Oregon Court of Appeals

2011

August 31 summaries

State v. Potter

When questioning a defendant about a case other than that which the defendant has invoked the right to counsel for, the prosecutor must contact the defendant’s attorney before attempting to interview the defendant on a factually related matter.

Area(s) of Law:
  • Criminal Procedure

State v. Wedel

The admission of evidence of a diagnosis of child sexual abuse in the absence of physical evidence is plain error.

Area(s) of Law:
  • Civil Procedure

Wallace v. State ex rel PERB

Plaintiffs must first exhaust their administrative remedies before seeking judicial relief.

Area(s) of Law:
  • Administrative Law

Certain Underwriters v. Mass. Bonding and Ins. Co.

Under ORS 742.061 an insurer may receive contribution for contribution attorney fees if the insured prevails at trial and obtains a recovery that exceeds the insurer’s highest tender.

Area(s) of Law:
  • Attorney Fees

Dept. of Human Services v. A.M.C.

To terminate parental rights, DHS must present clear and convincing evidence that a parent’s conduct or condition is seriously detrimental to the child; and a judgment terminating parental rights cannot be supported by evidence regarding the condition without evidence regarding detriment.

Area(s) of Law:
  • Family Law

Gemstone Builders, Inc. v. Stutz

Even though the text of a contract was ambiguous as whether binding arbitration was required. The intent of parties could still be ascertained based on the policy goal of arbitration.

Area(s) of Law:
  • Contract Law

Greenway v. Parlanti

ORS 90.396(1) requires an eviction notice to specify the date and time of the termination of tenancy; a notice that merely indicates that the termination date and time will occur 24 hours after service is insufficient.

Area(s) of Law:
  • Property Law

Roseburg Forest Products v. Lund

Under Columbia Forest Products v. Woolner, there is no specific procedure for an employer to accept a combined condition.

Area(s) of Law:
  • Workers Compensation

State v. Durham

Possession of less than one ounce of marijuana within 1000 feet of a school constitutes two separate offenses and thus is not eligible for a marijuana diversion program.

Area(s) of Law:
  • Criminal Law

State v. Phillips

When evaluating the relevance of evidence to show bias of a witness, reasonable inferences are permissible but speculation is not.

Area(s) of Law:
  • Evidence

State v. Pipkin

A concurrence jury instruction is required when determining which crime a defendant is guilty of, but it is not required when determining which particular acts a defendant perpetrated to constitute an element of a single crime.

Area(s) of Law:
  • Criminal Law

State v. Simpson

An unnamed informant’s report may be sufficient to justify an officer’s reasonable suspicion to stop a vehicle if the informant’s report is sufficiently detailed, and the officer can corroborate at least some of the information contained in the report.

Area(s) of Law:
  • Criminal Procedure

State v. Wiggins

The ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution applies as long as the vehicle in question is functionally mobile, even if law enforcement officers have broken contact with the vehicle.

Area(s) of Law:
  • Criminal Procedure

State v. Wiseman

When determining whether an officer has an objective reasonable suspicion that a crime is in progress, the facts must be viewed in the totality of the circumstances and consideration must be given to the officer’s experience and training.

Area(s) of Law:
  • Criminal Procedure

Stave v. Diaz-Guillen

Where a trial court ran erroneous sentences concurrently with other lawful sentences, such errors are harmless and not grave; therefore there is no requirement to remand the case for resentencing.

Area(s) of Law:
  • Sentencing

Warkentin v. Employment Dept.

In order for an employee to quit with good cause and collect unemployment insurance benefits, an employee must have left employment under circumstances that a reasonable person would believe they had no reasonable alternative to leaving their job and such findings be the EAB must be supported by substantial evidence.

Area(s) of Law:
  • Employment Law

Willamette Oaks, LLC v. City of Eugene

A petitioner must meet his burden to establish a prima facie case that the appeal violated a statute in order to make a fee challenge.

Area(s) of Law:
  • Administrative Law

State v. McAtee

Under Galloway v. U.S., if the ultimate fact may be logically proven following a fact or narrative, the jury may be given the opportunity to draw that conclusion.

Area(s) of Law:
  • Criminal Law

Central Oregon Landwatch v. Deschutes County

An Oregon county ordinance that authorizes including multi-tract sites of 160 acres or more on the county’s Destination Resort Eligible Lands Map does not conflict with ORS 197.455.

Area(s) of Law:
  • Land Use

Drury v. Assisted Living Concepts, Inc.

Children will not be contractually bound by arbitration provisions in contracts to which their parents are third-party beneficiaries if the parent in question did not assent to the provision because of lack of capacity, and the parent’s actions do not bind him or her to the agreement.

Area(s) of Law:
  • Contract Law

Ferguson v. PeaceHealth

A sanction for contempt may not be appealed from until a final judgment has been entered.

Area(s) of Law:
  • Appellate Procedure

Marolla v. DPST

ORS 181.662(4) grants the Department of Public Safety Standards and Training the option to implement a standard rule revoking suspension of an officer's basic police certification when the officer has been discharged for cause.

Area(s) of Law:
  • Administrative Law

Porter v. Griffin

In a suit for marital dissolution, the court may enforce the terms set forth in a stipulated judgment signed by the parties as a contract.

Area(s) of Law:
  • Family Law

Portland Fire Fighters’ Assoc. v. City of Portland

The Employment Relations Board must examine the Collective Bargaining Agreement before determining that the city is in violation of ORS 243.698 for declining to bargain over the impact employment changes might have.

Area(s) of Law:
  • Employment Law

State v. B.A.H.

Evidence found during a warrantless search is permissible when the search is made pursuant to the administrative policy of a school and there is reasonable suspicion of criminal activity.

Area(s) of Law:
  • Criminal Law

State v. Fernandez

The natural and probable consequence jury instruction may prejudice the jury, if the jury could infer without determining intent that one action was the natural and probable consequence of another action.

