Willamette Law Online

Oregon Court of Appeals

( 30 summaries )

Opinions Filed in September 2012

Blank v. US Bank of Oregon

Workers Compensation: A work related injury is not compensable if it is equally possible that work-related factors or idiopathic factors caused the injury.

(Filing Date: 09-26-2012)

Derschon v. Belleque

Post-Conviction Relief: In order to prove ineffective or inadequate assistance of trial counsel at a post-conviction relief hearing, a petitioner must show that: (1) the counselor’s performance was unreasonable, and (2) the counselor’s unreasonable performance prejudiced the outcome of the trial.

(Filing Date: 09-26-2012)

Dial Temporary Help Service v. DLF Int'l Seeds

Contract Law: Where the parties disagree as to the limitations of damages in the contract and where both parties constructions are plausible, absent extrinsic evidence, the parties will construe the ambiguity against the drafter.

(Filing Date: 09-26-2012)

Morton and Morton

Family Law: With regards to an inheritance, a party may rebut the presumption of equal contribution towards marital assets by demonstrating that one spouse did not contribute to acquiring the inheritance and that an intestate decedent's donative intent was that the spouse be excluded.

(Filing Date: 09-26-2012)

Pine Ridge Park v. Fugere

Civil Procedure: When a superdeas undertaking is filed per ORS 19.335(2), the 60-day limit on issuance of process to enforce a judgment under ORS 105.159(3) is tolled.

(Filing Date: 09-26-2012)

Providence Health System Oregon v. Walker

Administrative Law: ORS 656.262(7)(c) requires an insurer or self-insured employer to reopen a claim for processing upon "any finding" of compensability, regardless of any appeal or possibility of review. Additionally, a penalty and attorneys fees cannot be imposed when the employer had a legitimate doubt as to its obligations.

(Filing Date: 09-26-2012)

SAIF v. Ramos

Workers Compensation: The Worker’s Compensation Board (board) is permitted to rely on a medical arbiter’s examination, even where such examination had been cancelled by the Appellate Review Unit; and render a claimant’s condition as “medically stationary” so long as the subsequent treatments are solely to improve claimant’s functional abilities.

(Filing Date: 09-26-2012)

State v. C. S.

Appellate Procedure: An issue cannot be raised on appeal that was not preserved at the trial court. Additionally, if an error is reasonably in dispute, it cannot be plain error on the face of the record.

(Filing Date: 09-26-2012)

State v. Ellis

Criminal Procedure: Whether a stop is lawful is based upon the officer's objectively reasonable belief that a crime has been committed. The possibility of alternative explanations for the defendant's conduct does not negate the reasonableness of the suspicion a crime has occurred.

(Filing Date: 09-26-2012)

State v. Fuller

Criminal Procedure: In criminal charges that are tried as violations, the right to trial by jury and proof of guilt beyond a reasonable doubt are retained if there exist too many characteristics of a criminal prosecution to deny those rights.

(Filing Date: 09-26-2012)

State v. Ordner

Criminal Procedure: A motion to suppress evidence is properly denied when the record sufficiently establishes that a police officer had probable cause for a traffic stop.

(Filing Date: 09-26-2012)

State v. Peterson

Criminal Procedure: When determining a motion to dismiss under a speedy trial argument, the court must determine the length of the delay minus any periods of delay that the defendant consented to. Then, the court must determine whether the delay was reasonable after viewing the circumstances as a whole.

(Filing Date: 09-26-2012)

State v. Smith

Criminal Procedure: A person is reasonable in believing that his liberty is being violated and that he is not free to leave when police officers take away his license, ask him to stand next to the police car, and block the exit from the area.

(Filing Date: 09-26-2012)

State v. Stephens

Criminal Procedure: When analyzing a motion to dismiss based on a speedy trial argument, a court must determine the length of the delay and whether the defendant consented to the delay. Then, the court must determine whether the delay was reasonable given the circumstances.

(Filing Date: 09-26-2012)

State v. Turner

Criminal Procedure: Under State v. Glushko/Little, failure to appear does not equal the defendant's consent to a delay for the purposes of ORS 135.747. The Court may also look to the cause of the delay in determining whether the Defendant was brought to trial in a reasonable amount of time.

