Willamette Law Online

Oregon Court of Appeals

( 35 summaries )

Opinions Filed in October 2011

C and K Market, Inc. v. Roccasalva

Property Law: 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.

(Filing Date: 10-26-2011)

Department of Human Services v. N.M.S

Family Law: 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.

(Filing Date: 10-26-2011)

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

Family Law: 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.

(Filing Date: 10-26-2011)

Dubray v. SAIF Corp.

Workers Compensation: 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.

(Filing Date: 10-26-2011)

Matar and Harake

Family Law: 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.

(Filing Date: 10-26-2011)

Nordbye v. BRCP/GM Ellington

Property Law: 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.

(Filing Date: 10-26-2011)

State v. Jones

Criminal Law: 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.

(Filing Date: 10-26-2011)

State v. Minow

Criminal Law: 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.

(Filing Date: 10-26-2011)

State v. Neff

Criminal Law: 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.

(Filing Date: 10-26-2011)

State v. Northcutt

Criminal Law: 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.

(Filing Date: 10-26-2011)

State v. Olsen

Criminal Procedure: 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.

(Filing Date: 10-26-2011)

State v. Smith

Criminal Law: 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.

(Filing Date: 10-26-2011)

Department of Human Services v. L.B.

Family Law: 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.

(Filing Date: 10-19-2011)

Dept. of Human Services v. G. E.

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

(Filing Date: 10-19-2011)

Ross Day v. Elections Division of the Secretary of State

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

(Filing Date: 10-19-2011)

Snyder v. Interstate Distributor Co.

Workers Compensation: 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.

(Filing Date: 10-19-2011)

State v. Banks

Appellate Procedure: 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.

(Filing Date: 10-19-2011)

State v. Braukman

Criminal Procedure: 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.

(Filing Date: 10-19-2011)

State v. Coleman

Appellate Procedure: 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.

(Filing Date: 10-19-2011)

State v. Keller

Criminal Law: 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.

(Filing Date: 10-19-2011)

State v. Nelson

Evidence: 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.

(Filing Date: 10-19-2011)

State v. Paul William Schneider

Criminal Law: 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.

(Filing Date: 10-19-2011)

State v. Reynolds

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

(Filing Date: 10-19-2011)

Young v. State

Employment Law: 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.

(Filing Date: 10-19-2011)

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

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

(Filing Date: 10-12-2011)

Russell v. U.S. Bank National Association

Employment Law: 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.

(Filing Date: 10-12-2011)

Sheptow v. Geico General Ins. Co.

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

(Filing Date: 10-12-2011)

State v. Pickett

Evidence: 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.

(Filing Date: 10-12-2011)

Towe v. Sacagewea, Inc.

Tort Law: 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.

(Filing Date: 10-12-2011)

State v. Bell

Criminal Law: 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.

(Filing Date: 10-05-2011)

State v. Washington

Constitutional Law: 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.

(Filing Date: 10-05-2011)

Pewther v. C Corp

Contract Law: 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.

(Filing Date: 09-28-2011)

State v. Mullen

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

(Filing Date: 09-28-2011)

State v. Supanchick

Evidence: 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.

(Filing Date: 09-28-2011)

State v. Benson

Criminal Procedure: 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.

(Filing Date: 10-26-2010)