Archive | McKinnon, J. (dissenting)

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Talbot v. WMK-Davis, LLC

Talbot v. WMK-Davis, LLC, 2016 MT 247 (Oct. 4, 2016) (Cotter, J.; McKinnon, J., dissenting) (6-1, aff’d)

Issue: (1) Whether the district court erred in determining that Montana courts will not conduct a choice of law analysis when determining the validity of a workers’ compensation subrogation lien under Oberson v. Federated Mutual Insur. Co.; and (2) whether the district court erred in grating summary judgment to Talbot.

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

Affirmed

State v. Colburn

State v. Colburn, 2016 MT 246 (Oct. 4, 2016) (Rice, J.; McKinnon, J., dissenting) (5-2, aff’d)

Issue: Whether sufficient evidence supported Colburn’s convictions of attempted sexual abuse of children.

Short Answer: Yes.

Affirmed

Facts: Colburn was a houseguest of his supervisor at the youth center/video store where he volunteered, staying in her converted garage. His supervisor noticed that someone had entered the term “preteen pussy” into a search engine on the video store computer. She texted Colburn to ask if she could use his person computer in the converted garage. He consented, and she found similar terms on that computer. She reported her findings to the police chief, who obtained and executed a search warrant of the garage, removing Colburn’s computer.…

Brunette v. State

Brunette v. State, 2016 MT 128 (May 31, 2016) (Baker, J.; McKinnon, J., dissenting) (5-2, aff’d)

Issue: Whether the district court erred in denying Brunette’s petition to reinstate his driver’s license. 

Short Answer: No.

Affirmed

Facts: In April 2015, Officer Brotnov was on patrol in Cut Bank. Police department dispatch received a call form an unknown officer to run a license plat check on Burnette’s vehicle, parked on Central Avenue. Sometime later, Officer Brotnov drove past Brunett’e vehicle, at which point Brotnov turned around and drove in the opposite direction. Brotnov and another officer continued to patrol the area, discussing Brunette’s whereabouts. After observing Brunette pull over and change directions twice, officer Brotnov began to follow Brunette, saw him make a right-hand turn without using his turn signal, and initiated a traffic stop.…

Keuffer v. O.F. Mossberg & Sons, Inc.

Keuffer v. O.F. Mossberg & Sons, Inc., 2016 MT 127 (May 31, 2016) (Wheat, J.; Baker, J., dissenting; McKinnon, J., dissenting) (4-3, aff’d)

Issue: Whether the district court abused its discretion in disqualifying Mossberg’s out-of-state and local counsel for violation of Rule 1.20 of the Montana Rules of Professional Conduct.

Short Answer: No.

Affirmed

Facts: Luke and Stephanie Keuffer were hunting in Montana in October 2008. Stephanie was using a .308 Mossberg model 800 rifle. The Keuffers allege that the Mossberg rifle fell and struck Luke’s rifle, which discharged and shot Luke in the face, causing serious and permanent injury.

In August 2010, Luke called Tarlow & Stonecipher, PLLC and spoke to attorney Margaret Weamer regarding a possible claim against a gun manufacturer for injuries sustained in a hunting accident.…

Tyrrell v. BNSF Railway Co.

Tyrrell v. BNSF Railway Co., 2016 MT 126 (May 31, 2016) (Shea, J.; McKinnon, J., dissenting) (6-1, aff’d & rev’d) (consolidated appeals)

Issue: (1) Whether Montana courts have personal jurisdiction over BNSF under FELA, and (2) whether Montana courts have personal jurisdiction over BNSF under Montana law.

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

Affirmed (denial of BNSF’s motion to dismiss) and reversed (granting BNSF’s motion to dismiss)

Facts: In March 2011, Nelson, a North Dakota resident, sued BNSF in Montana to recover damages for injuries sustained in his employment with BNSF. BNSF is a Delaware corporation with its principal place of business in Texas. Nelson does not allege that he ever worked in Montana or was injured in Montana.…

Draggin’ Y Cattle Company, Inc. v. Addink

Draggin’ Y Cattle Company, Inc. v. Addink, 2016 MT 98 (May 3, 2016) (Baker, J.; Rice, J., concurring; McKinnon, J., concurring & dissenting; McGrath, C.J. & Wheat, J., recused themselves) (5-0, appeal dismissed)

Issue: Whether New York Marine timely raised its disqualification claim, and if so, whether the claim should be considered on the merits given that the judge did not disclose circumstances that could cause the judge’s impartiality to be reasonably questioned.