Area(s) of Law:
  • Criminal Law

State v. Grierson

A letter from the district attorney’s office advising defendant of an arraignment date does not satisfy the commencement of prosecution for statute of limitation purposes under ORS 131.135.

Area(s) of Law:
  • Criminal Law

State v. Jones

An officer requesting identification is not enough to amount to a stop because a reasonable person would not perceive it as a show of authority; so long as a reasonable suspicion of criminal activity begins before a stop does, it is legal.

Area(s) of Law:
  • Criminal Procedure

State v. Rowland

Under OEC (609)(3)(a), if more than 15 years pass since the prior conviction date, but jail time was served as a sanction for a parole violation within the 15-year period, the sanction is ‘confinement’ for purposes of calculating the 15-year period.

Area(s) of Law:
  • Evidence

State v. Sullivan

Administrative agencies lack jurisdiction to make judgments on matters that are pending on appeal in court.

Area(s) of Law:
  • Civil Procedure

Stewart v. Kids Incorporated of Dallas, OR

To survive a motion to dismiss, a negligence claim must allege facts from which a factfinder could determine: 1) defendant caused a foreseeable risk of harm, 2) of the type the law protects, 3) defendant’s conduct was unreasonable in light of the risk and the cause of plaintiff’s harm, and 5) plaintiff was of the class of persons sought to be protected.

Area(s) of Law:
  • Civil Procedure

September 31 summaries

Clement v. Mills

A post-conviction settlement agreement that affects petitioner’s sentences in two separate cases will be enforced when the defendant agrees to the settlement agreement on the record, even though the defendant claimed there was no “meeting of the minds” when he misunderstood the agreement at the hearing.

Area(s) of Law:
  • Post-Conviction Relief

Green v. Douglas County

Oregon law defines buildings as not being strictly confined to walled structures, but rather as being “normally associated with uses permitted in the zone in which the property is located.”

Area(s) of Law:
  • Land Use

Holbert and Noon

For a restraining order, the imminence requirement of abuse is met when the threatened injury is part of the respondent’s pattern of threatening behavior and articulated to be near at hand, impending or menacingly near.

Area(s) of Law:
  • Family Abuse Prevention Act

Hubbell v. Sanders

To establish a restraining order under the Family Abuse and Prevention Act (FAA), a person must have sufficient evidence, subjectively or objectively, but evidence of future abuse and credible threat to physical safety must be present.

Area(s) of Law:
  • Civil Law

Luty v. Luty

When a spouse’s reduction in income is caused by an indefinite suspension of his/her medical license because of a substance abuse disorder, the circumstances justify the court’s reconsideration of spousal support obligations under ORS 107.135.

Area(s) of Law:
  • Family Law

Proctor v. City of Portland

Despite the 2008 revisions to Portland’s Business License Law, real estate brokers working under principal real estate brokers are not required to pay a portion of their income as a licensing fee.

Area(s) of Law:
  • Tax Law

Rivera-Martinez v. Vu

To make a claim for attorney fees resulting from a minimum wage claim, the prevailing party must show that the claim clearly stems from clearly designed exceptions under ORS 653.055.

Area(s) of Law:
  • Attorney Fees

River’s Edge Investments, LLC v. Bend

A development agreement with provisions addressing exactions and system development charges (SDC) will interpret the nature of those SDC’s in the context of the agreement and not necessarily find they are exactions in the context of the agreement, unlike relevant case law.

Area(s) of Law:
  • Contract Law

State v. D. M.

In the absence of clear and convincing evidence that because of a mental disorder a person’s life is threatened by their inability to secure basic self-care, probable homelessness and the mere possibility of life-threateningly cold weather do not provide sufficient basis for civil commitment where there is no reason to believe that the individual would not seek shelter.

Area(s) of Law:
  • Civil Law

State v. Drown

For the purposes of ORS 163.205, a person is guilty of first-degree criminal mistreatment when the person withholds necessary physical care to a person who is dependent upon them.

Area(s) of Law:
  • Criminal Law

State v. Dudley

A seizure of a person occurs if a law enforcement officer “intentionally and significantly” restricts that person’s movement or if a reasonable person based on the “totality of the circumstances” would believe their movement was restricted.

Area(s) of Law:
  • Criminal Law

State v. Ko

To violate a stalking protective order, statements made to protected persons must constitute unequivocal threats; and in order to prove a choice-of-evils defense, the defendant must prove that his conduct did not exceed what was necessary to avoid the purported evil.

Area(s) of Law:
  • Criminal Law

State v. Martinez-Alvarez

An officer is not required to obtain a warrant prior to administering a breath or blood test, unless an objectively reasonable officer would know that a warrant could be issued significantly faster than the time elapsed between probable cause and administration of the breath or blood test at the time the officer had probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. Wilson

Where a defendant seeks relief under Ailes v. Portland Meadows, Inc., he need not preserve the error in the record when he was not afforded the opportunity to do so.

Area(s) of Law:
  • Criminal Law

Williams v. Salem Women’s Clinic

If a party pursues a claim that is entirely devoid of legal or factual support, ORS 20.105(1) requires an attorney fee award; the factors specified in ORS 20.075 do not apply when a party seeks a mandatory attorney fee award.

Area(s) of Law:
  • Attorney Fees

Campbell v. Employment Department

A finding that an employee lacked good cause to voluntarily leave a job will not be sustained when the evidence indicates the claimant constantly refused to hide financial improprieties and could reasonably expect a charge of insubordination and termination.

Area(s) of Law:
  • Employment Law

Homestyle Direct, LLC v. Department of Human Services

An agency cannot enforce its own improperly promulgated standards by putting them in a provider agreement and then enforcing a rule that allows sanctions for noncompliance with that agreement.

