Watchtower v. 20th Judicial District

01/26/2021

OP 20-0417
Case Number: OP 20-0417

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 13

WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC.,
CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES, and
THOMPSON FALLS CONGREGATION OF JEHOVAH’S WITNESSES,

Petitioners,

v.

MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY, and
THE HONORABLE ELIZABETH A. BEST, PRESIDING JUDGE,

Respondents.

ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control
In and For the County of Sanders, Cause No. DV-16-84
Honorable Elizabeth A. Best, Presiding Judge

COUNSEL OF RECORD:

For Petitioners:

Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP,
Missoula, Montana

Joel M. Taylor, Associate General Counsel, Watchtower Bible and Tract
Society of New York, Inc., Patterson, New York

For Alexis Nunez:

D. Neil Smith, Ross Leonoudakis, Nix, Patterson & Roach, LLP, Dallas,
Texas

James P. Molloy, Gallik, Bremer & Molloy, P.C., Bozeman, Montana

Submitted on Briefs: December 22, 2020

Decided: January 26, 2021
Filed:
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__________________________________________
Clerk

2
Justice Ingrid Gustafson delivered the Opinion and Order of the Court.

¶1 Watchtower Bible and Tract Society of New York, Inc., Christian Congregation of

Jehovah’s Witnesses, and Thompson Falls Congregation of Jehovah’s Witnesses (the

“Jehovah’s Witnesses”) seek a writ of supervisory control over the Montana Twentieth

Judicial District Court, Sanders County, and the Honorable Elizabeth A. Best, presiding

judge. The Jehovah’s Witnesses maintain the District Court’s June 10, 2020 Order

Amending Order Granting Leave to Proceed with Common Law Negligence Claim and

File Second Amended Complaint is in legal error. They ask this Court to direct the District

Court to enter final judgment for them and terminate the case, because the doctrine of claim

preclusion1 precludes Alexis Nunez from proceeding to trial with her common law

negligence claim after remand from this Court in Nunez v. Watchtower Bible & Tract

Society of New York, Inc., 2020 MT 3, 398 Mont. 261, 455 P.3d 829. For the reasons

explained in this Opinion and Order, we deny the writ because the District Court is not

proceeding under a mistake of law.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 Alexis Nunez2 sued the Jehovah’s Witnesses for negligence, negligence per se, and

breach of fiduciary duty and sought punitive damages. Before trial, the District Court sua

1
Although the parties refer to “res judicata” in their briefing, this Opinion and Order will use the
term “claim preclusion.” See McDaniel v. State, 2009 MT 159, ¶ 27 n.2, 350 Mont. 422, 208 P.3d
817 (“To promote clarity, the trend has been to use the terms ‘claim preclusion’ and ‘issue
preclusion’ in lieu of ‘res judicata’ and ‘collateral estoppel,’ respectively.”).
2
A second plaintiff, Holly McGowan, also brought claims against the Petitioners in the original
complaint, but on the record before us, it does not appear she has attempted to revive any of her
causes of action post-remand. Despite language in the District Court’s order purporting to include
McGowan, we only consider Nunez’s revived and amended claims in this writ of supervisory
control.
3
sponte granted partial summary judgment to Nunez, determining as a matter of law the

Jehovah’s Witnesses were both negligent per se and the cause of Nunez’s damages for

failing to report known abuse of other children by Nunez’s perpetrator to the appropriate

legal authorities. During a pretrial discussion about settling preliminary jury instructions,

counsel for Nunez indicated Nunez was “fine limiting [her] negligence claim to the

negligence per se claim.” The District Court asked to clarify whether Nunez was

dismissing her common law negligence claim and breach of fiduciary duty claim, to which

counsel responded “Yes, your Honor.” The Jehovah’s Witnesses did not object. At trial,

the jury determined Nunez’s damages and awarded punitive damages to Nunez against the

Jehovah’s Witnesses. On appeal, this Court determined the District Court erred in

determining the Jehovah’s Witnesses were negligent per se and “reverse[d] and remand[ed]

for entry of summary judgment in favor of Jehovah’s Witnesses.” Nunez, ¶ 34.

¶3 After remand to the District Court, Nunez moved to amend her complaint to revive

her common law negligence claims. The District Court granted her motion. Upon Nunez’s

motion, the District Court amended its order to correct a misstatement of fact in its original

order. In response to the District Court’s amended order, the Jehovah’s Witnesses filed a

petition seeking a writ of supervisory control with this Court.

DISCUSSION

¶4 This Court may assume supervisory control, as authorized by Article VII,

Section 2(2), of the Montana Constitution and M. R. App. P. 14(3) to control the course of

litigation when the case involves purely legal questions and the district court “is proceeding

under a mistake of law and is causing a gross injustice.” M. R. App. P. 14(3)(a). Our

4
determination of whether supervisory control is appropriate is a case-by-base decision,

based on the presence of extraordinary circumstances and a particular need to prevent an

injustice from occurring. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182,

¶ 5, 361 Mont. 279, 259 P.3d 754.

¶5 The Jehovah’s Witnesses first argue the District Court erred as a matter of law in

allowing Nunez to amend her complaint to revive the common law negligence claim

because claim preclusion precludes such a claim. Watchtower argues the situation

presented in this case is no different than if Nunez had filed a separate post-appeal lawsuit

in which she asserted a common law negligence claim, and had Nunez done so, there would

be no question claim preclusion applies and would bar the claim. Watchtower argues

Nunez had the opportunity to place her common law negligence claim in front of a jury

and she choose not to do so, thereby precluding her from pursuing that claim now.

¶6 Nunez argues she is neither bringing forth a new claim nor filing a new lawsuit. She

characterizes her attempt as seeking “to proceed on the claims that remain following this

Court’s remand order.” Nunez points out that this Court in Slater v. Central Plumbing &

Heating Co., 1999 MT 257, ¶ 24, 297 Mont. 7, 993 P.2d 654, explained “a reversal extends

only to those issues which the appellate court decided in actuality or by necessary

implication; it does not affect collateral matters not before the court,” and she maintains

her common law negligence claim remains a live issue that has not been decided in

actuality or by necessary implication before the District Court or this Court.

¶7 The doctrine of claim preclusion “embod[ies] a judicial policy that favors a definite

end to litigation, whereby we seek to prevent parties from incessantly waging piecemeal,

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collateral attacks against judgments.” Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ¶ 18,

366 Mont. 78, 285 P.3d 494 (quoting Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont.

281, 130 P.3d 1267). The doctrine promotes judicial economy and finality of judgments.

