Archive | April, 2015

Lucas Ranch, Inc. v. Montana Dept. of Revenue

Lucas Ranch, Inc. v. Montana Dept. of Revenue, 2015 MT 115 (April 28, 2015) (McGrath, C.J.; Rice, J., concurring; McKinnon, J., dissenting) (4-1, aff’d)

Issue: Whether the district court correctly interpreted § 15-7-111, MCA, governing revaluation of agricultural land.

Short Answer: Yes.

Affirmed

Facts: The Department of Revenue began reappraising Montana agricultural properties in 2009. Prior to that, it relied on self-reporting by landowners. During a six-year cycle, any increases in value from the previous cycle must be accounted for. The legislature provided for the phase-in of increases using the current full market value, as defined by regulation, and the value before reappraisal (VBR). If the increase was due to market changes, the Department uses the unadjusted 2002 base year value as the VBR; if the increase is due to non-market changes, the Department calculates a new VBR.…

Serrania v. LPH, Inc.

Serrania v. LPH, Inc., 2015 MT 113 (April 28, 2015) (Baker, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the appeal is justiciable; (2) whether the district court properly granted summary judgment to LPH on Serrania’s Fair Debt Collection Practices Act (FDCPA) claim; (3) whether the district court abused its discretion in sanctioning Serrania’s attorney, Terry Wallace.

Short Answer: (1) Serrania’s sanction and contract judgment appeals are moot, but her FDCPA claim appeal is live, and Wallace’s appeal is live; (2) yes; and (3) some sanctions are affirmed and some are reversed.

Affirmed in part, reversed in part, and remanded

Facts: Karrie Lynn Serrania went to Discovery Dental Group, PLLC (DDG) in 2009. She signed a contract agreeing to pay for treatment, services, and all collection and legal fees if necessary.…

Montanans Against Assisted Suicide v. Board of Medical Examiners

Montanans Against Assisted Suicide v. Board of Medical Examiners, 2015 MT 112 (April 28, 2015) (Wheat, J.) (5-0, aff’d)

Issue: Whether the district court properly dismissed MAAS’s petition as moot.

Short Answer: Yes.

Affirmed

Facts: The Montana Supreme Court issued its opinion in Baxter v. State, 2009 MT 449, on Dec. 31, 2009, holding that a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply. At the request of two doctors, the Board of Medical Examiners drafted a position statement explaining the effect of Baxter on its discipline policy for physicians who aid patients in dying. The board notified interested persons of the final draft, and adopted an amended version of that draft in January 2012.…

Knapton v. Monk

Knapton v. Monk, 2015 MT 111 (April 28, 2015) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court properly granted summary judgment to the landlord on the negligence claim; and (2) whether the district court properly granted summary judgment to the landlord on the strict liability claim.

Short Answer: (1) Yes, and (2) yes.

Affirmed

Facts: Kimberlee Johnson owns a house that was leased by the Monks, and adjacent to Knaptons’ home. Minks owned several dogs of pit bull ancestry. Johnson lived in the residence until March 2011, left some personal belongings in a downstairs storage room, received mail at the house, inspected the premises a few times a month, and occasionally stayed overnight on a rollaway bed.

In July 2011, one of Monks’ dogs bit MK, one of the Knapton children, on Knaptons’ property.…

In the Matter of TN-S, NN-S, EN-S, & AN-S

In the Matter of TN-S, NN-S, EN-S, & AN-S, 2015 MT 117 (Apr. 28, 2015) (Shea, J.; McKinnon, J., concurring) (5-0, aff’d)

Issue: (1) Whether Mother’s treatment plan was appropriate although it did not require her to obtain a chemical dependency evaluation; (2) whether Mother’s counsel was ineffective for failing to advocate for a chemical dependency evaluation in the treatment plan; and (3) whether the district court was required to disclose to the parties the transcripts of its in-chambers interviews with the children.

Short Answer: (1) Yes; (2) no; and (3) no.