Area(s) of Law:
  • Administrative Law

Hood v. Employment Dept.

In order to receive unemployment benefits, an employee fired for misconduct must fall either under a good faith error exception, or a refusal to follow an unreasonable employer policy exception.

Area(s) of Law:
  • Employment Law

Klutschkowski v. Peacehealth

The noneconomic damage limitation of ORS 31.710 is not precluded by the remedy clause of Article I, section 10, nor the jury trial provisions of Article I, section 17, and Article VII, section 3 of the Oregon Constitution when the cause of action did not exist at the time the Oregon Constitution was adopted.

Area(s) of Law:
  • Tort Law

Maurer v. Maurer

“Best interest” child custody cases will be analyzed using the factors in ORS 107.137 and the applicable public policy preferences.

Area(s) of Law:
  • Family Law

State of Oregon v. M.J.

Homelessness and delusionally-driven dietary habits that occur when the person is willing to eat and able to obtain food, are not sufficient grounds for a basic needs commitment.

Area(s) of Law:
  • Civil Commitment

State v. Bryant

When two assaults occur within a short period of time, and the assaults are so similar and interrelated that the facts of one crime will also relate details of the other crime, then the assaults are considered to arise out of the same criminal episode when calculating a criminal history score.

Area(s) of Law:
  • Criminal Law

State v. Dunning

A police officer should be prohibited from testifying as an expert regarding technical or scientific matters if he has no expertise or formal training on the subject.

Area(s) of Law:
  • Criminal Law

State v. Martino

The argument that a defendant’s failure to object to an erroneous ruling was waived because it was a strategic choice to have the court believe that the defendant was remorseful is not plausible.

Area(s) of Law:
  • Criminal Procedure

State v. Mullins

The 30 days that a defendant has to file a notice of appeal from a supplemental judgment begins when the defendant receives notice that the judgment has been entered, not when appellate counsel receives notice.

Area(s) of Law:
  • Criminal Procedure

State v. Singer

A person has been seized under Article I, section 9 of the Oregon Constitution if a reasonable person, under the totality of the circumstances, would believe that his or her freedom of movement has been restricted by a law enforcement officer.

Area(s) of Law:
  • Constitutional Law

State v. Vidal

An expert diagnosis of child sexual abuse is not admissible as evidence in the absence of other physical evidence of abuse.

Area(s) of Law:
  • Evidence

State v. Zaccone

A defendant is seized for the purposes of Article I, section 9 of the Oregon constitution when a reasonable person similarly situated would believe that their freedom of movement is significantly restricted by a police officer’s show of authority.

Area(s) of Law:
  • Constitutional Law

Fadel v. El-Togby

When a party transfers property from an estate to an estranged spouse in the midst of a divorce proceeding to avoid paying creditors, whether or not the divorce is a sham is inconsequential; and such property transfers are fraudulent if the transferor had any intent to defraud any creditor by avoiding an obligation to pay.

Area(s) of Law:
  • Elder Law

Friends of Polk County v. Oliver

In order for a person to have vested rights to develop land under Measure 49 section 5(3), a determination of the nature of the ultimate project and an assessment of the expenditure ratio must be made.

Area(s) of Law:
  • Land Use

Oregon Firearms v. Board of Higher Education

Regulation of activities involving firearms is the sole domain of the state legislature, unless it expressly authorizes otherwise.

Area(s) of Law:
  • Administrative Law

October 35 summaries

State v. Benson

It is plain error when the court, in the presence of the jury, asks whether a defendant understands his right to silence, because OEC 513(2) requires that proceedings, where practical, be kept outside the knowledge of the jury.

Area(s) of Law:
  • Criminal Procedure

Pewther v. C Corp

The presumption of joint liability between co-owners in property presupposes that the co-owners maintain a joint tenancy, not a tenancy in common; and obligations will not be assumed to continue when it would be implausible under the terms of the contract following a termination of the tenant’s interest.

Area(s) of Law:
  • Contract Law

State v. Mullen

A person whose identity is misappropriated is a victim for purposes of identity theft under ORS 161.067(2).

Area(s) of Law:
  • Criminal Law

State v. Supanchick

The forfeiture exclusion to the hearsay doctrine does not require a defendant to intend that his wrongful act prevent a witness from testifying; evidence otherwise excludable as prejudicial, may be admitted on cross examination if relied upon by defendant’s expert witness; and testimony by expert witnesses must be in regards to a relevant issue.

Area(s) of Law:
  • Evidence

State v. Bell

Merger of separate verdicts into one conviction is not appropriate if the record shows that the defendant had a chance to renounce his or her criminal intent after each violation.

Area(s) of Law:
  • Criminal Law

State v. Washington

Prosecutorial discretion violates the Oregon Constitution when such decisions are made without coherent systematic policy or criteria, or when there exists a lack of consistent enforcement.

Area(s) of Law:
  • Constitutional Law

Dept. of Human Services v. G.D.W.

A child’s out-of-court statements in a dependency case are admissible as statements of a party opponent.

Area(s) of Law:
  • Evidence

Russell v. U.S. Bank National Association

Under ORS 652.150, the statue of limitations for penalty wages does not begin to run until the employer pays the employee’s final wages, files an action, or after 30 days from date final wages are due.

Area(s) of Law:
  • Employment Law

Sheptow v. Geico General Ins. Co.

Person Injury Protection coverage in an insurance policy applies to any person who uses the insured’s vehicle with consent.

Area(s) of Law:
  • Insurance Law

State v. Pickett

Where there is plain error in admitting an expert’s diagnosis of sexual abuse in the absence of physical signs of abuse, the court may decline to exercise its discretion to correct the error when the admission did not likely affect the lower court’s verdict.

Area(s) of Law:
  • Evidence

Towe v. Sacagewea, Inc.