Brilz, ¶ 18. “Under claim preclusion, a final judgment on the merits of an action precludes

the parties or their privies from relitigating claims that were or could have been raised in

that action.” Brilz, ¶ 18 (emphasis added); see also Restatement (Second) of Judgments

§ 19 (Am. Law. Inst. 1982) (“A valid and final personal judgment rendered in favor of the

defendant bars another action by the plaintiff on the same claim.” (emphasis added)).

¶8 We agree with Nunez that Slater involved the question of whether a party could

litigate certain previously raised claims after this Court reversed and remanded the matter.

In that case, the general contractor, Edsall, filed an amended crossclaim against its

subcontractor Central after the district court had determined Edsall was strictly liable to an

injured worker of one of Central’s subcontractors under statute and the jury awarded the

injured worker almost $700,000 against Edsall. Slater, ¶¶ 5-8.

¶9 The amended crossclaim contained four causes of action, including breach of

contract and negligence by Central. Slater, ¶ 8. Central moved for summary judgment on

all claims and Edsall moved for partial summary judgment on the breach of contract claim.

The District Court ultimately granted Edsall summary judgment on the breach of contract

claim and denied Central’s motion for summary judgment. The court awarded Edsall over

$600,000 under the breach of contract claim and Central appealed. Slater, ¶ 11. This Court

reversed the District Court’s grant of summary judgment on the breach of contract issue.

After remand, Central moved for judgment to be entered against Edsall; Edsall objected,

6
arguing that it was entitled to pursue the other issues raised by its crossclaim. The District

Court entered judgment in favor of Central and dismissed the crossclaims. Edsall then

appealed. Slater, ¶ 12.

¶10 On appeal, Edsall argued that the negligence claim it had asserted in its amended

crossclaim was based on an indemnity provision in the contract it had entered into with

Central that would indemnify Edsall against any loss arising out of Central’s negligence.

Slater, ¶ 18. Central argued that claim preclusion precluded Edsall from raising this issue

at this point in the case. Slater, ¶ 25. This Court disagreed. This Court ultimately

determined claim preclusion did not prevent litigation from resuming on previously

asserted causes of action after the reversal of a partial summary judgment order on appeal,

explaining “Edsall has yet to have a full opportunity to present the issue of indemnity based

on Central’s negligence for a judicial determination.” Slater, ¶ 27. Causes of action that

were not at issue on appeal were not determined and were not precluded from going

forward on remand. Like in Slater, ¶ 31, “[t]his is a situation where [Nunez] pleaded all

of [her] claims to a single court . . .; [she] is not pleading new claims.” Despite its similarity

in this regard, Slater is distinguishable in that there was never a withdrawal or dismissal of

any claim—that factual circumstance though was not the basis for this Court’s ruling.

¶11 The cases upon which Watchtower relies are cases in which the losing party

attempted to bring a new cause of action after their initial litigation failed. See Fisher v.

State Farm Gen. Ins. Co., 1999 MT 308, 297 Mont. 201, 991 P.2d 452; Orlando v. Prewett,

236 Mont. 478, 771 P.2d 111 (1989); Klimpton v. Jubilee Placer Mining Co., 22 Mont.

107, 55 P. 918 (1899). While Watchtower argues in its petition, “If Nunez had filed a

7
separate post-appeal lawsuit asserting her common law negligence claim, all claim

preclusion elements would clearly be present,” the fact is Nunez did not file a separate

post-appeal lawsuit. Nunez is seeking to litigate additional claims against the Jehovah’s

Witnesses in the same suit. Claim preclusion simply does not apply to the continued

proceedings before the District Court. As Nunez points out, the proper doctrine to apply

is law of the case.

The doctrines of law of the case and res judicata often work hand in glove
but are not identical. Two important policies underlie and are common to
both principles: judicial economy and finality of judgments. While the law
of the case is normally decisive, it does not have the same binding force as
the doctrine of res judicata. The United States Supreme Court has stated,
concerning the difference between law of the case and res judicata, that “one
directs discretion, the other supersedes it and compels judgment.”

State v. Gilder, 2001 MT 121, ¶ 10, 305 Mont. 362, 28 P.3d 488 (quoting S. Ry. Co. v.

Clift, 260 U.S. 316, 319, 43 S. Ct. 126, 127 (1922)) (internal citations omitted). As this

Court has long explained:

The judgments of appellate courts are as conclusive as those of any other
court. They not only establish facts, but also settle the law, so that the law
as decided upon any appeal must be applied to all the subsequent stages of
the cause, and they are res judicata in other cases as to every matter
adjudicated.

Cent. Mont. Stockyards v. Fraser, 133 Mont 168, 187, 320 P.2d 981, 991 (1957) (quoting

2 Abraham Clark Freemen, A Treatise on the Law of Judgments, § 639, 1345-46 (5th Ed.

1925)) (emphasis added). Under the law of the case, “when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages in the

same case.” Norbeck v. Flathead County, 2019 MT 84, ¶ 26, 395 Mont. 294, 438 P.3d 811

(citing Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983)).

8
 It refers to instances where rulings made at a stage in litigation that are not
appealed from when the opportunity to do so exists, become “the law of the
case for the future course of that litigation and the party that does not appeal
is deemed to have waived the right to attack that decision at future points in
the same litigation.”

Norbeck, ¶ 26 (quoting McCormick v. Brevig, 2007 MT 195, ¶ 38, 338 Mont. 370, 169

P.3d 352).

¶12 Based on our review of the record provided to us, nothing in the law of the case

prevented the District Court from granting Nunez’s motion to amend her complaint. Our

decision in the appeal in Nunez I dealt with the issue of whether the Jehovah’s Witnesses

had violated Montana’s mandatory child abuse reporting statute, § 41-3-201, MCA, and

were therefore negligent per se. We determined, as a matter of law, the Jehovah’s

Witnesses had not violated the statute. The issue of common law negligence was not

resolved in either this Court or the District Court.

¶13 Further, nothing in the colloquy between the District Court and counsel before trial

prevented the District Court from allowing Nunez to amend her claims later. Nunez’s

common law negligence claim was never dismissed with prejudice pursuant to M. R. Civ.

