Archive | Motion to dismiss

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State v. Allen

State v. Allen, 2016 MT 185 (Aug. 2, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court by denying Allen’s motion to dismiss multiple charges of violating an order of protection pursuant to § 46-11-410(2); and (2) whether the district court by denying Allen’s motion to dismiss multiple charges of violating an order of protection on double jeopardy grounds.

Short Answer: (1) No, and (2) this issue was not preserved for appeal.

Affirmed

Facts: Allen sent 35 messages to his ex-girlfriend, BD, in a two-hour period on day in September 2014. BD had an order of protection against Allen, and alerted the police to the messages.…

Hanson v. State

Hanson v. State, 2016 MT 152 (June 21, 2016) (McKinnon, J.) (5-0, aff’d)

Issue: Whether the district court abused its discretion in dismissing Hanson’s petition for postconviction relief as a sanction for failing to comply with discovery.

Short Answer:  No.

Affirmed

Facts: Hanson was convicted of sexual assault and deviate sexual conduct for offenses involving a young boy. His conviction was affirmed in 1997. He filed a petition for postconviction relief, which the district court denied for insufficiency in form. This Court affirmed in 1999. Hanson petitioned for habeas corpus, and his petition was demised as procedurally defaulted. Hanson appealed and the Ninth Circuit affirmed in 2003.…

Martinell v. Bd. of County Comm’rs of Carbon County

Martinell v. Bd. of County Comm’rs of Carbon County, 2016 MT 136 (June 7, 2016) (Rice, J.; Cotter, J., dissenting) (4-1, aff’d)

Issue: (1) Whether the district court erred by holding that the Carbon County commissioners acted arbitrarily in waiving compliance with county resolution zoning requirements; (2) whether the protest provision in the Part 1 zoning statute, § 76-2-101(5), MCA, is unconstitutional; and (3) whether the Carbon County commissioners’ reliance on the Part 1 protest provision render their decision unlawful. 

Short Answer: (1) No; (2) the Court declines to reach this issue; and (3) the Court declines to reach this issue.

Affirmed

Facts: Appellants are a group of private landowners (“Landowners”) in Carbon County who initiated a petition to establish a Part 1 zoning district pursuant to § 76-2-101, MCA.…

State v. Hislop

State v. Hislop, 2016 MT 130 (May 31, 2016) (Rice, J.) (5-0, aff’d)

Issue: Whether Hislop’s aggravated DUI conviction violates the prohibition on ex post facto laws.

Short Answer: No.

Affirmed

Facts: Hislop’s driver’s license was suspended in 2007 because she declined to submit to preliminary alcohol screening after being arrested for DUI. She was ultimately acquitted at trial.

In 2011, the Montana legislature enacted § 61-8-465, MCA, the aggravated DUI statute providing that a person commits the offense if she operates a vehicle under the influence of alcohol and refuses a breath or blood sample, and has had her license suspended within the previous 10 years for refusal to submit a breath or blood sample.

In 2013, Hislop was arrested for DUI and refused to provide a breath or blood sample.…

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.…

State v. Crawford

State v. Crawford, 2016 MT 96 (April 26, 2016) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in denying Crawford’s motion to suppress; (2) whether Crawford received ineffective assistance of counsel; (3) whether the district court improperly denied Crawford’s third discovery request; (4) whether the district court erred by denying Crawford’s post-trial motion to dismiss; and (5) whether the district court adequately addressed Crawford’s complaints about his assigned counsel.

Short Answer: (1) No; (2) no; (3) no; (4) no; and (5) yes.

Affirmed

Facts: Crawford was released on parole in December 2010 after incarceration at Montana State Prison for multiple drug-related felony convictions. As a condition of his parole, he was required to obtain written permission from his parole officer before traveling outside of Silver Bow, Beaverhead, Jefferson or Deer Lodge counties.…

Global Client Solutions, LLC v. Ossello

Global Client Solutions, LLC v. Ossello, 2016 MT 50 (March 2, 2016) (McGrath C.J.; Wheat, J., concurring; McKinnon, J., dissenting) (5-2, aff’d)

Issue: (1) Whether the district court erred in reserving to itself the determination of arbitrability; and (2) whether the district court erred in determining that the arbitration provision was unconscionable and therefore not enforceable.

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

Denial of motion to dismiss and to compel arbitration affirmed

Facts: Ossello had more than $40,000 in unsecured debt in 2012 when she received an unsolicited mailing from World Law, advertising that it could provide debt relief services. Ossello called and spoke to a sale agent. Ossello and the agent reviewed several form agreements, which Ossello electronically signed, including a Client Services Agreement with World Law and a Dedicated Account Agreement (DAA) with Global Client Solutions.…

State v. Kant

State v. Kant, 2016 MT 42 (Feb. 23, 2016) (Cotter, J., for the majority; Shea, J., dissenting) (4-1, aff’d)

Issue: Whether the district court erred in denying Kant’s motion to suppress and dismiss.

Short Answer: No.

Affirmed

Facts: Bradley Kant and his wife, Crystal, had registered caregiver’s licenses under the Montana Marijuana Act allowing them to grow and distribute marijuana in accordance with the law. Upon expiration of their licenses they did not renew them, but continued growing and distributing marijuana.…

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.…