Willamette Law Online

Oregon Court of Appeals

2012

( 17 summaries )

January

Elk Creek Management Company v. Harold Gilbert

Landlord Tenant: Retaliatory eviction requires the landlord to have the intention to cause disadvantage to the tenant, motivated by some sort of injury the tenant has caused the landlord. Temporal proximity of a tenant’s complaint to a landlord and subsequent eviction is not sufficient for a tenant to establish a presumption of retaliation that would shift the burden to the landlord to demonstrate the eviction was not retaliatory.

(Filing Date: 01-05-2012)

Gambaro v. Dept. of Justice

Civil Procedure: To overcome an adverse ruling on appeal, the appellant must overcome each alternative ground used by the trial court to justify its holding.

(Filing Date: 01-05-2012)

Hemingway and Mauer

Family Abuse Prevention Act: In exercising its discretion, the trial court has the authority to control the presentation of evidence and the examination of witnesses. The exercise of authority is reasonable only if it is fundamentally fair and allows opportunities for a reasonably complete presentation of evidence and argument.

(Filing Date: 01-05-2012)

Robinson v. Harley-Davidson Motor Company

Civil Procedure: To establish personal jurisdiction, a plaintiff must allege sufficient minimum contacts by the defendant with the forum state, and that the claim arises out of those contacts.

(Filing Date: 01-05-2012)

State v. Anthony

Evidence: A hearsay statement is admissible if (1) the declarant is unavailable, (2) the statement is inculpatory, and (3) there is corroboration of the trustworthiness of the statement.

(Filing Date: 01-05-2012)

State v. Kinkade

Criminal Procedure: Under State v. Ashbaugh, a seizure occurs when law enforcement intentionally and significantly restricts an individual’s liberty and under the totality of the circumstances that person believes he lost his liberty.

(Filing Date: 01-05-2012)

Alto v. City of Cannon Beach

Civil Procedure: A person has statutory standing to challenge a vesting determination under section 5(3) of Measure 49 if the person: (1) owns the property that is the subject of that vesting determination or (2) timely submitted written evidence, arguments, or comments to a public entity concerning the vesting determination.

(Filing Date: 01-25-2012)

Bell v. Tri-Met

Civil Procedure: In an action for a personal injury brought against a public entity after a decedent's death, a two-year statute of limitations applies.

(Filing Date: 01-25-2012)

Berry v. Huffman

Attorney Fees: Attorney fees will not be authorized if the judgment awarding the fees is related to the enforcement of an original marriage dissolution judgment and not a judgment to "set aside, alter, or modify" a previous judgment.

(Filing Date: 01-25-2012)

Butcher v. SAIF

Workers Compensation: Following a modification of a worker's compensation claim, the employee is entitled to total disability compensation as authorized by her doctor, regardless of whether the curative treatment was in the place of hospitalization.

(Filing Date: 01-25-2012)

Dept. of Human Services v. N. T.

Family Law: A Juvenile Court cannot rely on extrinsic facts outside of its jurisdictional judgment when it assesses a permanency plan where such a plan does not implicitly or explicitly encompass those extrinsic facts.

(Filing Date: 01-25-2012)

Lucke v. DPSST

Administrative Law: An order for summary determination favorable to the moving party shall be issued if evidence in the record for the case shows that there is no genuine issue of any material fact that is relevant to resolution of the legal issue as to which a decision is sought.

(Filing Date: 01-25-2012)

Register Guard v. Employment Dept.

Employment Law: Decisions to affirm or reverse an Administrative Law Judge's decision to grant or deny unemployment benefits must be supported by substantial evidence.

(Filing Date: 01-25-2012)

State ex rel Juv. Dept v. S.J.P

Juvenile Law: A Juvenile Court may not order as compensatory damages against a youth if such damages are not recoverable as a remedy to a civil action.

(Filing Date: 01-25-2012)

State v. Brooks

Evidence: Testimony by a witness regarding an out-of-court statement by a non-witness about the credibility of the victim is not inadmissible. An error by the trial court is harmless when the trial court explicitly indicates that it is not relying on the incorrectly admitted evidence.

(Filing Date: 01-25-2012)

State v. Smith

Criminal Procedure: A seizure occurs if an officer manifests a “show of authority” that restricts an individual’s “freedom of movement.”

