Willamette Law Online

Oregon Court of Appeals

2011

( 31 summaries )

August

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)

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. 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)

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)

( 31 summaries )

September

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)

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)

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)

( 35 summaries )

October

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)

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. 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)

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)

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)

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)

( 33 summaries )

November

Dept. of Human Services v. N.S.

Family Law: A court will not reverse a juvenile court's order of reunification to guardianship, despite a parent's participation in DHS services, when the parent places the child in harm's way.

(Filing Date: 11-02-2011)

SAIF v. Hanscram

Workers Compensation: The "date of injury" occurs on the date when a claimant becomes disabled or seeks treatment for a compensable condition. A condition becomes compensable when the claimant's work is the major contributing cause of the injury.

(Filing Date: 11-02-2011)

State v. Chase

Sentencing: A sentence does not violate the proportionality principle of the Oregon Constitution if the defendant would not have received the base sentence for the more serious crime based on his criminal history.

(Filing Date: 11-02-2011)

State v. Condon

Criminal Procedure: The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

(Filing Date: 11-02-2011)

State v. Landreth

Criminal Procedure: Good cause to extend the deadline for the imposition of a supplemental judgment exists when the motion is filed within the time period, and further investigation to establish the specific amount of restitution is required.

(Filing Date: 11-02-2011)

State v. Martinez

Criminal Procedure: Delay in a motion requesting an amended judgment for restitution meets the “good cause” requirement if it is not due to neglect, inadvertence, or inattentiveness. Awaiting information from a victim's compensation program does constitute "good cause".

(Filing Date: 11-02-2011)

State v. Newman

Evidence: Driving under the influence of intoxicants is a strict liability offense, and evidence of mental state will be excluded.

(Filing Date: 11-02-2011)

State v. Unis

Criminal Procedure: The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

(Filing Date: 11-02-2011)

State v. White

Appellate Procedure: Appeals from supplemental judgments, like other judgments, must be timely for the Court of Appeals to maintain jurisdiction.

(Filing Date: 11-02-2011)

Tieu v. Morgan

Property Law: Summary judgment of adverse possession will be granted where a claimant can prove, with clear and convincing evidence, that he, through “honest belief” of actual ownership, continuously maintained actual, open, notorious, exclusive and hostile possession of the property for greater than ten years.

(Filing Date: 11-02-2011)

Beauchaton v. Employment Dept.

Employment Law: When an employee leaves for their own safety due to a reasonable belief they are being stalked, then they are not disqualified for voluntarily quitting their job without “good cause.”

(Filing Date: 11-09-2011)

Dinicola v. State

Employment Law: Employees may be exempt from overtime compensation under the Fair Labor Standards Act depending on the nature of their work, and the classification of their job.

(Filing Date: 11-09-2011)

Housing Authority of Jackson County v. Gates

Contract Law: Where a written lease specifically refers to another writing as being part of the entire agreement, that other writing is part of the lease agreement.

(Filing Date: 11-09-2011)

Leif and Leif

Family Law: Including income from an inheritance in the calculation of gross income is appropriate when the inheritance is available. Also, averaging a parent's income over several years is appropriate when the income varies from year to year.

(Filing Date: 11-09-2011)

Oregon Corrections Employees v. State of Oregon

Employment Law: Where a collective bargaining agreement authorizes an employer to take certain actions, such actions if unilaterally employed by the employer, do not constitute unfair labor practices.

(Filing Date: 11-09-2011)

Rodenbeck and Rodenbeck

Family Law: In a marriage dissolution, it is not just and proper to reduce the value of a spouse’s share of a marital asset to reflect the taxes the other spouse may owe on the income he or she uses to pay the spouse. Also, a court should not rely on an expert’s value that is based on a guess from a non-expert.

(Filing Date: 11-09-2011)

Siegert v. Crook County

Land Use: The standard of review for a zoning ordinance is limited to whether the county’s determination is plausible. If the local government plausibly interprets its own regulations that interpretation must be affirmed, unless it is inconsistent with all of the express language or inconsistent with the policies underlying the regulation.