Recovery under a negligence theory is not available for a trespasser where the trespasser knew he was trespassing; the owner of the land had not acted with reckless disregard for the safety of others and a willingness to inflict injury; and the trespasser was not following the rules of the road.

Area(s) of Law:
  • Tort Law

Department of Human Services v. L.B.

A court must carefully evaluate DHS’s decision to change a permanency plan for a child in order to ensure that the decision is one that is most likely to lead to a positive outcome for the child.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. G. E.

The Court of Appeals is bound by any findings of fact of a juvenile court that are supported by current evidence.

Area(s) of Law:
  • Juvenile Law

Ross Day v. Elections Division of the Secretary of State

Hearsay evidence may be admitted and considered in an administrative proceeding when it is reliable and substantial.

Area(s) of Law:
  • Administrative Law

Snyder v. Interstate Distributor Co.

An employer may demonstrate a claimant's lack of diligence by showing that the claimant failed to request a timely hearing to review a claim denial, and the claimant’s lack of diligence cannot be shown by inaction prior to the injury.

Area(s) of Law:
  • Workers Compensation

State v. Banks

If a defendant does not preserve an error of law at the trial court, the appellate court may exercise its discretion in correcting the error.

Area(s) of Law:
  • Appellate Procedure

State v. Braukman

To determine whether an officer had reasonable suspicion that a person is under the influence, the court takes into account the officer’s experience and whether the officer found specific, articulable, facts that could raise a reasonable suspicion that the defendant may be under the influence of intoxicants.

Area(s) of Law:
  • Criminal Procedure

State v. Coleman

An order denying a motion to correct an amended judgment under ORS 183.083 is not appealable where the appealed issue is not defined as appealable.

Area(s) of Law:
  • Appellate Procedure

State v. Keller

Contempt for willful disobedience of a court order will be established when the defendant was aware of such an order, and neither complied, nor sought modification, of the order.

Area(s) of Law:
  • Criminal Law

State v. Nelson

Under the Confrontation Clause of Article I, section 11, if evidence exists that a victim made prior false accusations, the defendant may cross examine the complaining witness, unless the risk of prejudice, confusion, or embarrassment substantially outweigh the cross-examination.

Area(s) of Law:
  • Evidence

State v. Paul William Schneider

Unless the lease agreement specifies otherwise, a tenant has authority to invite guests to the common area of the property; even if the guest has been issued a written “notice of exclusions” by the property management, which would ordinarily make the guest liable for trespass.

Area(s) of Law:
  • Criminal Law

State v. Reynolds

In order for a court to find intent to defraud, a person must have a conscious objective to use deception to take property.

Area(s) of Law:
  • Criminal Law

Young v. State

Barring contractual provisions to the contrary, only simple interest will be awarded on a judgment. Further, interest does not qualify as “wages” for purposes of ORS 652.150.

Area(s) of Law:
  • Employment Law

C and K Market, Inc. v. Roccasalva

If a landlord accepts payment on a lease, despite prior default on payment, the lease is not terminated for default, as the acceptance of payment stands opposed to the landlord's intention to terminate the lease.

Area(s) of Law:
  • Property Law

Department of Human Services v. N.M.S

When a substantial right of a parent is affected by a change in facts, such as those extrinsic to the court's jurisdiction, the parent must be given constitutionally adequate notice as to what, exactly, he or she must do to prevent or terminate jurisdiction of the state.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. D.S.F.

Under ORS 419B.100(1)(c), custody of a child may not be taken away from a parent unless the parent's conduct is reasonably likely to threaten the welfare of the child.

Area(s) of Law:
  • Family Law

Dubray v. SAIF Corp.

A final order that upholds the termination of the claimant’s eligibility for vocational training must be based on substantial reason, thus showing when the claimant received the warning and that the warning was written.

Area(s) of Law:
  • Workers Compensation

Matar and Harake

A stipulated dissolution judgment preventing the parties from seeking modification of child support payments is enforceable, if the surrounding circumstances do not violate public policy.

Area(s) of Law:
  • Family Law

Nordbye v. BRCP/GM Ellington

The right of third-party beneficiary of a covenant to enforce the covenant may not be abrogated without his or her consent. Also, a state agency's interpretation of a federal statute will not be given deference if it is not a federal agency and Congress's intent is clear on the issue.

Area(s) of Law:
  • Property Law

State v. Jones

Multiple convictions for reckless endangerment will not be merged when a court finds that more than one person was within the zone of danger at the time of the offense.

Area(s) of Law:
  • Criminal Law

State v. Minow

A defendant commits the crime of attempting to drive while intoxicated if he or she attempts to get into the driver's seat of a vehicle, even if a third party is in the process of intervening.

Area(s) of Law:
  • Criminal Law

State v. Neff

Where two parties are recording the same conversation, when one party informs the other of the recording, it is sufficient to satisfy the notice requirement that the conversation is being obtained.

Area(s) of Law:
  • Criminal Law

State v. Northcutt

A “compelling” atmosphere exists when officers create a police dominated environment. The factors of a “compelling” atmosphere include: 1) the location; 2) length; 3) whether the officers confronted and pressured the defendant; and 4) the defendant’s ability to terminate the encounter.

Area(s) of Law:
  • Criminal Law

State v. Olsen

An expert witness' testimony, erroneously admitted, will not be deemed a harmless error when that testimony is used to bolster the complainant's credibility and the case hinges on that credibility determination.

Area(s) of Law:
  • Criminal Procedure

State v. Smith

When a prosecutor makes the decision to aggregate multiple theft offenses into a single charge, the burden is on the defendant to show that the prosecutor's aggregation system lacks sufficient criteria, or that those criteria are not consistently applied.

Area(s) of Law:
  • Criminal Law

November 33 summaries

Dept. of Human Services v. N.S.

A court will not reverse a juvenile court's order of reunification to guardianship, despite a parent's participation in DHS services, when the parent places the child in harm's way.

