Willamette Law Online

Oregon Court of Appeals

( 40 summaries )

Opinions Filed in June 2012

Agrons v. Strong

Civil Procedure: The trial court may permit a Plaintiff to amend his complaint under ORCP 23 B if the trial court in its determination decides that the presentation of the merits of the action will not be subserved by the amendment, nor will the admission of such evidence prejudice the adverse party in maintaining an action or defense on the merits.

(Filing Date: 06-27-2012)

Amalgamated Transit Union, Division 757 v. Tri-Met

Administrative Law: A public employer commits a per se unfair labor practice if it institutes a unilateral change to the status quo involving a CSI policy, but the challenger bears the burden to prove the status quo. Substantial evidence exists when a reasonable person could come to that conclusion based on the whole record. A board is authorized to take such affirmative action as necessary to remedy unfair labor practice violations. A board's decision to rescind a disciplinary action that was the result of binding arbitration based on unfair labor practice is not tantamount to rescinding the arbitration award.

(Filing Date: 06-27-2012)

City of Eugene v. McDermed

Workers Compensation: Compensation for an injury is correctly awarded to a police officer injured while getting coffee if the officer was on duty at the time of the injury, and thus was within the scope of her employment.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S. A.

Juvenile Law: Under ORS 419B.476(5), a juvenile court is required to make a permanency plan determination after a permanency hearing, even where the hearing is combined with a guardianship hearing.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S.N.

Family Law: It is not error for a juvenile court to change a permanency plan, despite progress by a parent, when the environment that the child would be placed in would not be conducive to the child's needs.

(Filing Date: 06-27-2012)

Legacy Health Systems v. Noble

Workers Compensation: An injury arises out of employment when the risk is connected with the nature of the work or the work environment.

(Filing Date: 06-27-2012)

State v. Cruz-Renteria

Criminal Procedure: Marion County Sheriff’s Office Policy 3315 requires that “when taking custody of a prisoner’s property for temporary storage,” deputies are required to “open closed containers designed to typically carry identification, cash, valuables, medications or contraband,” and not open those that merely could contain such items.

(Filing Date: 06-27-2012)

State v. Danford

Criminal Procedure: Under ORS 135.747, a delay in prosecution, not brought on or consented to by the defendant, shall be dismissed if it is an unreasonable length of time. A 41-month delay substantially exceeds a reasonable period of time.

(Filing Date: 06-27-2012)

State v. Dennis

Criminal Law: An officer may not extend the duration of a stop by inquiring into unrelated criminal matters as an alternative to going forward with the processing of the current infraction. Any evidence that is obtained by inquiring into unrelated criminal matters is admissible only if it is obtained during an "unavoidable lull" in the initial stop.

(Filing Date: 06-27-2012)

State v. Hollywood

Evidence: Testimony of one witness regarding the credibility of another witness is impermissible. Additionally, the Court suggests that the trial judge should summarily cut off questions that elicit testimony on the credibility of a witness so that a jury is not contaminated by it.

(Filing Date: 06-27-2012)

State v. Ibarra-Ruiz

Evidence: When a party makes an objection, his explantion of his position must be specific enough to give enough clarity to the court to identify its alleged error and to allow it to consider and correct the error immediatly, if needed.

(Filing Date: 06-27-2012)

State v. Mast

Constitutional Law: Under Article I, section 9, a private office constitutes a protected privacy interest which requires a warrant in order to search. The administrative search exception does not give an officer the authority to "forcibly enter" said private office or premises.

(Filing Date: 06-27-2012)

State v. Montoya-Franco

Evidence: Statements translated by interpreters are admissible under the residual hearsay rule if the interpreters are shown to be qualified to translate.

(Filing Date: 06-27-2012)

State v. Sanchez-Jacobo

Criminal Law: It was not improper "vouching" for a witness's credibility when she testified that part of her plea bargain included coming to court and telling the truth, and a prosecutor's misstatement of law during closing argument was not plain error, nor was it preserved on appeal.

(Filing Date: 06-27-2012)

State v. Vanornum

Appellate Procedure: An objection to instructions given by the trial judge must adequately identify the asserted error to the trial court so “the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” If the objection is too “generalized,” it will not be preserved for review on appeal.

(Filing Date: 06-27-2012)

Worthington v. Estate of Milton E. Davis

Civil Procedure: Under ORCP 23C, the decedent and the representatives of decedent's estate are entirely different parties. Choosing the incorrect party constitutes misidentification and an amended complaint will only relate back if it satisfies the requirements of ORCP 23C.

(Filing Date: 06-27-2012)

Lamka v. KeyBank

Civil Procedure: Under ORCP 23A and ORCP 21A, a plaintiff may amend a pleading once as matter of right before a responsive pleading is served, even if the trial court has dismissed the complaint.

(Filing Date: 06-20-2012)

Mark Latham Excavation, Inc. v. Deschutes County

Land Use: When a county makes a decision concerning a Goal 5 land plan/use, the reasons it relies upon in garnering that decision must have existed at the time the original regulation was adopted. If the local government never contemplated a particular act, then the reasons do not exist

(Filing Date: 06-20-2012)

State v. Arreola

Evidence: Where curative instruction is insufficient to cure prejudicial effect on the jury, denial of mistrial is improper.

(Filing Date: 06-20-2012)

State v. Holdorf

Criminal Law: In cases involving “reasonable suspicion” there is no bright line rule, and courts must employ an individualized, objective test based on the facts.