P. 41 because: (a) the parties did not stipulate to such dismissal, (b) the Court did not order

such dismissal, and (c) the entire action was not dismissed. Rule 41(a) was specifically

constructed to prohibit voluntary dismissal of an action after an answer or a motion for

summary judgment has been filed to allow the opposing party input (whether by stipulation

or by argument to the court) to determine how the action is dismissed. Unless specifically

stated, voluntary dismissal of an action is without prejudice. See M. R. Civ. P. 41(a).

Further, Rule 41(a) does not allow for piecemeal dismissals of claims in a multiple claim

9
lawsuit. “Instead, withdrawals of individual claims against a given defendant are governed

by Fed. R. Civ. P. 15, which addresses amendments to pleadings.” Hells Canyon Pres.

Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (citing Ethridge v. Harbor

House Restaurant, 861 F.2d 1389 (9th Cir. 1988)).3 Thus, although the District Court and

counsel discussed “dismissing” the common law negligence claim, the withdrawal of the

claim should be interpreted as an amendment under M. R. Civ. P. 15, rather than as a

dismissal under M. R. Civ. P. 41.

¶14 The Jehovah’s Witnesses argue if claim preclusion does not preclude Nunez from

moving forward with her common law negligence claim, then M. R. Civ. P. 15 does not

permit Nunez to amend her complaint post-trial. Under Rule 15(b), the circumstances for

allowing post-trial amendments to the complaint are limited and not applicable here.

¶15 M. R. Civ. P. 15 provides, in relevant part:

(a) Amendments before Trial.

. . .

(2) Other Amendments. In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.

. . .

(b) Amendments During and After Trial.
3
We have held under a prior version of the rules that “Rules 41(a) and 41(d) of the Montana Rules
of Civil Procedure are identical in all respects to Rules 41(a) and 41(d) of the Federal Rules of
Civil Procedure. Because the language of the state and federal rules is identical, the interpretation
of the federal rules [has] persuasive application to the interpretation of the state rules.” U.S. Fid.
& Guar. Co. v. Rodgers, 267 Mont. 178, 181-82, 882 P.2d 1037, 1039 (1994). The language of
Fed. R. Civ. P. 41(a)(1)(B) is no longer identical, but the relevant portions of Fed. R. Civ. P.
41(a)(1)(A) and M. R. Civ. P. 41(a)(1)(A) still are identical, so the federal authority remains
persuasive.

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 (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is
not within the issues raised in the pleadings, the court may permit the
pleadings to be amended. The court should freely permit an amendment
when doing so will aid in presenting the merits and the objecting party fails
to satisfy the court that the evidence would prejudice that party’s action or
defense on the merits. The court may grant a continuance to enable the
objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the pleadings
is tried by the parties’ express or implied consent, it must be treated in all
respects as if raised in the pleadings. A party may move — at any time, even
after judgment — to amend the pleadings to conform them to the evidence
and to raise an unpleaded issue. But failure to amend does not affect the result
of the trial of that issue.

¶16 We disagree that M. R. Civ. P. 15(b) governs Nunez’s amendments. After this Court

reversed the District Court’s pretrial grant of summary judgment on negligence per se, the

jury verdict against the Jehovah’s Witnesses was effectively vacated. Negligence per se

was the only cause of action between Nunez and the Jehovah’s Witnesses put to the jury.

¶17 Here, the Hells Canyon case is very instructive. In Hells Canyon, the plaintiffs filed

a complaint alleging the U.S. Forest Service violated both the National Environmental

Policy Act (NEPA) and the Wilderness Act. During oral argument before the district court

on the parties’ cross-motions for summary judgment, the plaintiff voluntarily abandoned

its Wilderness Act claim. The district court later rejected the plaintiff’s NEPA claim on

the merits and, in its order, dismissed the Wilderness Act claim as “moot.” Hells Canyon

Pres. Council, 403 F.3d at 685. The plaintiff subsequently brought another action that

included a claim under the Wilderness Act. The district court dismissed the claim as barred

by claim preclusion, and the Ninth Circuit reversed.

¶18 The Ninth Circuit first observed the prior summary judgment ruling addressed only

the NEPA claim; then “turn[ed] to the somewhat thorny question whether the Wilderness

11
Act claim in [the prior case] was included in the ‘final judgment on the merits’ rendered

by the district court.” Hells Canyon Pres. Council, 403 F.3d at 686. The parties both

argued the application of Rule 41, with the Forest Service arguing Fed. R. Civ. P. 41(b)

compelled a conclusion the dismissal “operate[d] as an adjudication upon the merits” and

the plaintiff arguing that Rule 41(a)(2)’s voluntary dismissal provisions governed, meaning

the dismissal was without prejudice because it was not otherwise specified. Hells Canyon

Pres. Council, 403 F.3d at 687. The Ninth Circuit did not find either argument convincing,

holding there was no final judgment on the merits of the Wilderness Act claim in the first

suit because the district court’s treatment of it “is best construed as approval of an oral

amendment of the complaint to excise that claim” under Rule 15. Hells Canyon Pres.

Council, 483 F.3d at 687.

¶19 Quoting Moore’s Federal Practice, the Ninth Circuit stated, “Federal Rule of Civil

Procedure 15(a) is the appropriate mechanism ‘where a plaintiff desires to eliminate an

issue, or one or more but less than all of several claims, but without dismissing as to any

of the defendants.’” Hells Canyon Pres. Council, 483 F.3d at 688 (quoting 5 James W.

Moore et al., Moore’s Federal Practice ¶ 41.06-1, 41-83 to -84 (2d Ed. 1987)). “[W]hat

the district court should have done [with the plaintiff’s Wilderness Act claim], and what

we believe it did do, was treat [the plaintiff’s] oral withdrawal of its Wilderness Act claim

as a motion to amend its complaint under Rule 15(a).” Hells Canyon Pres. Council,

483 F.3d at 689. Calling the trial court’s failure to so characterize its action as “a technical,

not a substantive, distinction[,]” the Ninth Circuit held the claim “was already withdrawn

before the district court entered judgment,” no prejudice attaches to a claim properly

12
dropped from a complaint under Rule 15(a) prior to final judgment, and there was no final

judgment on the merits of the plaintiff’s Wilderness Act claim in the first suit. Hells

Canyon Pres. Council, 483 F.3d at 690. Because the NEPA claim decided in the first suit

was not identical to the Wilderness Act claim in the second suit, claim preclusion did not

bar the claim. Hells Canyon Pres. Council, 483 F.3d at 690-91.