(Filing Date: 09-26-2012)

State v. Unger

Criminal Procedure: Consent to search a residence is invalid if it is obtained after officers have illegally trespassed in the individual's backyard therefore making any evidence that results from the consent inadmissible.

(Filing Date: 09-26-2012)

State v. Wall

Criminal Procedure: In order for a criminal defendant to be required to wear restraints at his or her trial, whether the restraints are visible or not visible, the state must adduce evidence that would permit the court to find that the defendant poses an immediate or serious risk of committing dangerous or disruptive behavior, or that he or she poses a serious risk of escape.

(Filing Date: 09-26-2012)

Zabriskie v. Lowengart

Civil Procedure: Under ORS 12.110(4), the statute of limitations period begins to run when a plaintiff should have discovered an injury that arose from the allegedly negligent medical care.

(Filing Date: 09-26-2012)

Bertsch v. DLCD

Land Use: In order to obtain just compensation allowed by Measure 49, the property owner must show, more likely than not, the conditions in place were actually satisfied during the time when the county could have authorized a dwelling. A party is not allowed to currently attempt to satisfy historical conditions.

(Filing Date: 09-19-2012)

Bostwick v. Coursey

Post-Conviction Relief: When defense counsel fails to ask the court to consider lesser-included offenses, a criminal defendant is entitled to post-conviction relief.

(Filing Date: 09-19-2012)

Dept. of Human Services v. H.P.

Juvenile Law: When entering judgments regarding a child's permanency plan, the trial court must attach a fact finding report from the Department of Human Services; otherwise the judgment does not satisfy statutory requirements.

(Filing Date: 09-19-2012)

Hatkoff v. Portland Adventist Medical Center

Alternative Dispute Resolution: A prescribed grievance and arbitration procedure will not be found unconscionable when the means used to gain plaintiff's agreement to the procedure were themselves not unconscionable.

(Filing Date: 09-12-2012)

Johnson v. Sunriver Resort Limited Partnership

Civil Procedure: A party's neglect to file a timely response to a complaint may be excusable when reasonable steps were taken to ensure that a response would be filed.

(Filing Date: 09-12-2012)

Providence Health Plan v. Winchester

Insurance Law: An insurer may not seek reimbursement out of the settlement its insured receives from settlements with 3rd parties until interinsurer reimbursement is no longer available, and it is available so long as no settlement has occurred. An insurer that begins to seek reimbursement before its insured and 3rd party insurers settle will be unable to recover expenses from its insured.

(Filing Date: 09-12-2012)

Spaid v. 4-R Equipment, LLC

Civil Law: A trial court does not err by declining to award prejudgment interest when the jury does not resolve issues of fact with regard to the award of prejudgment interest, unless the pertinent facts were undisputed.

(Filing Date: 09-12-2012)

State v. Farrar

Criminal Law: For reasonable suspicion, an officer must subjectively believe a person has committed a crime and that belief under the totality of the circumstances must be objectively reasonable. In addition, the officer must point to specific facts demonstrating a crime was committed or the person was about to commit a crime.

(Filing Date: 09-12-2012)

State v. Fuller

Criminal Law: The evanescent nature of drugs in a suspect’s body creates an exigent circumstance that will ordinarily permit a warrantless urine sample. However, if a warrant could have been obtained and executed faster than the time it took to process the suspect and obtain a urine sample, the warrantless seizure of that sample is unconstitutional.

(Filing Date: 09-12-2012)

State v. Lorenzo

Criminal Procedure: Consent to search without a warrant is invalid if it is the result of previous unlawful police conduct.

(Filing Date: 09-12-2012)

Warren v. Imperia

Evidence: The informed consent of a patient, in a medical malpractice claim, may be excluded from trial because its probative value is outweighed by its prejudicial effect.

(Filing Date: 09-12-2012)

State v. Hale

Criminal Procedure: Determining whether a magistrate is neutral and detached requires that the magistrate: (1) be uninvolved in law enforcement, and (2) not have an interest in the case that would corrupt an average judge under similar circumstances.

(Filing Date: 09-06-2012)