Affirmed 

Facts: Mother’s children were ages 15, 12, 9, and 4 at the time of the hearing. In October 2012 and January 2013, the Department received reports that Mother and Father were unable to care for their children due to drug use.…

In the Matter of AK and KG

In the Matter of AK and KG, 2015 MT 116 (Apr. 28, 2015) (Baker, J.; McKinnon, J. dissenting) (4-1, aff’d)

Issue: (1) Whether the district court abused its discretion in terminating Father’s parental rights; and (2) whether the district court erred in concluding DPHHS complied with its statutory duty to provide reunification services.

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

Affirmed

Facts: After receiving reports that Father and Mother were putting their children at risk of abuse or neglect, a DPHHS child protection specialist prepared a 30-day “present danger plan” to protect the children. After determining the plan was insufficient, DPHHS petitioned for emergency protective services, adjudication as youths in need of care, and temporary legal custody. The children were placed with their grandmother while the department prepared treatment plans for both parents.…

Kummerfeldt v. State

Kummerfeldt v. State, 2015 MT 109 (April 21, 2015) (Rice, J.) (5-0, aff’d)

Issue: Whether the district court properly denied Kummerfeldt’s petition for reinstatement of his driver’s license.

Short Answer: Yes.

Affirmed

Facts: Kummerfeldt was stopped after a sheriff’s deputy observed him driving fast, crossing the centerline, and swerving. Seeing Kummerfeldt’s glassy, bloodshot eyes, the deputy asked Kummerfeldt to take a preliminary breath test. Kummerfeldt did not answer immediately, instead discussing it for almost 20 minutes. He eventually took the test, which reported a BAC of .232%. The deputy arrested Kummerfeldt and took him to the county jail, where he attempted to administer a breath test but could not because of incomplete testing equipment. He therefore requested Kummerfeldt to submit to a blood test, which Kummerfeldt refused, saying he did not want to get poked by needles.…

State v. Dunsmore

State v. Dunsmore, 2015 MT 108 (April 21, 2015) (Shea, J.) (5-0, aff’d)

Issue: Whether the district court’s failure to recuse himself violated Dunsmore’s right to a fair tribunal.

Short Answer: No.

Affirmed

Facts: Dunsmore was charged with failure to register as a sex offender and theft, both felonies. Dunsmore entered into a plea agreement that recommended a 10-year sentence to the DOC with all 10 years suspended. The presentence investigation (PSI) concluded Dunsmore was not fit for community supervision and recommended a sentence of 10 years in MSP with five years suspended. Judge Robert Allison presided over the case. Prior to becoming a judge, Allison represented Dunsmore’s daughter in a case in which Dunsmore was accused of incest with the daughter Allison represented.…

Tempel v. Benson

Tempel v. Benson, 2015 MT 84 (April 21, 2015) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether Tempel waived her right to appeal the jury verdict by accepting the benefits of the judgment; and (2) whether the district court abused its discretion in determining that Benson’s conduct did not warrant discovery sanctions.

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

Affirmed

Facts: Tempel sued Benson for negligence after the two were in a car accident. During discovery, Tempel sent Benson a request to admit violating certain traffic laws, and Benson denied the request. Tempel moved for summary judgment on negligence, and the district court granted her motion. Tempel also moved for Rule 37 sanctions for Benson’s failure to admit violating traffic laws; the district court denied the motion.…

Glueckert v. Glueckert

Glueckert v. Glueckert, 2015 MT 107 (April 17, 2015) (McGrath, C.J.; Rice, J., concurring & dissenting)) (4-1, aff’d)

Issue: Whether district court properly held that grandparents were not entitled to unsupervised visitation with grandchild contrary to mother’s wishes.

Short Answer: Yes.

Affirmed

Facts: The Glueckerts’ son Thayer married Kristin Glueckert, and the couple had a son, MT, in 2013. Thayer is on active military duty outside of Montana. He and Kristin have separated but not divorced, and no parenting plan is in place. MT has lived with Kristin since he was born, and Thayer has had physical contact with him only when home on leave.

The Glueckerts sought regular visitation with their grandson by negotiating with Kristin. Kristin agreed to contact, and provided one-hour visits in her home, but would not generally allow unsupervised visits except when Thayer is home on leave.…