(Filing Date: 01-25-2012)

Tonquin Holdings, LLC v. Clackamas County

Land Use: Zoning ordinance 1203.01 prohibits approval of a conditional use that substantially limits primary uses of adjacent property. Where both general and special standards are applicable both shall apply, but where the two standards conflict the special standards shall control.

(Filing Date: 01-25-2012)

( 41 summaries )

February

State v. Codon

Evidence: It is plain error for a trial court to admit a medical expert's diagnosis of sexual abuse in the absence of physical findings to support the diagnosis; inferences, for purposes of the plain error analysis, must be plausible.

(Filing Date: 02-01-2012)

State v. Ferguson

Evidence: A witness may not give testimony, expert or otherwise, as to the credibility of whether he or she believes another witness is telling the truth.

(Filing Date: 02-01-2012)

State v. Jimenez

Criminal Law: Under State v. Magel, the test for cases involving a threat takes into account whether the defendant expressed an intent to harm the victim, and whether that expression could compel the victim to engage in sexual contact.

(Filing Date: 02-01-2012)

Caldeen Construction, LLC v. M. Mark Kemp

Criminal Law: A trial court abuses its discretion in dismissing an amended complaint in an attorney negligence claim where the plaintiff attempts to amend the complaint to allege that but for the defendant's negligence, the outcome in the underlying case would have been different.

(Filing Date: 02-08-2012)

Denucci v. Henningsen

Tort Law: The 180-day time limit for filing a claim under the Oregon Tort Claims Act begins when the plaintiff knows, or with reasonable care should know that an injury has occurred and that it is possible for a jury to agree with the plaintiff's argument under the circumstances of the case.

(Filing Date: 02-08-2012)

Dept. of Human Services v. J. B.

Juvenile Law: Paternity over a child is established in ORS 109.070 (1). Moreover, an outdated Voluntary Acknowledgment of Paternity (VAP) fails to establish paternity of a parent, and thus is fatal to the parent's effort to become the legal parent.

(Filing Date: 02-08-2012)

Mentor Graphics Corp. v. Velazquez

Workers Compensation: If the Court of Appeals cannot determine from records of the Workers' Compensation Board whether it found that a claimant proved the existence of an occupational disease, not just symptoms, then the Court may remand the case so that the board may address that point.

(Filing Date: 02-08-2012)

OR-OSHA v. CC & L ROOFING CO., INC.

Evidence: Under ORS 654.086, OR-OSHA has the burden of persuasion to show constructive knowledge. Employer evidence to show “reasonable diligence” in compliance is not an affirmative defense “because it negates the knowledge element of a serious violation.”

(Filing Date: 02-08-2012)

PGE v. Ebasco Services, Inc.

Civil Procedure: A court may not enter a judgment awarding more damages than the plaintiff sought in its complaint, unless the party against whom the judgment will be entered had reasonable notice and an opportunity to be heard.

(Filing Date: 02-08-2012)

Portland Police Association v. City of Portland

Labor Law: If a collective bargaining agreement (CBA) unambiguously makes the parties’ dispute subject to a grievance procedure involving arbitration, any ambiguity with respect to which subjects are arbitrable under the CBA is resolved in favor of arbitrability.

(Filing Date: 02-08-2012)

Pressing Matters v. Carr

Workers Compensation: To preserve a claim of premature closure, it is sufficient that the record contain information from which the appellant reviewer could determine that the claimant was challenging the closure of the claim.

(Filing Date: 02-08-2012)

State v. Frey

Criminal Law: Where an action is a material fact to proving whether defendant committed a crime, the court shall give the jury a "Boots instruction." That is, at minimum 10 jurors must concur that a defendant intended to commit the crime, and that he intended to commit a material fact to that crime.

(Filing Date: 02-08-2012)

State v. Gruntz

Criminal Procedure: To determine whether the affidavit in support of a search warrant is sufficient, the state applies the reasoning of State v. Castilleja. That is, the court’s function is limited in scope to determining whether a magistrate could have reasonably concluded the facts in an affidavit established probable cause for a search warrant.

(Filing Date: 02-08-2012)

State v. Mills

Sentencing: Per State v. Lauers, first-degree arson convictions arising under the same section of the criminal code may be merged. However, an assignment of error for failure to merge is not preserved unless it is presented before the trial court during the sentence hearing.

(Filing Date: 02-08-2012)

Cruze v. Hudler

Appellate Procedure: When the Court misstates an immaterial fact in an opinion, it may still reconsider the opinion, but only to make a minor correction to the prior opinion to delete the misstatement in question.

