Archive | September, 2015

Marriage of Kostelnik

Marriage of Kostelnik, 2015 MT 283 (Sept. 29, 2015) (Baker, J.) (5-0, aff’d)

Issue: Whether the standing master equitably distributed the marital estate, and properly awarded the remaining personal injury settlement proceeds to Jackie.

Short Answer: Yes.

Affirmed

Facts: Jackie and Daniel married in 1983, and have one adult child. Daniel lives in Missoula and has been unable to find work in his chosen field. Jackie was born with cerebral palsy, has a learning disability, and suffers from an incurable neurological condition caused by a tainted dietary supplement she took in the late 1980s. Jackie and Daniel sued the supplement manufacturer in 1992, and agreed to a structured settlement of $500,000 in 1995. Part of the settlement was awarded to Jackie solely, and part was disbursed as an annuity, with payouts extending until 2040.…

Estate of Schreiber

Estate of Schreiber, 2015 MT 282 (Sept. 29, 2015) (Cotter, J.; Rice, J., concurring) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in concluding the devise of the lots and the certificates of deposit had not been adeemed and the named beneficiaries were entitled to a distribution equal to the value of the lots and the CDs; and (2) whether the district court erred in rejecting the PR’s final accounting.

Short Answer: (1) The devise of the lots was not adeemed but the devise of the CDs was; and (2) no.

Affirmed in part, reversed in part, and remanded for entry of an amended order

Facts: August Schreiber died testate in September 2013. His grandson, John Watkins, was named PR.…

Gateway Village v. DEQ

Gateway Village v. DEQ, 2015 MT 285 (Sept. 29, 2015) (McGrath, C.J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in its ruling on Gateway Village’s trespass claim and in declining to address the district’s claim that it holds a prescriptive easement under Gateway Village’s land; and (2) whether the district court abused its discretion in denying Gateway Village’s claim for attorneys’ fees.

Short Answer: (1) Neither of these issues are ripe for adjudication in light of the district court’s remand to DEQ for preparation of an EIS; and (2) no.

Vacated (1), affirmed (2), and remanded

Facts: Montana DEQ granted Gallatin Gateway County Water & Sewer District a wastewater discharge permit allowing the District to discharge up to 50,000 gallons of treated domestic wastewater each day into an underground mixing zone underneath land owned by Gateway Village.…

Garza v. Forquest Ventures, Inc.

Garza v. Forquest Ventures, Inc., 2015 MT 284 (Sept. 29, 2015) (Baker, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court correctly determined that Plaintiffs-Investors timely asserted their claims under the Montana Securities Act; (2) whether the district court correctly determined that the non-Garza Investors’ claims relate back to the original complaint’s filing date; (3) whether the district court correctly determined there were no genuine issues of material fact regarding Forquest’s failure to use reasonable care in its sale of securities; and (4) whether the district court correctly held that Advanced Analytical could not “unintentionally” waive its right to raise personal jurisdiction by filing an empty 12(b)(6) motion.

Short Answer: (1) Yes; (2) yes; (3) yes; and (4) no.…

State v. Thompson

State v. Thompson, 2015 MT 279 (Sept. 18, 2015) (McKinnon, J.; Wheat, J., dissenting) (4-1, aff’d)

Issue: Whether the justice court had good cause to conduct Thompson’s trial after the six-month deadline provided by statute.

Short Answer: Yes.

Affirmed

Facts: The state charged Thompson with DUI on Oct. 11, 2011, and that same day he pled not guilty in justice court. He appeared with counsel at the omnibus hearing Dec. 27, 2011, and requested a jury trial. The justice court set trial for March 22, 2012, with a pretrial conference March 16, 2012. The notice stated the defendant was required to personally attend the pretrial conference, and if he failed to do so he would be deemed to have waived his right to a jury trial, and jus trial date would be vacated and reset for a bench trial at the next available time.…

In re Poplar Elem. v. Froid Elem.

In re Poplar Elem. v. Froid Elem., 2015 MT 278 (Sept. 17, 2015) (Rice. J.; Shea, J., dissenting) (4-1, rev’d)

Issue: Whether the district court erred in holding the county superintendent abused his discretion by receiving unsworn statements as evidence in the territory transfer hearing.

Short Answer: Yes.

Reversed and remanded

Facts: In March 2013, Froid’s board of trustees and a group of Roosevelt County electors petitioned the Roosevelt County school superintendent to transfer territory from the Poplar school district to the Froid school district. Poplar opposed the transfer. By statute, the county superintendent was required to hold a hearing on the petition. She appointed Paul Huber to act as deputy superintendent to hold the hearing and decide the petition.…

Swapinski v. Lincoln County

Swapinski v. Lincoln County, 2015 MT 275 (Sept. 15, 2015) (Wheat, J.; Rice, J. concurring) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred by issuing an order prepared by the county’s attorneys; (2) whether the district court abused its discretion by considering rates charged by Kalispell attorneys in deciding whether the county’s attorney fees were reasonable; and (3) whether the district court abused its discretion in awarding supplemental attorney fees to the county.

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

Affirmed as to reasonableness of fees and reversed on fees-for-fees

Facts: Swapinski filed a complaint against Lincoln County and several commissioners in 2014, alleging certain errors in the resignations and appointments of Lincoln County Commissioners. The district court granted summary judgment to the county in September 2014.…

O’Connor v. George

O’Connor v. George, 2015 MT 274 (Sept. 15, 2015) (Cotter, J.; Baker, J., dissenting) (4-1, rev’d)

Issue: Whether the district court manifestly abused its discretion in denying O’Connor’s motion for a new trial based on defense counsel’s failure to disclose that some of George’s photographic evidence depicted damage from another accident.

Short Answer: Yes.

Reversed and remanded for new trial

Facts: In September 0211, O’Connor was rear-ended by George while stopped at a railroad crossing in Helena. Both vehicles sustained minor damage; the property damage claim was resolved. O’Connor claimed she was injured in the accident. George admitted liability but disputed the extent of O’Connor’s injuries.

O’Connor sued George in May 2013. State Farm, George’s insurer, investigated and provided O’Connor with its investigative materials.…

State v. Given

State v. Given, 2015 MT 273 (Sept. 15, 2015) (McGrath, C.J.) (7-0, aff’d)

Issue: (1) Whether the district court abused its discretion in permitting AU to testify about prior sexual abuse by Given; (2) whether the district court abused its discretion when it limited the defense examination of witnesses regarding specific instances of conduct; and (3) whether the district court abused its discretion in admitting testimony from the state’s expert, Wendy Dutton.

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

Affirmed

Facts: In April 2011, Detective Kevin Cunningham responded to a report of sexual abuse of KF, a 10-year-old boy. Cunningham interviewed KF, who disclosed three incidents in which his neighbor, Given, had touched him inappropriately over the past year.…

Fitterer v. Mullin

Fitterer v. Mullin, 2015 MT 272 (Sept. 15, 2015) (Shea, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether there was a valid contract between A&C and Fitterer for the sale of fertilizer and chemicals; (2) whether Fitterer is entitled to prejudgment interest; and (3) whether Clint is personally liable for money owed under A&C’s contract with Fitterer.

Short Answer: (1) Yes, as a UCC contracts for goods; (2) yes; and (3) no.

Affirmed on issues 1 & 2, reversed on issue 3, & remanded for entry of an amended judgment

Facts: Fitterer is a North Dakota corporation licensed to do business in Montana. A&C is a Montana corporation, and Clint is the president and sole shareholder. In May 2007, A&C bought fertilizer and chemical from Fitterer on account.…