Willamette Law Online

Oregon Court of Appeals

( 41 summaries )

Opinions Filed in February 2012

Avanti Press, Inc. v. Employment Department Tax Section

Employment Law: The test for unemployment taxes under ORS 670.600 is whether the contracted party controls their “means and manner” of their performance or if there are more generalized instructions on how to produce the desired results.

(Filing Date: 02-29-2012)

Barber v. Green

Attorney Fees: Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. When attorney fees to the prevailing party are mandatory, a court may determine the amount of attorney fees, but does not have discretion to not award any attorney fees.

(Filing Date: 02-29-2012)

Bigby v. Vogel

Trusts and Estates: The passing of a decedent's real property by will to a constructive testamentary trust grants a life estate to the personal representative of the estate, upon which the holder of the life estate is granted all profits derived from the land.

(Filing Date: 02-29-2012)

Brumage v. Esco Corp.

Workers Compensation: Claims for hearing loss are evaluated upon claimant’s “overall hearing loss” at the time claimant files his claim.

(Filing Date: 02-29-2012)

Cortez v. Nacco Materials Handling Group

Employment Law: The exclusive remedy provision of the workers' compensation law does not apply to "members" of an LLC, primarily because an LLC is a legal entity distinct from its members.

(Filing Date: 02-29-2012)

Dept. of Human Services v. T. M. M.

Family Law: A parent’s future availability as a fit parental resource when assessed at the termination of parental rights hearing must be reasonable when weighed against the specific and immediate needs of the parent’s children.

(Filing Date: 02-29-2012)

Dept. of Human Services v. W. S. C.

Family Law: The Oregon statutory limitation on the creation of judicial remedies for failing to file a timely appeal of a permanency hearing comports with due process unless specific circumstances arise.

(Filing Date: 02-29-2012)

State v. Capri

Sentencing: A post-prison supervision term, when added to the prison term, may not exceed the statutory maximum prison term for conviction; and a petition to enter a guilty plea does not constitute a stipulation to a post-prison supervision term if the plea makes no mention of the supervision.

(Filing Date: 02-29-2012)

State v. Cox

Evidence: Testimony of an expert witness regarding the credibility of another witness should not be submitted to the jury when there is a substantial risk of the testimony prejudicing the jury toward a third witness.

(Filing Date: 02-29-2012)

State v. Jasso

Evidence: A party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the Court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.

(Filing Date: 02-29-2012)

T. M. B. v. Holm

Civil Stalking Protective Order: When determining a stalking protective order, there is no requisite mental state; Speech can be considered a "contact" for the purpose of a civil stalking protective order.

(Filing Date: 02-29-2012)

Washington County v. Jansen

Workers Compensation: Claimant has the burden of proving that an occupation disease is still a part of a combined condition claim after a denial by the employer.

(Filing Date: 02-29-2012)

Bailey v. Bailey

Family Law: In determining a "just and equitable" amount in spousal support payments, a goal in a dissolution of a long term marriage is to provide a standard of living comparable to the one enjoyed during the marriage.

(Filing Date: 02-23-2012)

Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Commission

Administrative Law: The Columbia River Gorge National Scenic Area Act required the Columbia River Gorge Commission to include provisions in its management plan that development should take place without adversely affecting natural resources.

(Filing Date: 02-23-2012)

Oregon AFSCME Council 75, Local #2503 v. Hood River County

Labor Law: "Amount of money indicated" as used in ORS 292.055 encompasses pay to be made in accordance with a simple formula; a public employer's failure to deduct the dues on a percentage base as requested constitutes an unfair labor practice.

(Filing Date: 02-23-2012)

State v. Davis

Criminal Procedure: Circumstantial evidence may be used to establish trial venue.

(Filing Date: 02-23-2012)

State v. Shirk

Criminal Procedure: If consent for a search is acquired during an unlawful custodial interrogation, evidence from that search should be suppressed if there are no circumstances that attenuate the link between the consent and the interrogation.

(Filing Date: 02-23-2012)

Cruze v. Hudler

Appellate Procedure: When the Court misstates an immaterial fact in an opinion, it may still reconsider the opinion, but only to make a minor correction to the prior opinion to delete the misstatement in question.

(Filing Date: 02-15-2012)

Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson

Attorney Fees: Attorney's fees can be recovered from the client's trust pursuant to ORS 125.095 for services rendered while the client was designated a protected person.

(Filing Date: 02-15-2012)

Dew v. Bay Area Health District

Evidence: Under Oregon Evidence Code 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, the exclusion of medical testimony could make any fact of consequence to the determination of the action more probable than without the evidence.

(Filing Date: 02-15-2012)

Hayward v. Belleque

Post-Conviction Relief: The reasonableness of trial counsel's performance is evaluated from the counsel's perspective at the time of the alleged error and in light of all the circumstances.

(Filing Date: 02-15-2012)

State v. Dimmick

Criminal Procedure: Police inventories must be managed pursuant to a properly administered administrative program that does not involve exercise of discretion of the police. When the evidence in joined cases is sufficiently simple and distinct, jury instruction can cure any possible prejudice.

(Filing Date: 02-15-2012)

State v. Jimenez-Correo

Criminal Law: In the sale of marijuana, the culpable mental state requirement does not include the element of the recipient's age under former ORS 475.995 (2001).

