Willamette Law Online

Oregon Court of Appeals

( 46 summaries )

Opinions Filed in December 2012

Ballinger v. Nooth

Post-Conviction Relief: Pursuant to ORCP 71 B(1)(a), a petitioner's response to a motion for summary judgment, in a post conviction relief case, must address the merits of the defendant's motion for summary judgment and cannot rely solely on the allegations in the post conviction relief petition.

(Filing Date: 12-27-2012)

Department of Human Services v. T.H.

Juvenile Law: A judgment of the juvenile court is inadequate and not harmless error when the Department of Human Services does not state a compelling reason for the continuation of APPLA.

(Filing Date: 12-27-2012)

Evergreen West Business Center v. Emmert

Remedies: An equitable remedy is not available to a party simply because a jury returns a lesser award than requested. Additionally, 600,000:1 ratio for punitive damages is not excessive when it is necessary to deter future tortious conduct.

(Filing Date: 12-27-2012)

State v. C.E.B.

Juvenile Law: A juvenile court has the authority to dismiss a petition under ORS 419C.261(2) even if the person is no longer under the court's jurisdiction under ORS 410C.005 because they have reached the age of 25.

(Filing Date: 12-27-2012)

State v. Davis

Criminal Procedure: Under ORS 813.150, a defendant has a statutory right to request an independent blood test and be given a reasonable opportunity to obtain that test. Once the request is made, the police officer cannot prevent or hinder the ability of the defendant to obtain the test, however there is no affirmative obligation to help the defendant do so.

(Filing Date: 12-27-2012)

State v. Giles

Sentencing: Defendants that are convicted of murder during the "McClain window" must receive a sentence of 300 months in prison and lifetime post-prison supervision.

(Filing Date: 12-27-2012)

3P Delivery, Inc. v. Employment Dept.

Employment Law: ORS 657.047 does not exempt delivery drivers who lease their equipment to a for-hire carrier from the definition of employment.

(Filing Date: 12-19-2012)

3P Delivery, Inc. v. Employment Dept. Tax Section

Tax Law: A lease-leaseback arrangement does not constitute furnishable title to qualify for a tax exemption under ORS 657.047(1)(b).

(Filing Date: 12-19-2012)

Classen v. Arete NW, LLC

Civil Procedure: A trial court's denial of leave to amend is reviewed for the improper exercise of discretion, which considers: 1) the nature of the proposed amendments and their relationship to the existing pleadings; 2) the prejudice, if any, to the opposing party; 3) the timing of the proposed amendments and related docketing concerns; and 4) the colorable merit of the proposed amendments.

(Filing Date: 12-19-2012)

Dept. of Human Services v. C. L.

Juvenile Law: Evidence of a mother's physical abuse of her child is admissible for the first time at the hearing when the permanency plan at the time of hearing is APPLA and a change to the plan is being made to adoption, as long as there are procedural safeguards in place.

(Filing Date: 12-19-2012)

Dept. of Human Services v. W.H.F.

Indian Law: Under ORS 419B.476(2)(a), DHS is not required to show an active effort to provide remedial services to prevent the break up of an Indian family if the permanency plan at the time of the hearing is adoption.

(Filing Date: 12-19-2012)

Ewald and Ewald

Civil Procedure: Claim preclusion prohibits relitigation of claims that could have been brought in the prior action from being brought in a separate action, but does not bar relitigation of claims raised in the same proceeding before the same court.

(Filing Date: 12-19-2012)

Koller v. Schmaing

Appellate Procedure: Upon filing a notice of appeal, the Court of Appeals has jurisdiction over a case and the trial court retains only limited jurisdiction, which does not include entering corrected judgments under ORCP 71C.

(Filing Date: 12-19-2012)

Lithia Medford LM, Inc. v. Yovan

Remedies: In a small-damages case, punitive damages can exceed a single digit ratio where, in consideration of similar cases and the deterrent function it serves, the punitive damage award is not grossly excessive.

