ROBOCALL STATUTE

Montana Code Annotated 45-8-216 (1991) provides restrictions on the use of robocalls to protect “the well-being, tranquility, and privacy of the home” (Frisby, US 1988). Victory Processing LLC of Grand Rapids and its managing member Dave Dishaw engage in political consulting and data gathering, primarily via automated phone calls. They assert that MCA 45-9-216 (1999) deprives them of the ability to convey political messages to Montana voters in violation of their right to free speech, sue the State of Montana, and move the Court for summary judgment. The Court first ruled on the issue of whether or not Victory Processing has standing to bring this action. They found that Montana law applies to this action even though Victory Processing is not a Montana corporation, because the law applies to their proposed robocalls (which would take place in Montana) and arguably affects constitutional interest; because they have shown an intention to violate the law; and because it is likely Montana would enforce its law against them if there were to register with the state for conducting robocalls. In argument, Attorney General Fox asserts that the statute serves a compelling and long-respected government interest “in protecting the well-being, tranquility, and privacy of the home…” (Frisby, US 1988). “The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.” (Id.). The statute requires that a live operator give control over the message to the recipient for the purpose of consenting, declining, or asking to be taken off the call list. The Court found that there are ample means of communication for organizations and individuals besides robocalls, including advance permission for calls, use of a live operator to introduce a recorded message, leafletting, pamphleting, billboards, posters, yard signs, bulk mailing, internet and social media…In short, Victory Processing has numerous other avenues for communicating their message and conducting their business. Summary judgment is given to the State.

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NIGHTHAWK RANCH

John Fesler Lance II and his wife divorced in 1979. Their Florence ranch was sold in a sheriff’s sale following the divorce. In the 39 years since the divorce, Lance has maintained through numerous legal actions, both civil and criminal, that the 1979 divorce decree is void, the sheriff’s sale was invalid, and that he is still married and the owner of the Nighthawk Ranch. His attempts to regain control of the ranch resulted in his 1981 conviction of 3 felony intimidation counts in 3 counties, and a long say in the Montana State Prison. While incarcerated, he has engaged in decades of litigation with the State and Federal courts disputing the validity of the decree, property sale, and convictions. The Court has issued 4 decisions and 3 orders affirming their validity. Prior to his release from prison in March 2014, the current ranch owners obtained an order of protection because of his harassing correspondence, which he violated twice in the months following his release. In 2015, a jury convicted him of felony intimidation, felony stalking, violating the order of protection, and criminal trespass. Evidence of the decree and ranch sale were excluded from the 2015 criminal trial. Judge Langton sentenced him to 75 years and ordered him to pay restitution. Lance appealed. The Supreme Court ruled on his 10-count appeal, which included many issues already addressed in the multiple legal actions he had previously brought. Among other things, the Court ruled that they would not address again whether the divorce decree is void (since they have ruled multiple times that it was valid, and that “[s]imply referring to the decree of dissolution as ‘void’ does not make it so”). They also ruled that his court-appointed attorney Thomas Schoenleben Jr. did not render ineffective assistance by refusing to subpoena 24 witnesses that Lance wanted to use to argue the decree/sheriff sale issue at trial, and by refusing to mount a meritless defense regarding the decree/sheriff sale issue (since it would violate RPC 3.1, which prohibits bringing a defense with no basis of law). They further found that his argument that the District Court defamed his character, in which he quotes statements made by officials 20 and 30 years ago and concludes his argument by stating that he is still married and still owns the ranch, is unsupported by facts or citations to legal authority and therefore declined to address it. Lance finally argued that Langton denied him effective assistance by allowing Schoenleben to withdraw. Lance complained before trial about Schoenleben’s assistance (and refusal to revisit the decree/sheriff sale issue); in a February 2015 hearing, Langton granted Schoenleben’s motion to withdraw as counsel, citing “a complete breakdown” in their relationship. He advised Lance before trial that he would not be permitted to use his criminal trial as a venue to attack the civil judgments; Lance then refused to come to his trial, and instead watched from jail. The Court ruled that Schoenleben’s actions in refusing to pursue a meritless defense did not fall below the standard of reasonableness necessary to conclude Langton had erred in his ruling. The appeal is denied on all counts.


BOXING CONTRACT

On January 23, 2016, the Butte Civic Center held what was billed as the “Battle of the Ages”, featuring Luis Ramon “Yory Boy” Campas and Anthony Bonsante. Bonsante entered into a handwritten agreement with promoter Joe Diaz to fight Campas, a former junior middleweight champion. The contract required Bonsante to train for the 10-round bout, included a weight limit and $2000 penalty for each pound over the limit (168), and required that Bonsante “exhibit his skills in good faith”. The fight was sanctioned by the Kansas State Boxing Commission, as Montana did not have an active boxing commission. Bonsante trained, made weight, and he and Campas fought for 5 full rounds. Bonsante was disqualified in the 6th round for fouling Campas by body slamming him, at which point the ring doctor determined that Campas was unable to continue. The referee disqualified Bonsatne for the foul and awarded the match to Campas. Bonsante does not dispute any of the foregoing facts. The dispute arises from the contract: did Bonsante, who argues that the Kansas commission ruled he should be paid the $25,000.00 if he complied with his contractual obligations, breach his contractual duty to exhibit his boxing skills in good faith? Diaz, who was an experienced trainer and promoter, testified via affidavit that intentional fouls and “body slamming” do not constitute an “exhibition of boxing skills in good faith”. Bonsante disagrees that he breached his good faith duty, and in the lawsuit that followed, filed a motion for summary judgment on the issue. The Court declined to rule, because material fact issues preclude summary judgment, and remanded the issue to trial. A jury of their peers will have to decide who is the victor, and who is “down for the count”.  