Area(s) of Law:
  • Family Law

SAIF v. Hanscram

The "date of injury" occurs on the date when a claimant becomes disabled or seeks treatment for a compensable condition. A condition becomes compensable when the claimant's work is the major contributing cause of the injury.

Area(s) of Law:
  • Workers Compensation

State v. Chase

A sentence does not violate the proportionality principle of the Oregon Constitution if the defendant would not have received the base sentence for the more serious crime based on his criminal history.

Area(s) of Law:
  • Sentencing

State v. Condon

The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

Area(s) of Law:
  • Criminal Procedure

State v. Landreth

Good cause to extend the deadline for the imposition of a supplemental judgment exists when the motion is filed within the time period, and further investigation to establish the specific amount of restitution is required.

Area(s) of Law:
  • Criminal Procedure

State v. Martinez

Delay in a motion requesting an amended judgment for restitution meets the “good cause” requirement if it is not due to neglect, inadvertence, or inattentiveness. Awaiting information from a victim's compensation program does constitute "good cause".

Area(s) of Law:
  • Criminal Procedure

State v. Newman

Driving under the influence of intoxicants is a strict liability offense, and evidence of mental state will be excluded.

Area(s) of Law:
  • Evidence

State v. Unis

The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

Area(s) of Law:
  • Criminal Procedure

State v. White

Appeals from supplemental judgments, like other judgments, must be timely for the Court of Appeals to maintain jurisdiction.

Area(s) of Law:
  • Appellate Procedure

Tieu v. Morgan

Summary judgment of adverse possession will be granted where a claimant can prove, with clear and convincing evidence, that he, through “honest belief” of actual ownership, continuously maintained actual, open, notorious, exclusive and hostile possession of the property for greater than ten years.

Area(s) of Law:
  • Property Law

Beauchaton v. Employment Dept.

When an employee leaves for their own safety due to a reasonable belief they are being stalked, then they are not disqualified for voluntarily quitting their job without “good cause.”

Area(s) of Law:
  • Employment Law

Dinicola v. State

Employees may be exempt from overtime compensation under the Fair Labor Standards Act depending on the nature of their work, and the classification of their job.

Area(s) of Law:
  • Employment Law

Housing Authority of Jackson County v. Gates

Where a written lease specifically refers to another writing as being part of the entire agreement, that other writing is part of the lease agreement.

Area(s) of Law:
  • Contract Law

Leif and Leif

Including income from an inheritance in the calculation of gross income is appropriate when the inheritance is available. Also, averaging a parent's income over several years is appropriate when the income varies from year to year.

Area(s) of Law:
  • Family Law

Oregon Corrections Employees v. State of Oregon

Where a collective bargaining agreement authorizes an employer to take certain actions, such actions if unilaterally employed by the employer, do not constitute unfair labor practices.

Area(s) of Law:
  • Employment Law

Rodenbeck and Rodenbeck

In a marriage dissolution, it is not just and proper to reduce the value of a spouse’s share of a marital asset to reflect the taxes the other spouse may owe on the income he or she uses to pay the spouse. Also, a court should not rely on an expert’s value that is based on a guess from a non-expert.

Area(s) of Law:
  • Family Law

Siegert v. Crook County

The standard of review for a zoning ordinance is limited to whether the county’s determination is plausible. If the local government plausibly interprets its own regulations that interpretation must be affirmed, unless it is inconsistent with all of the express language or inconsistent with the policies underlying the regulation.

Area(s) of Law:
  • Land Use

State v. Hennagir

Under ORS 161.405(1), a reasonable jury can infer the intent to complete a crime when substantial steps have been taken toward completion, even when there is no evidence of the actual objective.

Area(s) of Law:
  • Criminal Law

State v. Jones

OEC 404(4) bars a trial court from excluding evidence under OEC 403,“unless constitutionally required.”

Area(s) of Law:
  • Criminal Law

State v. M.W.H.

Warrantless searches may be justified if there is reasonable suspicion and exigent circumstances.

Area(s) of Law:
  • Juvenile Law

State v. Rayburn

Police may use the totality of the circumstances to establish probable cause to arrest a passenger in a stolen car. This assessment establishes the requisite mental state of the passenger to determine whether or not they knew they were in a stolen vehicle and could be arrested.

Area(s) of Law:
  • Criminal Procedure

State v. Ulizzi

Even when information that led to the issuance of a warrant is "stale," a court will give deference to the issuing court and uphold a warrant that may yield potential evidence.

Area(s) of Law:
  • Criminal Procedure

State v. Young

An appellate or post-conviction court may add court appointed attorney fees to a defendant's appeal following a claim for post-conviction relief.

Area(s) of Law:
  • Criminal Law

Weyerhaeuser Real Estate Develop. v. Polk County

Land use decisions made by proper county officials and in accord with statutory and case law of the time shall be upheld despite conflicting previous acts related to the land in question.

Area(s) of Law:
  • Land Use

Fisher v. Walker

To determine an easement’s purpose, the court looks to the wording of the document within the context of the document. An instrument creating an easement that does not convey title to the property, but only subjects it to the uses of the easement, is not a conveyable interest in land.

Area(s) of Law:
  • Property Law

State v. Earls

For the purpose of applying the presumptive 13-month sentence under ORS 137.717(b) a conviction in a court-martial does not apply. Where the Court of Appeal finds plain error in the trial court’s failure to merge guilty verdicts on particular counts, the Court will exercise its discretion to correct the error.

Area(s) of Law:
  • Sentencing

Baggarley v. Union Pacific Railroad Company

When a claimant became aware of his or her work-related injury is a question of fact for the jury to decide in determining the statute of limitations period on a workplace injury claim.