(Filing Date: 12-19-2012)

Pfizer Inc. v. Oregon Dept. of Justice

Trade Secrets: Information is a trade secret and exempt from disclosure under Oregon Public Records Law when there is evidence that it gains its value from not being generally known, and is subject to reasonable efforts to maintain its secrecy.

(Filing Date: 12-19-2012)

State v. Brock

Criminal Procedure: A prior unlawful act will not taint the consent given to authorities unless the Defendant can prove some factual nexus between the unlawful act and the consent given.

(Filing Date: 12-19-2012)

State v. Jepson

Criminal Procedure: Consent is a valid exception to the warrant requirement, except when that consent is acquired by an officer's use of an unconditional statement, which does not invite a response or request consent, that the officer plans to seize evidence.

(Filing Date: 12-19-2012)

State v. Roper

Criminal Procedure: Under State v. Dixson, land outside the curtilage requires signs or barriers to express an intent to keep unwanted visitors out.

(Filing Date: 12-19-2012)

State v. Thompson

Criminal Procedure: When an individual is stopped without a reasonable suspicion, asked for her identification, and questioned without a significant break in time between these events, the stop becomes unlawful and any evidence seized from such an encounter is to be suppressed.

(Filing Date: 12-19-2012)

Browne v. Portland Adventist Medical Center

Civil Procedure: When reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the nonmoving party, and the verdict cannot be set aside unless the court can affirmatively say that there is no evidence from which the jury could have the facts necessary to establish the elements of plaintiff's cause of action.

(Filing Date: 12-12-2012)

Bumgarner v. Nooth

Criminal Procedure: The applicable standard as to whether or not counsel has provided a constitutionally adequate defense is whether counsel has exercised "reasonable professional skill and judgment," and that determination is made by the court. Accordingly, a lawyer's failure to present an unsettled question of law may be considered inadequate assistance of counsel.

(Filing Date: 12-12-2012)

State v. Barajas

Criminal Law: Under ORS 137.010(4), the court may revoke probation on a misdemeanor and impose any other sentence that could have been imposed at the original sentencing.

(Filing Date: 12-12-2012)

State v. Baranovich

Criminal Procedure: An incarcerated defendant consents to a delay of trial for other charges when she knowingly fails to make a demand for a speedy trial.

(Filing Date: 12-12-2012)

State v. Beck

Evidence: Officer testimony regarding a defendant's marijuana consumption does not need to be excluded at trial when the basis for the charged DUII is primarily alcohol intoxication, even when the officer did not conduct a complete drug recognition evaluation.

(Filing Date: 12-12-2012)

State v. Coburn

Criminal Procedure: Under ORS 135.747, the speedy trial provision, a delay attributable to the State in bringing an individual to trial is reasonable if it was caused by lack of judicial resources and the delay was less than the applicable statute of limitations.

(Filing Date: 12-12-2012)

State v. Landahl

Appellate Procedure: Under ORS 138.050 (1)(a), if a conviction is not a "disposition" for the purposes of the statute, the Court of Appeals lacks jurisdiction to review the decision of the trial court.

(Filing Date: 12-12-2012)

State v. Naudain

Criminal Procedure: A trial court is not permitted to comment on the evidence, and a court impermissibly comments on evidence when it instructs the jury how evidence relates to a particular legal issue.

(Filing Date: 12-12-2012)

State v. Oidor

Copyright: Federal law, section 301 of the Copyright Act, preempts ORS 164.865(1)(b) because the Federal Act grants exclusive rights to copyright owners while Oregon law grants a similar right to copyright holders.

(Filing Date: 12-12-2012)

Steele and Steele

Family Law: A court may authorize an award of indefinite compensatory and maintenance spousal support if, based on the facts and circumstances of the case, the award provides to both spouses a standard of living roughly similar to the one during marriage.

(Filing Date: 12-12-2012)

Sunset Presbyterian Church v. Brockamp & Jaeger

Civil Procedure: Under the accrual clause of a contract, the statute of limitations for claims tolls until the date of substantial completion, which is the architect's certification date or where the work is sufficiently complete.

(Filing Date: 12-12-2012)

Armenta v. PCC Structural, Inc.

