Willamette Law Online

Oregon Court of Appeals

( 28 summaries )

Opinions Filed in April 2012

Awbrey Towers v. Western Radio Services

Attorney Fees: Under ORS 20.096(1), attorney fees are available to the prevailing party when the action is brought to enforce any provisions of the underlying agreement.

(Filing Date: 04-25-2012)

Hunt v. City of Eugene

Civil Procedure: ORCP 54(B) provides that nothing shall prevent the court from dismissing an action for want of prosecution notwithstanding the requirement that the clerk shall notify the parties that the case has been inactive for more than a year. Under ORS 20.105, the city is not entitled to attorney fees if the arguments brought against it were plausible.

(Filing Date: 04-25-2012)

Page v. Parsons

Civil Procedure: A trial court is not required to provide multiple hearings on a special motion to strike under ORS 31.150, as this would be contrary to legislative intent to curtail the litigation process. A trial court may also grant a special motion to strike after a non-specific discovery request from the plaintiff.

(Filing Date: 04-25-2012)

State v. Kurokawa-Lasciak

Criminal Procedure: Authority to consent to a search is proper only if the consenter has proper authority to control and access the property to be searched.

(Filing Date: 04-25-2012)

State v. Lewis

Sentencing: A defendant's due process and speedy trial rights are not violated when the defendant is convicted in Oregon but not sentenced until he returns from serving almost a 20-year sentence in Washington for separate crimes.

(Filing Date: 04-25-2012)

State v. Onishchenko

Evidence: In order to establish the amount of a compensatory fine, the market value of a chattel may be ascertained through the testimony of the owner, unless it is shown that the owner does not have knowledge of the market value of the item.

(Filing Date: 04-25-2012)

Wagner v. Jeld Wen

Workers Compensation: When establishing a compensable injury under ORS 656.005(7)(a), the claimant must show that his actual injury originated from a work related incident and this incident caused him to seek medical attention.

(Filing Date: 04-25-2012)

Johnson Mobile Estates v. Oliver

Landlord Tenant: ORS 105.149(2) allows the trial court to consider any issue outside the defendant's hearing request where the Residential Landlord Tenant Act applies.

(Filing Date: 04-18-2012)

Peterson v. McCavic

Contract Law: To prevail on a fraud claim a plaintiff must show a representation; its falsity; its materiality; the speaker's knowledge of its falsity or ignorance of its truth; his intent that it will be acted on by the listener; the listener's ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury. Plaintiff may prevail if he can show a reasonable inference of reliance based upon the evidence.

(Filing Date: 04-18-2012)

Saif v. Miguez

Workers Compensation: Under OAR 436-035-0007(12), an appellate review unit must explain what observations led to its findings of invalidity, how these observations contradict the validity of the findings, and why the observations are medically significant before it may invalidate a medical examiner's findings.

(Filing Date: 04-18-2012)

State v. Bennett

Criminal Procedure: In imposing an upward departure sentence, a court may consider the defendant’s conduct after the crime for which the defendant is being sentenced.

(Filing Date: 04-18-2012)

State v. Dries

Civil Procedure: Under ORCP 59 H, a party must “state with particularity” the trial court’s alleged error in order to preserve an appellate challenge to the error.

(Filing Date: 04-18-2012)

State v. Kephart

Appellate Procedure: Where the trial court does not address an issue or state what version of a statute it applied, and either issue is raised on appeal, the case will be vacated and remanded to the trial court.

(Filing Date: 04-18-2012)

State v. Lamb

Criminal Procedure: During the course of a lawful stop, an officer may inquire as to whether the defendant has weapons on his person without it being an unlawful seizure.

(Filing Date: 04-18-2012)

State v. Lowell

Appellate Procedure: An investigating detective’s testimony that he believed defendant was lying was an improper comment on defendant's credibility. The trial court's failure to exclude this testimony was plain error and therefore reviewable.

(Filing Date: 04-18-2012)

Rudell v. City of Bandon

Land Use: A city may rely on Webster's Dictionary to define the scope of "foredune", and such interpretation is not inconsistent with the Bandon Municipal Code. Also, under ORS 197.307(6) (2009) and ORS 227.173(1), the definition, as interpreted by the city, must be sufficiently clear and objective.

(Filing Date: 04-11-2012)

State v. Babson

Constitutional Law: Article IV, section 9 of the Oregon Constitution does not protect co-chairs sitting in a legislative committee from being brought before a court for questioning, so long as it limited to their capacity in enforcement (as opposed to enactment) of legislation.

(Filing Date: 04-11-2012)

State v. Macon

Criminal Law: Under ORS 164.215(1), a storage room, separated from a store by a closed door, is a separate unit from the store that patrons do not have license to enter.

(Filing Date: 04-11-2012)

State v. N. R. L.

Juvenile Law: Despite recent amendments to ORS 419C.450, restitution continues to function as an element of the penal system. Therefore, it does not require a jury trial that would be afforded by Article I, section 17 of the Oregon Constitution.

(Filing Date: 04-11-2012)

State v. Urbina

Criminal Law: Downloading child pornography from an online peer-to-peer network constitutes "knowing duplication" of those materials and, in cases of encouraging child sex abuse, whether the "victim" is the State or the child in the image/video is a matter "reasonably in dispute."

(Filing Date: 04-11-2012)

Bock and Bock

Family Law: A 4% increase in income does not constitute an unanticipated or substantial change in economic circumstances that would justify a modification of a child support order.

(Filing Date: 04-04-2012)

Gest v. Oregon AFL-CIO

Labor Law: An informal employee grievance meeting is a "concerted activity" that is regulated by the NLRA. Under Garmon , the state must allow the National Labor Relations Board to determine labor disputes that the NLRA was designed to protect or prohibit.

(Filing Date: 04-04-2012)

Protect Grand Island Farms v. Yamhill County

Land Use: Under Statewide Planning Goal 5, OAR 660-023-0180(3)(d)(B)(ii), the phrase “average thickness of the aggregate layer within the mining area” is intended to refer to the average depth of all the mineable aggregate within the resource site, regardless of whether that aggregate is physically discontinuous.

(Filing Date: 04-04-2012)

State v. Bobbitt

Evidence: Under former ORS 192.555(2)(a), an individual's financial records may not be disclosed unless the financial institution has an independent suspicion that the individual has violated the law; a relayed suspicion by law enforcement is not sufficient.

(Filing Date: 04-04-2012)

State v. Debuiser

Appellate Procedure: A court does not commit plain error when a plausible inference can be drawn that an objection was not made for tactical reasons.

(Filing Date: 04-04-2012)

State v. Elliott

Criminal Law: When a defendant is charged with identity theft, evidence that a defendant stole credit cards is legally sufficient to permit a jury to infer the defendant's intent to deceive or defraud beyond a reasonable doubt, even when the defendant took no action in furtherance of that identity theft.

(Filing Date: 04-04-2012)

State v. Hicks

Criminal Procedure: A court need not apply the “shift to I” rule to consecutive sentences that are “statutorily mandated” because they are outside the scope of OAR 213-012-0020.

(Filing Date: 04-04-2012)

Wallace v. State

Administrative Law: While otherwise justiciable, a case before an Appellate Court is moot if the relief to be granted by a finding of error has already been obtained.

(Filing Date: 04-04-2012)