Archive | Cotter, J. (concurring)

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State v. Awbery

State v. Awbery, 2016 MT 48 (March 1, 2016) (McGrath, C.J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court properly excluded evidence that some of the victims had suffered prior sexual abuse by others; (2) whether Awbery is entitled to a new trial based on prosecutorial misconduct; and (3) whether Awbery is entitled to a new trial based on the cumulative effect of several alleged errors.

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

Affirmed

Facts: The state charged Awbery with two counts of incest against his daughter, AA, when she was 12 or younger; sexual assault and sexual intercourse without consent against AA’s half-sister, JG, when she was 16 or younger; sexual intercourse without consent again IA when she was 12 or younger; and sexual assault against NH when she was 16 or younger.…

Cleveland v. Ward

Cleveland v. Ward, 2016 MT 10 (Jan. 12, 2016) (Shea, J.; Cotter, J., concurring) (7-0, aff’d)

Issue: (1) Whether the district court improperly excluded trial testimony of Cleveland’s treating physician; (2) whether the district court improperly excluded trial testimony of Cleveland’s physical therapist; (3) whether the district court erred in granting a directed verdict on Cleveland’s claim that her rotator cuff tear and shoulder arthritis were caused by the collision; and (4) whether the district court erred in concluding that Cleveland could not recover damages incurred by Shelby House.

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

Affirmed…

Siebken v. Voderberg

Siebken v. Voderberg, 2015 MT 296 (Oct. 13, 2015) (Baker, J.; Cotter, J., concurring) (6-0, aff’d)

Issue: (1) Whether Siebken is entitled to a new trial based on the district court’s admission of a letter regarding Siebken’s medical history and diagnosis; (2) whether Siebken is entitled to a new trial because the district court erroneously instructed the jury on the statute of limitations; and (3) whether substantial evidence supported the jury verdict.

Short Answer: (1) No; (2) the Court declines to review this issue because Siebken did not preserve the issue for appeal; and (3) yes.

Affirmed

Facts: In Siebken I, this Court reversed summary judgment for Voderberg on statute of limitations grounds. On remand, the primary factual dispute at trial was when the three-year statute began to run on Siebken’s negligence claim.…

Morrow v. Monfric, Inc.

Morrow v. Monfric, Inc., 2015 MT 194 (July 7, 2015) (McKinnon, J.; Cotter, J., concurring; Wheat, J., dissenting) (6-1, aff’d)

Issue: Whether the district court abused its discretion in denying class certification on the grounds that the proposed class was not sufficiently numerous.

Short Answer: No.

Affirmed

Facts: Plaintiffs are laborers who worked on multi-family housing projects I Kalispell. The project owner, Glacier States Associates, hired Monfric, Inc. as the general contractor. Monfric hired subcontractors to perform all labor on the projects. Plaintiffs are employees of those subcontractors. Because the projects were financed with industrial development bonds issued by the city of Kalispell, Montana law requires the contractor to pay prevailing wages. Plaintiff claims the contracts between Monfric and the subcontractors did not include a provision requiring prevailing wages, and further, that they were not paid prevailing wages.…

Masters Group Internat’l, Inc. v. Comerica Bank

Masters Group Internat’l, Inc. v. Comerica Bank, 2015 MT 192 (July 1, 2015) (Baker, J. wrote an opinion in which Shea, J., joined; Shea, J. concurred; Rice, J., concurred and dissented and was joined by McKinnon, J.; Cotter, J., concurred and dissented, and was joined by McGrath, C.J., and Wheat, J.) (aff’d & rev’d)

Issue: (1) Whether the district court abused its discretion in denying Comerica’s motion to sever; (2) whether the district court erred in applying Montana law despite the contractual choice-of-law provision; (3) whether the district court erred in not deciding contract formation issues as a matter of law; (4) whether the district court erred by allowing TARP evidence to be presented to the jury.

Short Answer: (1) No (Baker, Shea, Cotter, McGrath, Wheat); (2) yes (Baker, Shea, Cotter, McGrath, Wheat); (3) no (5-Baker, Shea, Cotter, McGrath, Wheat- to 2-Rice, McKinnon); (4) yes (7-0 agree admission was error, but 4 (Baker, Shea, Rice.…

Kent v. City of Columbia Falls

Kent v. City of Columbia Falls, 2015 MT 139 (May 19, 2015) (Cotter, J.; Cotter, J., concurring; Baker, J., dissenting) (4-3, rev’d)

Issue: Whether the district court properly applied the public duty doctrine in granting summary judgment to the city.

Short Answer: No.

Reversed and remanded

Facts: Casey Kent, 35, died June 14, 2008, from a head injury he suffered from a fall while skateboarding in a planned unit development (PUD) in Columbia Falls, Cedar Pointe Estates. His wife Sara sued the city of Columbia Falls and various other entities that designed, developed and constructed Cedar Pointe Estates. Sara alleged the path where Casey was skating was built at a 24% grade, and the steepness of this grade caused Casey’s fall and fatal head injury.…