Willamette Law Online

Oregon Court of Appeals

( 31 summaries )

Opinions Filed in August 2011

Central Oregon Landwatch v. Deschutes County

Land Use: 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.

(Filing Date: 08-31-2011)

Drury v. Assisted Living Concepts, Inc.

Contract Law: 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.

(Filing Date: 08-31-2011)

Ferguson v. PeaceHealth

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

(Filing Date: 08-31-2011)

Marolla v. DPST

Administrative Law: 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.

(Filing Date: 08-31-2011)

Porter v. Griffin

Family Law: 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.

(Filing Date: 08-31-2011)

Portland Fire Fighters’ Assoc. v. City of Portland

Employment Law: 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.

(Filing Date: 08-31-2011)

State v. B.A.H.

Criminal Law: 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.

(Filing Date: 08-31-2011)

State v. Fernandez

Criminal Law: 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.

(Filing Date: 08-31-2011)

State v. Grierson

Criminal Law: 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.

(Filing Date: 08-31-2011)

State v. Jones

Criminal Procedure: 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.

(Filing Date: 08-31-2011)

State v. Rowland

Evidence: 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.

(Filing Date: 08-31-2011)

State v. Sullivan

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

(Filing Date: 08-31-2011)

Stewart v. Kids Incorporated of Dallas, OR

Civil Procedure: 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.

(Filing Date: 08-31-2011)

State v. McAtee

Criminal Law: 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.

(Filing Date: 08-24-2011)

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

Attorney Fees: 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.

(Filing Date: 08-17-2011)

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

Family Law: 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.

(Filing Date: 08-17-2011)

Gemstone Builders, Inc. v. Stutz

Contract Law: 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.

(Filing Date: 08-17-2011)

Greenway v. Parlanti

Property Law: 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.

(Filing Date: 08-17-2011)

Roseburg Forest Products v. Lund

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

(Filing Date: 08-17-2011)

State v. Durham

Criminal Law: 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.

(Filing Date: 08-17-2011)

State v. Phillips

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

(Filing Date: 08-17-2011)

State v. Pipkin

Criminal Law: 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.

(Filing Date: 08-17-2011)

State v. Simpson

Criminal Procedure: 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.

(Filing Date: 08-17-2011)

State v. Wiggins

Criminal Procedure: 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.

(Filing Date: 08-17-2011)

State v. Wiseman

Criminal Procedure: 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.

(Filing Date: 08-17-2011)

Stave v. Diaz-Guillen

Sentencing: 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.

(Filing Date: 08-17-2011)

Warkentin v. Employment Dept.

Employment Law: 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.

(Filing Date: 08-17-2011)

Willamette Oaks, LLC v. City of Eugene

Administrative Law: 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.

(Filing Date: 08-17-2011)

State v. Potter

Criminal Procedure: 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.

(Filing Date: 08-10-2011)

State v. Wedel

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

(Filing Date: 08-10-2011)

Wallace v. State ex rel PERB

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

(Filing Date: 08-10-2011)