Thomas Ybarra

Oregon Supreme Court (4 summaries)

Ellison v. Dept. of Rev.

If the Tax Court finds “in favor of the taxpayer” in proceedings for ad volorem property taxation, exemptions, special assessments or omitted property, the Tax Court is permitted to award reasonable attorneys fees in addition to costs and disbursements. ORS 305.490(4)(a).

Area(s) of Law:
  • Tax Law

Parrish v. Rosenblum

A caption must be reasonably identifiable in subject matter. "Yes" and "no" statements must be laid out as simple and understandable. The summary must be a “concise and impartial statement” that summarizes the legislation and its major effects. ORS 250.035(2)(a) - (2)(d).

Area(s) of Law:
  • Ballot Titles

TriMet v. Aizawa

“[T]he court shall give judgment to the [property owner] for the amount offered as just compensation for the property * * * and, in addition, for costs and disbursements, attorney fees and expenses that are determined by the court to have been incurred before service of the offer on the [owner].” ORS 35.300(2).

Area(s) of Law:
  • Property Law

State v. K. A. M.

Requesting identification does not sufficient a stop on its own. However, an encounter can rise to the level of a stop if under the totality of the circumstances, the types of questions, manner of which they are asked, or other police action would make a reasonable person believe the police are “exercising their authority to coercively detain” them. State v. Backstrand, 354 Or 382, 412, 313 P3d 1084 (2013).

Area(s) of Law:
  • Criminal Procedure

Oregon Court of Appeals (52 summaries)

Wells Fargo Bank v. Clark

Although ORCP 21 requires that a motion to dismiss must be made before a responsive pleading, it does not "implicitly or explicitly" state that a defendant cannot file a counter-claim and answer while waiting for the court to rule on a motion to dismiss.

Area(s) of Law:
  • Civil Procedure

State v. Diaz-Avalos

ORS 139.690 provides the guidelines to request a DNA test. A person may request a DNA test if the person is incarcerated "as the result of a conviction for aggravated murder [,] a person felony," murder, or is not in custody but convicted of aggravated murder or sex crime. ORS 139.690. ORS 138.692 then provides that the person furnish an affidavit supporting the motion with evidence and the defense that the DNA would support. Innocent must be proclaimed by the person entering the motion, and the DNA test result must directly support that proclamation of innocence. ORS 138.692(1)(a)(B); (1)(a)(A)(ii);& (1)(b)(A). Those requirements must be satisfied for the court to order the testing.

Area(s) of Law:
  • Habeas Corpus

State v. Miller

Under ORS 25.110, a circuit court may enforce compliance of a support order from another county upon the motion of a party. “’Certified copies of the files, records, and prepared transcripts of testimony in the original proceeding [must] be transmitted to the clerk of the circuit court of any county in the state in which the obligee or obligor resides, or in which property the obligor is located.” Once those certified copies have been transmitted to the circuit court, the court has jurisdiction to compel compliance. ORS 25.110.

Area(s) of Law:
  • Family Law

City of Troutdale v. Palace Construction Corporation

When the nonmoving party for summary judgment fails to challenge all the grounds for summary judgment made by the moving party on appeal, the court must affirm summary judgment. State v. Stoudamire, 198 Or App 399, 403, 108 P3d 615 (2005); Roop v. Parker Northwest Paving Co., 194 Or App 219, 236, 94 P3d 885 (2004).

Area(s) of Law:
  • Contract Law

Pamplin Media Group v. City of Salem

ORS 192.314(1) provides that “[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.338, 192.345 and 192.355.” In a proceeding brought to require a public body to disclose public records, “the burden is on the public body to sustain its action.” ORS 192.431(1).

Area(s) of Law:
  • Civil Law

State v. T.T.

The testimony of “mental health experts, the person’s past acts, and the person’s apparent condition at the time of hearing” can be used to determine whether a person is a danger to others. State v. M.R., 225 Or App 569, 574, 202 P3d 221 (2009).

Area(s) of Law:
  • Civil Commitment

Tucker and Tucker

“In the absence of an ambiguity, the court construes the words of a contract as a matter of law." Couch Investments, LLC v. Peverieri, 359 Or 125, 132, 371 P3d 1202 (2016).