(Filing Date: 06-20-2012)

State v. Hoover

Criminal Law: In the absence of a statutory definition for “penetration” in the crime of sexual penetration, the act merely requires proof that the victim's vagina, rather than external genitalia, was penetrated, however slightly.

(Filing Date: 06-20-2012)

State v. Powell

Criminal Procedure: Multiple second-degree robbery verdicts merge into a single count per victim; however, second-degree robbery verdicts do not merge with first-degree robbery verdicts.

(Filing Date: 06-20-2012)

State v. Reynolds

Criminal Law: In an assault in which the aiding person is present, an assisting assailant may not be charged with assault in the third-degree as an accomplice.

(Filing Date: 06-20-2012)

Eagles Five, LLC v. Lawton

Property Law: Injunctive relief is only an appropriate remedy when a party will experience immediate or irreparable harm without it, and it is not appropriate for future contingencies.

(Filing Date: 06-13-2012)

Homebuilders Assoc. of Metro. Portland v. Metro

Tax Law: Expanding the scope of Metro's construction tax did not make it a new tax subject to the restrictions of SB 1036 or MC 2.19.200 because it was an extension or continuation of the present tax and did not materially alter it.

(Filing Date: 06-13-2012)

Kercher v. Employment Dept.

Administrative Law: Substantial evidence exists when a reasonable person could make that finding based on the entire record and substantial reason ensures that the order explains the reasoning between the facts and the conclusion.

(Filing Date: 06-13-2012)

Knotts v. Psychiatric Security Review Board

Civil Commitment: Decisions of the Psychiatric Security Review Board must be supported by "substantial reasoning" in order to be affirmed by the Court of Appeals. Thus, if the board's reasoning cannot be ascertained or is faulty, the order must be reversed and remanded.

(Filing Date: 06-13-2012)

Schleiss v. SAIF

Workers Compensation: Under OAR 436-035-0013, workers may receive permanent partial disability benefits only when the disability was caused by a compensable condition. Also, apportionment is not precluded unless the compensable injury worsened or rendered symptomatic a noncompensable condition.

(Filing Date: 06-13-2012)

State v. Cordova

Criminal Procedure: General Order 66.1.2 of the Marion County Sheriff's Office, allowing for the search of all closed containers that could contain valuables during an inventory search following arrest, is overly broad and therefore a violation of Article 1, section 9 of the Oregon State Constitution.

(Filing Date: 06-13-2012)

State v. Johnson

Criminal Law: Under ORS 166.382(1)(a)(A), the meaning of the term "bomb" requires that a device be capable of detonating under certain conditions. The statute does not suggest that a device is not a "bomb" just because the device is temporarily disabled.

(Filing Date: 06-13-2012)

State v. Moresco

Criminal Law: A violation of ORS 162.385, the crime of giving false information to a police officer, requires a showing that the person knowingly gives a fictitious name, address or date of birth to a police officer, and the officer asked for the information for the purpose of arresting the person on a warrant.

(Filing Date: 06-13-2012)

State v. Steffens

Criminal Procedure: Outside the a natural lull occuring during the preparation of a citation or investigation, the police may only inquire about a matter unrelated to a traffic stop if there is a reasonable suspicion of crime-related activity or danger to the officer or the public.

(Filing Date: 06-07-2012)

Holbrook v. Employment Dept.

Employment Law: Under ORS 183.470(2), an employment appeals board must support their decisions with findings and explain how the board reached a specific conclusion.

(Filing Date: 06-06-2012)

Nickerson v. Employment Dept.

Employment Law: Unemployment benefits eligibility under ORS 657.221 are determined at the time of the claim based on whether a "reasonable assurance" of employment exists. Gaining reasonable assurance of employment after being eligible cannot retroactively defeat unemployment benefits eligibility.

(Filing Date: 06-06-2012)

SAIF v. DCBS

Workers Compensation: The status of a "worker" requires the application of both the "right to control" and the "nature of the work" tests.

(Filing Date: 06-06-2012)

Smith v. Board of Parole

Administrative Law: A notice-of-rights form constitutes a rule under ORS 183.310(9) requiring compliance with the Administrative Procedures Act when it details practices and procedures that are generally applicable to all hearings.

(Filing Date: 06-06-2012)

State v. Martinez

Sentencing: In absence of any evidence on the record to support a particular amount awarded for restitution, the Court can exercise its discretion to correct the plain error.

(Filing Date: 06-06-2012)

State v. Reeves

Criminal Law: Under ORS 161.067(2), because the children depicted in pornographic images are "multiple victims" for the purpose of Encouraging Child Sexual Abuse in the First Degree, merger of more than one guilty verdict into one conviction is precluded, regardless of whether it is the same criminal episode.

(Filing Date: 06-06-2012)

State v. Witherspoon

Criminal Procedure: Two criminal counts which arose from continuous, uninterrupted conduct that were joined in time, place, and circumstances are not separate criminal episodes for the purpose of calculating defendant's criminal history score.

(Filing Date: 06-06-2012)

U.S. Market #109 v. OLCC

Administrative Law: When the OLCC places a restriction on the liquor license requiring the Licensee to install age verification equipment and train the employees to use it, the Licensee must require its employees to use the equipment in appropriate circumstances.

(Filing Date: 06-06-2012)