Willamette Law Online

Oregon Court of Appeals

( 36 summaries )

Opinions Filed in October 2012

Compressed Pattern, LLC v. Employment Dept. Tax Section

Employment Law: Under ORS 670.600(3), a person has an independently established business when his work location is both maintained and separate from the person for whom he is providing services.

(Filing Date: 10-31-2012)

B.A. v. Webb

Evidence: Under OEC 403, a witness may not comment on the credibility of another witness and a diagnosis of sexual abuse without any physical evidence is not admissible.

(Filing Date: 10-24-2012)

Cherry v. Dept. of Education

Administrative Law: A proposed final order revoking a bus driver's certificate is not arbitrary and capricious if the rule provides the agency with discretion in doing so, and there is no other agency rule, policy, or practice inconsistent with the exercise of that discretion.

(Filing Date: 10-24-2012)

Dept. of Human Services v. K. L. W.

Family Law: The appointment of a guardian ad litem for an individual will be upheld if sufficient evidence is shown that the guardian ad litem is necessary to advance the individual's interests.

(Filing Date: 10-24-2012)

Ivers v. Salladay

Civil Procedure: ORCP 68 does not apply when there is not a substantive right to recover attorney fees. It would be contrary to the structure and purpose of UTMA to apply ORCP 68.

(Filing Date: 10-24-2012)

Lucas v. Lake County

Civil Procedure: A suit between two parties is not barred by claim preclusion when there is prior litigation between the parties that arose from a different transaction. Additionally, a claim is wrongfully dismissed when the amended complaints were consistent in showing the discharge offends public policy.

(Filing Date: 10-24-2012)

Oregonian Publishing Co., LLC v. Waller

Civil Procedure: Seeking declaratory relief in Circuit Court, under Oregon Public Records Law, challenging a Judge's refusal to publicly release a juvenile court order, is not a substitute for judicially appealing the Judge's determination not to release the order.

(Filing Date: 10-24-2012)

Oregon Pipeline Company, LLC v. Columbia Riverkeeper

Administrative Law: Pursuant to ORS 197.825, a county's withdrawal of a decision for reconsideration of a matter that is currently being appealed to the Land Use Board of Appeals (LUBA) does not divest LUBA of exclusive jurisdiction over that matter.

(Filing Date: 10-24-2012)

State v. Benner

Criminal Procedure: There must be sufficient evidence to establish if a defendant or his counsel intentionally waived the right to a 90-day speedy trial.

(Filing Date: 10-24-2012)

State v. Garner

Criminal Law: Under ORS 135.747, a defendant is considered "brought to trial" when the trial commences, even if it eventually ends in a mistrial.

(Filing Date: 10-24-2012)

State v. Glazier

Criminal Law: Injuries making it more difficult for a victim to engage in normal activities constitutes "physical injury" under ORS 161.015(7) and a hardwood floor is a "dangerous weapon" under ORS 161.015(1) because under the circumstances it was capable of causing severe physical injury. Merger is appropriate under ORS 161.067 for violations arising from the same conduct or criminal episode when there was no evidence to indicate that one assault had ended before another began.

(Filing Date: 10-24-2012)

State v. J.S.

Civil Commitment: For involuntary commitment cases based on a mental disorder, the state must prove by clear and convincing evidence that the defendant''s mental disorder would cause him to inflict danger to himself or to others in the near future.

(Filing Date: 10-24-2012)

State v. Knapp

Criminal Procedure: An unlawful search has been conducted during a traffic stop when a police officer ceases processing the infraction and delays the stop to perform a search. Evidence found during the unlawful search can be suppressed by a passenger of the vehicle who was unlawfully detained, provided a factual nexus can be shown between the unlawful search and the finding of the evidence.

(Filing Date: 10-24-2012)

State v. Musser

Criminal Law: Under ORS 164.245, criminal trespass in the second degree is measured under an objectively reasonable person standard, and under ORS 131.605(6) an officer must have a reasonable suspicion of criminal activity to make a stop. Evidence discovered during an illegal stop is inadmissible.

(Filing Date: 10-24-2012)

State v. Pickle

Criminal Procedure: Opening the trunk of a vehicle for a police officer and holding it open is a manifestation of consent to search the vehicle.

(Filing Date: 10-24-2012)

State v. Powell

Sentencing: A sentence is excessive if the term of post-prison supervision, when added to a prison term, exceeds the statutory maximum for the crime of conviction. However, the error is harmless when it does not result in any adverse consequences or will not improve the defendant's position.

(Filing Date: 10-24-2012)

State v. Richardson

Evidence: The state-of-mind exception to the hearsay rule, OEC 803(3), does not allow for the admission into evidence of statements displaying a persons recollection of past intent and their subsequent current conclusions based on that intent.