State v. Leiby

“A seizure of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (internal quotation marks omitted).

Area(s) of Law:
  • Criminal Law

State v. Kinsey

Under ORS 137.712, the court may impose a less than minimum sentence, determined under ORS 137.700, if the court finds that the victim was not “physically injured by means of a deadly weapon; that the victim did not suffer a significant physical injury; and [t]hat the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.”

Area(s) of Law:
  • Criminal Law

State v. Provancha

Under ORS 137.123(5), when a court orders consecutive sentencing for a defendant found guilty of two incidents occurring from the same continuous conduct, it must indicate whether (a) “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or (b) the criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense . . . .”

Area(s) of Law:
  • Criminal Law

Sachdev v. Oregon Medical Board

The board must comply with the Oregon Administrative Procedures Act, ORS 677.200, and requires the board to provide the licensee with a notice under the Fourteenth Amendment. Murphy v. Oregon Medical Board, 270 Or App 621, 622, 348 P3d 1173 (2015). ORS 184.415(3)(c) requires the board to provide a “’reference to the particular sections of the statutes and rules involved’” in the allegations.

Area(s) of Law:
  • Administrative Law

State v. Villalta

A court cannot impose fees based on pure speculation that a defendant has funds to pay for the fees or may acquire them in the future.” State v. Pendergrapht, 251 Or App 630, 634, 284 P3d 573 (2012). The state has the burden of proving the defendant’s ability to pay. State v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009).

Area(s) of Law:
  • Attorney Fees

Kay v. Employment Dept.

Under ORS 657.176(2)(c), an individual who “voluntarily left work without good cause” is disqualified from receiving unemployment benefits. “Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work.” OAR 471-030-0038(4).

Area(s) of Law:
  • Employment Law

Slaughter and Harris

The Supreme court has a two-step determination for a chance of custody. Since the original judgment or custody/parenting time order, capacity of the moving party or legal custodian’s ability to take care of the child has changed and it would be in the child’s best interest, upon review of the relevant evidence, that custody be changed. The moving party has the burden of proving the change of circumstance. Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008).

Area(s) of Law:
  • Family Law

Netherton v. Aerotek Inc.

When deciding apportion impairment, the board is not limited to closures. McDermott v. SAIF, 286 Or App 406, 398 P3d 964 (2017).

Area(s) of Law:
  • Workers Compensation

Fox v. Real Estate Agency

An agency, in this case, the ALJ, can alternate facts determined by another agency when there is clear and convincing evidence that the original finding was wrong. ORS 183.650. When those new findings are challenged in judicial review, the court must not determine whether the evidence supports the alteration of fact, but instead becomes a factfinder itself. ORS 183.650.

Area(s) of Law:
  • Administrative Law

State v. Tison

When the trial court’s judgment exceeds the amount allowable by law, the Court is to direct the trial court to impose the proper disposition under law. ORS 138.040.

Area(s) of Law:
  • Sentencing

Aguilar v. State of Oregon

Post-conviction relief is awarded by a court when a petitioner “establish[es] a ‘substantial denial’ of state or federal constitutional right” which would establish the conviction void. ORS 138.530(1)(a).

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

State v. Gollas-Gomez

Defendants have a constitutional right to an impartial jury. Or Const, Art I, §11; US Cont, Amend VI. Defendants, consistent with the state and federal constitution, have a right to challenge a juror based on “actual bias.” ORCP 57 D(1)(g). Certain views, beliefs, or experiences does not equate to actual bias, but “’out of fact that those views are likely to impair the juror’s performance of his or her duties.’” State v. Barone, 328 Or 68, 78, 969 P2d 1013 (1998). The “totality of the potential juror’s voir dire testimony” must be considered in looking at whether a juror would be impaired to perform his or her duties because of his or her views. State v. Lotches, 331 Or 455, 474, 17 P3d 1045 (2000), cert den, 534 US 833 (2001).

