Submitted on Briefs: December 6, 2017
FROM: District Court of the First Judicial District, In and
For the County of Lewis And Clark, Cause No. CDC-2014-98
Honorable Kathy Seeley, Presiding Judge
Appellant: Nick K. Brooke, Colin M. Stephens, Smith &
Stephens, P.C., Missoula, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana
Guzynski, Mary E. Cochenour, Special Deputy Lewis and Clark
County Attorneys, Helena, Montana
McGrath Chief Justice
This is an appeal from a First Judicial District Court order
denying Matthew Ailer's (Ailer) motion in limine to
exclude evidence at trial that his wages were being
garnished, and an order requiring Ailer to pay $64, 025.34 in
restitution plus statutory and administration fees. We
We restate the issues on appeal as follows:
1. Whether the District Court erred when it denied
Ailer's ineffective assistance of counsel claim.
2. Whether evidence that Ailer's wages were being
garnished is a "bad act" and inadmissible character
evidence pursuant to M. R. Evid. 404(b).
3. Whether the District Court had substantial evidence to
support its restitution order.
AND FACTUAL BACKGROUND
In May 2011, Ailer was involved in an accident on Highway 93
while driving a van for Garden City Janitorial as one of its
janitors. Garden City Janitorial has a workers'
compensation insurance policy from the Montana State Fund
(State Fund). On May 18, 2011, Ailer filed a claim with the
State Fund, reporting that he injured his arm in the crash.
Ailer asserted his symptoms worsened even after receiving
continued medical treatment. Ailer was ultimately released to
full-duty employment by Dr. Stephen Powell on October 4,
On October 6, 2011, Ailer began seeing a physical therapist,
Kristen Green. Ailer asked Green for a note to give to his
employer that would restrict him from lifting a heavy floor
burnisher while at work. Green wrote a letter and Ailer gave
it to his employer, Cory Miller. The day after receiving this
letter, Miller trained Ailer and Ailer's coworker, ...