(Filing Date: 02-15-2012)

Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson

Attorney Fees: Attorney's fees can be recovered from the client's trust pursuant to ORS 125.095 for services rendered while the client was designated a protected person.

(Filing Date: 02-15-2012)

Dew v. Bay Area Health District

Evidence: Under Oregon Evidence Code 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, the exclusion of medical testimony could make any fact of consequence to the determination of the action more probable than without the evidence.

(Filing Date: 02-15-2012)

Hayward v. Belleque

Post-Conviction Relief: The reasonableness of trial counsel's performance is evaluated from the counsel's perspective at the time of the alleged error and in light of all the circumstances.

(Filing Date: 02-15-2012)

State v. Dimmick

Criminal Procedure: Police inventories must be managed pursuant to a properly administered administrative program that does not involve exercise of discretion of the police. When the evidence in joined cases is sufficiently simple and distinct, jury instruction can cure any possible prejudice.

(Filing Date: 02-15-2012)

State v. Jimenez-Correo

Criminal Law: In the sale of marijuana, the culpable mental state requirement does not include the element of the recipient's age under former ORS 475.995 (2001).

(Filing Date: 02-15-2012)

State v. Leino

Criminal Procedure: A records and warrant check by a police officer during a lawful traffic stop does not unlawfully extend or expand the scope of the traffic stop in violation of Art. I, section 9 of the Oregon Constitution.

(Filing Date: 02-15-2012)

State v. Rubio

Sentencing: When a sentencing court commits an error the Court of Appeals must remand the entire case for resentencing if there are options which the sentencing court may adopt. Where defendant's theory does not focus on an issue that matter is collateral, and while relevant, its probative value may be substantially outweighed by risk of misleading the jury.

(Filing Date: 02-15-2012)

Steele v. Water Resources Commission

Water Rights: For a petitioner to properly challenge an agency’s final order, petitioner must show that erroneous factual findings or erroneous interpretations of conclusions of law in the agency’s final order produced an improper result that is within the court’s authority to review.

(Filing Date: 02-15-2012)

Willamette Oaks, LLC v. City of Eugene

Land Use: The Land Use Board of Appeals did not err in determining that certain modifications to a tentative planned unit development would only result in insignificant changes and were therefore permissible. Also, the petitioner must have preserved the issue of reversing instead of remanding to argue that the case should have been remanded, if it was not plain error.

(Filing Date: 02-15-2012)

Bailey v. Bailey

Family Law: In determining a "just and equitable" amount in spousal support payments, a goal in a dissolution of a long term marriage is to provide a standard of living comparable to the one enjoyed during the marriage.

(Filing Date: 02-23-2012)

Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Commission

Administrative Law: The Columbia River Gorge National Scenic Area Act required the Columbia River Gorge Commission to include provisions in its management plan that development should take place without adversely affecting natural resources.

(Filing Date: 02-23-2012)

Oregon AFSCME Council 75, Local #2503 v. Hood River County

Labor Law: "Amount of money indicated" as used in ORS 292.055 encompasses pay to be made in accordance with a simple formula; a public employer's failure to deduct the dues on a percentage base as requested constitutes an unfair labor practice.

(Filing Date: 02-23-2012)

State v. Davis

Criminal Procedure: Circumstantial evidence may be used to establish trial venue.

(Filing Date: 02-23-2012)

State v. Shirk

Criminal Procedure: If consent for a search is acquired during an unlawful custodial interrogation, evidence from that search should be suppressed if there are no circumstances that attenuate the link between the consent and the interrogation.

(Filing Date: 02-23-2012)

Avanti Press, Inc. v. Employment Department Tax Section

Employment Law: The test for unemployment taxes under ORS 670.600 is whether the contracted party controls their “means and manner” of their performance or if there are more generalized instructions on how to produce the desired results.

(Filing Date: 02-29-2012)

Barber v. Green

Attorney Fees: Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. When attorney fees to the prevailing party are mandatory, a court may determine the amount of attorney fees, but does not have discretion to not award any attorney fees.

(Filing Date: 02-29-2012)

Bigby v. Vogel

Trusts and Estates: The passing of a decedent's real property by will to a constructive testamentary trust grants a life estate to the personal representative of the estate, upon which the holder of the life estate is granted all profits derived from the land.

(Filing Date: 02-29-2012)

Brumage v. Esco Corp.

