Willamette Law Online

Oregon Court of Appeals

( 31 summaries )

Opinions Filed in September 2011

Fadel v. El-Togby

Elder Law: 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.

(Filing Date: 09-28-2011)

Friends of Polk County v. Oliver

Land Use: 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.

(Filing Date: 09-28-2011)

Oregon Firearms v. Board of Higher Education

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

(Filing Date: 09-28-2011)

Campbell v. Employment Department

Employment Law: 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.

(Filing Date: 09-21-2011)

Homestyle Direct, LLC v. Department of Human Services

Administrative Law: 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.

(Filing Date: 09-21-2011)

Hood v. Employment Dept.

Employment Law: 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.

(Filing Date: 09-21-2011)

Klutschkowski v. Peacehealth

Tort Law: 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.

(Filing Date: 09-21-2011)

Maurer v. Maurer

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

(Filing Date: 09-21-2011)

State of Oregon v. M.J.

Civil Commitment: 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.

(Filing Date: 09-21-2011)

State v. Bryant

Criminal Law: 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.

(Filing Date: 09-21-2011)

State v. Dunning

Criminal Law: 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.

(Filing Date: 09-21-2011)

State v. Martino

Criminal Procedure: 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.

(Filing Date: 09-21-2011)

State v. Mullins

Criminal Procedure: 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.

(Filing Date: 09-21-2011)

State v. Singer

Constitutional Law: 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.

(Filing Date: 09-21-2011)

State v. Vidal

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

(Filing Date: 09-21-2011)

State v. Zaccone

Constitutional Law: 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.

(Filing Date: 09-21-2011)

Clement v. Mills

Post-Conviction Relief: 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.

(Filing Date: 09-08-2011)

Green v. Douglas County

Land Use: 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.”

(Filing Date: 09-08-2011)

Holbert and Noon

Family Abuse Prevention Act: 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.

(Filing Date: 09-08-2011)

Hubbell v. Sanders

Civil Law: 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.

(Filing Date: 09-08-2011)

Luty v. Luty

Family Law: 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.

(Filing Date: 09-08-2011)

Proctor v. City of Portland

Tax Law: 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.

(Filing Date: 09-08-2011)

Rivera-Martinez v. Vu

Attorney Fees: 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.

(Filing Date: 09-08-2011)

River’s Edge Investments, LLC v. Bend

Contract Law: 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.

(Filing Date: 09-08-2011)

State v. D. M.

Civil Law: 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.

(Filing Date: 09-08-2011)

State v. Drown

Criminal Law: 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.

(Filing Date: 09-08-2011)

State v. Dudley

Criminal Law: 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.

(Filing Date: 09-08-2011)

State v. Ko

Criminal Law: 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.

(Filing Date: 09-08-2011)

State v. Martinez-Alvarez

Criminal Procedure: 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.

(Filing Date: 09-08-2011)

State v. Wilson

Criminal Law: 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.

(Filing Date: 09-08-2011)

Williams v. Salem Women’s Clinic

Attorney Fees: 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.

(Filing Date: 09-08-2011)