¶20 Rule 15(a) operates in similar fashion to the facts shown on the Nunez record. When

Nunez’s counsel indicated they would move forward only on the negligence per se claim,

that should have been construed as an oral motion to amend the pleadings. There was no

objection, and the court granted leave—thus satisfying the requirements of Rule 15(a). The

claim then was no longer part of the case at the time verdict was rendered. As noted earlier,

once this Court reversed the District Court, there was no judgment in effect—our opinion

required entry of summary judgment only on the negligence per se claim. At that point,

Nunez’s motion to amend the complaint to add the common law claim was not precluded

as a matter of law but became a matter of discretion under Rule 15.

¶21 Upon reversal and remand, the parties were no longer in a post-trial posture and

Rule 15(a) governs Nunez’s motion to amend her complaint. A district court has discretion

to grant or deny a motion to amend a pleading and we review a district court’s decision to

amend for an abuse of discretion. Ally Fin., Inc. v. Stevenson, 2018 MT 278, ¶ 10,

393 Mont. 332, 430 P.3d 522. Rule 15(a) provides for liberal amendment of pleadings,

“but does not require amendments in all instances.” Lindey’s, Inc. v. Prof’l Consultants,

Inc., 244 Mont. 238, 242, 797 P.2d 920, 923 (1990).

[A] a trial court is justified in denying a motion for an apparent reason “such
as undue delay, bad faith or dilatory motive on the part of the movant,

13
 repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by allowance of the amendment,
futility of the amendment, etc.”

Lindey’s, Inc., 244 Mont. at 242, 797 P.2d at 923 (quoting Foman v. Davis, 371 U.S. 178,

182, 83 S. Ct. 227, 230 (1962)). In many cases, these grounds for dismissal would weigh

heavily against granting a motion to amend post-remand from this Court. In Stanford v.

Rosebud County, 254 Mont. 474, 477-78, 839 P.2d 93, 95-96 (1992), this Court explained

that even under the liberality doctrine of Rule 15, parties are not entitled to amend their

pleadings when the motion to amend is made after judgment has been entered against them,

but rather such motion is left to the sound discretion of the district court. We explained:

A busy district court need not allow itself to be imposed upon by the
presentation of theories seriatum. Liberality in amendment is important to
assure a party a fair opportunity to present his claims and defenses, but “equal
attention should be given to the proposition that there must be an end finally
to a particular litigation.”

Stanford, 254 Mont. at 478, 839 P.2d at 95-96 (quoting Freeman v. Cont’l Gin Co.,

381 F.2d 459, 469-70 (5th Cir. 1967)).

¶22 In Stanford, the appellants challenged the district court’s denial of their motion to

amend their pleadings post-remand to add an entirely new theory that had never been raised

in over fourteen years of litigation. Stanford, 254 Mont. at 477, 839 P.2d at 95. This Court

upheld the denial, explaining “the general rule that a court ordinarily will be reluctant to

allow leave to amend” when a party seeks “to inject a new theory of recovery via a

post-judgment motion to amend pleadings.” Stanford, 254 Mont. at 478, 839 P.2d at 95.

Such amendments are not categorically prohibited, but rather, left to the sound discretion

of the district court. See Stanford, 254 Mont. at 478, 839 P.2d at 96.

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¶23 Given the liberal deference given to the trial court under Rule 15, Jehovah’s

Witnesses have not shown the District Court abused its discretion in granting Nunez leave

to amend her complaint. This is especially true in light of the very unique circumstances

of this case that demonstrate good cause why the common law negligence theory, although

raised, was not prosecuted in the prior proceedings: This Court reversed a grant of partial

summary judgment on appeal. Nunez’s amended complaint does not attempt to add a

completely new cause of action, as occurred in Stanford, but revives a cause of action she

pleaded in her original complaint. She had withdrawn that claim immediately before trial

in reliance on the District Court’s sua sponte pretrial grant of partial summary judgment on

negligence per se and causation, which left only the issue of damages for a jury to consider.

Given the grant of partial summary judgment, Nunez no longer had to prove to the jury at

the first trial that the Jehovah’s Witnesses had a duty, breached that duty, and such breach

caused her damages. Notably, Jehovah’s Witnesses have not made a prejudice argument—

which would have to be predicated on having to now defend against the common law

claim.4

¶24 It was within the District Court’s discretion to allow Nunez to amend her complaint

to revive the common law negligence claim post remittitur from this Court in the interest

of justice.

4
Likely because they did not object to the withdrawal of that claim or seek to have the claim
dismissed with prejudice.

15
 CONCLUSION

¶25 IT IS THEREFORE ORDERED the Petitioner’s Petition for a Writ of Supervisory

Control is DENIED and DISMISSED.

¶26 The Clerk is directed to forward a copy of this Opinion and Order to all counsel of

record in the Twentieth Judicial District Court, Sanders County, Cause No. DV-16-84, and

to the Honorable Elizabeth A. Best, presiding judge.

Dated this 26th day of January, 2021.

/S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ SHANE A. VANNATTA
District Court Judge Shane A. Vannatta
sitting in place of Justice Laurie McKinnon

Justice Dirk Sandefur, dissenting.

¶27 I concur that neither equitable claim preclusion (res judicata), nor the related law of

the case doctrine, apply on their elements to bar revival of Nunez’s common law negligence

claim. I further concur that M. R. Civ. P. 41 (regarding voluntary dismissal of “actions”)

does not apply to the claim dismissal at issue here. The Court correctly recognizes that the

dispositive question is whether the District Court abused its discretion under M. R. Civ. P.

15(a) in allowing Nunez to revive her previously abandoned common law negligence claim

under the particular circumstances of this case. However, the Court’s holding that the

District Court did not abuse its discretion here is patently erroneous because it is based on

16
a gross mischaracterization of the pertinent record colloquy between the trial court and

counsel before opening statements at trial. The Court’s sanitized characterization of the

record glosses over what really happened here, and what the Court is reluctant to recognize,

i.e., that Nunez, through extraordinarily experienced and competent counsel, aggressively

made a knowing, voluntary, and intelligent decision to abandon her alternatively-pled

common law negligence claim to go all-in on her chosen negligence per se claim, based on

an unexpected summary judgment that conveniently relieved her of having to prove that

the Jehovah’s Witnesses acted unreasonably under the circumstances and, if so, that any

such negligence was the actual cause of her sexual abuse, rather than the criminal conduct

of her step-grandfather. In the wake of the unfortunate failure of that purely tactical gambit,

Nunez and the District Court sheepishly assert, inaccurately, that it would have been

senseless, impossible, and/or unduly confusing for her to have continued to prudently

prosecute both claims, as she alone pled them, and to then have the jury appropriately

instructed in the alternative, as would have occurred in the ordinary course but for her

tactical decision. Thus, before even reaching the issue of resulting prejudice to the

Jehovah’s Witnesses, no good cause existed to allow Nunez to backup and try the case

again on a previously discarded legal theory after her chosen theory failed on appeal.

