Archive | August, 2015

Montana Dept. of Revenue v. Priceline.com, Inc.

Montana Dept. of Revenue v. Priceline.com, Inc., 2015 MT 241 (Aug. 12, 2015) (Shea, J.; McKinnon, J. concurring & dissenting) (5-2, aff’d & rev’d)

Issue: (1) Whether the district court erred in determining online travel companies are not required to collect and remit taxes on OTC fees under the Lodging Facility Use Tax; (2) whether the district court erred in determining OTCs are not required to collect and remit taxes on OTC fees under the sale tax on accommodations and campgrounds; (3) whether the district court erred in determining OTCs are not required to collect and remit taxes on OTC fees under the sales tax on rental vehicles; and (4) whether this decision should be applied retroactively.

Short Answer: (1) No; (2) yes; (3) yes; and (4) yes, to the date the department filed this action.…

Anderson v. BNSF Railway

Anderson v. BNSF Railway, 2015 MT 240 (Aug. 12, 2015) (Shea, J.; Wheat, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: (1) Whether the district court erred in allowing the statute of limitations to be decided as a fact question; (1.a) whether the continuing tort doctrine applies to cumulative trauma injuries under FELA; (1.b) whether an employee can recover under FELA for aggravation of a time-barred injury; (1.c) whether non-disabling aches and pains constitute an injury under FELA; and (2) whether counsel for BNSF made improper comments that deprived Anderson of a fair trial.

Short Answer: (1) No; (1.a) no; (1.b) yes; (1.c) no; and (2) yes.

Reversed and remanded for new trial

Facts: Robert Anderson worked for BNSF for more 30 years, primarily as a carman inspecting and repairing railroad cars in Havre.…

American States Insurance Co. v. Flathead Janitorial & Rug Services, Inc.

American States Insurance Co. v. Flathead Janitorial & Rug Services, Inc., 2015 MT 239 (Aug. 11, 2015) (McKinnon, J.; Wheat, J. dissenting) (4-1, aff’d)

Issue: Whether the district court erred in concluding Bridgett was not covered under the commercial auto policy issued to Flathead Janitorial.

Short Answer: No.

Affirmed

Facts: Bridgett suffered severe, permanent, debilitating injures in December 2011 when the bicycle she was riding collided with a truck making a negligent turn. She now requires full-time care from her parents. At the time of the accident, Bridgett was attending college in Utah, had a Utah driver’s license, and was employed by a Utah business. It is undisputed that she was not employed by Flathead Janitorial or in a company vehicle at the time of the accident.…

Harrington v. Energy West, Inc.

Harrington v. Energy West, Inc., 2015 MT 233 (Aug. 11, 2015) (Baker, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court correctly considered evidence outside the pleadings in deciding Energy West’s 12(b)(1) motion to dismiss; and (2) whether the district court correctly dismissed Harrington’s suit for lack of subject matter jurisdiction.

Short Answer: (1) Yes; ad (2) no.

Affirmed in part and reversed in part, and remanded for further proceedings

Facts: Energy West is a Montana corporation with its principal place of business in Montana. It is a subsidiary of Gas Natural, Inc., an Ohio corporation with corporate offices in Montana and Ohio.

In February 2011, either Energy West or Gas Natural (the parties dispute which) hired Harrington as a corporate controller.…

City of Missoula v. Duane

City of Missoula v. Duane, 2015 MT 232 (Aug. 11, 2015) (Cotter, J.; McGrath, C.J. concurring) (5-0, aff’d)

Issue: (1) Whether allowing Dr. Sjolin to testify against Duane via Skype offended Duane’s rights under the Confrontation Clause; and (2) whether the district court erred in concluding M.R. Evid. 611(e) does not apply to criminal cases.

Short Answer: (1) No; and (2) yes, but it was a harmless error.

Affirmed

Facts: Duane and two others were charged with misdemeanor cruelty to animals after police responded to a report of a dead puppy, found filthy conditions and no water, and a necropsy revealed the puppy died of blunt force trauma.

Before trial, the city requested that Dr. Sjolin, the veterinarian who performed the necropsy, be allowed to testify via Skype, or that her supervisor be allowed to testify to Sjolin’s report, as Sjolin had moved to California.…

In re JWM and AKM

In re JWM and AKM, 2015 MT 231 (Aug. 11, 2015) (Cotter, J.) (5-0, aff’d)

Issue: (1) Whether substantial evidence existed to support termination of biological father’s parental rights, and (2) whether father was adequately represented at hearing.

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

Affirmed

Facts: CM and JM are the biological parents of AKM and JWM, born in 2007 and 2008. Following their 2009 divorce in Colorado, CM moved to Montana with the children. She registered the Colorado judgment in Cascade County in December 2011. In June 2012, CM married RH, who wants to adopt the children.

The Colorado divorce decree ordered JM to submit to monthly drug testing and provide the results to CM. If he failed a test or did not submit the results to CM, hs would relinquish visitation until he provided the results of a clean test.…

State v. Warner

State v. Warner, 2015 MT 230 (Aug. 11, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: Whether the district court should have granted Warner’s motion to withdraw his nolo contendere plea, having allowed the state to deviate from its sentencing recommendation after Warner breached the plea agreement by being arrested for a subsequent offense.

Short Answer: No.

Affirmed

Facts: After being warned to update his address in the sex offender registry, and failing to do so for nine days, Warner was arrested and charged for failure to give notice of a change of home residence as a registered sex offender, a felony.

Warner signed a written plea agreement stating that the parties would make sentencing recommendations but that they would not bind the court.…

In the Matter of JO

In the Matter of JO, 2015 MT 229 (Aug. 11, 2015) (Wheat, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in determining DPHHS made reasonable efforts to provide reunification services; and (2) whether the district court abused its discretion when it terminated CS’s parental rights.

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

Affirmed

Facts: JO was born in 2007 to CS, his mother. JO was removed from CS’s care twice as a result of CS’s criminal conduct before CS’s parental rights were eventually terminated on Jan. 20, 2015. She appeals the termination.

CS was serving a suspended sentence in 2010 for bad checks when she was discovered in possession of drug paraphernalia, and tested positive for several drugs.…

In re the Parenting of SEL

In re the Parenting of SEL, 2015 MT 228 (Aug. 11, 2015) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by holding the child’s best interests would be served by allowing her to relocate to Nevada with her mother; (2) whether the district court erred by limiting Father’s visitations while SEL lives in Nevada; and (3) whether the district court erred by denying Father’s motion for relief from the judgment.

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

Affirmed

Facts: Shad Lemke and Siri Aanrud have a daughter, SEL, born in 2008. The parties never married, and their relationship ended by 2010. When SEL was four months old, the parties moved to Shields Valley, Montana, where Mother primarily stayed home to care for SEL.…

State v. Maloney

State v. Maloney, 2015 MT 227 (Aug. 5, 2015) (Wheat, J.; Rice, J. concurring) (4-0, aff’d)

Issue: (1) Whether Maloney’s right to a speedy trial was violated as a result of excessive pretrial delays caused by the state; and (2) whether Maloney’s right to due process was violated as a result of excessive post-trial, pre-sentencing delays caused by the state.

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

Affirmed

Facts: Maloney was arrested April 2, 2013, following an incident at his house in Butte, as a result of which he was charged with five counts of felony criminal endangerment and two counts of felony assault on a peace officer. An information was filed May 1, 2013, and trial was scheduled for Oct.…