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Zirkelbach Construction, Inc. v. DOWL, LLC

Zirkelbach Construction, Inc. v. DOWL, LLC, 2017 MT 238 (Sept. 26, 2017) (Wheat, J.) (7-0, aff’d)

Issue: Whether the district court erred in granting DOWL’s motion for partial summary judgment.

Short Answer: No.

Affirmed

Facts: SunCap owns real property in Billings on which a FedEx Ground facility was to be built. SunCap hired Zirkelbach, a company with extensive experience building FedEx facilities, as the general contractor. Zirkelbach hired DOWL, an experienced design company, to design the facility.

Zirkelbach and DOWL entered into an agreement under which Zirkelbach would pay DOWL $122,967 for services. The parties later added addenda to the agreement, which raised the final fee to DOWL to $655,000. The agreement included a provision under which both parties waived an special, incidental or consequential damages, and agreed that DOWL’s liability to Zirkelbach would be limited to $50,000.…

Bitterrooters for Planning, Inc. v. Mont. Dept. of Envtl. Quality

Bitterrooters for Planning, Inc. v. Mont. Dept. of Envtl. Quality, 2017 MT 222 (Sept. 5, 2017) (Sandefur, J.) (7-0, aff’d & rev’d)

Issue: (1) Whether MEPA requires DEQ to consider non-water-quality-related environmental impacts of the construction and operation of a retail store as secondary impacts of a groundwater discharge permit for an onsite wastewater treatment system; and (2) whether MEPA requires DEQ to identify the actual owner or operator of a wastewater treatment facility prior to issuing a groundwater discharge permit.

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

Affirmed and reversed

Facts: In April 2014, DEQ received an application for a Montana groundwater pollution control system permit to discharge wastewater into groundwater on the site of a contemplated commercial development near Hamilton.…

Deschner v. State, Dept. of Highways

Deschner v. State, Dept. of Highways, 2017 MT 37 (Feb. 28, 2017) (Shea, J.) (7-0, aff’d)

Issue: Whether the district court properly instructed the jury on inverse condemnation.

Short Answer: Yes.

Affirmed

Facts: On October 9, 2010, a sandstone slab fell from the Rims that weighed roughly two million pounds and measured approximately sixty feet long, thirty feet wide, and eight feet deep. It fell on Deschner and Lodge’s home and rendered it uninhabitable.

At trial, Deschner and Lodge contended that the State’s construction and placement of Highway 3 and Culvert 239 caused an unnatural increase in the amount of water that ran off the highway onto the rockfall site, ultimately causing the slab to fall onto their home. Deschner and Lodge called two experts who concluded that Culvert 239 increased the amount of water at the fall site, causing the slab to fall.…

Great Falls Clinic v. Mont. Eighth Jud. Dist. Court

Great Falls Clinic v. Mont. Eighth Jud. Dist. Court, 2016 MT 245 (Oct. 4, 2016) (McGrath, C.J.) (7-0, petition granted, aff’d)

Issue: Whether the Wrongful Discharge from Employment Act (WDEA) applies to the parties’ relationship.

Short Answer: No.

Affirmed

Facts: Lisa Warrington was offered a job at Great Falls Clinic on October 7, 2014, while she was employed by Benefis Hospital. Warrington accepted the offer and gave two weeks’ notice to Benefis. Warrington signed a written employment contract on October 10, with both parties agreeing her employment would begin October 27, 2014. On October 24, Warrington’s last day at Benefis, the clinic called and told Warrington it would not employ her after all.

Warrington sued the clinic for breach of contract, promissory estoppel and bad faith.…

Wreszien v. State

Wreszien v. State, 2016 MT 242 (Sept. 28, 2016) (Shea, J.) (7-0, aff’d)

Issue: (1) Whether the district court correctly concluded that the participants of three public employee retirement plans were not similarly situated; and (2) whether the district court correctly concluded that employer contributions to the DB Trust do not violate substantive due process.

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

Affirmed

Facts: Plaintiffs are state university employees, and must participate in one of three Montana Public Employee Retirement System (PERS) plans: the DB plan, the DC plan, or the University plan. All covered employees participate in the DB plan unless, within one year of hire, they choose to join the DC plan or, if applicable, the University plan.…

Montana Immigrant Justice Alliance v. Bullock

Montana Immigrant Justice Alliance v. Bullock, 2016 MT 104 (May 10, 2016) (Cotter, J.; Baker, J., concurring) (7-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in holding that MIJA has standing to challenge LR 121; (2) whether the district court erred in concluding that LR 121 is preempted by federal law; and (3) whether the district court erred in awarding attorney’s fees to MIJA.

Short Answer: (1) No; (2) no, except for its holding that one section of the law was not preempted; and (3) yes.

Affirmed in part and reversed in part

Facts: During the 2011 legislative session, the Montana Legislature passed House Bill 638, denying certain state-funded services to “illegal aliens,” and submitted the act to Montana voters as a legislative referendum.…

In the Matter of KB

In the Matter of KB, 2016 MT 73 (March 29, 2016) (McKinnon, J.) (7-0, aff’d)

Issue: (1) Whether the district court lacked subject matter jurisdiction over KB’s abuse and neglect proceeding, and (2) whether Father received ineffective assistance of counsel.

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

Affirmed

Facts: KB was removed from her mother’s care in November 2012, at the age of 5, due to concerns about Mother’s inability to protect KB from domestic violence. KB was placed in kinship foster care with her aunt and uncle, where she has remained. Her younger sister, TH, also lives with aunt and uncle.

KB was adjudicated a youth in need of care in 2013, and the Department drafted a treatment plan for Father.…

State v. Awbery

State v. Awbery, 2016 MT 48 (March 1, 2016) (McGrath, C.J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court properly excluded evidence that some of the victims had suffered prior sexual abuse by others; (2) whether Awbery is entitled to a new trial based on prosecutorial misconduct; and (3) whether Awbery is entitled to a new trial based on the cumulative effect of several alleged errors.

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

Affirmed

Facts: The state charged Awbery with two counts of incest against his daughter, AA, when she was 12 or younger; sexual assault and sexual intercourse without consent against AA’s half-sister, JG, when she was 16 or younger; sexual intercourse without consent again IA when she was 12 or younger; and sexual assault against NH when she was 16 or younger.…

State v. Colburn

State v. Colburn, 2016 MT 41 (Feb. 23, 2016) (McGrath, C.J.; McKinnon, J., concurring) (7-0, rev’d & remanded)

Issue: (1) Whether the district court erred in disqualifying Colburn’s expert witness from testifying at trial; and (2) whether the district court erred in its application of the Rape Shield law to exclude evidence Colburn offered at trial.

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

Reversed and remanded for a new trial

Facts: The state charged Colburn with two counts of incest involving his daughter, CC, one count of sexual intercourse without consent and two counts of sexual assault involving a neighbor girl, RW, all felonies. Both girls were 11 years old at the time of the offenses. RW testified at trial that Colburn touched her private parts manually and with his penis.…

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.…