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Ninth Circuit Court of Appeals Orders Arbitration in Case of Shipwreck in Panama

Montanans Taunia and Chris Kittler purchased a 60-foot yacht in 2014. A year later they submitted an online request to Pantaenius America for an insurance quote, and exchanged several documents electronically. Pantaenius informed the Kittlers that it required a hand-signed application, which the Kittlers said would be difficult to submit because they were in the Panama Canal enroute to San Diego. Pantaenius persisted, and the Kittlers docked in Puerto Rico and sent Pantaenius a hand-signed application. They next day, Pantaenius issued preliminary coverage for up to 2 weeks with a limit of $1.5 million, and established a covered “Cruising Area”. The formal policy was issued a day later. The policy specified that it would be only effective in the specified cruising area, and called for arbitration in New York in the event of any disputes. The yacht ran ashore off Panama a month later. The Kittlers submitted a claim; the underwriters of the Pantaenius policy refused to pay, claiming the yacht had sailed outside of the cruising area. The Kittlers argued that the application and policy do no reflect the actual agreement, and that Pantaenius and the underwriters misrepresented the policy. The underwriters initiated arbitration in New York; the Kittlers filed a separate action in Montana Federal Court. Judge Watters (Billings) granted the underwriters’ motion to compel arbitration on 2 of the Kittlers’ 12 claims, but denied it as to others. The parties appealed. The 9th Circuit found that the agreement shows a clear and unmistakable intent to resolve disputes arbitration. It affirms Judge Watters’s order finding the arbitration clause enforceable, affirms her order granting the underwriters’ motion to compel arbitration on certain causes, reverses her order denying the underwriter’s motion to compel arbitration on the remaining causes, and remands with instructions to grant the underwriter’s motion to compel arbitration on all 12 causes. For more on the Ninth Circuit Court’s decision, click "Learn More" below.

Montana Supreme Court Reverses District Court’s Evidentiary Ruling in Vehicle-Pedestrian Collision Case

In April of 2013, Kerry Maier was attempting to cross a street on foot in Missoula, Montana when she was struck by a vehicle driven by Erin Wilson.  Maier filed suit against Wilson alleging, among other things, that Wilson was negligent in her operation of the vehicle.  The case proceeded to a jury trial on March 18, 2016.  During Wilson’s case-in-chief, she called Bridget Smith as her first witness.  Smith was the only non-party eyewitness to the collision called to testify.  On cross-examination, Maier’s counsel sought to impeach Smith with prior inconsistent statements she made to law enforcement officers.  The District Court ruled that Maier’s counsel could not question Smith about any prior inconsistent statements.  On December 28, 2017, the Montana Supreme Court reversed the District Court’s evidentiary ruling, finding that the District Court’s ruling to exclude cross-examination of Smith regarding her prior inconsistent statements was improper and further finding that such impropriety affected the outcome of the case. Therefore, we conclude that the District Court’s error was so significant that it materially affected Maier’s right to a fair trial.  For more on the Montana Supreme Court’s decision, click "Learn More" below.

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Montana Supreme Court Affirms Dismissal of Claims Against Bank of America

Kenneth and Bobbie Anderson filed suit against Defendants Bank of America and ReconTrust Company alleging, among other things, that the Defendants illegally denied their request for a loan modification in 2011.  The Montana Eleventh Judicial District Court, Flathead County, dismissed the Andersons’ claims, pursuant to Mont. R. Civ. P. 12(b)(6).  On December 19, 2017, the Montana Supreme Court affirmed the District Court’s decision.  Specifically, the Court held that “the District Court correctly concluded that Andersons’ amended complaint failed to state sufficient facts entitling them to relief on all essential elements of their asserted negligence, negligent misrepresentation, fraud, and [consumer protection] claims.”  In addition, the Court held that “the District Court did not abuse its discretion in failing to convert ReconTrust’s motion to dismiss into a motion for summary judgment sua sponte.”  For more on the Montana Supreme Court’s decision, click "Learn More" below.

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Montana Supreme Court Settles Cul-De-Sac Conflict

Douglas and Christina Ardary and James and Maida Paris are neighbors on Van Sheriff Court in Helena, Montana, though neighborly, they are not. The Ardary home faces Van Sheriff Court about 100 feet from the intersection with Canyon Ferry Road. The Parises’ home is at the end of the cul-de-sac. The Ardarys use the cul-de-sac as a staging area to maneuver trailers into the proper angle to park on their property, pursuant to an agreement with the Parises’ predecessors, who left the curb uncluttered. After the Parises moved in, they began parking a 33-foot motor home, power boat, and other vehicles at the end of the cul-de-sac, putting an end to the Ardary’s trailer technique. When the Parises refused to vacate their vehicles from the end of the cul-de-sac, the Ardarys sued. Judge McMahon granted summary judgment to the Parises, determining that both parties have access to and use of the cul-de-sac, but that such use does not entitle either party to an unoccupied cul-de-sac. The Ardary’s appealed, and the Supreme Court affirmed Judge McMahon. As long as the vehicles are “reasonably parked” in compliance with the law (which requires parallel, not perpendicular, parking, within 18 inches of the curb, and precluding side-by-side parallel parking), the Parises are free to continue parking their party at the end of the lane.