Area(s) of Law:
  • Employment Law

Cruze v. Hudler

A predicate conviction is not a prerequisite to a civil ORICO claim based on racketeering activities. To have a cause of action under ORICO, plaintiff only need demonstrate defendants violation is based on racketeering activity.

Area(s) of Law:
  • Tort Law

Gordon v. Board of Parole

Under ORS 144.125(3), a parole board may rely on any information contained in the psychological report to find the four elements required to defer release of an offender.

Area(s) of Law:
  • Parole and Post-Prison Supervision

State v. Ayvazov

Where suspicious activity occurs, and it is objectively reasonable that the passenger of a car was recently involved in a crime, the police met its burden to show probable cause when arresting the passenger.

Area(s) of Law:
  • Criminal Procedure

State v. Smith

According to Warm Springs Tribal Reservation law (WSTC 310.120), nontribal officers may arrest tribe members on tribal land following a traffic infraction in the officer's presence and leading to a "hot pursuit" onto the reservation.

Area(s) of Law:
  • Indian Law

State v. Volynets-Vasylchenko

Medical treatment recommendations that convey the medical expert's implicit conclusions that a child victim's reports of sexual abuse are credible are inadmissible unless corroborated by physical evidence.

Area(s) of Law:
  • Evidence

Svidenko v. DMV

When a petitioner files a just cause exception to a timely administrative appeal, the reviewing agency must answer the substantive arguments put forth by the petitioner.

Area(s) of Law:
  • Administrative Law

December 63 summaries

Department of Consumer and Business Services v. Zurich American and Northwest Staffing Services

Under ORS 656.054, the Workers’ Compensation Board does not have authority to order the insurer responsible for a claim to reimburse the assigned claims agent directly for costs incurred in processing the claimant’s claim.

Area(s) of Law:
  • Workers Compensation

Dept. Human Services v. B.L.J.

To justify juvenile court jurisdiction over a child the Department of Human Services must prove that, under the totality of the circumstances, there exists a reasonable likelihood of harm to the child’s welfare. Additionally, there is no legal requirement that parents be able to care for their children independently of another.

Area(s) of Law:
  • Family Law

Hammond v. Hammond

In a 1985 deed conveying title, "as survivor," is an ambiguous term and should be interpreted using extrinsic evidence to determine the parties' intent.

Area(s) of Law:
  • Property Law

Hunter v. Saif Corporation

A Workers' Compensation Board decision is not supported by substantial evidence when a medical expert's opinions are disregarded without the board supplying any reason for doing so.

Area(s) of Law:
  • Workers Compensation

Medean v. Moeller

The 14-day time limit imposed by ORCP 68 C(4), and incorporated into ORS 31.555(3)(b), “is the exclusive means by which the insurer may offset its PIP reimbursement payment against the money award.”

Area(s) of Law:
  • Insurance Law

State v. Glass

A procedure that requires a defendant to object to the admission of a laboratory report before trial, and subsequently allows the author of the report to testify after the objection, does not violate the Confrontation Clause of the U.S. Constitution.

Area(s) of Law:
  • Constitutional Law

State v. Hatfield

Consent to search is not an incriminating response. A request for consent to search is not interrogation under the Oregon or federal Constitutions, even after a defendant’s unequivocal request for counsel.

Area(s) of Law:
  • Criminal Law

State v. Holcomb

Based on inferences made by the court, a defendant can be found guilty for transporting an accomplice and parking outside the scene during a burglary, regardless of knowledge of accomplice's intents.

Area(s) of Law:
  • Criminal Law

State v. Laizure

A court may extend probation, even in the absence of evidence of a violation, if it finds that the purposes of the probation are not being served.

Area(s) of Law:
  • Parole and Post-Prison Supervision

State v. Magel

To establish first-degree rape by threat of forcible compulsion, the threat must be an express communication of the intent to harm the other person. Additionally, the surrounding circumstances to establish forcible compulsion by threat varies according to the respective parties’ ages and prior history.

Area(s) of Law:
  • Criminal Law

Bailey v. Nooth

Pursuant to ORS 138.590, a petitioner has a right to appointed counsel in post-conviction relief case. A trial court can deny a motion for substitution of counsel and order a petitioner to proceed pro se, only if necessary to achieve a fair, orderly, and efficient resolution of petitioner’s post-conviction case.

Area(s) of Law:
  • Post-Conviction Relief

Davis v. Nye Ditch Users Improvement Dist.

An improvement district created according to ORS Chapter 554 has, by implication of its power to carry out its statutory purpose, the right to gain access to its works on members' property for necessary improvements and repairs.

Area(s) of Law:
  • Property Law

Frakes v. Nay

If a court finds that there is no genuine issue of material fact concerning a trust settlor’s intent regarding how many distributions are to be made to individual beneficiaries, summary judgment is proper.

Area(s) of Law:
  • Trusts and Estates

Galloway v. Nooth

When post-conviction relief is granted by a showing that defendant’s trial attorney did not sufficiently investigate issues surrounding the lethality of defendant’s actions, as required element of a crime, only those crimes which require intent may be overturned. Defendant’s other convictions that do not require proof of intent are otherwise still valid.

Area(s) of Law:
  • Post-Conviction Relief

Hamscam and Hamscam

When reviewing de novo, the Court will review the trial court's decision to ensure it used the proper methodology when awarding marital property; property acquired before the marriage are not marital assets, but will be awarded as just and proper, factoring the parties' intent to keep it separate or turn it into join property of the marriage.

Area(s) of Law:
  • Family Law

Jones v. Douglas County

Extensions granted as authorized by OAR 660-033-0140(3), even if done in violation of the rule's requirements, are still considered granted "under" the rule and are therefore preempted from LUBA review.

Area(s) of Law:
  • Land Use

Jones v. Douglas County

HB 3166 legitimately imposes a retroactive 10-year statute of ultimate repose on the appeal of certain land use decisions because it is based upon a legitimate legislative purpose that is furthered by rational means.

