Willamette Law Online

Oregon Court of Appeals

( 45 summaries )

Opinions Filed in May 2012

American Energy, Inc. v. City of Sisters

Civil Law: Under section 25 of the Oregon Jobs and Transportation Act, an ordinance is deemed enacted when it is adopted by it's governing body, rather than after it has been referred for a citizen's vote.

(Filing Date: 05-31-2012)

Blunier v. Staggs

Attorney Fees: Attorney fees that are reasonably incurred while enforcing the terms of a trust deed are considered an expense of the trust.

(Filing Date: 05-31-2012)

Kollman v. Cell Tech International, Inc.

Corporations: Claims for monetary damages are tried at law before a jury. A stockholder, asserting a breach of fiduciary duty, who suffered harm individually and will receive the benefit of the recovery, is entitled to a direct claim.

(Filing Date: 05-31-2012)

Maguire v. Clackamas County

Property Law: Procedural error by LUBA is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby and LUBA review is preempted by ORS 195.318(1) which states a county's determination under Measure 49 is not a land use decision.

(Filing Date: 05-31-2012)

Muzzy v. Uttamchandani

Property Law: An unrecorded deed is void as against a subsequent bona fide purchaser for value unless the purchaser can prove that he bought in good faith, for valuable consideration, and filed first for record.

(Filing Date: 05-31-2012)

Noble v. Dept. of Fish and Wildlife

Administrative Law: An interpretation by an agency of its own rule will be upheld as long as it is plausible and consistent with the rule itself.

(Filing Date: 05-31-2012)

State v. McMullen

Criminal Procedure: The fleeting nature of a suspect’s blood alcohol level is an allowable exigent circumstance that will ordinarily permit a warrantless blood draw when an officer has probable cause to believe the defendant is under the influence of intoxicants.

(Filing Date: 05-31-2012)

State v. Nguyen

Civil Stalking Protective Order: A defendant who seeks to challenge a conviction under ORS 163.750 for violating a stalking protective order on free speech grounds must first successfully attack the underlying protective order.

(Filing Date: 05-31-2012)

State v. Rambo

Evidence: Nonscientific expert opinion evidence based on independently admissible scientific evidence is admissible, as long as the expert is established as qualified through experience and training and does not use scientific language or suggest that his conclusion was based on a scientific method or data collection.

(Filing Date: 05-31-2012)

State v. West

Criminal Procedure: A trial court properly denies a defendant’s request to exclude breath test results when there is an absence of satisfactory foundational requirements for scientific evidence; breath test results are admissible when the procedures of ORS 813.160(1) and associated rules have been followed.

(Filing Date: 05-31-2012)

State v. Wirfs

Criminal Law: An error is not harmless when a criminal defendant is precluded from rebutting the state's argument due to sustained objections to the defense's direct questions. Additionally, the scope of redirect examination cannot exceed that which was covered during cross examination.

(Filing Date: 05-31-2012)

Trees v. Ordonez

Tort Law: In medical malpractice cases, expert testimony must not only establish causation, but must also provide evidence of the applicable standard of care customarily used by a reasonably careful practitioner.

(Filing Date: 05-31-2012)

Berg and Berg

Family Law: ORS 107.105(1) requires that the division of marital property be "just and proper in all circumstances," Spousal support awards should be based on the trial court's discretion and supported by evidence in the record.

(Filing Date: 05-16-2012)

Blachana, LLC v. Bureau of Labor and Industries

Administrative Law: The administrative interpretation of "successor to the business of any employer" under the definition "employer" within ORS 652.310(1) should be interpreted as a party that has assumed or conferred upon it the legal rights and obligations of the predecessor.

(Filing Date: 05-16-2012)

Brown v. City of Eugene

Municipal Law: Under section 44(3) of the Eugene City Charter, "water service" means the direct provision of water to end users, and is not so broad as to include the sale of water to other entities that will then distribute the water.

(Filing Date: 05-16-2012)

Case v. Burton

Property Law: Under common law and ORS 105.620, a claim for adverse possession fails if the claimant does not adequately identify the area that was allegedly adversely possessed.

(Filing Date: 05-16-2012)

Crothers v. Employment Dept.

Employment Law: Unavailability to work during avocation hours will not disqualify a recipient of unemployment benefits so long as the unavailability does not interfere with regular hours of primary employment.

(Filing Date: 05-16-2012)

Department of Human Services v. C.M.M.

Family Law: When determining the fitness of a parent, the test is at the time of termination and focuses on the detrimental effects of the parent's conduct on the child.

(Filing Date: 05-16-2012)

Gay and Gay

Family Law: It is legally permissible and within the trial court's discretion to decide to not distribute shares to one spouse in a closely held corporation in exchange for an equalizing judgment.

(Filing Date: 05-16-2012)

J.L.B. v. K.P.B.

Civil Stalking Protective Order: Under ORS 30.866, taking numerous photographs of a person's home does not meet the standard of causing that person reasonable apprehension regarding his personal safety.

(Filing Date: 05-16-2012)

Krohn v. Hood River School District

Administrative Law: A plaintiff does not need to exhaust administrative remedies if the claims for which she is seeking relief are not governed by a collective bargaining agreement, but rather are statutory in nature.

(Filing Date: 05-16-2012)

Mannex Corp. v. Bruns

Employment Law: To claim the tort of intentional interference of economic relations the plaintiff must show that the defendant is a third party to the contract. Communications made by an employee to protect the interests of their employer are qualifiedly privileged.

(Filing Date: 05-16-2012)

State v. Delaportilla

Criminal Law: A court cannot convict on a charge for which the defendant was not indicted unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.

