Willamette Law Online

Oregon Court of Appeals

( 54 summaries )

Opinions Filed in August 2012

Devin Oil Co. v. Morrow County

Land Use: A county may adopt a limited use overlay zone with exceptions even if there are other options that could have satisfied the TPR.

(Filing Date: 08-29-2012)

McCollum v. DLCD

Land Use: Under Measure 49 and SB 1049, the number of homesite approvals a landowner may obtain is limited in proportion by acreage, unless the landowner otherwise qualifies for relief under Section 6(3) of Measure 49.

(Filing Date: 08-29-2012)

NW Property Wholesalers v. Spitz

Civil Procedure: Pursuant to ORS 86.750, notice of sale to be served on an occupant of property, in order to terminate that person's interest in the property, must be done in the manner in which a summons is served under ORCP 7 D.

(Filing Date: 08-29-2012)

Pereida-Alba v. Coursey

Post-Conviction Relief: Defense counsel's failure to request a jury instruction on a lesser-included offense is demonstrative of a lack of professional skill and is prejudicial to the client.

(Filing Date: 08-29-2012)

Pincetich v. Nolan

Contract Law: ORS 701.131(2)(c) applies to construction defects and services contributing to the defects, and does not include the failure to make payments on work performed.

(Filing Date: 08-29-2012)

SAIF Corp. v. Banderas

Workers Compensation: When a preponderance of medical evidence establishes the attending physician's findings are more accurate and have not been rebutted by a medical arbiter panel, a review board may favor the physician's findings rather than the medical arbiter panel.

(Filing Date: 08-29-2012)

State v. Dawson

Criminal Procedure: Under ORS 137.020, following a guilty plea or verdict, there shall be at least two calendar days between the time of verdict and sentencing.

(Filing Date: 08-29-2012)

State v. Erives

Appellate Procedure: The Court of Appeals will not find plain error in not providing a defendant with an interpreter for the complete trial if the defendant has spoken to the court in English, has communicated with his counsel in English, and neither the defendant nor his counsel asked the court for an interpreter.

(Filing Date: 08-29-2012)

State v. Jackson

Criminal Law: A defendant is entitled to an instruction on a lesser-included offense when the requisite mental state is a disputed issue of fact that would allow the jury to find that all the elements of the greater offense have not been proven, but that all the elements of one or more of the lesser offenses have been proven.

(Filing Date: 08-29-2012)

State v. Mazzucchi

Criminal Procedure: Absent any force or coercion by police, there exists no restriction of an individual's liberty or freedom of movement; therefore, there is no seizure for purposes of Article I, Section 9 of the Oregon Constitution.

(Filing Date: 08-29-2012)

State v. McIntyre

Evidence: Evidence offered under OEC 404(3) of defendant's "other crimes, wrongs, or acts" must satisfy a five factor test to demonstrate the "other acts" are necessarily similar to the crime charged in order to be precluded from exclusion under OEC 404(4).

(Filing Date: 08-29-2012)

State v. Nichols

Evidence: Under OEC 702, an expert's testimony, if believed, must be of help or assistance to the jury. When the expert fails to show a connection between the opinion and the testimony to the facts, then the court may use it's discretion to exclude it.

(Filing Date: 08-29-2012)

State v. Soto

Criminal Procedure: An unlawful seizure occurs when, without justification, the totality of a police officer's actions have led a person to reasonably believe that their liberty or freedom of movement was restricted by the officer's show of authority.

(Filing Date: 08-29-2012)

State v. Walker

Criminal Law: A racketeering charge under ORS 166.720(3) requires the defendant to have participated in an enterprise, which is an on-going organization with continuity, and that organization is distinct from the criminal acts.

(Filing Date: 08-29-2012)

State v. Wentworth

Criminal Procedure: Under ORS 811.370, a state police trooper has probable cause to believe an infraction has been committed when a motorist crosses a road’s white fog line with his or her vehicle’s tire.

(Filing Date: 08-29-2012)

Tracy v. Nooth

Post-Conviction Relief: Under ORCP 55 (C)(2), a post-conviction court must issue a subpoena duces tecum to the party requesting it.

(Filing Date: 08-29-2012)

Bedford v. Merety Monger Trust

Attorney Fees: For purposes of ORS 20.080, which grants attorney fees for small claims, the relief sought by alternative theories of relief is not aggregated to see if the relief sought exceeds the maximum for ORS 20.080. On the other hand, multiple claims arising from the same operative facts are aggregated.

(Filing Date: 08-22-2012)

Dept. of Human Services v. D. L. H.