Area(s) of Law:
  • Criminal Procedure

1000 Friends of Oregon v. Jackson County

Under Goal 3 under OAR 660-004-0022(3)(2): Resource land used for the development of industrial businesses outside of urban growth boundaries may be appropriate if there is a "significant comparative advantage due to its location (e.g., near existing industrial activity, an energy facility, or product available from other rural activities, which would benefit the county economy and cause only minimal loss of productive resource lands."

Area(s) of Law:
  • Land Use

State v. Lewis

A person has to commit second-degree online sexual corruption and take substantial steps to meet the child to commit first-degree sexual corruption. ORS 163.433. To commit second-degree sexual corruption " (1) a person who is 18 years of age or older (2) for the purpose of arousing or gratifying the sexual desire of the person or another person (3) knowingly uses an online communication to solicit a child to engage in sexual contact or sexually explicit conduct and (4) offers or agrees to physically meet with the child." ORS 163.432(1). To solicit means "to invite, request, seduce, lure, entice, persuade, prevail upon, coax, coerce or attempt to do so." ORS 163.431(5).

Area(s) of Law:
  • Criminal Law

Holt and Atterbury

" A person who establishes emotional ties with a child that creates a child-parent relationship may petition or file for custody, intervene for placement or guardianship of the child. ORS 109.119(1). To decide if a presumption has been rebutted, the Court can look to, but not limited to, the following evidence: "the legal parent is unwilling or unable to care adequate for the child; the petition or intervenor is or recently has been the child's caretaker; circumstances detrimental to the child exist if relief is denied; the legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or the legal parent has unreasonably denied or limited contact between the child and the petition or intervenor." ORS 109.119(4)(b).

Area(s) of Law:
  • Family Law

State v. McDonald

Restitution can be award at Trial Court "'[w]hen a person is convicted of a crime . . . that has resulted in economic damages.'" ORS. 137.106(1)(a). By a preponderance of the evidence, the state must prove, "'(a) criminal activities, (2) economic damages, and (3) a causal relationship between the two.'" State v. Kirkland, 268 Or App 420, 424, 342 P3d 163 (2015).

Area(s) of Law:
  • Remedies

State v. Stinnett

Prejudice can be present in three ways: "'excessive pretrial incarceration, anxiety and concernt of the defendant, and impaired defense." State v. Emery, 318 Or 460, 473-74, 869 P2d 859 (1994).

Area(s) of Law:
  • Criminal Procedure

State v. Warren

“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but can be admissible to prove other purposes such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistaken accident.” OEC 404(3). The evidence must be in similar to the charged crime (true plan) to establish that the defendant formed a plan and used the other evidence as steps to perform that plan.

Area(s) of Law:
  • Evidence

Rains v. Stayton Builders Mart, Inc.

“When the legislature does not limit the duty that a defendant owes a plaintiff but does limit the size or nature of the remedy, the legislative remedy need not restore all the damages that the plaintiff sustained to pass constitutional muster, . . . but a remedy that is only a paltry fraction of the damages that the plaintiff sustained will unlikely be sufficient.” Quid pro quo and other factors could be used to help in the determination. Horton v. OHSU, 359 Or 168, 220-21,376 P3d 998 (2016).

Area(s) of Law:
  • Remedies

Lockett v. Teacher Standards and Practices Comm.

TSPC may revoke or suspend a teaching or administrative license, under ORS 342.175(1)(b), if it is based on “[g]ross neglect of duty:” a breach or substantial deviation of professional duty or responsibilities. ORS 342.175(1)(b); OAR 584-020-0040(4)(n).

Area(s) of Law:
  • Administrative Law

State v. Rice

In determining whether to admit evidence of a defendant's past improprieties, a court must look to whether the state has established and shown “some substantial connecting link between the two acts” to determine whether evidence of a prior act could be used to establish motive to commit the charged act. State v. Wright, 283 Or App 160, 171 (2016) (quoting State v. Turnidge, 359 Or 364, 451 (2016)).

Area(s) of Law:
  • Evidence

Hasner v. Western Oregon Advanced Health

“If a condition/treatment pair is not on the [Health Evidence Review Commission (“HERC”)] Prioritized List of Health Services and the Division determines the condition/treatment pair has not been identified by the HERC for inclusion on the list, the Division shall make a coverage decision in consultation with the HERC.” OAR 410-130-0200(10).