Short Answer: Under these circumstances, the claim is not waived. The Court holds Judge Huss had a duty to disclose but declines to determine whether Judge Huss should have been disqualified for cause. It remands for determination of the disqualification issue by a district judge it will assign.…

Curry v. Pondera County Canal & Reservoir Co.

Curry v. Pondera County Canal & Reservoir Co., 2016 MT 77 (March 29, 2016) (Wheat, J.; Baker, J. concurring; McKinnon, J., dissenting) (6-1, aff’d & rev’d)

Issue: (1) Whether the water court erred in holding that the water rights of an entity developed under the Carey Land Act for the purpose of sale or rental are not limited by the stockholders’ actual historic water use; (2) whether the water court erred in granting Pondera a “service area” rather than a place of use based on historically irrigated land; (3) whether the water court erred by ruling Pondera’s storage rights were beneficially used on the Birch Creek Flats before 1973; (4) whether the water court improperly increased the flow rate for the Gray right and improperly reversed the water master’s dismissal of a claim it found was duplicative; and (5) whether the water court’s tabulation for the Curry claim and the Pondera claim without volume measurements was an abuse of discretion.…

In the Matter of SGR

In the Matter of SGR, 2016 MT 70 (March 22, 2016) (Baker, J.; McKinnon, dissenting) (5-2, aff’d)

Issue: Whether the district court’s order met the statutory requirements for extending commitments under §§ 53-21-127 and -128, MCA.

Short Answer: Yes.

Affirmed

Facts: SGR is 76 years old, with a long history of severe alcoholism, mental health issues and multiple periods of institutionalization. He is in a wheelchair. Before his initial commitment in 2014, SGR had a pattern of receiving his social security check on the first of the month, staying at a hotel, and drinking until his money ran out. He would then check in to the Community Crisis Center in Billings for the rest of the month. At the Community Crisis Center in 2014, he suffered a seizure as a result of alcohol withdrawal and was hospitalized.…

Wicklund v. Sundheim

Wicklund v. Sundheim, 2016 MT 62 (March 9, 2016) (Baker, J.; McKinnon, J., dissenting) (4-1, rev’d)

Issue: (1) Whether the district court properly admitted the testimony of an English professor interpreting the language of the warranty deed’s royalty interest reservation; (2) whether the district court erred by resolving the ambiguity in the 1953 warrant deed in favor of Sundheims; and (3) whether the district court improperly applied the doctrine of laches to deny Teisingers’ claim to the 3/5 royalty interest.

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

Reversed and remanded for entry of judgment in Teisingers’ favor

Facts: In 1953, Teisingers conveyed several sections of real property to Sundheims by warranty deed, and included language reserving “three-fifths (3/5ths) of Land owners [sic] oil, gas and mineral royalties and three-fifths (3/5ths) of any and all delay rentals on present and existing oil and gas leases now of record against the lands herein described,” subject to “such oil and gas leases” and any assignments of record.…

Volk v. Goeser

Volk v. Goeser, 2016 MT 61 (March 8, 2016) (Wheat, J.; Rice, J., concurring; Shea, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: Whether the district court properly granted summary judgment to Valerie and denied the imposition of a constructive trust on life insurance proceeds in favor of RBV, a minor child.

Short Answer: No.

Summary judgment reversed, remanded to fashion constructive trust

Facts: Roy and Pamela Volk married in April 1996, and had a son, RBV, in 2000. In June 2010, Roy filed for divorce and the district court issued the statutorily mandated summons and TRO. The dissolution decree was entered in December 2011.

Roy and Pamela entered into a marital settlement agreement (MSA) the day before the final decree of dissolution.…