1. Pretrial and Trial Proceedings on Plaintiffs’ Alternative Negligence and
Negligence Per Se Claims.

¶28 In 2004, based on the separate disclosures of two siblings (20-year-old Holly and

17-year-old Peter), elders in the local Thompson Falls Congregation of Jehovah’s

Witnesses believed that the siblings’ stepfather, who was also a local church elder, had

sexually abused them several years earlier in private settings away from church grounds

17
and apart from church activities. Nunez v. Watchtower Bible & Tract Soc’y of New York,

Inc. (Nunez I), 2020 MT 3, ¶¶ 2-4, 398 Mont. 261, 455 P.3d 829. Upon solicited advice

from the legal department of a national affiliate (Watchtower Bible and Tract Society of

New York, Inc.) that Montana law did not require them to report the alleged sexual abuse

to law enforcement under an express statutory exception to the otherwise applicable

mandatory duty, the local elders, in accordance with the doctrinal practices of their religion,

instead formed a local church “judicial committee” that confronted the stepfather/elder and

ultimately concluded that the sexual abuse allegations were true. Nunez I, ¶¶ 4-5. Based

on that determination, the elders formally banished the abused siblings’ stepfather from the

congregation, with notice in the ordinary course to the church’s chartering national affiliate

(Christian Congregation of the Jehovah’s Witnesses, Inc.). Nunez I, ¶ 5. A year later,

however, the elders relented and reinstated the abusing stepfather as a member of the

congregation. Nunez I, ¶ 5.

¶29 As subsequently alleged, but then unbeknownst to the local elders, the banished and

later reinstated stepfather had also been similarly sexually abusing his minor

step-granddaughter (Nunez) since 2002. Nunez I, ¶ 6. The abuse of Nunez allegedly

started when she was five years old and continued until 2007 when she was ten. Nunez I,

¶ 6. Though not aware of the alleged sexual abuse of Nunez until sometime around 2014,

the local elders were aware that her step-grandfather had previously abused his

step-children and that Nunez was frequently present in his company at weekend church

services after his reinstatement in 2005. Nunez I, ¶ 6.

18
¶30 In 2016, Nunez and her aunt (Holly) sued the local Jehovah’s Witnesses

congregation, and above-referenced national affiliates, for compensatory and punitive

damages based on the local elders’ alleged tortious failure to take sufficient action to

protect them from sexual abuse by their stepfather/step-grandfather. As their predicate

legal theories, they each asserted, in the alternative, separately-pled claims of negligence

(breach of common law duty to use reasonable care under the circumstances) and

negligence per se (breach of statutory reporting duty1) against the local Jehovah’s

Witnesses congregation, inter alia.2

¶31 Pursuant to M. R. Civ. P. 56, both sides subsequently filed various pretrial motions

for summary judgment. As pertinent here, the Jehovah’s Witnesses moved for summary

judgment on the plaintiffs’ respective negligence per se claims on the asserted ground that

they were exempt from the otherwise applicable statutory reporting duty based on an

express exception applicable to the doctrinal reconciliation practices of their religion. The

plaintiffs opposed the motion but did not separately seek affirmative summary judgment

to the contrary. After entry of a stipulated final pretrial order, but prior to trial, the District

Court not only denied summary judgment on the Jehovah’s Witnesses’ motion, but further

affirmatively granted the plaintiffs summary judgment that the statutory exemption did not

apply and that local church elders were thus negligent per se based on a violation of the

Montana statutory duty to report the suspected sexual abuse by the

1
See § 41-3-201, MCA.

2
They further asserted that named national affiliates of the local congregation were liable for the
alleged negligence of the local congregation.

19
stepfather/step-grandfather.3 Without reference to the separately-pled common law

negligence claim not at issue on the Jehovah’s Witnesses’ motion, the District Court’s

written judgment noted that the only matters left for jury determination on the plaintiffs’

respective negligence per se claims were proof of the amounts of their respective

compensatory damages claims.4 The case was thus postured for jury trial on the plaintiffs’

respective negligence per se and common law negligence claims, as pled in the alternative.

¶32 However, at trial, upon inquiry from the District Court before opening statements

as to necessary preliminary jury instructions, the plaintiffs unequivocally, without

qualification or reservation of right, “dismissed their common law negligence claims” and

proceeded on their respective negligence per se claims, as significantly narrowed by the

prior summary judgment ruling. Nunez I, ¶ 8. At the close of trial, the jury rejected Holly’s

negligence per se claim and awarded her nothing. It returned a favorable verdict on

Nunez’s negligence per se claim, however, thus awarding her $4 million in compensatory

damages, with an additional $31 million in punitive damages. We later reversed the verdict

on appeal, holding that, based on the record material facts not subject to genuine dispute,

the Jehovah’s Witnesses were statutorily exempt as a matter of law from the otherwise

3
Nunez did not object, nor does she assert here, that the District Court either lacked discretion to
grant her summary judgment sua sponte under these circumstances, or that it abused its discretion
under M. R. Civ. P. 56 in doing so.

4
The District Court’s imprecise/ambiguous written summary judgment ruling erroneously
indicated that the ruling not only relieved the plaintiffs of their burden of proving that the
defendants were negligent, based on breach of the statutory reporting duty but also, as to Nunez,
relieved her of her related burden of proving to the jury that the Jehovah’s Witnesses failure to
report their suspicions regarding the prior abuse was a compensable cause of her step-grandfather’s
subsequent abuse, and resulting harm, rather than his criminal conduct.