Workers Compensation: Claims for hearing loss are evaluated upon claimant’s “overall hearing loss” at the time claimant files his claim.

(Filing Date: 02-29-2012)

Cortez v. Nacco Materials Handling Group

Employment Law: The exclusive remedy provision of the workers' compensation law does not apply to "members" of an LLC, primarily because an LLC is a legal entity distinct from its members.

(Filing Date: 02-29-2012)

Dept. of Human Services v. T. M. M.

Family Law: A parent’s future availability as a fit parental resource when assessed at the termination of parental rights hearing must be reasonable when weighed against the specific and immediate needs of the parent’s children.

(Filing Date: 02-29-2012)

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

Family Law: The Oregon statutory limitation on the creation of judicial remedies for failing to file a timely appeal of a permanency hearing comports with due process unless specific circumstances arise.

(Filing Date: 02-29-2012)

State v. Capri

Sentencing: A post-prison supervision term, when added to the prison term, may not exceed the statutory maximum prison term for conviction; and a petition to enter a guilty plea does not constitute a stipulation to a post-prison supervision term if the plea makes no mention of the supervision.

(Filing Date: 02-29-2012)

State v. Cox

Evidence: Testimony of an expert witness regarding the credibility of another witness should not be submitted to the jury when there is a substantial risk of the testimony prejudicing the jury toward a third witness.

(Filing Date: 02-29-2012)

State v. Jasso

Evidence: A party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the Court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.

(Filing Date: 02-29-2012)

T. M. B. v. Holm

Civil Stalking Protective Order: When determining a stalking protective order, there is no requisite mental state; Speech can be considered a "contact" for the purpose of a civil stalking protective order.

(Filing Date: 02-29-2012)

Washington County v. Jansen

Workers Compensation: Claimant has the burden of proving that an occupation disease is still a part of a combined condition claim after a denial by the employer.

(Filing Date: 02-29-2012)

( 37 summaries )

March

City of Eugene v. McCann

Workers Compensation: Under ORS 656.802(4), cardiovascular diseases are defined as a physical impairment of the heart or blood vessels that is gradual in nature; this definition precludes symptoms of an underlying disease that do not cause physical impairment of the heart.

(Filing Date: 03-07-2012)

Kirkpatrick and Kirkpatrick

Family Law: Failure to promote a healthy relationship between parent and child can constitute a substantial change in circumstances.

(Filing Date: 03-07-2012)

Reach Community Development v. Stanley

Landlord Tenant: A letter from a landlord to tenant indicating that rent will not be accepted pending resolution of a BOLI investigation does not constitute a waiver of the landlord's right to insist on the payment of all accrued rent within 72-hours of issuing and serving a notice of nonpayment pursuant to ORS 90.394.

(Filing Date: 03-07-2012)

State v. Delatorre-Vargas

Criminal Procedure: The identifications were obtained using suggestive procedures and the State failed to demonstrate that the identifications were independently reliable. The errors in admitting the identification evidence were not harmless.

(Filing Date: 03-07-2012)

State v. R. E.

Civil Commitment: The test for establishing whether an individual is “dangerous to self” is: 1) the state must demonstrate the person is likely to harm themselves in the near future; and 2) there must be the possibility of actual physical harm.

(Filing Date: 03-07-2012)

Woods v. Hill

Tort Law: As a matter of law, a defendant may not avoid liability for his negligence by asserting a subsequent appeal should never have happened.

(Filing Date: 03-07-2012)

CACV of Colorado v. Stevens

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and would impose an unfair burden in defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-14-2012)

Capitol Specialty Ins. Co. v. Chan & Lui, Inc.

Insurance Law: Amendments to policy coverage amounts do not apply retroactively where the "effective date of change" is clearly and unambiguously stated within the policy.

(Filing Date: 03-14-2012)

Department of Human Services v. B.B.

Juvenile Law: A history of sexual abuse is insufficient grounds to support a finding, sixteen years after the last confirmed instance of abuse, that a father presents a current risk of danger to his minor children.

(Filing Date: 03-14-2012)

Dept. of Human Services v. D.M.

Family Law: Exposure to a parent's unconventional but not unlawful lifestyle does not justify state intervention into a parent's fundamental right to the care, control, and custody of his or her children.

(Filing Date: 03-14-2012)

K. R. v. Erazo

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear and, where the contact is speech, it must be a threat that invokes imminent fear.