(Filing Date: 02-15-2012)

State v. Leino

Criminal Procedure: A records and warrant check by a police officer during a lawful traffic stop does not unlawfully extend or expand the scope of the traffic stop in violation of Art. I, section 9 of the Oregon Constitution.

(Filing Date: 02-15-2012)

State v. Rubio

Sentencing: When a sentencing court commits an error the Court of Appeals must remand the entire case for resentencing if there are options which the sentencing court may adopt. Where defendant's theory does not focus on an issue that matter is collateral, and while relevant, its probative value may be substantially outweighed by risk of misleading the jury.

(Filing Date: 02-15-2012)

Steele v. Water Resources Commission

Water Rights: For a petitioner to properly challenge an agency’s final order, petitioner must show that erroneous factual findings or erroneous interpretations of conclusions of law in the agency’s final order produced an improper result that is within the court’s authority to review.

(Filing Date: 02-15-2012)

Willamette Oaks, LLC v. City of Eugene

Land Use: The Land Use Board of Appeals did not err in determining that certain modifications to a tentative planned unit development would only result in insignificant changes and were therefore permissible. Also, the petitioner must have preserved the issue of reversing instead of remanding to argue that the case should have been remanded, if it was not plain error.

(Filing Date: 02-15-2012)

Caldeen Construction, LLC v. M. Mark Kemp

Criminal Law: A trial court abuses its discretion in dismissing an amended complaint in an attorney negligence claim where the plaintiff attempts to amend the complaint to allege that but for the defendant's negligence, the outcome in the underlying case would have been different.

(Filing Date: 02-08-2012)

Denucci v. Henningsen

Tort Law: The 180-day time limit for filing a claim under the Oregon Tort Claims Act begins when the plaintiff knows, or with reasonable care should know that an injury has occurred and that it is possible for a jury to agree with the plaintiff's argument under the circumstances of the case.

(Filing Date: 02-08-2012)

Dept. of Human Services v. J. B.

Juvenile Law: Paternity over a child is established in ORS 109.070 (1). Moreover, an outdated Voluntary Acknowledgment of Paternity (VAP) fails to establish paternity of a parent, and thus is fatal to the parent's effort to become the legal parent.

(Filing Date: 02-08-2012)

Mentor Graphics Corp. v. Velazquez

Workers Compensation: If the Court of Appeals cannot determine from records of the Workers' Compensation Board whether it found that a claimant proved the existence of an occupational disease, not just symptoms, then the Court may remand the case so that the board may address that point.

(Filing Date: 02-08-2012)

OR-OSHA v. CC & L ROOFING CO., INC.

Evidence: Under ORS 654.086, OR-OSHA has the burden of persuasion to show constructive knowledge. Employer evidence to show “reasonable diligence” in compliance is not an affirmative defense “because it negates the knowledge element of a serious violation.”

(Filing Date: 02-08-2012)

PGE v. Ebasco Services, Inc.

Civil Procedure: A court may not enter a judgment awarding more damages than the plaintiff sought in its complaint, unless the party against whom the judgment will be entered had reasonable notice and an opportunity to be heard.

(Filing Date: 02-08-2012)

Portland Police Association v. City of Portland

Labor Law: If a collective bargaining agreement (CBA) unambiguously makes the parties’ dispute subject to a grievance procedure involving arbitration, any ambiguity with respect to which subjects are arbitrable under the CBA is resolved in favor of arbitrability.

(Filing Date: 02-08-2012)

Pressing Matters v. Carr

Workers Compensation: To preserve a claim of premature closure, it is sufficient that the record contain information from which the appellant reviewer could determine that the claimant was challenging the closure of the claim.

(Filing Date: 02-08-2012)

State v. Frey

Criminal Law: Where an action is a material fact to proving whether defendant committed a crime, the court shall give the jury a "Boots instruction." That is, at minimum 10 jurors must concur that a defendant intended to commit the crime, and that he intended to commit a material fact to that crime.

(Filing Date: 02-08-2012)

State v. Gruntz

Criminal Procedure: To determine whether the affidavit in support of a search warrant is sufficient, the state applies the reasoning of State v. Castilleja. That is, the court’s function is limited in scope to determining whether a magistrate could have reasonably concluded the facts in an affidavit established probable cause for a search warrant.

(Filing Date: 02-08-2012)

State v. Mills

Sentencing: Per State v. Lauers, first-degree arson convictions arising under the same section of the criminal code may be merged. However, an assignment of error for failure to merge is not preserved unless it is presented before the trial court during the sentence hearing.

(Filing Date: 02-08-2012)

State v. Codon

Evidence: It is plain error for a trial court to admit a medical expert's diagnosis of sexual abuse in the absence of physical findings to support the diagnosis; inferences, for purposes of the plain error analysis, must be plausible.

(Filing Date: 02-01-2012)

State v. Ferguson

Evidence: A witness may not give testimony, expert or otherwise, as to the credibility of whether he or she believes another witness is telling the truth.

(Filing Date: 02-01-2012)

State v. Jimenez

Criminal Law: Under State v. Magel, the test for cases involving a threat takes into account whether the defendant expressed an intent to harm the victim, and whether that expression could compel the victim to engage in sexual contact.

(Filing Date: 02-01-2012)