20
applicable mandatory reporting duty because they were acting in accordance with the

doctrinal reconciliation practices of their religion. Nunez I, ¶ 33. We thus remanded for

entry of summary judgment in favor of the Jehovah’s Witnesses on the plaintiffs’

negligence per se claims. Nunez I, ¶ 33. The implication of our narrow holding and

reversal, i.e., whether it ended the case in light of Nunez’s prior voluntary abandonment of

her co-pled alternative common law negligence claim, was not at issue on appeal.

2. Proceedings On Remand—Nunez’s Motion for Leave to Amend to Restate and
Revive Previously Abandoned Common Law Negligence Claim.

¶33 On remand, Nunez moved for leave to amend her complaint pursuant to M. R. Civ.

P. 15(a) to restate and revive her previously abandoned common law negligence claim.

She asserted that:

the record in this case establishes that . . . [she] did not dismiss her common
law negligence claim with prejudice. To the contrary, she proceeded to trial
with a judicial finding that [the Jehovah’s Witnesses] were negligent as a
matter of law based on [violation of statutory reporting duty]. To have
pursued the common law negligence theories, after the [c]ourt had already
determined that [the Jehovah’s Witnesses] were negligent, would have
created confusion at trial, and would have made no practical sense because
the jury was instructed at the outset that . . . the[y] . . . were negligent as a
matter of law and . . . the [only] issue to be decided was the amount of
damages to which . . . Nunez was entitled to recover . . . Nunez is entitled on
remand to proceed to trial on her common law negligence claim.

Over objection of the Jehovah’s Witnesses, and in a written judgment amended to correct

a noted factual error in its original Rule 15 ruling, the District Court granted Nunez leave

to amend her complaint to restate and revive the previously-abandoned common law

negligence claim. The court reasoned that:

It is clear from the record, that Nunez [detrimentally] relied on the
correctness of the District Court [grant of summary judgment on her
negligence per se claim], but carefully dismissed her common law claim

21
 without prejudice, so that she could reassert it. Because the [court
previously] granted summary judgment for Nunez on the per se claim, there
was no need to pursue the common law claim. Nunez clearly relied on the
legal correctness of the District Court’s summary judgment order in deciding
to dismiss the common law claim. The parties narrowed the issues for trial
but took care to dismiss the common law claim without prejudice, leaving the
door open for Nunez to reassert it if necessary.

(Emphasis added.) The Jehovah’s Witnesses immediately petitioned this Court for

exercise of supervisory control and reversal of the District Court ruling on extraordinary

review.

3. Supervisory Control—District Court Abuse of Rule 15(a)(2) Discretion.

¶34 Though an extraordinary remedy and no substitute for direct appeal in the ordinary

course, supervisory control is necessary and proper here because the District Court is

proceeding under a manifest mistake of procedural law for which ordinary appeal is

inadequate and which will surely result in gross injustice if not immediately corrected. See

M. R. App. P. 14(3); Montana State Univ.-Bozeman v. Mont. First Judicial Dist. Ct., 2018

MT 220, ¶ 18, 392 Mont. 458, 426 P.3d 541; Stokes v. Mont. Thirteenth Judicial Dist. Ct.,

2011 MT 182, ¶¶ 6-8, 361 Mont. 279, 259 P.3d 754; Truman v. Mont. Eleventh Judicial

Dist. Ct., 2003 MT 91, ¶ 15, 315 Mont. 165, 68 P.3d 654; Park v. Mont. Sixth Judicial Dist.

Ct., 1998 MT 164, ¶ 13, 289 Mont. 367, 961 P.2d 1267; Plumb v. Mont. Fourth Judicial

Dist. Ct., 279 Mont. 363, 370, 927 P.2d 1011, 1015-16 (1996).5 Regardless of the liberal

5
The Court’s deviation from our usually strict avoidance of unnecessary use of supervisory control
is puzzling here given its conclusion that the District Court is not proceeding under a mistake of
law, thus begging the question of why or on what basis ordinary appeal will not be an adequate
remedy (i.e. why the Court is exercising supervisory control to comment on this issue) if the
Jehovah’s Witnesses have indeed failed to show that the District Court is acting under a mistake
of law.

22
amendment standard of M. R. Civ. P. 15(a), the factual and legal rationales asserted by the

District Court and this Court for not holding Nunez to her purely tactical decision to

abandon her alternative common law negligence claim are unsound and indefensible under

the particular circumstances of this case.

¶35 After the initial 21-day deadline for the opposing party to file a responsive pleading,6

a party may amend a pleading only upon written consent of the opposing party or prior

leave of court. M. R. Civ. P. 15(a)(2). Although the court should “freely” allow

amendment “when justice so requires,” M. R. Civ. P. 15(a)(2); Hobble-Diamond Cattle

Co. v. Triangle Irrigation Co., 249 Mont. 322, 325, 815 P.2d 1153, 1155 (1991),

Rule 15(a)(2) does not warrant free amendment as a matter of right in every case. Allison

v. Town of Clyde Park, 2000 MT 267, ¶ 20, 302 Mont. 55, 11 P.3d 544; Stundal v. Stundal,

2000 MT 21, ¶ 13, 298 Mont. 141, 995 P.2d 420. Rather, the party seeking amendment

must make an affirmative showing of good cause: (1) as to how or why, upon reasonable

diligence, the party could not have earlier asserted or maintained the claim as subsequently

requested; (2) why the amendment is warranted in the interests of justice; and (3) that the

amendment will not cause unfair prejudice, burden, or expense to the opposing party. See

Geil v. Missoula Irrigation Dist., 2004 MT 217, ¶ 22, 322 Mont. 388, 96 P.3d 1127;

Hawkins v. Harney, 2003 MT 58, ¶ 39, 314 Mont. 384, 66 P.3d 305; Stundal, ¶ 12; Peuse

v. Malkuch, 275 Mont. 221, 227, 911 P.2d 1153, 1156-57 (1996); Lindey’s, Inc. v.

Professional Consultants, Inc., 244 Mont. 238, 242, 797 P.2d 920, 923 (1990) (citing

6
See M. R. Civ. P. 15(a)(1).

23
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962) in re Fed. R. Civ. P. 15); 6

Charles A. Wright & Arthur R. Miller, Wright & Miller’s Federal Practice & Procedure,

§ 1487 (2004). We review grants or denials of leave to amend a complaint under M. R.

Civ. P. 15(a)(2) for an abuse of discretion. Harrington v. Energy W., Inc., 2017 MT 141,

¶ 10, 387 Mont. 497, 396 P.3d 114; Edgewater Townhouse Homeowner’s Ass’n v.

