Willamette Law Online

Oregon Court of Appeals

( 29 summaries )

Opinions Filed in November 2012

Chou v. Farmers Ins. Exchange

Insurance Law: Clauses found in a homeowner's insurance policy that are ambiguous as to their application will be construed against the policy drafter.

(Filing Date: 11-21-2012)

Dept. of Human Services v. J.C.G.

Juvenile Law: Despite compliance with a juvenile court't requirements to remove an abusive spouse from the home and submit a safety plan to keep the abused child out of contact with abusive parent, a juvenile court is reasonable in denying a father's motion to dismiss the wardship because the father never acknowledged that the abusive parent caused injury to the child and because the safety plan was not in writing and not yet implemented.

(Filing Date: 11-21-2012)

Oregon Education Association v. Parks

Civil Procedure: Under ORS 31.150(3), the reasonable juror standard is sufficient to satisfy a court's conclusion that there was enough evidence to support a prima facie case.

(Filing Date: 11-21-2012)

State v. Canfield

Criminal Procedure: Consent to search, given before a suspect was told he was free to leave by the officer who stopped him, is an illegal search unless there is a warrant or reasonable suspicion.

(Filing Date: 11-21-2012)

State v. Rennells

Criminal Procedure: Under the emergency aid exception to the warrant requirement, officers may enter an area when they have articulable facts indicating a person is threatened with serious physical injury or harm.

(Filing Date: 11-21-2012)

State v. Zolotoff

Criminal Law: If evidence in the record supports a jury instruction of a lesser-included offense, the State is required to give the instruction to ensure that the jury has a complete statement of the law.

(Filing Date: 11-21-2012)

Dept of Human Services v. J.N.

Juvenile Law: Before denying a permanency plan of reunification, the juvenile court must establish that the evidence shows the plan will cause severe mental and emotional harm to the child.

(Filing Date: 11-15-2012)

Jensen v. DuBoff

Civil Procedure: A trial court abuses its discretion when it dismisses a complaint with prejudice when it has not adequately considered the 4 factors in Ramsey v. Thompson.

(Filing Date: 11-15-2012)

Macnab v. State

Civil Procedure: Under ORS 30.275(9), the two year statute of limitations on a claim of false imprisonment begins to run from the date when the plaintiff is aware of the facts necessary to prove liability.

(Filing Date: 11-15-2012)

Schutz v. SAIF Corp.

Workers Compensation: Under ORS 656.005(7)(a), even if an employee's primary motive for engaging in any social activities outside of the work environment was work related, the employee's choices to drink enough to be intoxicated and then drive home are not work related and thus any injury sustained did not arise from employment. Therefore, workers compensation will not be available for an injured worker in this situation.

(Filing Date: 11-15-2012)

State v. Huff

Criminal Procedure: Officer's search warrant affidavit based on a small amount of drugs for personal use, combined with evidence that defendant and his roommate are both on post-prison supervision for drug possession, is not enough, by itself, to establish probable cause. The affidavit must provide enough facts to permit a magistrate reasonably to conclude that it is more likely than not that additional evidence of criminal drug activity will be found.

(Filing Date: 11-15-2012)

Truck Insurance Exchange v. Friend

Civil Procedure: Summary judgment should not be granted where genuine issues of material fact have not been resolved.

(Filing Date: 11-15-2012)

A & E Security and Electronic Solutions, Inc. v. Fortalesa, Inc.

Attorney Fees: Under ORS 20.083, attorney fees may be awarded under provisions in a rescinded contract. ORS 20.083 was enacted to restore full reciprocity for awarding attorney fees and it is not limited by the examples in the explanatory clause.

(Filing Date: 11-07-2012)

Dept. of Human Services v. C. C.

Juvenile Law: Under ORS 419B.340(2), the court shall enter a description of what efforts were made to reunite the family and what could have prevented the separation of the family.

(Filing Date: 11-07-2012)

Dept. of Human Services v. M.M.B.

Juvenile Law: An order for guardianship will be upheld if the juvenile court makes the necessary findings of fact as laid out in ORS 419B.476.

