Willamette Law Online

Oregon Court of Appeals

( 63 summaries )

Opinions Filed in December 2011

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

Contract Law: 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.

(Filing Date: 12-29-2011)

Campbell v. Clackamas County

Land Use: 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.

(Filing Date: 12-29-2011)

Cocchiara v. Lithia Motors, Inc.

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

(Filing Date: 12-29-2011)

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

Juvenile Law: 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.

(Filing Date: 12-29-2011)

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

Insurance Law: 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.

(Filing Date: 12-29-2011)

Martin v. SAIF

Workers Compensation: 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.

(Filing Date: 12-29-2011)

Orchard v. Mills

Post-Conviction Relief: 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.

(Filing Date: 12-29-2011)

Rushby and Rushby

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

(Filing Date: 12-29-2011)

SAIF v. Owens

Workers Compensation: 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.

(Filing Date: 12-29-2011)

SAIF v. Swartz

Workers Compensation: 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.

(Filing Date: 12-29-2011)

State v. Aronson

Constitutional Law: 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.

(Filing Date: 12-29-2011)

State v. Caldwell

Post-Conviction Relief: 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.

(Filing Date: 12-29-2011)

State v. Copeland

Constitutional Law: 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.

(Filing Date: 12-29-2011)

State v. Feller

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

(Filing Date: 12-29-2011)

State v. L.D.

Civil Commitment: 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.

(Filing Date: 12-29-2011)

State v. McFarland

Criminal Procedure: 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.

(Filing Date: 12-29-2011)

State v. Snow

Criminal Procedure: 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.

(Filing Date: 12-29-2011)

State v. Wiggins

Criminal Procedure: 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.

(Filing Date: 12-29-2011)

State v. Yocum

Sentencing: 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.

(Filing Date: 12-29-2011)

Strutz v. Employment Department

Employment Law: 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.”

(Filing Date: 12-29-2011)

Watson v. Meltzer

Tort Law: 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.

(Filing Date: 12-29-2011)

Westfall v. Oregon Dept. of Corrections

Tort Law: 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.

(Filing Date: 12-29-2011)

Barrett v. Williams

Habeas Corpus: 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.

(Filing Date: 12-21-2011)

D.T. v. Department of Human Services

Administrative Law: 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.

(Filing Date: 12-21-2011)

State v. Delaportilla

Criminal Law: 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.

(Filing Date: 12-21-2011)

State v. Hesedahl

Criminal Law: 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.

(Filing Date: 12-21-2011)

State v. McLaughlin

Sentencing: 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.

(Filing Date: 12-21-2011)

State v. S.J.F.

Civil Commitment: 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.

(Filing Date: 12-21-2011)

State v. Taylor

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

(Filing Date: 12-21-2011)

Bailey v. Nooth

Post-Conviction Relief: 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.

(Filing Date: 12-14-2011)

Davis v. Nye Ditch Users Improvement Dist.

Property Law: 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.

(Filing Date: 12-14-2011)

Frakes v. Nay

Trusts and Estates: 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.

(Filing Date: 12-14-2011)

Galloway v. Nooth

Post-Conviction Relief: 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.

(Filing Date: 12-14-2011)

Hamscam and Hamscam

Family Law: 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.

(Filing Date: 12-14-2011)

Jones v. Douglas County

Land Use: 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.

(Filing Date: 12-14-2011)

Jones v. Douglas County

Land Use: 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.

(Filing Date: 12-14-2011)

Loomis v Loomis

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

(Filing Date: 12-14-2011)

SAIF Corporation v. Stephens

Workers Compensation: 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.

(Filing Date: 12-14-2011)

Smith v. Bend Metropolitan Park and Recreation

Tort Law: 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.

(Filing Date: 12-14-2011)

State of Oregon v. Louis J. Massei

Criminal Procedure: 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).

(Filing Date: 12-14-2011)

State v. Barajas

Criminal Procedure: 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.

(Filing Date: 12-14-2011)

State v. Estey

Criminal Law: 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.

(Filing Date: 12-14-2011)

State v. Gruver

Criminal Law: 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.

(Filing Date: 12-14-2011)

State v. Hampton

Evidence: 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.

(Filing Date: 12-14-2011)

State v. McKey

Criminal Law: 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.

(Filing Date: 12-14-2011)

State v. Moore

Criminal Procedure: 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.

(Filing Date: 12-14-2011)

State v. Prange

Evidence: 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.

(Filing Date: 12-14-2011)

State v. Reed

Criminal Procedure: 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.

(Filing Date: 12-14-2011)

State v. Torres-Rivas

Evidence: 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.

(Filing Date: 12-14-2011)

State v. Trivitt

Family Abuse Prevention Act: 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.

(Filing Date: 12-14-2011)

Thrifty Payless, Inc. v. Cole

Workers Compensation: "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."

(Filing Date: 12-14-2011)

Valencia v. GEP BTL, LLC

Workers Compensation: 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.

(Filing Date: 12-14-2011)

Williamson v. Government Employees Insurance co.

Attorney Fees: 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.

(Filing Date: 12-14-2011)

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

Workers Compensation: 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.

(Filing Date: 12-07-2011)

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

Family Law: 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.

(Filing Date: 12-07-2011)

Hammond v. Hammond

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

(Filing Date: 12-07-2011)

Hunter v. Saif Corporation

Workers Compensation: 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.

(Filing Date: 12-07-2011)

Medean v. Moeller

Insurance Law: 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.”

(Filing Date: 12-07-2011)

State v. Glass

Constitutional Law: 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.

(Filing Date: 12-07-2011)

State v. Hatfield

Criminal Law: 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.

(Filing Date: 12-07-2011)

State v. Holcomb

Criminal Law: 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.

(Filing Date: 12-07-2011)

State v. Laizure

Parole and Post-Prison Supervision: 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.

(Filing Date: 12-07-2011)

State v. Magel

Criminal Law: 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.

(Filing Date: 12-07-2011)