Archive | Rice, J. (concurring)

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Kelly v. Teton Prairie, LLC

Kelly v. Teton Prairie, LLC, 2016 MT 179 (July 26, 2016) (Wheat, J.; Rice, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court correctly applied the prior appropriation doctrine; (2) whether the district court correctly found that Teton Prairie failed to establish the elements of the futile call doctrine; and (3) whether the district court erred in issuing an injunction.

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

Affirmed

Facts: Each of the Kelly appellees (“Kelly”) owns property in Choteau County, where they have farms and ranches. Teton Prairie owns property in Teton County, upstream of Kelly on the Teton River. Kelly’s water rights are primarily for stockwater, with some for domestic use. Teton Prairie’s water rights are for irrigation, and are junior to all of Kelly’s rights.…

Jacobson v. Bayview Loan Servicing, LLC

Jacobson v. Bayview Loan Servicing, LLC, 2016 MT 101 (May 4, 2016) (Wheat, J.; Rice, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court erred in holding that Bayview violated the Fair Debt Collections Practices Act; (2) whether the district court erred in holding that Bayview violated the Montana Consumer Protection Act; (3) whether the district court erred in awarding damages to the Jacobsons; and (4) whether the Jacobsons should be awarded costs and fees on appeal.

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

Affirmed

Facts: Jacobsons borrowed money and bought a home in October 2007, executing a promissory note and trust indenture for $391,400 as security. The original lender was CitiMortgage, Inc. and the “nominee” beneficiary of the trust indenture was Mortgage Electronic Registration Systems, Inc.…

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.…

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.…

Montana Cannabis Industry Assoc. v. State

Montana Cannabis Industry Assoc. v. State, 2016 MT 44 (Feb. 25, 2016) (Baker, J., for the majority; McKinnon, J., concurring & dissenting; Rice, J., concurring & dissenting; Wheat, J.,concurring & dissenting) (6-1 on 5 of 6 issues; 4-3 on the 6th issue; aff’d & rev’d) (Cotter, J., recused and replaced by District Judge Robert Olson)

Issue: (1) Whether the district court properly held unconstitutional the statutory requirement that DPHHS notify the Board of Medical Examiners of any physician who certifies more than 25 patients a year for medical marijuana; (2) whether the district court properly held unconstitutional (a) the statute’s 3-patient limit and (b) the remuneration restriction; (3) whether the district court properly applied strict scrutiny to the statutory provision prohibiting advertising by medical marijuana providers; (4) whether the district court properly held that the statutory provision prohibiting probationers from becoming registered cardholders for medical marijuana was facially constitutional; and (5) whether the district court properly held constitutional the statutory provision allowing warrantless inspections of medical marijuana providers’ business by DPHHS and law enforcement.…

In re the Marriage of Richards & Trusler

In re the Marriage of Richards & Trusler, 2015 MT 314 (Nov. 5, 2015) (Cotter, J.; Rice, J., concurring) (5-0, rev’d)

Issue: Whether the district court abused its discretion in apportioning the marital estate.

Short Answer: Yes.

Reversed and remanded for a new trial

Facts: Vanessa Richards and Ernest Trusler began their relationship in 1991, had three children between 1992-2000, and formally married in May 2008. They held themselves out as married beginning in 1992, when their oldest child, TR, was born. TR was severely disabled and required full-time care until his death in August 2014. Richards and Trusler agreed that Richards would care for TR.

Richards and Trusler lived on the Trusler Ranch until 2003. The ranch is owned by the family corporation, which was valued at $7.2 million at the time of the dissolution.…

Public Land/Water Access Assoc., Inc. v. Jones

Public Land/Water Access Assoc., Inc. v. Jones, 2015 MT 299 (Oct. 15, 2015) (Cotter, J.; Rice, J., concurring & dissenting) (4-1, aff’d & rev’d)

Issue: (1) Whether the district court erred in awarding money damages as supplemental declaratory relief; (2) whether the district court erred in failing to consider ownership of the railroad car bridge or its suitability as a bridge in violation of PLWA IV; and on cross-appeal, (3) whether the district court erred by not awarding PLWA reasonable attorney fees and costs.

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

Affirmed (1 & 2), reversed (3) and remanded for attorney fees

Facts: Roger Jones bought Boadle Ranch in 2000, a 4,900-acre ranch in Teton County. Since then, he has prohibited public use of the two main roads transecting the ranch, Boadle Road and Canal Road.…

Estate of Schreiber

Estate of Schreiber, 2015 MT 282 (Sept. 29, 2015) (Cotter, J.; Rice, J., concurring) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in concluding the devise of the lots and the certificates of deposit had not been adeemed and the named beneficiaries were entitled to a distribution equal to the value of the lots and the CDs; and (2) whether the district court erred in rejecting the PR’s final accounting.

Short Answer: (1) The devise of the lots was not adeemed but the devise of the CDs was; and (2) no.

Affirmed in part, reversed in part, and remanded for entry of an amended order

Facts: August Schreiber died testate in September 2013. His grandson, John Watkins, was named PR.…

Swapinski v. Lincoln County

Swapinski v. Lincoln County, 2015 MT 275 (Sept. 15, 2015) (Wheat, J.; Rice, J. concurring) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred by issuing an order prepared by the county’s attorneys; (2) whether the district court abused its discretion by considering rates charged by Kalispell attorneys in deciding whether the county’s attorney fees were reasonable; and (3) whether the district court abused its discretion in awarding supplemental attorney fees to the county.

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

Affirmed as to reasonableness of fees and reversed on fees-for-fees

Facts: Swapinski filed a complaint against Lincoln County and several commissioners in 2014, alleging certain errors in the resignations and appointments of Lincoln County Commissioners. The district court granted summary judgment to the county in September 2014.…

Christian v. Atlantic Richfield Co.

Christian v. Atlantic Richfield Co., 2015 MT 255 (Sept. 1, 2015) (McKinnon, J.; Baker, J., concurring (2, 3, 4); Wheat, J., concurring (1, 2, 3) & dissenting (4); Rice, J., concurring (4) & dissenting (1)) (aff’d & rev’d)

Issue: (1) Whether the continuing tort doctrine requires evidence of the continued migration of contaminants; (2) whether genuine issues of material fact exist regarding the reasonableness of abating the contamination on Landowners’ properties; (3) whether the continuing tort doctrine applies to Landowners’ claims other than nuisance and trespass; and (4) whether the facts constituting Landowners’ claims were concealed or self-concealing, or whether ARCO took action to prevent Landowners from learning those facts.

Short Answer: (1) No, migration is not the dispositive factor; the key to whether an injury is temporary or permanent is whether further abatement is reasonable (McKinnon, Cotter, Wheat, Shea, Manley) (Rice dissents) (5-1); (2) yes, reasonable abatability must be decided by the trier of fact (McKinnon, Cotter, Baker concurs in the judgment, Wheat, Shea, Manley) (6-0); (3) yes for continuing injuries caused by strict liability, negligence, and wrongful occupation, but not for unjust enrichment (McKinnon, Cotter, Baker, Wheat, Shea, Manley) (6-0); (4) no, and Landowners’ claims for unjust enrichment and constructive fraud are therefore time-barred (McKinnon, Cotter, Baker, Rice) (Wheat dissents, Shea & Manley join) (4-3).…