Willamette Law Online

Oregon Court of Appeals

( 37 summaries )

Opinions Filed in March 2012

Anderson v. Dry Cleaning To-Your-Door

Civil Procedure: ORCP 68 C(2) requires a party to seek award for attorney fees by pleading or motion and provide a basis for an entitlement to attorney fees.

(Filing Date: 03-28-2012)

Dept. of Human Services v. B.W.

Family Law: The rational relationship requirement is only a minimal threshold for the court to consider alongside other items when determining the validity of an order.

(Filing Date: 03-28-2012)

Dept. of Human Services v. S.P.

Family Law: Under ORS 419B.100(1)(c), state jurisdiction over a newborn is not supported where the record lacks clear statements of reoccurring problems and where the record does not demonstrate the extent of a mother's developmental disability or the existence of a father's alleged mental health and anger issues.

(Filing Date: 03-28-2012)

Johnson v. Deschutes County

Land Use: The proper analysis for determining a common law vested right to develop property under section 5(3) of Measure 49 was handed down in Friends of Yamhill County v. Board of Commissioners . However, in reviewing a hearings officer determination, the writ of review court cannot render its own factual findings.

(Filing Date: 03-28-2012)

Parsley v. Oregon

Civil Law: The validity of a circuit court judgment may not be attacked in a subsequent contempt proceeding. Additionally, a plaintiff is not required to appear at a contempt hearing.

(Filing Date: 03-28-2012)

Sconce and Sweet

Family Law: For a custody-modification, the party seeking the change in custody must prove that a substantial change in circumstances occurred since the last order relating to custody.

(Filing Date: 03-28-2012)

Spillane and Spillane

Family Law: The party requesting modification or termination of spousal support has the burden of demonstrating a current, substantial, and unanticipated change of circumstances from the time of the dissolution that precludes the earning capacity of the paying spouse.

(Filing Date: 03-28-2012)

State v. Alonzo

Criminal Procedure: Under ORCP 59 H(1), there are two situations that bar appellate review if the party does not preserve its objection: (1) An erroneous instruction from the trial court; and (2) Refusing to deliver a parties’ requested instruction.

(Filing Date: 03-28-2012)

State v. Everett

Criminal Law: The crime of solicitation, ORS 161.435(1), occurs when a person solicits an intermediary to procure a third party to commit the intended crime so long as the intermediary is aware of that intended crime.

(Filing Date: 03-28-2012)

State v. Groom

Criminal Procedure: The automobile exception rule for searches applies only when the vehicle is moving when police first encounter it in connection with a crime.

(Filing Date: 03-28-2012)

State v. Jordan

Criminal Procedure: Under ORS 137.106(1)(a), the appropriate cut-off date for restitution is the date imposed by the sentencing court, and the trial court may award restitution for income lost up until that date.

(Filing Date: 03-28-2012)

State v. Nolasco-Lara

Criminal Law: The Court may choose not to exercise its discretion regarding sentences that meet the test for plain error if the Defendant encouraged the trial judge to impose a sentence and strategically chose not to object to the sentence.

(Filing Date: 03-28-2012)

State v. Truong

Criminal Procedure: When a defendant is sentenced to serve consecutive prison sentences, the total prison term cannot exceed 400 percent of the maximum for the primary offense in the case.

(Filing Date: 03-28-2012)

Unifund CCR Partners v. Deboer

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and the application of that statute of limitation would impose an unfair burden on defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-28-2012)

State v. Christian

Constitutional Law: Portland City Code 14A.060.010(A), which prohibits carrying a firearm in a public place "recklessly having failed to remove all the ammunition," is facially constitutional under the Oregon Constitution Article I § 27 and the Second Amendment to the United States Constitution because it does not punish protected activity in a significant number of circumstances.

(Filing Date: 03-21-2012)

CACV of Colorado v. Stevens

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and would impose an unfair burden in defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-14-2012)

Capitol Specialty Ins. Co. v. Chan & Lui, Inc.

Insurance Law: Amendments to policy coverage amounts do not apply retroactively where the "effective date of change" is clearly and unambiguously stated within the policy.

(Filing Date: 03-14-2012)

Department of Human Services v. B.B.

Juvenile Law: A history of sexual abuse is insufficient grounds to support a finding, sixteen years after the last confirmed instance of abuse, that a father presents a current risk of danger to his minor children.

(Filing Date: 03-14-2012)

Dept. of Human Services v. D.M.

Family Law: Exposure to a parent's unconventional but not unlawful lifestyle does not justify state intervention into a parent's fundamental right to the care, control, and custody of his or her children.

