Archive | January, 2016

In the Matter of the Adoption of AMS, MAS, and AWS

In the Matter of the Adoption of AMS, MAS, and AWS, 2016 MT 22 (Jan. 26, 2016) (Baker, J.) (7-0, rev’d)

Issue: (1) Whether Father was properly served by publication, and (2) whether the district court erred by granting the petition for adoption and termination.

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

Reversed and remanded

Facts: Father and Mother are the biological parents of three minor children. Grandfather is the children’s maternal grandfather. Father and Mother married in 2005 and divorced in 2013. Mother and Grandfather live in Billings, and Father lives in Los Angeles.…

State v. Hancock

State v. Hancock, 2016 MT 21 (Jan. 26, 2016) (McGrath, C.J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by denying Hancock’s motion to dismiss a DUI conviction based on his claim that his 1999 DUI conviction, used to support the felony charge, was constitutionally infirm, and (2) whether the district court erred by stating Hancock was convicted of a DUI rather than a DUI per se.

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

Affirmed and remanded for correction of the judgment

Facts: The state charged Hancock with a fourth DUI offense, a felony, based on his having been convicted of one DUI in 1999 and two DUIs in 2004. Hancock moved to dismiss the 1999 conviction, alleging his constitutional right to counsel had been violated in that proceeding.…

Interstate Explorations, LLC v. Morgen Farm & Ranch, Inc.

Interstate Explorations, LLC v. Morgen Farm & Ranch, Inc., 2016 MT 20 (Jan. 26, 2016) (Rice, J.) (5-0, aff’d)

Issue: Whether the district court erred in denying Interstate’s motion to dismiss Morgen’s counterclaims for lack of subject matter jurisdiction because Morgen did not exhaust its statutory remedies.

Short Answer: No.

Affirmed

Facts: Morgen owns the surface rights of property to which it leased the oil and gas rights to Montana Oil Properties, Inc., which assigned its lease interest to Interstate. Interstate drilled and completed a well on the Morgen property.…

State v. McAlister

State v. McAlister, 2016 MT 14 (Jan. 19, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by denying McAlister’s motions to dismiss, and (2) whether McAlister’s trial counsel provided ineffective assistance by failing to call any expert witnesses.

Short Answer: (1) No, and (2) this issue is more properly brought in a petition for postconviction relief.

Affirmed

Facts: McAlister was charged with sexual intercourse without consent after four-year-old AH told her grandmother stories that suggested possible sexual abuse. At trial, AH testified. The state called several experts, and McAlister called none.…

Cleveland v. Ward

Cleveland v. Ward, 2016 MT 10 (Jan. 12, 2016) (Shea, J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court improperly excluded trial testimony of Cleveland’s treating physician; (2) whether the district court improperly excluded trial testimony of Cleveland’s physical therapist; (3) whether the district court erred in granting a directed verdict on Cleveland’s claim that her rotator cuff tear and shoulder arthritis were caused by the collision; and (4) whether the district court erred in concluding that Cleveland could not recover damages incurred by Shelby House.

Short Answer: (1) No; (2) no; (3) no; and (4) no.

Affirmed

State v. Deshazer

State v. Deshazer, 2016 MT 8 (Jan. 12, 2016) (Shea, J.) (5-0, aff’d)

Issue: Whether the district court erred in denying Deshazer’s motion to dismiss for improper venue.

Short Answer: No.

Affirmed

Facts: The state charged Deshazer with felony theft by common scheme in December 2013 for double-cashing seven paychecks issued to Deshazer. Deshazer deposited the checks from a Ravalli County employment agency, SS Staffing, to one bank via a mobile banking application on his phone, and then submitted them to a different bank for deposit thereafter. SS Staffing reported the double-cashing to Hamilton police.…

Rose v. Rose

Rose v. Rose, 2016 MT 7 (Jan. 12, 2016) (Baker, J.) (7-0, aff’d)

Issue: Whether the district court erred in allocating delinquent tax liability equally between the parties after taxing authorities determined one party was an “innocent spouse.”

Short Answer: No.

Affirmed

Facts: Sherri and Michael married in 1994 and have three children. They lived in Billings for most of their marriage, separating in late 2012. Sherri petitioned for dissolution in March 2013, and the district court held a bench trial in April 2014.…

Westchester Surplus Lines Insurance Co. v. Keller Transport, Inc.

Westchester Surplus Lines Insurance Co. v. Keller Transport, Inc., 2016 MT 6 (Jan. 12, 2016) (Rice, J.; McKinnon, J., dissenting) (6-1, aff’d & rev’d)

Issue: (1) Whether the district court erred in determining Westchester’s excess policy provided an additional $4 million in coverage under the “general aggregate” limit; and (2) whether the district court erred in holding Westchester breached its duty to defend.

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

Affirmed and reversed

In the Matter of CWE and CME

In the Matter of CWE and CME, 2016 MT 2 (Jan. 5, 2016) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding that the conduct or condition that made Mother unfit to parent was unlikely to change in a reasonable time; (2) whether the district court improperly relied on the statutory presumption in § 41-3-604(1), MCA, to conclude that termination of Mother’s parental interests was in her children’s best interests; and (3) whether Mother received ineffective assistance of counsel.

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

Affirmed

Facts: DPHHS removed CWE, age 7, and CME, age 5, from Mother’s care after 17 referrals over a period of three years alleging abuse or neglect.  CWE currently lives with his father in Livingston, and CMW lives with his father in Oklahoma.…

State v. Stewart

State v. Stewart, 2016 MT 1 (Jan. 5, 2016) (Baker, J.) (5-0, aff’d)

Issue: Whether the district court erred when it denied Stewart’s request to instruct the jury on misdemeanor assault as a lesser-included offense of attempted deliberate homicide.

Short Answer: No.

Affirmed

Facts: After a traffic stop for speeding, Stewart took off and was pursued by officers from the Highway Patrol, the Cascade County Sheriff’s Department, and the Judith Basin County Sheriff’s Department. He threw several pipe bombs out the window toward the pursuers. Eventually, his tires shredded from a spike strip, he got out of the car with a handgun and ran until he was apprehended. No one fired any shots. Stewart told the officers he did not mean to hurt anyone.…