Area(s) of Law:
  • Administrative Law

State v. Warren

For a defendant to waive his right to counsel, the defendant must have knowledge of his right to counsel and waiver of that right was intentionally and knowingly made. State v. Langley, 351 Or 652, 663, 273 P3d 901 (2012). The determination that a defendant intentionally relinquished the right to counsel is based the “particular circumstances of each case.” State v. Menefee, 268 Or APP 154, 171, 341 P3d 229 (2014).

Area(s) of Law:
  • Criminal Procedure

Miller v. Board of Psychologist Examiners

There are five requirements that must be met to apply issue preclusion: “(1) The issue in the two proceedings is identical. (2) The issue was actually litigated and was essential to a final decision and the merits in the prior proceeding. (3) The party sought to be precluded has had a full and fair opportunity to be heard on that issue. (4) The party sought to be precluded was a party or was in privity with a party to the prior proceeding. (5) The prior proceeding was the type of proceeding to which this court will give preclusive effect.” Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993).

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. C. T.

For testimony to be considered helpful, under OEC 702, “the subject of the testimony must be within the expert’s field, the witness must be qualified, and the foundation for the opinion must intelligibly relate the testimony to the facts.” State v. Brown, 297 OR 404, 409, 687 P2d 751 (1984).

Area(s) of Law:
  • Family Law

Dept. of Human Services v. H. F. E.

“To be ‘plain’ the error must (1) be an error of law; (2) be obvious, meaning that the legal point is not reasonable in dispute; and (3) appear on the record.” ORAP 5.45(1); State v. Vanornum, 354 OR 614, 629, 317 P3d 889 (2013).

Area(s) of Law:
  • Family Law

State v. R. W. G.

A claim of error is preserved when the legal insufficiency of the evidence is argued before the court. This is different from a closing argument only persuading a factfinder that the evidence does not favor the other party beyond a reasonable doubt. State v. Forrester, 203 Or App 151, 155, 125 P3d 47 (2005), rev den, 341 Or 141 (2006).

Area(s) of Law:
  • Appellate Procedure

State v. Walsh

As a general rule, "[an appellate court] will not consider an argument on appeal that has not been raised in the trial court." State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011). In order to determine whether an issue has been preserved for appeal, a court will look to “whether a party has given opponents and the trial court enough information to be able to under the contention and to fairly respond to it.”  State v. Blasingame, 267 Or App 686, 691, 341 P3d 182 (2014), rev den, 357 Or 299 (2015).

Area(s) of Law:
  • Appellate Procedure

Garcia-Solis v. Farmers Ins. Co.

Under ORS 656.245(1), “[d]iagnostic services can only be compensable if they are required for a determination or severity of an already accepted compensable injury, but “diagnostic services for the purpose of establishing the compensability of a new or consequential condition are not compensable.” Counts v. International Paper Co., 146 Or App 268, 271 (1997).

Area(s) of Law:
  • Workers Compensation

Iverson's Unlimited, Inc. v. Winco Foods, LLC

On summary judgment, “a reasonable jury could reach . . . a contrary conclusion, but . . . the question is not which conclusion is most likely but whether an issue of fact exists that permits jury resolution.” Two Two v. Fujitec America, Inc., 355 Or 319, 332 (2014).

Area(s) of Law:
  • Civil Procedure

State v. Carpenter

A person can conceal another “through an act or omission with the intent to induce law enforcement to believe that the fugitive is not present.” State v. Turley, 202 Or App 49-50, 120 P3d 1229 (2005), rev den, 340 Or 157 (2006).

Area(s) of Law:
  • Criminal Law

Gaines v. Employment Dept.

“In determining whether the board’s order is supported by substantial reason, [the court] consider[s] whether that order articulate the reasoning that leads from the facts found to the conclusions drawn.” Walker v. Providence Health System Oregon, 254 Or App 676, 686, 298 P3d 38, rev den, 353 Or 714 (2013).