(Filing Date: 03-14-2012)

Kazlauskas v. Emmert

Contract Law: In contracts cases, specific performance as a remedy should only be available when other remedies are insufficient to compensate the non-breaching party.

(Filing Date: 03-14-2012)

Nice v. Townley

Family Law: When applying ORS 107.137(1) in a custody determination, each of the factors listed must be considered and any one factor may not be relied on at the exclusion of another. Additionally, proper consideration must be given to the preference for the primary caregiver under ORS 107.137(1)(e).

(Filing Date: 03-14-2012)

State v. Crook County

Land Use: When determining whether someone has a common law vested right to complete a building project in compliance with Ballot Measure 37, the cost of completion must be established in the record and cannot be assumed.

(Filing Date: 03-14-2012)

State v. Durst

Criminal Procedure: Unlawful use of a weapon and menacing charges require the State to prove Defendant's intent to engage in particular conduct and the intent to cause a particular result. Therefore, jury instructions that refer to both the conduct and the result are not errors.

(Filing Date: 03-14-2012)

State v. Gilbert

Sentencing: When a sentencing court does not make an oral or written ruling that a sentence will be served consecutively with another sentence, ORS 137.123(1) requires that the sentences run concurrently, and the reference in ORS 138.083(1)(a) to amending an “erroneous term” cannot be employed by the sentencing court to amend the sentence due to an unexpressed intention at the time of the original judgment for the sentences to run consecutively.

(Filing Date: 03-14-2012)

State v. Hanna

Criminal Procedure: For the purposes of searching impounded vehicles, the bed of a truck under a locked tonneau cover does not constitute a trunk or an external container.

(Filing Date: 03-14-2012)

State v. Mills

Evidence: In venue cases, the state may establish venue through circumstantial evidence but the evidence must be substantial enough to prevent the jury from speculating or guesswork.

(Filing Date: 03-14-2012)

State v. Nims

Criminal Procedure: Under the unavoidable lull rule, it is not unlawful for an officer to inquire about matters unrelated to the initial violation as long as the inquiry does not unlawfully extend that traffic stop.

(Filing Date: 03-14-2012)

State v. Stark

Criminal Law: Under ORS 166.270(3)(a), the phrase "at the time of judgment" refers to the time when the original felony judgment was entered. A later reduction of the charge to a misdemeanor is irrelevant.

(Filing Date: 03-14-2012)

State v. Trident Seafoods Corp.

Contract Law: Per an agreement, a fish processor must pay fair market value for fish caught over the established limits, whether or not the fish was ultimately processed.

(Filing Date: 03-14-2012)

Wolfe and Wolfe

Family Law: Limited integration of separate property assets into the common financial affairs of a long term marriage significantly affect the distribution of marital property.

(Filing Date: 03-14-2012)

State v. Christian

Constitutional Law: Portland City Code 14A.060.010(A), which prohibits carrying a firearm in a public place "recklessly having failed to remove all the ammunition," is facially constitutional under the Oregon Constitution Article I § 27 and the Second Amendment to the United States Constitution because it does not punish protected activity in a significant number of circumstances.

(Filing Date: 03-21-2012)

Anderson v. Dry Cleaning To-Your-Door

Civil Procedure: ORCP 68 C(2) requires a party to seek award for attorney fees by pleading or motion and provide a basis for an entitlement to attorney fees.

(Filing Date: 03-28-2012)

Dept. of Human Services v. B.W.

Family Law: The rational relationship requirement is only a minimal threshold for the court to consider alongside other items when determining the validity of an order.

(Filing Date: 03-28-2012)

Dept. of Human Services v. S.P.

Family Law: Under ORS 419B.100(1)(c), state jurisdiction over a newborn is not supported where the record lacks clear statements of reoccurring problems and where the record does not demonstrate the extent of a mother's developmental disability or the existence of a father's alleged mental health and anger issues.

(Filing Date: 03-28-2012)

Johnson v. Deschutes County

Land Use: The proper analysis for determining a common law vested right to develop property under section 5(3) of Measure 49 was handed down in Friends of Yamhill County v. Board of Commissioners . However, in reviewing a hearings officer determination, the writ of review court cannot render its own factual findings.

(Filing Date: 03-28-2012)

Parsley v. Oregon

Civil Law: The validity of a circuit court judgment may not be attacked in a subsequent contempt proceeding. Additionally, a plaintiff is not required to appear at a contempt hearing.