(Filing Date: 11-07-2012)

Dept. of Human Services v. S.C.S

Juvenile Law: Jurisdiction in custody cases involving multiple jurisdictions is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), ORS 109.701 to 109.834. Pursuant to ORS 109.741(1), the court may make an initial custody determination.

(Filing Date: 11-07-2012)

Johnson v. Dept. of Public Safety Standards and Training

Criminal Procedure: ORS 135.970(2) imposes a duty solely on the defense attorney to inform a crime victim of the “identity and capacity of the person contacting the victim” and the victim’s other rights under the statute. A crime victim’s constitutional right to refuse an interview request does not include an obligation on the person seeking the interview to inform the victim of that right.

(Filing Date: 11-07-2012)

Oregon Education Ass'n v. Oregon Taxpayers United

Civil Procedure: Under the law of the case doctrine, if an earlier ruling was necessary to the adjudication of an issue before the court, it is binding and conclusive upon both the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.

(Filing Date: 11-07-2012)

Richardson v. Oregon Dept. of Transportation

Administrative Law: ORS 809.440(2)(b) does not create an exclusive list of defenses to DMV actions. ORS 809.440(2)(b) merely states possible defenses to a department's actions.

(Filing Date: 11-07-2012)

SERA Architects, Inc. v. Klahowya Condominium, LLC

Remedies: Pursuant to the Construction Lien Law under ORS 87.005-87.060, a construction lien, if perfected by filing a claim of lien, relates to and encumbers a property as of the beginning of construction or the delivery of materials. Separately, in order to triumph on the affirmative defense of equitable subrogation, a lender must prove that it was ignorant to the existence of an intervening lien, and that its ignorance was not the result of inexcusable ignorance.

(Filing Date: 11-07-2012)

State v. Barboe

Criminal Law: Under ORS 161.155, Oregon does not recognize the aid-and-abet theory when the Defendant did not plan or commit the crime in question.

(Filing Date: 11-07-2012)

State v. Bircher

Criminal Procedure: Delay in court scheduling that can be attributed to the state is reasonable under ORS 135.747 if it does not fall "outside the norm of acceptable court scheduling practices."

(Filing Date: 11-07-2012)

State v. Bradley

Evidence: OEC 803(18a)(b) intends to ensure an opposing party has reasonable time to prepare for trial in response to hearsay statements made by a victim by requiring notice to the opposing party no later than fifteen days before trial. At a minimum, the rule requires identification of the witness or the means that will be used to introduce the hearsay statement as well as the substance of the hearsay statement or how it will be introduced.

(Filing Date: 11-07-2012)

State v. Carroll

Criminal Law: Diversion is not a defense to DUII and the amended criteria for diversion eligibility does not increase DUII punishment.

(Filing Date: 11-07-2012)

State v. G.L.D.

Juvenile Law: The antimerger statute applies whenever there is a common victim and charge if there are repeated violations separated by enough time for the defendant to renounce his criminal intent. Additionally, evidence to prove market value for purposes of a theft charge may include evidence regarding replacement costs of the property. Finally, for purposes of restitution, the juvenile code references the criminal code and includes insurance companies as victims.

(Filing Date: 11-07-2012)

State v. Hansen

Criminal Procedure: A variance between an indictment and the statute under which Defendant was charged, leads to an acquittal where Defendant has been prejudiced by the discrepancy.

(Filing Date: 11-07-2012)

State v. Hudson

Criminal Procedure: Trial court properly denied a motion to suppress when Defendant was properly seized, police entered the house under exigent circumstances, police properly read Defendant his Miranda warnings, and asked only clarifying questions after Defendant equivocally invoked his right to counsel.

(Filing Date: 11-07-2012)

State v. Johnson

Criminal Procedure: When the original trial is brought within a reasonable period of time, ORS 135.747 does not regulate the timing of the second trial in the same criminal proceeding.

(Filing Date: 11-07-2012)

State v. Wright

Criminal Law: For first-degree criminal mistreatment, "physical injury" is an impairment of a physical condition or a substantial amount of pain. Impairment of a physical condition is harm to the body or an inability to use the body or a bodily organ for a certain period of time.

(Filing Date: 11-07-2012)