Workers Compensation: A misinterpretation and lack of consideration of a doctor's expert testimony is grounds for reversal of a decision of the Workers' Compensation Board.

(Filing Date: 12-05-2012)

Ayer v. Coursey

Evidence: Under OEC 412(2)(b)(B), evidence of a victim's past sexual behavior is admissible if it is submitted to "rebut or explain scientific or medical evidence offered by the state."

(Filing Date: 12-05-2012)

Christensen and Christensen

Family Law: Under the "just and proper" analysis, the spouse is required to demonstrate that acting "just and proper" would provide the spouse with a greater share of the marital assets.

(Filing Date: 12-05-2012)

D.A. v. White

Civil Stalking Protective Order: Under ORS 163.738, the "official duties" exceptions from ORS 163.755(1)(c), will not apply, effectively barring the use of a work place incident from counting towards the issuance of a stalking protective order, if the Respondent "intended" to intimidate the petitioner with the workplace incident.

(Filing Date: 12-05-2012)

Dept. of Human Services v. M. Q.

Juvenile Law: Child endangerment requires conditions that rise to the level of "being threatened with serious loss or injury." The threat must be current to prove the child is endangered.

(Filing Date: 12-05-2012)

Peace River Seed Co-Operative v. Proseeds Marketing

Contract Law: An ambiguous contractual provision requires the court to determine the parties' intent and use extrinsic evidence, if necessary. If the provision is still ambiguous, the court should use the appropriate maxims of construction.

(Filing Date: 12-05-2012)

Sea River Properties, LLC. v. Parks

Property Law: Land formed by accretion does not belong to the owner in possession of the property when the land forms on top of property already owned by another.

(Filing Date: 12-05-2012)

State v. Beckham

Remedies: For the trial court to impose restitution after the 90 day window provided by ORS 137.106(1)(b), it must be shown that good cause existed for extending the time period.

(Filing Date: 12-05-2012)

State v. Cespedes-Rodriquez

Criminal Law: Under ORS 161.200, after a defendant raises a 'choice of evils' defense, the state must disprove that defense beyond a reasonable doubt. The defense can be disproved if the defendant had the intent to act illegally before the imminent threat of safety existed.

(Filing Date: 12-05-2012)

State v. Contreras

Criminal Procedure: ORS 135.747, the speedy trial provision, regulates only the timing of the first trial and a defendant waives the right to dismiss under this provision if he does not file a motion before the first trial.

(Filing Date: 12-05-2012)

State v. Espinoza-Barragan

Criminal Procedure: Nervousness and driving a vehicle recently purchased with cash are not sufficient to give rise to reasonable suspicion of criminal activity, which would justify the extension of a valid stop.

(Filing Date: 12-05-2012)

State v. Febuary

Evidence: Testimony of a prior incident of sexual abuse must carry a sufficient concurrence of common features for it to be admissible as noncharacter evidence under OEC 404.

(Filing Date: 12-05-2012)

State v. Kowlaskij

Criminal Law: When a person is charged with identity theft under ORS 165.800, the charging document's failure to identify the alleged victim who was injured or who was intended to be injured is not a material variance under ORS 135.725.

(Filing Date: 12-05-2012)

State v. Ovendale

Evidence: Physical evidence giving rise to a "sexual abuse" diagnosis avoids the proscription in Southard when its significance is of the sort that requires a complex factual determination by an expert rather than a lay person, it corroborates the type of abuse alleged, and the medical expert relies on the physical evidence in making the diagnosis.

(Filing Date: 12-05-2012)

V.A.N. v. Parsons

Civil Stalking Protective Order: ORS 30.866 requires that evidence in support of a stalking order prove that the contact reveals an unequivocal threat that instills a fear of serious and physical injury from the speaker that is objectively likely to be followed by unlawful acts. Without other evidence, a threat to "confront" a person does not involve violence or other unlawful acts.

(Filing Date: 12-05-2012)

State v. Eshaia

Attorney Fees: Evidence that a defendant is receiving income through disability payments is sufficient evidence for a trial court to impose attorney's fees under the "is" or "may be able" to pay standard.

(Filing Date: 10-24-2012)