(Filing Date: 03-28-2012)

Sconce and Sweet

Family Law: For a custody-modification, the party seeking the change in custody must prove that a substantial change in circumstances occurred since the last order relating to custody.

(Filing Date: 03-28-2012)

Spillane and Spillane

Family Law: The party requesting modification or termination of spousal support has the burden of demonstrating a current, substantial, and unanticipated change of circumstances from the time of the dissolution that precludes the earning capacity of the paying spouse.

(Filing Date: 03-28-2012)

State v. Alonzo

Criminal Procedure: Under ORCP 59 H(1), there are two situations that bar appellate review if the party does not preserve its objection: (1) An erroneous instruction from the trial court; and (2) Refusing to deliver a parties’ requested instruction.

(Filing Date: 03-28-2012)

State v. Everett

Criminal Law: The crime of solicitation, ORS 161.435(1), occurs when a person solicits an intermediary to procure a third party to commit the intended crime so long as the intermediary is aware of that intended crime.

(Filing Date: 03-28-2012)

State v. Groom

Criminal Procedure: The automobile exception rule for searches applies only when the vehicle is moving when police first encounter it in connection with a crime.

(Filing Date: 03-28-2012)

State v. Jordan

Criminal Procedure: Under ORS 137.106(1)(a), the appropriate cut-off date for restitution is the date imposed by the sentencing court, and the trial court may award restitution for income lost up until that date.

(Filing Date: 03-28-2012)

State v. Nolasco-Lara

Criminal Law: The Court may choose not to exercise its discretion regarding sentences that meet the test for plain error if the Defendant encouraged the trial judge to impose a sentence and strategically chose not to object to the sentence.

(Filing Date: 03-28-2012)

State v. Truong

Criminal Procedure: When a defendant is sentenced to serve consecutive prison sentences, the total prison term cannot exceed 400 percent of the maximum for the primary offense in the case.

(Filing Date: 03-28-2012)

Unifund CCR Partners v. Deboer

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and the application of that statute of limitation would impose an unfair burden on defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-28-2012)

( 28 summaries )

April

Bock and Bock

Family Law: A 4% increase in income does not constitute an unanticipated or substantial change in economic circumstances that would justify a modification of a child support order.

(Filing Date: 04-04-2012)

Gest v. Oregon AFL-CIO

Labor Law: An informal employee grievance meeting is a "concerted activity" that is regulated by the NLRA. Under Garmon , the state must allow the National Labor Relations Board to determine labor disputes that the NLRA was designed to protect or prohibit.

(Filing Date: 04-04-2012)

Protect Grand Island Farms v. Yamhill County

Land Use: Under Statewide Planning Goal 5, OAR 660-023-0180(3)(d)(B)(ii), the phrase “average thickness of the aggregate layer within the mining area” is intended to refer to the average depth of all the mineable aggregate within the resource site, regardless of whether that aggregate is physically discontinuous.

(Filing Date: 04-04-2012)

State v. Bobbitt

Evidence: Under former ORS 192.555(2)(a), an individual's financial records may not be disclosed unless the financial institution has an independent suspicion that the individual has violated the law; a relayed suspicion by law enforcement is not sufficient.

(Filing Date: 04-04-2012)

State v. Debuiser

Appellate Procedure: A court does not commit plain error when a plausible inference can be drawn that an objection was not made for tactical reasons.

(Filing Date: 04-04-2012)

State v. Elliott

Criminal Law: When a defendant is charged with identity theft, evidence that a defendant stole credit cards is legally sufficient to permit a jury to infer the defendant's intent to deceive or defraud beyond a reasonable doubt, even when the defendant took no action in furtherance of that identity theft.

(Filing Date: 04-04-2012)

State v. Hicks

Criminal Procedure: A court need not apply the “shift to I” rule to consecutive sentences that are “statutorily mandated” because they are outside the scope of OAR 213-012-0020.

(Filing Date: 04-04-2012)

Wallace v. State

Administrative Law: While otherwise justiciable, a case before an Appellate Court is moot if the relief to be granted by a finding of error has already been obtained.

(Filing Date: 04-04-2012)

Rudell v. City of Bandon

Land Use: A city may rely on Webster's Dictionary to define the scope of "foredune", and such interpretation is not inconsistent with the Bandon Municipal Code. Also, under ORS 197.307(6) (2009) and ORS 227.173(1), the definition, as interpreted by the city, must be sufficiently clear and objective.