(Filing Date: 11-09-2011)

State v. Hennagir

Criminal Law: Under ORS 161.405(1), a reasonable jury can infer the intent to complete a crime when substantial steps have been taken toward completion, even when there is no evidence of the actual objective.

(Filing Date: 11-09-2011)

State v. Jones

Criminal Law: OEC 404(4) bars a trial court from excluding evidence under OEC 403,“unless constitutionally required.”

(Filing Date: 11-09-2011)

State v. M.W.H.

Juvenile Law: Warrantless searches may be justified if there is reasonable suspicion and exigent circumstances.

(Filing Date: 11-09-2011)

State v. Rayburn

Criminal Procedure: Police may use the totality of the circumstances to establish probable cause to arrest a passenger in a stolen car. This assessment establishes the requisite mental state of the passenger to determine whether or not they knew they were in a stolen vehicle and could be arrested.

(Filing Date: 11-09-2011)

State v. Ulizzi

Criminal Procedure: Even when information that led to the issuance of a warrant is "stale," a court will give deference to the issuing court and uphold a warrant that may yield potential evidence.

(Filing Date: 11-09-2011)

State v. Young

Criminal Law: An appellate or post-conviction court may add court appointed attorney fees to a defendant's appeal following a claim for post-conviction relief.

(Filing Date: 11-09-2011)

Weyerhaeuser Real Estate Develop. v. Polk County

Land Use: Land use decisions made by proper county officials and in accord with statutory and case law of the time shall be upheld despite conflicting previous acts related to the land in question.

(Filing Date: 11-09-2011)

Fisher v. Walker

Property Law: To determine an easement’s purpose, the court looks to the wording of the document within the context of the document. An instrument creating an easement that does not convey title to the property, but only subjects it to the uses of the easement, is not a conveyable interest in land.

(Filing Date: 11-16-2011)

State v. Earls

Sentencing: For the purpose of applying the presumptive 13-month sentence under ORS 137.717(b) a conviction in a court-martial does not apply. Where the Court of Appeal finds plain error in the trial court’s failure to merge guilty verdicts on particular counts, the Court will exercise its discretion to correct the error.

(Filing Date: 11-16-2011)

Baggarley v. Union Pacific Railroad Company

Employment Law: When a claimant became aware of his or her work-related injury is a question of fact for the jury to decide in determining the statute of limitations period on a workplace injury claim.

(Filing Date: 11-23-2011)

Cruze v. Hudler

Tort Law: A predicate conviction is not a prerequisite to a civil ORICO claim based on racketeering activities. To have a cause of action under ORICO, plaintiff only need demonstrate defendants violation is based on racketeering activity.

(Filing Date: 11-23-2011)

Gordon v. Board of Parole

Parole and Post-Prison Supervision: Under ORS 144.125(3), a parole board may rely on any information contained in the psychological report to find the four elements required to defer release of an offender.

(Filing Date: 11-23-2011)

State v. Ayvazov

Criminal Procedure: Where suspicious activity occurs, and it is objectively reasonable that the passenger of a car was recently involved in a crime, the police met its burden to show probable cause when arresting the passenger.

(Filing Date: 11-23-2011)

State v. Smith

Indian Law: According to Warm Springs Tribal Reservation law (WSTC 310.120), nontribal officers may arrest tribe members on tribal land following a traffic infraction in the officer's presence and leading to a "hot pursuit" onto the reservation.

(Filing Date: 11-23-2011)

State v. Volynets-Vasylchenko

Evidence: Medical treatment recommendations that convey the medical expert's implicit conclusions that a child victim's reports of sexual abuse are credible are inadmissible unless corroborated by physical evidence.

(Filing Date: 11-23-2011)

Svidenko v. DMV

Administrative Law: When a petitioner files a just cause exception to a timely administrative appeal, the reviewing agency must answer the substantive arguments put forth by the petitioner.

(Filing Date: 11-23-2011)

( 63 summaries )

December

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)

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)

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)

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)