Area(s) of Law:
  • Land Use

Loomis v Loomis

A dissolution court will presume equal spousal contribution to property and annuities unless one spouse rebuts such a presumption.

Area(s) of Law:
  • Family Law

SAIF Corporation v. Stephens

When a claim is determined to be a symptom rather than a condition, the employer is not required to admit the symptom as a new or omitted medical condition.

Area(s) of Law:
  • Workers Compensation

Smith v. Bend Metropolitan Park and Recreation

ORS 30.265(3) requires that a government duty must result of a decision involving public policy, exercised by a person who has the responsibility or authority to make such a decision in order to qualify for discretionary immunity.

Area(s) of Law:
  • Tort Law

State of Oregon v. Louis J. Massei

When the county in which a sexual offense took place cannot be readily determined, venue may be proper in the county where the defendant resides under ORS 131.325; however, the court will not take judicial notice of the proximity of a defendant’s address to a specific county when referencing to internet mapping sources because those sources “cannot reasonably by questioned.” OEC 201(b)(2).

Area(s) of Law:
  • Criminal Procedure

State v. Barajas

Judges that preside over a criminal trial may not waive a defendant's right to deliver a closing argument during a bench trial without first allowing an opportunity for objection.

Area(s) of Law:
  • Criminal Procedure

State v. Estey

In State v. Johnson the Court of Appeals held that the common law removed jurisdiction from the trial court once a defendant began serving a valid sentence. However, ORS 138.083 provides several exception to the common law rule, such as in cases of erroneous terms, factual errors, arithmetic errors, or clerical errors.

Area(s) of Law:
  • Criminal Law

State v. Gruver

A defendant’s failure to seek a restitution hearing authorized under ORS 137.106 does not constitute waiver of his or her right to seek appellate review of the restitution award.

Area(s) of Law:
  • Criminal Law

State v. Hampton

When an officer obtains consent to search a vehicle during an lull in the traffic stop, the fact that the search occurs after the traffic stop is complete does constitute an extension of the initial stop.

Area(s) of Law:
  • Evidence

State v. McKey

Like its identical statute upheld by the U.S. Supreme Court in Montana v. Egelhoff, ORS 161.125(2) lawfully makes voluntary intoxication “immaterial” to determine mental state.

Area(s) of Law:
  • Criminal Law

State v. Moore

The Court accepted as stare decisis the voluntary and involuntary consent factors it established in Machuca I, declaring that consent given after an auto accident is not voluntary.

Area(s) of Law:
  • Criminal Procedure

State v. Prange

Evidence of bias may be held relevant where 1) it demonstrates a witnesses' motivation to lie, and 2) is not used to prove the witnesses’ propensity to act in conformity with prior bad acts. Additionally, a party may impeach a witness for bias through evidence of the witness’s relationship with another, where the bias resulting from the relationship is a matter of reasonable inference rather than speculation.

Area(s) of Law:
  • Evidence

State v. Reed

A defendant's waiver of right to counsel is only valid if done voluntarily and knowingly; the validity of the waiver is judged by a review of the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. Torres-Rivas

A trial court’s refusal to admit evidence of a victim’s bias toward a defendant is harmless if there is other evidence in the record that tends to prove such bias.

Area(s) of Law:
  • Evidence

State v. Trivitt

Posting a sign at the residence of a third party does not constitute "interfering" with a person protected by a FAPA restraining order, and therefore is not covered by a FAPA order that prohibits an individual from intimidating, molesting, interfering with or menacing the protected person, or attempting to intimidate, molest, interfere with or menace that person directly or through third parties.

Area(s) of Law:
  • Family Abuse Prevention Act

Thrifty Payless, Inc. v. Cole

"Regular work" is defined for the purposes of workers' compensation as any work that occurs on a steady, recurring basis, and affords a person their accustomed means. This includes overtime, if it occurred as defined by "regular work."

Area(s) of Law:
  • Workers Compensation

Valencia v. GEP BTL, LLC

In determining eligibility for "supplemental disability," it is a prerequisite that the complainant to provide verifiable documentation of secondary employment, and there is no investigative obligation on the employer or employer's insurance carrier.

Area(s) of Law:
  • Workers Compensation

Williamson v. Government Employees Insurance co.

Attorney fees are not recoverable under ORS 20.080 in a decision awarding "money had and received" because such recovery is based on a contract implied in law.

Area(s) of Law:
  • Attorney Fees

Barrett v. Williams

A petition for habeas corpus must state more than mere conclusions; it must allege with facts which would entitle the plaintiff to habeas corpus relief. Representation by counsel in tort or post-conviction cases is not a constitutional right.

Area(s) of Law:
  • Habeas Corpus

D.T. v. Department of Human Services

A person is unable to consent to significant medical procedures if they are unable to reasonably comprehend the risks and benefits of the proposed procedure. In administering significant procedures without consent, a hospital must consider all other less intrusive procedures if the protesting patient affirmatively raises an alternative procedure.

Area(s) of Law:
  • Administrative Law

State v. Delaportilla

To prove second-degree assault under ORS 161.015(1), the state must present direct evidence, and not merely infer, that a dangerous weapon was used by the defendant to harm the victim.

Area(s) of Law:
  • Criminal Law

State v. Hesedahl

Verbal encouragement of a person committing an assault constitutes aiding the assault if the person was at hand, or within reach, sight, or call during the assault and presented an added threat to the victim's safety.

Area(s) of Law:
  • Criminal Law

State v. McLaughlin

For the purposes of resentencing, ORS 138.222(5)(a) allows an appellate court to remand for resentencing for a determination of compensatory fines to be paid from the defendant to the victim.

Area(s) of Law:
  • Sentencing

State v. S.J.F.