Holtman, 256 Mont. 182, 187, 845 P.2d 1224, 1227 (1993). As pertinent here, an abuse of

discretion occurs if a court exercises granted discretion arbitrarily without conscientious

judgment, or in excess of the bounds of reason, resulting in substantial injustice.

Harrington, ¶ 10.

¶36 Here, in a twenty-five paragraph opinion, the Court gives amazingly short-shrift to

the critical record colloquy between court and counsel before opening statements at trial,

to wit:

During a pretrial discussion about settling preliminary jury instructions,
counsel for Nunez indicated Nunez was “fine limiting [her] negligence claim
to the negligence per se claim.” The District Court asked to clarify whether
Nunez was dismissing her common law negligence claim and breach of
fiduciary duty claim, to which counsel responded “Yes, your Honor.”
[Watchtower] did not object.

Opinion, ¶ 2. Based on that summary characterization, the Majority holds that “nothing in

the colloquy between [court] and counsel before trial prevent[ed] the District Court from

allowing Nunez to amend” her complaint to revive her common law negligence claim after

losing on her negligence per se claim on appeal. Opinion, ¶ 13. However, neither the

Court’s summary characterization, nor the manifest after-the-fact mischaracterization of

the record by Nunez and the District Court, are consistent with, much less supported by,

the pertinent record, to wit:

24
[Court]: I'm going to read some preliminary instructions . . . and then
opening statements. I am inclined to read plaintiffs’ proposed
[i]nstruction . . . which gives [the jury] notice that . . . the Court
has already determined . . . as a matter of law the duty was
breached and as to causation. The only concern I have with
that instruction is there are still causes of action for common
law negligence and for breach of fiduciary obligation. And I'm
not sure . . . how that would be communicated to the jury so –

[Plaintiffs]: Your Honor, . . . my understanding is [that] if you found
negligence per se . . . You found negligence. We don’t have a
desire to submit any other negligence theories as to 2004.

[Court]: . . . [But], as I understand it, there is still an outstanding common
law negligence and breach of fiduciary obligation causes of
action that the plaintiff continues to maintain.

[Plaintiffs]: Your Honor, yes. . . However, we are fine limiting our
negligence claim to the negligence per se claim. So . . . our
theory is [t]hat the mandatory reporter law [was] violated.

[Court]: And let me just ask a question about that. All right. . . . [B]ut
what I understand you’re saying is you’re dismissing . . . the
common law negligence cause of action?

[Plaintiffs]: Yes, your Honor.

[Court]: You’re just resting on the negligence per se cause of action.

[Court]: That’s correct, your Honor.

. . .

[Defendants]: . . . So you’re dismissing your . . . negligence [claim] . . .

. . .

[Plaintiffs]: . . . [O]ur sole negligence theory is negligence per se. And
we're happy to tell the Court that that's our sole negligence
theory.

[Court]: That certainly simplifies it. And does that go with regard to
one or both of the plaintiffs, though?

25
 [Plaintiffs]: Both.

[Defendants]: So my understanding, your Honor, . . . is that -- regardless of
how it’s characterized, they’re dismissing negligence . . . and
proceeding on a per se with both plaintiffs.

Trial Tr. 140:14-143:15 (emphasis added).

¶37 The District Court’s assertion that Nunez “carefully dismissed her common law

claim without prejudice, so that she could reassert it” and that the “parties narrowed the

issues for trial but took care to dismiss the common law claim without prejudice, leaving

the door open for Nunez to reassert it if necessary,” are clearly erroneous, without any basis

in the contemporaneous record. Nunez said absolutely nothing, either expressly or

implicitly, indicating any intent or reservation of right to reassert the abandoned negligence

claim in the event that her favored negligence per se claim might ultimately fail. Nor did

the Jehovah’s Witnesses in any regard expressly or implicitly acquiesce, much less agree,

that Nunez reserved the right to later revive the abandoned negligence claim if unsuccessful

on her chosen negligence per se claim. To the contrary, fairly read as a whole, the actual

record clearly indicates that both parties were under the impression that Nunez was

intentionally abandoning her common law negligence claim, without reservation of right,

to go all-in on her negligence per se claim. Nothing in the record supports a

characterization that Nunez “carefully” stated any intent other than to unequivocally,

absolutely, and unconditionally abandon her alternative common law negligence claim,

without recourse.

¶38 Equally erroneous as justifications for allowing Nunez to revive the abandoned

negligence per se claim are Nunez’s assertions, echoed by the District Court, that, in light

26
of the favorable negligence per se ruling, it was senseless and would be confusing to the

jury to continue to prosecute the negligence per se claim because the court would be

instructing the jury “at the outset that the [Jehovah’s Witnesses] were negligent as a matter

of law” and that the only “issue to be decided was the amount of damages to which . . .

Nunez was entitled to recover.” As a preliminary matter, the District Court had yet to give

any instruction to the jury when Nunez voluntarily abandoned the common law negligence

claim before opening statements at trial. If Nunez had elected to prosecute both claims at

trial in the alternative, as originally pled and still postured to proceed under the final pretrial

order, the court necessarily would have had the task, as it had from the outset, to properly

instruct the jury on the alternatively pled claims, thereby providing the jury a guide for

navigating through the outstanding factual issues under both of the alternatively pled

claims. Any difficulty or complexity in that task was solely the consequence of the tactical

pleading and litigation strategy unilaterally chosen by Nunez, not the Jehovah’s Witnesses

or the court. Even in that regard, other than cursory assertion, neither Nunez, nor the

District Court, have articulated how or why the court could not have adequately instructed

the jury on both alternative claims as in any other case where a plaintiff elects to plead

alternative claims or theories of liability.

