Archive | January, 2018

Borges v. Missoula County Sheriff’s Office

Borges v. Missoula County Sheriff’s Office, 2018 MT 14 (Jan. 30, 2018) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in declining to consider facts that arose after Borges filed his October 31, 2014 HRB complaint; and (2) whether the district court erred in granting the county summary judgment on Borges’ claim that the county failed to engage in an interactive dialogue or to provide a reasonable accommodation.

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


Facts: Borges began working at the detention facility in November 2006, and in 2010 was named outstanding employee of the year. His duties included supervising staff and overseeing juvenile offenders. In April 2014, Borges was diagnosed with autism spectrum disorder, manifesting as an extreme sensitivity to fragrances.…

State v. Santiago

State v. Santiago, 2018 MT 13 (Jan. 30, 2018) (McKinnon, J.) (5-0, aff’d)

Issue: Whether the district court abused its discretion by giving the deadlocked jury an Allen instruction.

Short Answer: No.


Facts: Santiago was charged with sexual intercourse without consent, plead not guilty, and went to trial. On the last day of trial, after a few hours of deliberations, the jury sent the judge a note saying it was deadlocked 11-1. The state suggested the court give the jury an Allen instruction, otherwise known as a dynamite instruction, which the Montana Supreme Court approved in Norquay. Santiago objected on the grounds that the vote was 11-1, arguing that the Allen instruction would put an extreme undue burden on the one juror.…

State v. Erickson

State v. Erickson, 2018 MT 9 (Jan. 16, 2018) (Rice. J.) (5-0, aff’d, rev’d, & remanded)

Issue: Whether the district court erred in denying Erickson’s motion to modify his criminal judgment.

Short Answer: No; however, Erickson can seek relief under § 46-18-246 and is permitted to do so on remand.

Affirmed, reversed, and remanded

Facts: Erickson and Johnson were involved in a fight in 2011, which resulted in Johnson falling, hitting his head, and sustaining a serious injury. In February 2013, a jury found Erickson guilty of criminal endangerment, and this Court affirmed in 2014.

At sentencing in 2013, the state sought restitution for Johnson’s medical care and lost wages. Erickson argued that those issues were more appropriately addressed in a civil case, which Johnson had already filed.…

State v. Schowengerdt

State v. Schowengerdt, 2018 MT 7 (Jan. 16, 2018) (Shea, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in ruling Schowengerdt was not entitled to substitution of counsel, and (2) whether Schowengerdt was denied effective assistance of counsel.

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


Facts: Schowengerdt killed his wife by repeatedly stabbing her in their home in December 2012. He drove to the police station the next day and confessed in a recorded statement. Schowengerdt’s attorney filed notice in January 2013 that he might assert a defense of justificable use of force. In April 2013, Schowengerdt decided to plead guilty to deliberate homicide. The district court proceeded through a detailed colloquy during which Schowengerdt indicated the plea was knowing and voluntary, he was satisfied with his attorney’s services, and that he could not “handle” a trial.…

State v. Lerman

State v. Lerman, 2018 MT 5 (Jan. 9, 2018) (Baker, J.) (5-0, aff’d)

Issue: Whether the state presented sufficient evidence to prove the elements of penetration and force in conviction for sexual intercourse without consent.

Short Answer: Yes.


Facts: Kelsey Stoker went to Randall Lerman, a licensed massage therapist in Dillon, for four appointments to help alleviate lower back pain. During her appointments, Stoker left on her undergarments, which included a cap-sleeved undershirt and spandex shorts that went almost to her knees.

At the fourth appointment, Lerman pulled her shorts down to her knees, and pulled her top down, exposing her breasts. He massaged her breasts and nipples, her buttocks, the back of her thighs, and her groin. He then inserted his fingers into Stoker’s vagina, at which point she told him to stop.…

Hudson v. Irwin

Hudson v. Irwin, 2018 MT 8 (Jan. 8, 2018) (McGrath, C.J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in concluding Hudsons were not entitled to access an easement on the Irwin property; (2) whether the owner of real property who is establishing a general plan development can create an easement upon the owner’s own parcel; and (3) whether the prevailing party award of attorney fees should be vacated.

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

Affirmed and remanded for determination of fees on appeal

Facts: Hudsons and Irwin own real property adjacent to one another. Before being subdivided by a previous owner, the properties were one parcel. A privately owned public airport is on the Irwin property.…

City of Libby v. Hubbard

City of Libby v. Hubbard, 2018 MT 2 (Jan. 2, 2018) (Rice, J.) (5-0, aff’d)

Issue: Whether Hubbard’s conviction should be reversed because of ineffective assistance of counsel.

Short Answer: No.


Facts: Hubbard and her cousin went to a Libby casino to gamble. Hubbard presented a fake ID to obtain a gambling coupon. An employee recognized her and called police. Upon investigation, the officers confirmed that Hubbard had no outstanding warrants, but that her Oregon driver’s license was suspended. She was not cited for using the fake identification.

Shortly after, the officers were on patrol when they saw Hubbard driving. Knowing her license was suspended, they initiated a traffic stop, and arrested her.…

Moreau v. Transportation Insur. Co.

Moreau v. Transportation Insur. Co., 2018 MT 1 (Jan. 2, 2018) (McGrath, C.J.) (5-0, aff’d)

Issue: Whether the Workers’ Compensation Court erred in granting summary judgment to Transportation Insurance Company.

Short Answer: No.


Facts: Moreau’s husband, Edwin, worked for W.R. Grace in Libby from 1963-1992. In 2009, Edwin died from asbestos-related lung cancer.

In 2000, Grace established the Libby Medical Plan to pay medical expenses for employees injured by asbestos. The Plan paid about $95,000 of Edwin’s medical expenses. In September 2012, as part of Grace’s bankruptcy, certain rights and duties of the Plan were transferred to the Libby Medical Plan Trust. Grace remained responsible for the Plan’s ongoing obligations incurred before that time.

In 2010, Moreau, as PR of Edwin’s estate, filed a work comp claim for occupational disease benefits.…