Indian Law: Per the Indian Child Welfare Act, a permanency hearing involving a tribal member requires active efforts to reunify the family. Active efforts means the Department of Human Services must actually assist in the reunification process.

(Filing Date: 08-22-2012)

Halone’s Auto Repair v. B & R Auto Wrecking

Attorney Fees: When a trial court’s judgment cites multiple authorities for awarding attorney fees, the rejection of one cited basis does not render the trial court’s judgment erroneous.

(Filing Date: 08-22-2012)

Smith v. Dept. of Corrections

Administrative Law: Under ORS 183.310(9), a rule of conduct for individuals who are in the custody of the Department of Corrections does not need to be promulgated pursuant to the APA.

(Filing Date: 08-22-2012)

State v. Fivecoats

Evidence: A demonstration of a physical condition or attribute in court is not regarded as testimony and does not waive the right against self-incrimination.

(Filing Date: 08-22-2012)

State v. Nyhuis

Criminal Law: With regard to reckless burning under ORS 164.335(1), the term "property" means something that has market value or has a replacement cost. In order for the replacement cost alternative to be used, some other person must have a legal or equitable interest in it.

(Filing Date: 08-22-2012)

State v. Pollock

Criminal Procedure: When an out of court statement is permitted into trial and the opposing party has been provided with an opportunity for in-court cross-examination, their Sixth Amendment Right under the Confrontation Clause is not violated.

(Filing Date: 08-22-2012)

Vukanovich v. Kine

Contract Law: Pursuant to ORS 93.740, in order to assert a valid claim of lis pendens, a party to a purchasing agreement must have had a present interest in the discussed property at the time of the agreement.

(Filing Date: 08-22-2012)

Allen v. Premo

Appellate Procedure: Where the Court of Appeals issues a decision of remand, the lower court shall act as if the original proceedings did not occur and a new trial has been ordered.

(Filing Date: 08-15-2012)

Berry and Huffman

Attorney Fees: ORS 107.104 does not entitle a prevailing party to recover attorney fees in absence of independent statutory authority authorizing the recovery of such fees.

(Filing Date: 08-15-2012)

C. J. P. v. Lempea

Family Abuse Prevention Act: Even if a petitioner makes subjective assertions of fear, a FAPA restraining order will not be upheld when there is insufficient evidence that the alleged conduct creates an imminent danger of further abuse and a credible threat to the physical safety of the petitioner.

(Filing Date: 08-15-2012)

Pedroso v. Nooth

Post-Conviction Relief: A petition for post conviction relief that is deemed meritless under ORS 138.525 and dismissed is not appealable.

(Filing Date: 08-15-2012)

R & R Tree Service vs. SAIF Corp.

Administrative Law: Pursuant to OAR 836-042-0060, absent verifiable payroll records maintained by the employer that disclose a specific allocation for each individual employee, the entire payroll of the employee shall be assigned to the highest rated classification exposure.

(Filing Date: 08-15-2012)

SAIF Corp. v. Otwell

Administrative Law: ORS 656.268 authorizes a board to modify the effective date of TTD benefits when reconsidering the notice of closure.

(Filing Date: 08-15-2012)

State v. Choat

Appellate Procedure: For a defendant to challenge the imposition of a compensatory fine on appeal, it must have been procedurally raised at the trial level for the court to evaluate the claim.

(Filing Date: 08-15-2012)

State v. Colon

Evidence: The credibility of a witness may be impeached or bolstered in the form of reputation or opinion testimony regarding truthfulness of character if a foundation is established showing the witness has adequate contacts with the person to form a current personal opinion of the person regarding their truthfulness.

(Filing Date: 08-15-2012)

State v. Dalby

Criminal Procedure: While mentioning to a jury that a defendant exercised and invoked the right to remain silent is "presumably" harmful, it only becomes reversible error if the evidence comes "in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury."

(Filing Date: 08-15-2012)

State v. Perez-Chi

Criminal Law: If an erroneous jury instruction is given and a conviction could have been based on that erroneous instruction, the instruction was not harmless and the case must be remanded.

(Filing Date: 08-15-2012)

Turner and Muller

Family Law: When a parenting plan constitutes a de facto change in custody, absent a motion for change of custody, the Court can exercise its discretion to review that issue de novo and establish a compliant parenting plan.

(Filing Date: 08-15-2012)

Whitsett v. Employment Dept.

Employment Law: For an individual to be considered an independent contractor, he must meet each criteria listed under ORS 670.600(2) and three of five requirements listed under ORS 670.600(3). The burden is on the employer to prove the individual meets the relevant criteria to avoid being assessed an employee tax.

