Archive | August, 2015

Hall v. Hall

Hall v. Hall, 2015 MT 226 (Aug. 4, 2015) (McKinnon, J.; Rice. J., dissenting) (4-1, rev’d)

Issue: (1) Whether this Court will grant an out-of-time appeal; and (2) whether the district court erred in granting a default judgment against Don Hall.

Short Answer: (1) Yes, to avoid a gross miscarriage of justice, and (2) yes.

Reversed

Facts: Gregory Hall hired Don Hall (not related) to inspect a home Gregory purchased in 2006. This case arises from a dispute over that inspection.

Gregory filed suit against Don, the home seller John Heinlein, real estate broker Donna Hall (Don’s wife), and real estate broker Debra Cernick. Gregory alleges the defendants failed to disclose material effects in the property.

Gregory filed his complaint on March 5, 2007, and requested substitution of the judge.…

DCK Worldwide Holdings, Inc. v. CHSP Acquisition, LLC

DCK Worldwide Holdings, Inc. v. CHSP Acquisition, LLC, 2015 MT 225 (Aug. 4, 2015) (Rice, J.) (4-0, rev’d)

Issue: (1) Whether the district court erred in concluding the unpaid portion of the contractor’s fee was lienable as a matter of law, and (2) whether the district court erred in concluding the unpaid portion of the subcontractor’s fee was lienable as a matter of law.

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

Reversed and remanded

Facts: In 2007, Dick Construction Company, predecessor in interest to Worldwide, entered into a cost-plus contract with Spanish Peaks Lodge, LLC, to act as the general contractor for the Spanish Peaks Lodge Resort. Spanish Peaks was to pay Dick actual construction costs plus 5% of the total cost, and 5% on self-performed work, with a cap of $130,483,926 for the total price, yielding a contractor’s fee of $6,915,195.…

McClue v. Safeco Insurance Co.

McClue v. Safeco Insurance Co., 2015 MT 222 (Aug. 4, 2015) (Baker, J.) (7-0, aff’d & rev’d)

Issue: (1) Whether the district court improperly excluded causation testimony from Dr. Sabow; and (2) whether the district court properly excluded causation testimony from Dr. Jimmeh-Fletcher.

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

Affirmed and reversed, and remanded for further proceedings

Facts: Carol McClue was involved in a serious accident in January 2009. In 2011, Dr. Sherry Reid and Dr. Decontee Jimmeh-Fletcher diagnosed Carol with bulbar ALS, of which Carol died in 2013.

At the time of the accident, Carol had Underinsured Motorists Coverage through Safeco. After her diagnosis in 2011, she submitted claims to Safeco for damages associated with the ALS.…

State v. Johnson

State v. Johnson, 2015 MT 221 (Aug. 4, 2015) (Shea, J.; Rice, J., concurring) (5-0, aff’d)

Issue: Whether Johnson was entitled to have the district court consider her affidavit but refuse to testify as to its contents.

Short Answer: No.

Affirmed

Facts: In November 2012, the state charged Johnson with DUI and criminal endangerment. In its motion for leave to file an information, the state asserted Johnson had three prior convictions – DUI in 2003 in Park County, DUI per se in April 2009 in Carbon County, and DUI in February 2010 in Carbon County. As a result, the state charged her with a fourth-offense felony and a felony charge of criminal endangerment, and later added a charge of DUI per se.…

Commissioner of Political Practices v. Bannan

Commissioner of Political Practices v. Bannan, 2015 MT 220 (Aug. 4, 2015) (Cotter, J.) (7-0, appeal dismissed)

Issue: Whether the Lewis & Clark County District Court had subject matter jurisdiction over the commissioner’s enforcement action against Bannan.

Short Answer: Yes, the district court had subject matter jurisdiction. The real issue on appeal is an issue of statutory interpretation, and this appeal is premature.

Appeal dismissed

Facts: Terry Bannan was an unsuccessful candidate for the Montana Legislature in the 2010 primary. Commissioner Motl issued a decision in January 2014, concluding there was sufficient evidence to demonstrate Bannan had violated various campaign practices and finance law warranting civil adjudication.

The commissioner forwarded his decision to the Lewis and Clark county attorney for consideration of pursuing an action against Bannan.…