whether the district court abused its discretion in allowing the state to elicit testimony fro the victim’s sisters about Morse’s past conduct.

Short Answer: (1) Yes. The Court reverses in this issue and does not reach (2).

Reversed and remanded

Facts: HS is the adult daughter of Morse’s girlfriend. She is married, with three children, and suffers from spinal neuropathy and has chronic back pain. She is prescribed a muscle relaxer for pain relief. HS had known Morse for several years, and believed he know certain chiropractic techniques to help her back pain.…

Truck Insurance Exchange v. O’Mailia

Truck Insurance Exchange v. O’Mailia, 2015 MT 42 (Feb. 17, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court properly granted summary judgment to the insurer on the basis that no property damage occurred during the policy period; and (2) whether the district court violated O’Mailia’s right to due process by dismissing his counterclaims with prejudice.

Short Answer: (1) Yes, and (2) no.

Affirmed

Facts: O’Mailia was hired to install a water heater on the premises of the newly built Famous Dave’s restaurant in Kalispell in 2007. O’Mailia was covered by a commercial general liability policy from TIE, which he held from July 2006 – November 2009, when he terminated coverage. In March 2010, a fire broke out in Famous Dave’s and was eventually traced to installation and maintenance of the water heater, which heated wood framing near the heater to the point where it eventually caught fire.…

State v. Osborn

State v. Osborn, 2015 MT 48 (Feb. 17, 2015) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether district court properly denied Osborn’s Rule 60(b) motion.

Short Answer: Yes.

Affirmed

Facts: Osborn was sentenced for several offenses to suspended sentences, running concurrently and consecutively. After a number of violations, the state petitioned to revoke his suspended sentence, and the district court granted the petition. Osborn sought review from the Sentence Review Division, which concluded the sentence was not clearly excessive.

Procedural Posture & Holding: Osborn moved for relief from the judgment under M.R. Civ. P. 60(b). The state argued the Rules of Civil Procedure do not apply in a criminal case, and the district court denied the motion. Osborn appeals, and the Supreme Court affirms.…