(Filing Date: 08-15-2012)

A. F. v. Oregon Dept. of Human Services

Juvenile Law: DHS rules require the agency to meet the reasonable cause threshold which mandates that the agency demonstrate that a child is subject to a threat of severe harm, abuse, or neglect before the issuance of any allegations.

(Filing Date: 08-08-2012)

Ericsson v. State

Land Use: In order to prove that a claimant lawfully was permitted to establish dwellings or lots under section 6 of Measure 49, a claimant must prove by evidence in the DLCD administrative record that it is more likely than not that the claimant would have been actually permitted to establish the use, based on the application of prior law.

(Filing Date: 08-08-2012)

Howard v. Chimps, Inc.

Contract Law: Even if a contract is subject to unilateral changes, consideration is found upon performance of the promises exchanged between the parties.

(Filing Date: 08-08-2012)

Liberty Mutual Ins. Co. v. Schwanenberg

Insurance Law: Under ORS 656.583(1), an insurer must inform a claimant about a potential conflict of interest.

(Filing Date: 08-08-2012)

May Trucking Co. v. Employment Dept.

Employment Law: The Employment Appeals Board must address any exemption that may apply to a claimant's claim for unemployment benefits in conjunction with determining the status of the employer/employee relationship.

(Filing Date: 08-08-2012)

Rice v. Rabb

Property Law: The legislature will clearly state if a discovery rule applies to a statute of limitations.

(Filing Date: 08-08-2012)

State v. Hernandez-Lopez

Criminal Procedure: Regardless of whether or not the defendant consented to delay of trial, dismissal for lack of speedy trial is not appropriate where the delay was not unreasonable and the defendant was aware of his prior obligation to appear.

(Filing Date: 08-08-2012)

State v. Kentopp

Criminal Law: A police officer’s reasonable suspicion regarding one crime does not justify the extension of a lawful traffic stop for the purpose of conducting an investigation for an unrelated crime if the officer does not also have reasonable suspicion for that crime.

(Filing Date: 08-08-2012)

State v. Moats

Constitutional Law: A seizure does not occur under Article I section 9 of the Oregon Constitution when officers do not demonstrate authority over a defendant prior to discovering drugs in the vehicle.

(Filing Date: 08-08-2012)

State v. Pendergrapht

Attorney Fees: Under ORS 151.505 and 161.665, a court cannot impose attorney fees unless there is a factual basis for determining that a defendant is actually able to pay the fees.

(Filing Date: 08-08-2012)

State v. Ritchie

Appellate Procedure: An error is unpreserved if an objection is not raised with a sufficient explanation for the trial court to identify the error and correct it immediately.

(Filing Date: 08-08-2012)

State v. Thompson

Criminal Law: Because venue is a material allegation that the State must prove beyond a reasonable doubt, a defendant can not be convicted of failure to register as a sex offender under ORS 131.325 if there is no direct evidence to prove defendant's location after the ten-day time period expired.

(Filing Date: 08-08-2012)

Catt v. Dept. of Human Services

Civil Procedure: When there is a question of fact about the occurrence of a claimant’s knowledge of his or her injury, summary judgment is not appropriate if such knowledge, or lack thereof, will affect timely notice as required under ORS 30.275.

(Filing Date: 08-01-2012)

Dept. of Human Services v. J.G.

Evidence: Because Oregon courts recognize the parent-stepchild relationship, out-of-court statements that are adverse to the stepchild's interests in maintaining a relationship with the step-parent are nonhearsay admissions of a party-opponent and therefore admissible.

(Filing Date: 08-01-2012)

State v. Canfield

Criminal Law: A seizure occurs when “the officer has manifested a show of authority restricting an individual's freedom of movement.” When an individual’s freedom of movement is no longer interfered with, the stop has ended.

(Filing Date: 08-01-2012)

State v. Patrick

Traffic Infractions: Under ORS 811.111(1)(d) a person commits the offense of violating the speed limit if, while driving on a highway in any city, the person either: (1) exceeds the designated speed, or; (2) exceeds the specific speeds listed in ORS 811.111(1)(d)(A) to (F). Also, it was within the authority of the municipal court to adopt its own base fine schedule for violations in its jurisdiction.

(Filing Date: 08-01-2012)

State v. Rowell

Criminal Procedure: When an inventory search deviates from the established policy or procedures of a particular law enforcement agency, the inventory search will be deemed invalid, and the evidence will be suppressed.

(Filing Date: 08-01-2012)

State vs. Nix

Sentencing: For the purposes of merging convictions under ORS 161.067(2), and animal under ORS 167.325 is considered a victim.

(Filing Date: 08-01-2012)