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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.…

State v. Nelson

State v. Nelson, 2017 MT 237 (Sept. 26, 2017) (Wheat, J.) (5-0, aff’d)

Issue: Whether the district court erred in denying Nelson’s motion to suppress.

Short Answer: No.

Affirmed

Facts: In July 2015, a waitress and a coworker called 911 to report a drunk person driving away from the restaurant where they worked. MHP Officer Burson was on patrol when he received the report from dispatch. Eleven minutes after the initial report, he located the vehicle in a hotel parking lot, where he observed it drive from the check-in area to a parking spot. The officer activated his lights and made contact with the driver, Nelson. After conducting a DUI investigation, he arrested Nelson for DUI.…

Ally Financial, Inc. v. Stevenson

Ally Financial, Inc. v. Stevenson, 2017 MT 190 (Aug. 8, 2017) (Wheat, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in determining it had subject matter jurisdiction, and (2) whether venue was proper in Chouteau County under § 30-14-133(1), MCA.

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

Affirmed

Facts: Stevenson bought a fifth wheel trailer from Big Sky RV, Inc. in 2014 for $72,595. She traded in her previous trailer for $8,000, provided a down payment of $21,773, and financed the remainder through Ally Bank. Big Sky delivered the new trailer to Stevenson’s home in Chouteau County in August 2014, and picked up her trade-in the same day.…

City of Helena v. Community of Rimini

City of Helena v. Community of Rimini, 2017 MT 145 (June 13, 2017) (Wheat, J.; Rice, J., dissenting) (4-3, aff’d & rev’d)

Issue: (1) Whether § 85-2-227(4), MCA, is impermissibly retroactive as applied to Helena’s water rights claim; (2) whether the Water Court erred in reinstating 7.35 cfs of Helena’s Tenmile Creek water rights; (3) whether the Water Court erred in finding Helena had abandoned .6 cfs of its Tenmile Creek water rights; and (4) whether the Water Court erred in imposing specific place of use restrictions on Helena’s decreed Tenmile Creek water rights.

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

Affirmed in part, reversed in part, and remanded

Facts: This case is on appeal for the second time, and involves two water rights claims filed by the city of Helena for waters of Tenmile Creek.…

Belanus v. Potter

Belanus v. Potter, 2017 MT 95 (April 26, 2017) (Wheat, J.) (5-0, aff’d)

Issue: (1) Whether the district court correctly concluded that Belanus’s claim is barred by the statute of limitations; (2) whether the district court correctly concluded that Belanus’s claim is barred by res judicata; and (3) whether the district court abused its discretion in finding Belanus to be a vexatious litigant and issuing a pre-filing order against him.

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

Affirmed

Facts: Belanus was convicted in June 2009 of aggravated kidnapping and sexual intercourse without consent of his then-girlfriend, TC. A key piece of evidence was a taped telephone conversation that occurred a few months before the assault in which a drunken Belanus threatened TC with death and bodily injury.…

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.…

In re the Marriage of Wagenman

In re the Marriage of Wagenman, 2016 MT 176 (July 19, 2016) (Wheat, J.) (5-0, rev’d)

Issue: (1) Whether the district court erred in denying Tammy’s Rule 60(b) motion to amend the final decree of dissolution, and (2) whether the district court erred in awarding attorney’s fees to Matt.

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

Reversed and remanded 

Facts: Matt and Tammy Wagenman married in 1996, and jointly petitioned for dissolution in 2012, each appearing pro se. They have no children, and used the self-help dissolution forms approved by the Court. In the “real property” section of the petition, they indicated they own their marital home in Shepherd. In another section of the petition, they stated the real property should be distributed as described in Exhibit A, which was attached to the petition.…

State v. Weber

State v. Weber, 2016 MT 138 (June 7, 2016) (Wheat, J.) (5-0, rev’d)

Issue: (1) Whether the district court abused its discretion by refusing to admit the inventory list offered by defense counsel; (2) whether the district court abused its discretion by limiting defense counsel’s examination of defense investigator Peck; and (3) whether defense counsel rendered ineffective assistance of counsel by failing to admit the evidence.

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

Reversed and remanded for a new trial

Facts: Weber was a janitor at Sydney High School. He was working the night a tool used to cut metal and steel went missing from the high school shop classroom. The principal later identified Weber on surveillance video on the shop the night the plasma cutter disappeared.…

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.…

Friedman v. Lasco

Friedman v. Lasco, 2016 MT 115 (May 17, 2016) (Wheat, J.) (5-0, aff’d)

Issue: Whether the district court abused its discretion in granting the Friedmans’ application for a preliminary injunction.

Short Answer: No.

Affirmed

Facts: Lascos owned Spirit Quest Archery, Inc., a professional retail archery business in Kalispell. In April 2013, they executed a buy-sell with Friedmans for the store. Friedmans paid Lascos more than $600,000 for the business, business assets, and real estate.

At the time of the sale, Lascos told Friedman they would no longer be involved in the archery business, as they intended to pursue a legal career. Lascos entered into a covenant not to compete that was incorporated into and attached to the buy-sell. It prohibited Lascos from owning an archery business that provides archery services or archery related sales, or being affiliated with any other archery sale or services provider within a 100-mile radius of the purchased property for a period of five years.…