(Filing Date: 10-24-2012)

State v. Sullivan

Evidence: Alternative evidence of a single factual occurrence may be offered to prove an element of a crime.

(Filing Date: 10-24-2012)

State v. Wood

Evidence: Under OEC 803(18) hearsay concerning sexual abuse may be admitted when the prosecution gives pretrial notice of the statement. The proponent must identify the statement, the substance of the statement, and the means by which the statement will be introduced.

(Filing Date: 10-24-2012)

State v. Ziska

Criminal Law: Under ORS 166.220(1)(a), the "use" of a weapon can be described as either actual use or the immediate threat to use the weapon.

(Filing Date: 10-24-2012)

U.S. Bank National Assn. v. Wright

Property Law: When the plaintiff's complaint and the defendant's answer both raise an issue as to the validity of a trustee's deed, a motion for summary judgment is wrongfully entered without inquiring whether the trustee's sale actually occurred.

(Filing Date: 10-24-2012)

Wright v. Turner

Insurance Law: A plaintiff who seeks insurance benefits claiming two accidents has the burden of presenting at least prima facie evidence of both accidents and that the two collisions had distinctly different causes; the second accident cannot be a proximate result of the first.

(Filing Date: 10-24-2012)

Enterprise Rent-A-Car Co. of Oregon v. Frazer

Workers Compensation: The mere fact of employer control over the injury location is insufficient to establish compensability of the injury. The Workers' Compensation Board is bound to apply the "going and coming" rule where an employee sustains an injury while traveling to or from work outside the course of employment. The injury will not be compensable unless the circumstances surrounding the injury fall within an exception to the rule.

(Filing Date: 10-17-2012)

State v. Davis

Criminal Law: A jury instruction is erroneous when defining recklessness in criminal mischief as relating to a particular circumstance rather than only to the resulting damage.

(Filing Date: 10-17-2012)

State v. Kaylor

Criminal Law: Under ORS 163.205(1)(a), criminal mistreatment in the first degree, an offender must affirmatively withhold something from the victim for it to be considered first-degree criminal mistreatment. Secondly, under ORS 162.285(1)(a), tampering with a witness, a defendant must reasonably and specifically believe that the victim will be called to testify at an official proceeding at the time the statements were made.

(Filing Date: 10-17-2012)

State v. Penney

Criminal Procedure: Although a decision regarding what citation to issue gives a police officer discretion regarding whether the vehicle at issue will be impounded, such discretion is constitutionally permissible.

(Filing Date: 10-17-2012)

State v. Smith

Criminal Law: Once a defendant who has wrongfully appropriated items has been notified that a victim considers property to be stolen, the defendant can no longer claim he did not have knowledge that the items were stolen.

(Filing Date: 10-17-2012)

State v. White

Evidence: Expert testimony regarding delayed reporting of sexual abuse by a child is relevant to explain why there was a delay in reporting by complainant and to counter a possible argument that the delay indicates a fabrication.

(Filing Date: 10-17-2012)

Hall v. ODOT

Property Law: Planning to regulate property does not amount to a taking even if the planning might reduce the property's value unless the property owner loses all "economically feasible private uses."

(Filing Date: 10-10-2012)

Koch v. State

Post-Conviction Relief: Defense counsel's advice that Defendant should proceed with a stipulated facts trial was incorrect when counsel neither disputed those facts, nor presented any evidence to the contrary.

(Filing Date: 10-10-2012)

Purdy v. Deere and Co.

Tort Law: When a jury is presented with compound questions that address both the standard of care and causation, the appellant must establish that the jury did not decide the case on causation.

(Filing Date: 10-10-2012)

State v. Kuehner

Criminal Procedure: The State may not recover unforeseen expenses related to overtime salary of police officers.

(Filing Date: 10-10-2012)

Cornus Corp. v. GEAC Enterprise Solutions, Inc.

Civil Procedure: The claim preclusive effect of a federal court's judgment is governed by Oregon's claim preclusion law, which states that a claim brought in federal court is not barred in state court unless it was adjudicated on the merits.

(Filing Date: 10-03-2012)

Horton v. Nelson

Attorney Fees: Under ORS 20.105, a defendant has been wrongly awarded attorney fees as the prevailing party when the trial court erred in dismissing the plaintiff's complaint.

(Filing Date: 10-03-2012)

Nichols v. Employment Dept

Employment Law: Proceedings that derive from ORS 657.270, ORS 657.275, and ORS 657.292, may be used under ORS Chapter 657 for the purposes of preclusion.

(Filing Date: 10-03-2012)

State v. Tilden

Appellate Procedure: The Court of Appeals may review for plain error, despite the fact that the defendant did not make an explicit request for review for plain error, when the requirements in ORAP 5.45 are met in the brief

(Filing Date: 10-03-2012)