(Filing Date: 03-14-2012)

K. R. v. Erazo

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear and, where the contact is speech, it must be a threat that invokes imminent fear.

(Filing Date: 03-14-2012)

Kazlauskas v. Emmert

Contract Law: In contracts cases, specific performance as a remedy should only be available when other remedies are insufficient to compensate the non-breaching party.

(Filing Date: 03-14-2012)

Nice v. Townley

Family Law: When applying ORS 107.137(1) in a custody determination, each of the factors listed must be considered and any one factor may not be relied on at the exclusion of another. Additionally, proper consideration must be given to the preference for the primary caregiver under ORS 107.137(1)(e).

(Filing Date: 03-14-2012)

State v. Crook County

Land Use: When determining whether someone has a common law vested right to complete a building project in compliance with Ballot Measure 37, the cost of completion must be established in the record and cannot be assumed.

(Filing Date: 03-14-2012)

State v. Durst

Criminal Procedure: Unlawful use of a weapon and menacing charges require the State to prove Defendant's intent to engage in particular conduct and the intent to cause a particular result. Therefore, jury instructions that refer to both the conduct and the result are not errors.

(Filing Date: 03-14-2012)

State v. Gilbert

Sentencing: When a sentencing court does not make an oral or written ruling that a sentence will be served consecutively with another sentence, ORS 137.123(1) requires that the sentences run concurrently, and the reference in ORS 138.083(1)(a) to amending an “erroneous term” cannot be employed by the sentencing court to amend the sentence due to an unexpressed intention at the time of the original judgment for the sentences to run consecutively.

(Filing Date: 03-14-2012)

State v. Hanna

Criminal Procedure: For the purposes of searching impounded vehicles, the bed of a truck under a locked tonneau cover does not constitute a trunk or an external container.

(Filing Date: 03-14-2012)

State v. Mills

Evidence: In venue cases, the state may establish venue through circumstantial evidence but the evidence must be substantial enough to prevent the jury from speculating or guesswork.

(Filing Date: 03-14-2012)

State v. Nims

Criminal Procedure: Under the unavoidable lull rule, it is not unlawful for an officer to inquire about matters unrelated to the initial violation as long as the inquiry does not unlawfully extend that traffic stop.

(Filing Date: 03-14-2012)

State v. Stark

Criminal Law: Under ORS 166.270(3)(a), the phrase "at the time of judgment" refers to the time when the original felony judgment was entered. A later reduction of the charge to a misdemeanor is irrelevant.

(Filing Date: 03-14-2012)

State v. Trident Seafoods Corp.

Contract Law: Per an agreement, a fish processor must pay fair market value for fish caught over the established limits, whether or not the fish was ultimately processed.

(Filing Date: 03-14-2012)

Wolfe and Wolfe

Family Law: Limited integration of separate property assets into the common financial affairs of a long term marriage significantly affect the distribution of marital property.

(Filing Date: 03-14-2012)

City of Eugene v. McCann

Workers Compensation: Under ORS 656.802(4), cardiovascular diseases are defined as a physical impairment of the heart or blood vessels that is gradual in nature; this definition precludes symptoms of an underlying disease that do not cause physical impairment of the heart.

(Filing Date: 03-07-2012)

Kirkpatrick and Kirkpatrick

Family Law: Failure to promote a healthy relationship between parent and child can constitute a substantial change in circumstances.

(Filing Date: 03-07-2012)

Reach Community Development v. Stanley

Landlord Tenant: A letter from a landlord to tenant indicating that rent will not be accepted pending resolution of a BOLI investigation does not constitute a waiver of the landlord's right to insist on the payment of all accrued rent within 72-hours of issuing and serving a notice of nonpayment pursuant to ORS 90.394.

(Filing Date: 03-07-2012)

State v. Delatorre-Vargas

Criminal Procedure: The identifications were obtained using suggestive procedures and the State failed to demonstrate that the identifications were independently reliable. The errors in admitting the identification evidence were not harmless.

(Filing Date: 03-07-2012)

State v. R. E.

Civil Commitment: The test for establishing whether an individual is “dangerous to self” is: 1) the state must demonstrate the person is likely to harm themselves in the near future; and 2) there must be the possibility of actual physical harm.

(Filing Date: 03-07-2012)

Woods v. Hill

Tort Law: As a matter of law, a defendant may not avoid liability for his negligence by asserting a subsequent appeal should never have happened.

(Filing Date: 03-07-2012)