(Filing Date: 05-16-2012)

State v. Gaskill

Sentencing: Special conditions of probation must be reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both. Moreover, the conditions cannot be more restrictive than necessary to achieve the goals of probation.

(Filing Date: 05-16-2012)

State v. Hutton

Evidence: Evidence of prior misconduct is admissible to show intent even where it is not a contested issue so long as mens rea is an element to a crime charged.

(Filing Date: 05-16-2012)

State v. Taylor

Criminal Procedure: For a police inventory procedure to be valid, it must limit the discretion of the officers in searching and opening containers seized from arrested individuals. If the procedure gives too much discretion, it is constitutionally invalid.

(Filing Date: 05-16-2012)

DK Entertainment v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0347(3)(a), the Oregon Liquor Control Commission's interpretation of the word "permit" is consistent with it's application in previous cases where the unlawful actions of an employee are imputed to a licensee.

(Filing Date: 05-09-2012)

Goodsell v. Eagle-Air Estates Homeowners Assn.

Civil Law: Where homeowners association bylaws and statutory removal provisions are nonexclusive and Oregon law supplements them without contradiction, an action to remove defendant directors of the association may be rejected.

(Filing Date: 05-09-2012)

Hoekstre v. DLCD

Land Use: Remedies afforded by section 6 of Ballot Measure 49 (2007) allow a claimant to receive relief under sections 6(2) or 6(3), but these subsections cannot be combined to afford a cumulative remedy.

(Filing Date: 05-09-2012)

Kirsch v. Dep’t. of Consumer and Business Services

Administrative Law: The Court will overturn an agency order only if the credible evidence apparently weighs overwhelmingly in favor of one finding and the board 'found' the other without providing substantial reason.”

(Filing Date: 05-09-2012)

Lopez v. Mills

Post-Conviction Relief: The post-conviction court's award of specific performance is an adequate remedy when the prosecutor breaches his agreement to provide a recommendation if it provides the defendant the benefit of the agreement that led to the plea.

(Filing Date: 05-09-2012)

State v. Kinney

Evidence: Despite a defendant’s proffered stipulation, evidence may be admissible if it is relevant to prove a fact that is at issue notwithstanding the stipulation. Furthermore, evidence against a defendant is not unfairly prejudicial solely because it is graphic in nature.

(Filing Date: 05-09-2012)

State v. Massey

Evidence: Use of the Miles jury instruction is improper when there is insufficient evidence at trial to show that a defendant's physical condition made him more susceptible to the influence of intoxicants than he normally would be.

(Filing Date: 05-09-2012)

State v. Moore

Appellate Procedure: The Court of Appeals will not hear arguments that are not preserved at the trial court.

(Filing Date: 05-09-2012)

US Market #180, LLC v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0335(1), an employee selling alcoholic beverages is only required to visually verify a purchaser's age when the employee is not using age verification equipment under OAR 845-005-0335(5).

(Filing Date: 05-09-2012)

C.L.C. v. Bowman

Civil Stalking Protective Order: Terminating a Stalking Protective Order (SPO) involves considering all of the evidence, including internet evidence, to determine if the context that gave rise to the SPO still causes a subjective apprehension of a threat to their personal safety. If the context still exists and is otherwise objectively reasonable, the SPO should not be terminated.

(Filing Date: 05-02-2012)

Department of Consumer and Business Services v. Zurich American

Administrative Law: The Department of Consumer and Business Services does not possess authority to compel payment from a private insurance company based on the failure of the insurance company's client to file notice of a working-leasing arrangement with the DCBS.

(Filing Date: 05-02-2012)

Nelson v. American Home Mortgage Servicing, Inc.

Civil Procedure: Under ORCP 71B, a court must have personal jurisdiction over a party in order to render a judgment.

(Filing Date: 05-02-2012)

Oregon Shores v. Board of County Commissioners

Land Use: In determining whether a landowner has a common law vested right to continue in developing his land, the court will use the “expenditure ratio” as a necessary starting point in evaluating whether the land owner has incurred substantial enough costs toward completion of the project.

(Filing Date: 05-02-2012)

S.A.B. v. Roach

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear. If verbal, the contact must rise to the level of a threat, and if physical, the contact must both subjectively and objectively reasonably cause alarm or coercion.

(Filing Date: 05-02-2012)

State v. Clatsop County

Property Law: When calculating the expenditure ratio to determine whether there is a common law vested right to complete a residential subdivision in compliance with county and state waivers issued pursuant to Ballot Measure 37, a court must include the cost of building homes on the property as of the effective date of Measure 49.

(Filing Date: 05-02-2012)

State v. J.L.C.

Juvenile Law: A juvenile court has jurisdiction over a youth when that youth commits harassing acts or offensively contacts another person. Evidence in the record may support this proposition.

(Filing Date: 05-02-2012)

State v. Linn County

Land Use: When determining vested rights expenditure ratios, dedications may be included in the numerator. For the denominator, a court must use a total project cost, not a hypothetical cost.

(Filing Date: 05-02-2012)

State v. Torres

Criminal Procedure: Under ORS 161.067(3), the public at large is considered a "victim" of a violation of ORS 166.270 and thus multiple offenses against the public can be merged into one conviction.

(Filing Date: 05-02-2012)

State v. Young

Sentencing: When a court imposes a post-prison supervision term it cannot be for an indefinite period and dependent upon the amount of prison time the defendant actually serves. If the sentence is concurrent with a prison term, the sum of the two terms cannot exceed the statutory maximum indeterminate sentence.

(Filing Date: 05-02-2012)