¶39 Negligence and negligence per se are distinct claims or theories of liability

predicated on distinct factual breaches of distinct legal duties. Thus, contrary to Nunez’s

overly-simplistic argument to the District Court, negligence per se and common law

negligence are entirely different strains of negligence, even though either establishes the

liability elements necessary to prove the otherwise similar causation and damages of each

27
type of claim. Under modern rules of pleading and practice, plaintiffs may, and commonly

do, plead such alternative claims or theories of liability in pursuit of compensatory damages

for the same resulting harm compensable under either. See M. R. Civ. P. 8(d)(2); Folsom

v. Mont. Pub. Employees’ Ass’n, Inc., 2017 MT 204, ¶ 21, 388 Mont. 307, 400 P.3d 706

(internal citations omitted). Whether, or to what extent, the pleading and ultimate

prosecution of alternative tort claims makes good sense or is optimal in a given case is

unquestionably a strategic or tactical decision in the sole discretion of the plaintiff—not

the court or the defendant. To the extent that alternatively pled claims may complicate jury

instruction, or be more potentially confusing to a jury than a single liability theory, the

party solely responsible for that choice if it goes bad is the plaintiff—not the court or the

defendant. Accordingly here, Nunez certainly had the right to tactically abandon her

alternative common law negligence claim at the last minute to simplify her theory of

liability and burden of proof before the jury. However, it is simply inaccurate and

disingenuous for her and the District Court to suggest that she was unfairly prejudiced by

that decision, that the decision was unfairly thrust upon her, or that she had no other

reasonable choice. In that regard, the District Court’s cursory Rule 15(a)(2) rationale that

Nunez had a right to rely on the court’s negligence per se ruling and, after losing on appeal,

was thus entitled to backup and retry the case on a different legal theory is wholly

unsupported by any legal citation or analysis here. Thus, without exception, none of the

reasons asserted by Nunez, and echoed or amplified by the District Court, as justification

for allowing her to revive her abandoned common law negligence claim after her chosen

28
theory of liability failed on appeal were valid or defensible under the law or circumstances

of this case.

¶40 Thus, in affirming the District Court, this Court does not even reference the lower

court’s rationale for granting leave to amend, much less endorse or affirm its correctness.

So handicapped, the Majority similarly resorts to cursory reference to the district court’s

broad discretion under M. R. Civ. P. 15(a), and then conspicuously skips over to an

attempted distinction of this case from our holding in Stanford v. Rosebud County, 254

Mont. 474, 839 P.2d 93 (1992) (affirming denial of leave to amend to add new theory of

liability after prior theory failed on appeal) on the stated ground that Jehovah’s Witnesses

did not specifically make a “prejudice argument” here. Opinion, ¶¶ 20-22. The attempted

distinction is ineffectual, however, because we did not affirm the denial of leave to amend

in Stanford based on resulting prejudice. Stanford, 254 Mont. at 476-78, 839 P.2d at 94-96.

We affirmed the denial of post-appeal leave to amend “based on the time at which the

motion [to amend] was made and the lack of a showing of good cause why” the alternative

legal theory “was not raised prior to the [adverse] ruling” that defeated the plaintiffs’

chosen claim. Stanford, 254 Mont. at 478, 839 P.2d at 96 (emphasis added). Stanford thus

does not serve the purpose for which it is cited. To the contrary, it analogously manifests

a similarly conspicuous lack of good cause for post-appeal amendment here. As in

Stanford, Nunez has made no showing of good cause for her abandonment of her co-pled

alternative negligence claim to aggressively go all-in on her negligence per se claim, except

for a purely tactical decision that unfortunately did not pan-out.

29
¶41 Under these circumstances, it is sheer pedantic nitpicking for this Court to ignore

the glaring lack of good cause for allowing the post-appeal revival of a previously

abandoned alternative claim based solely on the hyper-technical ground that the Jehovah’s

Witnesses “have not made a prejudice argument.” As a threshold matter of law, prejudice

is not a relevant consideration under M. R. Civ. P. 15(a)(2) unless and until the movant

first shows good cause in the interests of justice, upon the exercise of reasonable diligence,

for not earlier pleading the new legal theory or predicate fact at issue. Here, this Court has

neither endorsed the District Court’s erroneous good cause rationale, nor articulated any

other. Beyond that technical nicety, the resulting prejudice to the Jehovah’s Witnesses of

allowing Nunez to retry the case on a different legal theory after her chosen theory failed

on appeal is clear, obvious, and indisputable without requirement for magic words or

further explanation—the exorbitant cost and burden of unnecessarily having to again

defend themselves in a second trial in a relatively-complex, high-dollar civil tort action for

no reason other than their opponent’s unnecessary tactical decision gone-bad.

¶42 Based on the record in Nunez I and here, I presume that Nunez’s allegations of

sexual abuse by her step-grandfather are absolutely true. I thus have nothing but sincere

empathy for her, and sickening disdain and condemnation for his inexcusably horrible

conduct and the resulting irreparable harm that he has caused her to suffer to date, and in

the future. But the questions of whether the Jehovah’s Witnesses failed to use reasonable

care under the circumstances to protect her from her step-grandfather and, whether and to

what extent any such failure was a compensable cause of the trauma he caused, remain

genuinely disputed questions of fact to which Nunez has already had a full and fair

30
opportunity to litigate before a jury. Empathy is not a legal basis upon which to disregard

the governing Rules of Civil Procedure, universally adopted for the purpose of ensuring

fair and equal treatment and protection to all civil litigants, plaintiffs and defendants alike.

While understandable, the Court’s empathy-driven, result-oriented holding today is not

only erroneous and indefensible under the circumstances of this case, but further

establishes terrible precedent that will surely foster similar unfair civil trial practice until

we are inevitably forced to reverse or limit it as anomalous in the future under a less

emotionally-gripping fact pattern. This is a classic case of the old adage that bad facts

make bad law. I dissent.

/S/ DIRK M. SANDEFUR

Justice Jim Rice joins in the Dissenting Opinion of Justice Sandefur.

/S/ JIM RICE

Justice Jim Rice, dissenting.

¶43 I join Justice Sandefur’s dissenting opinion and would add that Plaintiff’s

reinstituted claim should also be barred under the doctrine of judicial estoppel. See Big

Sky Civ. & Envtl., Inc. v. Dunlavy, 2018 MT 236, ¶ 30, 393 Mont. 30, 429 P.3d 258

(“Judicial estoppel is an equitable principle that bars a party from taking inconsistent

positions of fact and law at different points in the same litigation[.]”). Given the particular

actions and statements of the Plaintiff and the circumstances of the litigation, as well

31
outlined by Justice Sandefur, judicial estoppel is also an appropriate equitable remedy here

to protect fundamental fairness.

/S/ JIM RICE

Justice Beth Baker, dissenting.

¶44 Though I do not join the Dissents in full, I agree that on the state of this record and

the order appealed, the District Court abused its discretion in allowing amendment to

reinstate the common law negligence claim. I would grant the petition and reverse.

/S/ BETH BAKER

32