Archive | December, 2015

Kulko v. Davail, Inc.

Kulko v. Davail, Inc., 2015 MT 340 (Dec. 8, 2015) (Cotter, J.) (7-0, rev’d)

Issue: (1) Whether the district court erred in concluding that corporate dissolution is an exclusive remedy under § 35-1-939, MCA; and (2) whether the district court erred in dismissing Kulko’s claims for lack of subject matter jurisdiction on the basis that the corporate dissolution eliminated any case or controversy.

Short Answer(1) Yes; and (2) yes.

Reversed and remanded

Facts: Alex and Sharon Horn incorporated Davail, Inc. in Montana in 1982 for estate planning purposes. Their children – David Kulko, Ilsa Kaye, and Michael Horn – are Davail’s sole shareholders, officers, and directors. Kulko owns 46% of the shares and is a director and vice-president; Kaye owns 46% and is a director and president; and Horn owns the remaining 8%.…

Teton Co-Op Canal Co. v. Teton Coop Reservoir Co.

Teton Co-Op Canal Co. v. Teton Coop Reservoir Co., 2015 MT 344 (Dec. 15, 2015) (Baker, J.) (5-0, rev’d)

Issue: Whether the Water Court erred in determining that off-stream water storage in the Eureka Reservoir was included as part of the Teton Canal’s April 18, 1890 Notice of Appropriation.

Short Answer: Yes.

Reversed and remanded

Facts: Teton Canal was formed in 1903 for the purpose of appropriating, transporting, storing and using water for irrigation in Teton County. It claims its priority date for the Eureka Reservoir under an April 18, 1890 Notice of Appropriation. In that notice, Teton Canal’s predecessors claimed 3,000 inches of Teton River water for the purpose of gathering water in a reservoir and using it to irrigate adjacent lands.…

Chyatte v. State

Chyatte v. State, 2015 MT 343 (Dec. 15, 2015) (Rice, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in holding that Chyatte’s trial-related claims were procedurally barred; (2) whether the district court erred by denying Chyatte’s ineffective assistance of counsel claims.

Short Answer: (1) No, and (2) no except for one claim, for which the record is insufficient.

Affirmed and reversed and remanded on one issue

Facts: In September 2011, Chyatte was charged with felony assault with a weapon for a stabbing in Missoula. More than a month before the omnibus hearing, the state filed of its intent to seek increased punishment under the persistent felony offender statute. Trial was set for August 15, 2012. On June 14, 2012, Chyatte’s counsel filed a motion to dismiss the information on the basis of no probable case, as the victim identified another person as the assailant at a photographic lineup.…

In the Matter of JB

In the Matter of JB, 2015 MT 342 (Dec. 15, 2015) (McKinnon, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in dismissing NL, and (2) whether the district court erred in denying NL’s request to appear at JB’s proceeding pursuant to § 41-3-422(9)(a), MCA.

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

Affirmed and reversed

Facts: NL and MH lived together for about seven years and have two biological children together, ages 6 and 8. MH is also the biological mother of JB, age 10. JB has no relationship with his biological father, who has not appeared in this case. NL acted as JB’s father and raised him from eight months old until June 2012, when JB and the other two children were removed from their home by DPHHS.…

State v. Robertson

State v. Robertson, 2015 MT 341 (Dec. 8, 2015) (Cotter, J.) (5-0, rev’d)

Issue: Whether the district court erred in dismissing the aggravated assault charge against Robertson based on the state’s failure to issue a fitness-to-proceed report within 90 days of Robertson’s commitment.

Short Answer: Yes, because Robertson waived the timeliness argument.

Reversed and remanded

Facts: Ross Robertson has been in and out of the state hospital at least seven times since 2004. Robertson attempted to rob a convenience store using a weapon in 2005. After a competency evaluation, he pled guilty but mentally ill and was sentenced to DPHHS’s custody for 15 years with 5 suspended.

In January 2012, Robertson violently attacked and seriously injured a nurse at MSH.…

Matter of BD

Matter of BD, 2015 MT 339 (Dec. 8, 2015) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether there was sufficient evidence to support a finding that BD required an order of involuntary commitment; and (2) whether the district court erred by failing to provide a detailed statement of the facts and basis for BD’’s commitment.

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

Affirmed

Facts: BD suffered a closed head injury in 2003 that led to secondary effects. He has been diagnosed with personality change due to traumatic brain injury. In February 2014, based on reports BD was not taking his medication and was decompensating, the county attorney petitioned for BD’s commitment an fro an order of apprehension, examination and treatment, which the district court issued.…

Conservatorship of JS, KS, & RS

Conservatorship of JS, KS, & RS, 2015 MT 335 (Dec. 3, 2015) (Cotter, J.; McKinnon, J., dissenting) (4-1, aff’d)

Issue: Whether the district court abused its discretion in appointing a GAL to determine whether litigation of the minor children’s claims against their father and their father’s business from a car accident that kicked their mother is in the children’s best interests.

Short Answer: No.

Affirmed

Facts: Jennifer Soule was killed in 2012 when she and Michael were driving on the interstate, their car rolled, and both were ejected. Michael was charged with vehicular homicide while under the influence, but does not remember who was driving. The charges were eventually dropped due to police misconduct, loss or destruction of evidence, and violations of Michael’s constitutional rights.…

Reis v. Luckett

Reis v. Luckett, 2015 MT 337 (Dec. 2, 2015) (Cotter, J.; McKinnon, J., dissenting) (4-1, aff’d)

Issue: Whether the district court erred in granting Reis’s motion for a new trial.

Short Answer: No.

Affirmed

Facts: Scott Reis and Austin Luckett were in a serious three-car accident in February 2010. Luckett admitted liability. Later that day, Reis claimed he began to experience neck and back pain as well as pain in his left hand little finger. Over the next several months, Reis sought treatment from a family nurse practitioner as well as a chiropractor, pain specialist, and orthopedist.

Procedural Posture & Holding: The district court held a jury trial in December 2014 and the jury found Luckett’s negligence did not cause Reis’s injuries.…

State v. Favel

State v. Favel, 2015 MT 336 (Dec. 2, 2015) (McKinnon, J.; McKinnon, J., specially concurring) (5-0, aff’d)

Issue: Whether the prosecution improperly commented on the statutory inference of intoxication under § 61-8-404(2) and asserted that Favel was responsible for establishing her innocence, thereby denying Favel her right to a fair and impartial trial.

Short Answer: No.

Affirmed

Facts: Havre police officer Sgt. Poulos stopped a car and identified Favel as the driver. Favel’s eyes were red and glassy, she was slurring her speech, and the officer smelled alcohol on her breath. Favel failed standard field sobriety tests, and refused a breath test. Eventually Poulos obtained a search warrant for Favel’s blood, which revealed a BAC of .13 percent.

The state charged Favel with felony DUI, fourth or subsequent offense.…

Matter of MP-L

Matter of MP-L, 2015 MT 338 (Dec. 2, 2015) (Wheat, J.; McKinnon, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court erred in failing to provide a detailed statement of facts supporting its finding that MP-L required commitment in its first order; (2) whether the district court’s second order was procedurally invalid; and (3) whether the district court’s two orders together provide a sufficiently detailed statement of facts.

Short Answer: (1) Yes. The state acknowledges the order does not conform to the statute; (2) no; and (3) yes.

Affirmed

Facts: In May 2014, MP-L suffered a series of events triggered by her inability to obtain her depression/anxiety medication because of issues with Medicaid. She was voluntarily admitted to a crisis facility on May 27, 2014, and determined to be at high risk of suicide.…