(Filing Date: 04-11-2012)

State v. Babson

Constitutional Law: Article IV, section 9 of the Oregon Constitution does not protect co-chairs sitting in a legislative committee from being brought before a court for questioning, so long as it limited to their capacity in enforcement (as opposed to enactment) of legislation.

(Filing Date: 04-11-2012)

State v. Macon

Criminal Law: Under ORS 164.215(1), a storage room, separated from a store by a closed door, is a separate unit from the store that patrons do not have license to enter.

(Filing Date: 04-11-2012)

State v. N. R. L.

Juvenile Law: Despite recent amendments to ORS 419C.450, restitution continues to function as an element of the penal system. Therefore, it does not require a jury trial that would be afforded by Article I, section 17 of the Oregon Constitution.

(Filing Date: 04-11-2012)

State v. Urbina

Criminal Law: Downloading child pornography from an online peer-to-peer network constitutes "knowing duplication" of those materials and, in cases of encouraging child sex abuse, whether the "victim" is the State or the child in the image/video is a matter "reasonably in dispute."

(Filing Date: 04-11-2012)

Johnson Mobile Estates v. Oliver

Landlord Tenant: ORS 105.149(2) allows the trial court to consider any issue outside the defendant's hearing request where the Residential Landlord Tenant Act applies.

(Filing Date: 04-18-2012)

Peterson v. McCavic

Contract Law: To prevail on a fraud claim a plaintiff must show a representation; its falsity; its materiality; the speaker's knowledge of its falsity or ignorance of its truth; his intent that it will be acted on by the listener; the listener's ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury. Plaintiff may prevail if he can show a reasonable inference of reliance based upon the evidence.

(Filing Date: 04-18-2012)

Saif v. Miguez

Workers Compensation: Under OAR 436-035-0007(12), an appellate review unit must explain what observations led to its findings of invalidity, how these observations contradict the validity of the findings, and why the observations are medically significant before it may invalidate a medical examiner's findings.

(Filing Date: 04-18-2012)

State v. Bennett

Criminal Procedure: In imposing an upward departure sentence, a court may consider the defendant’s conduct after the crime for which the defendant is being sentenced.

(Filing Date: 04-18-2012)

State v. Dries

Civil Procedure: Under ORCP 59 H, a party must “state with particularity” the trial court’s alleged error in order to preserve an appellate challenge to the error.

(Filing Date: 04-18-2012)

State v. Kephart

Appellate Procedure: Where the trial court does not address an issue or state what version of a statute it applied, and either issue is raised on appeal, the case will be vacated and remanded to the trial court.

(Filing Date: 04-18-2012)

State v. Lamb

Criminal Procedure: During the course of a lawful stop, an officer may inquire as to whether the defendant has weapons on his person without it being an unlawful seizure.

(Filing Date: 04-18-2012)

State v. Lowell

Appellate Procedure: An investigating detective’s testimony that he believed defendant was lying was an improper comment on defendant's credibility. The trial court's failure to exclude this testimony was plain error and therefore reviewable.

(Filing Date: 04-18-2012)

Awbrey Towers v. Western Radio Services

Attorney Fees: Under ORS 20.096(1), attorney fees are available to the prevailing party when the action is brought to enforce any provisions of the underlying agreement.

(Filing Date: 04-25-2012)

Hunt v. City of Eugene

Civil Procedure: ORCP 54(B) provides that nothing shall prevent the court from dismissing an action for want of prosecution notwithstanding the requirement that the clerk shall notify the parties that the case has been inactive for more than a year. Under ORS 20.105, the city is not entitled to attorney fees if the arguments brought against it were plausible.

(Filing Date: 04-25-2012)

Page v. Parsons

Civil Procedure: A trial court is not required to provide multiple hearings on a special motion to strike under ORS 31.150, as this would be contrary to legislative intent to curtail the litigation process. A trial court may also grant a special motion to strike after a non-specific discovery request from the plaintiff.

(Filing Date: 04-25-2012)

State v. Kurokawa-Lasciak

Criminal Procedure: Authority to consent to a search is proper only if the consenter has proper authority to control and access the property to be searched.

(Filing Date: 04-25-2012)

State v. Lewis

Sentencing: A defendant's due process and speedy trial rights are not violated when the defendant is convicted in Oregon but not sentenced until he returns from serving almost a 20-year sentence in Washington for separate crimes.