Area(s) of Law:
  • Employment Law

State v. Villar

An argument may be preserved for appeal if it is apparent from the record that the trial court should have known the reasoning behind a general objection to the admissibility of evidence. Williamson v. Southern Pacific Transp. Co., 284 Or 11, 16, 584 P2d 753 (1978).

Area(s) of Law:
  • Evidence

State v. Pack

A joinder is harmful to a defendant if (1) the evidence under both cases would have been admissible in individual, separate trials for each case and (2) the evidence admitted improperly affected the verdict. State v. Clardy, 286 Or App 745, 772-73 (2017); State v. Marks, 286 Or App 775 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Norgren

A waiver of Miranda rights must be made knowingly and intelligently with full awareness of the consequences of the waiver. State ex rel Juv. Dept. v. Deford, 177 Or App 555, 572-73, 34 P3d 673 (2001).

Area(s) of Law:
  • Criminal Procedure

State v. Geyer ​

“Preservation requires that an issue must first be presented to the trial court in order to be considered on appeal . . . . [T]he preservation rule is a practical one, and close calls . . . inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or. 333, 341, (2009) (internal quotation marks omitted).

Area(s) of Law:
  • Appellate Procedure

State v. Holsclaw

"‘Premises where persons under 18 years of age regularly congregate’ means schools, child care centers, playgrounds, other places intended for use primarily by persons under 18 years of age and places where persons under 18 years of age gather for regularly scheduled educational and recreational programs.” ORS 163.476(2)(a)(2013).

Area(s) of Law:
  • Criminal Law

State v. Beltran-Chavez

If evidence will be perceived by a jury as scientific and, therefore, have an "unusually high degrees of persuasive power," a court must ensure that the "persuasive appeal is legitimate." State v. Okey, 321 Or 285, 291 (1995).

Area(s) of Law:
  • Evidence

Oregon Wild v. Port of Portland

"A law is classified under the 'first category' if it is 'written in terms directed to the substance of any "opinion or any "subject" of communication'". State v. Robertson, 293 Or. at 412

Area(s) of Law:
  • Constitutional Law

State v. Khoshnaw

Under ORAP 5.45(4)(a)(iii), an assignment of error challenging an evidentiary ruling, must quote or summarize the evidence that appellant claims was erroneously admitted or excluded; If an assignment of error challenges the exclusion of evidence, appellant also must identify in the record where the trial court excluded the evidence and where the offer of proof was made.

Area(s) of Law:
  • Criminal Procedure

State v. Savinskiy

“Article 1, Section II, can also foreclose interrogation of a defendant without his or her attorney present when the interrogation is regarding uncharged conduct and occurs after the defendant has retained counsel for a previously charged offense, if the charged and uncharged conduct is ‘sufficiently related.’” State v. Prieto-Rubio, 359 Or. 36-37 (2016).

Area(s) of Law:
  • Criminal Procedure

State v. Ambriz-Arguello

When appealing a conviction for evidentiary error, petitioner must show based on the totality of the record that the court’s error affected a substantial right, and the jury’s verdict. State v. Kayfes, 213 Or App 543, 555, 162 P3d 308, rev den, 343 Or 690 (2007).

Area(s) of Law:
  • Criminal Procedure

State v. Hogeland

Under ORS 136.425(1), “[a] confession or admission of a defendant . . . cannot be given in evidence against the defendant when it [is] made under the influence of fear produced by threats.” To determine whether a person's admissions were voluntary, the Court examines whether a person’s capacity for self-determination is critical impaired, under the totality of the circumstances. State v. Ruiz-Piza, 262 Or. App. 563, 573, 325 P.3d 802 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. Girard

Under ORS 162.155(1)(b), it is a second-degree escape if, after having been convicted of a felony, a defendant escapes from custody imposed as a result of a felony conviction.

Area(s) of Law:
  • Criminal Law

Siefken v. Premo

Under Article 1, Section 11 of the Oregon Constitution, to prove prejudice a petitioner must demonstrate his or her trial counsel’s deficient performance "had a tendency to affect the result of the prosecution.’” Green v. Franke, 357 Or 301, 321 (2015).

Area(s) of Law:
  • Evidence