Failure to inform the person on trial during a civil commitment hearing of their right to an attorney, right to subpoena witnesses, reason they are appearing in court, and the consequences of the proceeding constitutes plain error reviewable de novo.

Area(s) of Law:
  • Civil Commitment

State v. Taylor

The crime-fraud exception requires the party seeking the exception demonstrate the client knew his intended conduct was unlawful.

Area(s) of Law:
  • Evidence

Brasher’s Cascade Auto Auction, Inc. v. Leon

For the purposes of ORS 822.045(2), an “inventory financing security interest” occurs when a dealer finances the acquisition of vehicles for the dealer’s stock by creating an interest, held by the supplier, in the vehicles, which secures the obligation owed by the dealer.

Area(s) of Law:
  • Contract Law

Campbell v. Clackamas County

For a property owner's rights to vest under a Measure 49 claim, the applicant must show that they paid substantial expenditures in pursuit of development, as calculated using the factors established in Clackamas Co. v. Holmes.

Area(s) of Law:
  • Land Use

Cocchiara v. Lithia Motors, Inc.

The status of “at will” employment does not change despite offers of alternative employment by the employer to accommodate employees with disabilities.

Area(s) of Law:
  • Employment Law

Department of Human Services v. C.L.C.

Evidence of irresponsibility, dishonesty, and instability that demonstrate a parent’s inability to provide proper care for his or her children over an extended period of time can be sufficient to show that the parent’s mental health issues were seriously detrimental to the children at the time of trial for the purposes of terminating parental rights.

Area(s) of Law:
  • Juvenile Law

Man-Data, Inc v. B & A Automotive, Inc

Sureties may raise any defense available to the principle obligor, even after a default order against the obligor, in an action against the sureties as individuals.

Area(s) of Law:
  • Insurance Law

Martin v. SAIF

The director of the Department of Consumer and Business Services has the authority to change the date of injury in a notice of closure as part of his duty to determine the amount of compensation to which the claimant is entitled.

Area(s) of Law:
  • Workers Compensation

Orchard v. Mills

To constitute a "criminal episode" under ORS 131.505(4) so as to warrant a "shift-to-I" criminal history score, the defendant's criminal actions must be continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances, but that such conduct was directed towards the accomplishment of a single criminal objective.

Area(s) of Law:
  • Post-Conviction Relief

Rushby and Rushby

Retirement accounts accrued during marriage shall be construed as martial property, regardless of payout status, for the purposes of marital dissolution.

Area(s) of Law:
  • Family Law

SAIF v. Owens

An attending physician must affirmatively release a claimant to work at the job at injury before a claim may be closed; if the job-at-injury is incorrectly identified, the physician has not affirmatively released the claimant. The only evidence that the board may consider when evaluating impairment findings is the report from the medical arbiter and the attending physician.

Area(s) of Law:
  • Workers Compensation

SAIF v. Swartz

To establish compensation for medical treatment, the accepted condition must be a material cause of claimant's current condition, and the treatment must be "for" that condition.

Area(s) of Law:
  • Workers Compensation

State v. Aronson

A police officer's act of parking several car lengths behind a person's vehicle does not constitute a show of authority or restraint of the person's liberty such that a reasonable person would not feel free to leave.

Area(s) of Law:
  • Constitutional Law

State v. Caldwell

The mere existence of a restraining order does not constitute corroborating evidence sufficient to warrant a conviction for violation of a restraining order when the only other evidence presented by the state is the defendant's confession.

Area(s) of Law:
  • Post-Conviction Relief

State v. Copeland

The public records hearsay exception is not limited to collateral matters only because 1) prior case history discussing the matter does not distinguish between “collateral” and essential facts, and 2) the framers of the Oregon Constitution incorporated several exceptions from the common law, including the public records exception.

Area(s) of Law:
  • Constitutional Law

State v. Feller

The admission of a diagnosis of "concerning" for sexual abuse, without supporting physical evidence is plain error.

Area(s) of Law:
  • Criminal Law

State v. L.D.

To commit a person involuntarily the state must show the person’s mental disorder causes them to behave in a manner that is likely to result in actual serious physical harm to them in the near future.

Area(s) of Law:
  • Civil Commitment

State v. McFarland

In determining whether an arrest warrant's return of service form provided notice, a form has no evidentiary value when it lacks information to identify the officer who executed the arrest warrant.

Area(s) of Law:
  • Criminal Procedure

State v. Snow

A county courthouse security checkpoint search is an unreasonable administrative search if the authority for that search gives broad latitude to the searching officer in deciding who is to be searched and how intrusive the search is.

Area(s) of Law:
  • Criminal Procedure

State v. Wiggins

A vehicle is considered mobile, and thus subject to the automobile exception to the warrant requirement, when nothing occurs to render the vehicle immobile between the time of the initial encounter with the vehicle and when the subsequent search occurs.

Area(s) of Law:
  • Criminal Procedure

State v. Yocum

If the trial court determines that evidence is sufficient for determination of restitution damages, the court may make the restitution determination, even if the value of the item is not objectively verifiable.

Area(s) of Law:
  • Sentencing

Strutz v. Employment Department

Pursuant to ORS 183.482(8)(c) the Court of Appeals reviews Employment Appeals Board decisions “to determine whether its factual findings are supported by substantial evidence,” and whether the Board's conclusions “are supported by substantial reason.”

Area(s) of Law:
  • Employment Law

Watson v. Meltzer

To prove legal malpractice, plaintiffs' must prove that they would have obtained a more favorable result "but for" the negligence of the attorney, regardless of whether the malpractice occurred during litigation or during a business transaction.

Area(s) of Law:
  • Tort Law

Westfall v. Oregon Dept. of Corrections

The State is not immune from tort liability under ORS 30.265(3)(c) if the employee action that caused the tort was the result of the employee merely implementing routine policy decisions in the course of everyday activities.

Area(s) of Law:
  • Tort Law