(Filing Date: 04-25-2012)

State v. Onishchenko

Evidence: In order to establish the amount of a compensatory fine, the market value of a chattel may be ascertained through the testimony of the owner, unless it is shown that the owner does not have knowledge of the market value of the item.

(Filing Date: 04-25-2012)

Wagner v. Jeld Wen

Workers Compensation: When establishing a compensable injury under ORS 656.005(7)(a), the claimant must show that his actual injury originated from a work related incident and this incident caused him to seek medical attention.

(Filing Date: 04-25-2012)

( 45 summaries )

May

C.L.C. v. Bowman

Civil Stalking Protective Order: Terminating a Stalking Protective Order (SPO) involves considering all of the evidence, including internet evidence, to determine if the context that gave rise to the SPO still causes a subjective apprehension of a threat to their personal safety. If the context still exists and is otherwise objectively reasonable, the SPO should not be terminated.

(Filing Date: 05-02-2012)

Department of Consumer and Business Services v. Zurich American

Administrative Law: The Department of Consumer and Business Services does not possess authority to compel payment from a private insurance company based on the failure of the insurance company's client to file notice of a working-leasing arrangement with the DCBS.

(Filing Date: 05-02-2012)

Nelson v. American Home Mortgage Servicing, Inc.

Civil Procedure: Under ORCP 71B, a court must have personal jurisdiction over a party in order to render a judgment.

(Filing Date: 05-02-2012)

Oregon Shores v. Board of County Commissioners

Land Use: In determining whether a landowner has a common law vested right to continue in developing his land, the court will use the “expenditure ratio” as a necessary starting point in evaluating whether the land owner has incurred substantial enough costs toward completion of the project.

(Filing Date: 05-02-2012)

S.A.B. v. Roach

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear. If verbal, the contact must rise to the level of a threat, and if physical, the contact must both subjectively and objectively reasonably cause alarm or coercion.

(Filing Date: 05-02-2012)

State v. Clatsop County

Property Law: When calculating the expenditure ratio to determine whether there is a common law vested right to complete a residential subdivision in compliance with county and state waivers issued pursuant to Ballot Measure 37, a court must include the cost of building homes on the property as of the effective date of Measure 49.

(Filing Date: 05-02-2012)

State v. J.L.C.

Juvenile Law: A juvenile court has jurisdiction over a youth when that youth commits harassing acts or offensively contacts another person. Evidence in the record may support this proposition.

(Filing Date: 05-02-2012)

State v. Linn County

Land Use: When determining vested rights expenditure ratios, dedications may be included in the numerator. For the denominator, a court must use a total project cost, not a hypothetical cost.

(Filing Date: 05-02-2012)

State v. Torres

Criminal Procedure: Under ORS 161.067(3), the public at large is considered a "victim" of a violation of ORS 166.270 and thus multiple offenses against the public can be merged into one conviction.

(Filing Date: 05-02-2012)

State v. Young

Sentencing: When a court imposes a post-prison supervision term it cannot be for an indefinite period and dependent upon the amount of prison time the defendant actually serves. If the sentence is concurrent with a prison term, the sum of the two terms cannot exceed the statutory maximum indeterminate sentence.

(Filing Date: 05-02-2012)

DK Entertainment v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0347(3)(a), the Oregon Liquor Control Commission's interpretation of the word "permit" is consistent with it's application in previous cases where the unlawful actions of an employee are imputed to a licensee.

(Filing Date: 05-09-2012)

Goodsell v. Eagle-Air Estates Homeowners Assn.

Civil Law: Where homeowners association bylaws and statutory removal provisions are nonexclusive and Oregon law supplements them without contradiction, an action to remove defendant directors of the association may be rejected.

(Filing Date: 05-09-2012)

Hoekstre v. DLCD

Land Use: Remedies afforded by section 6 of Ballot Measure 49 (2007) allow a claimant to receive relief under sections 6(2) or 6(3), but these subsections cannot be combined to afford a cumulative remedy.

(Filing Date: 05-09-2012)

Kirsch v. Dep’t. of Consumer and Business Services

Administrative Law: The Court will overturn an agency order only if the credible evidence apparently weighs overwhelmingly in favor of one finding and the board 'found' the other without providing substantial reason.”

(Filing Date: 05-09-2012)

Lopez v. Mills

Post-Conviction Relief: The post-conviction court's award of specific performance is an adequate remedy when the prosecutor breaches his agreement to provide a recommendation if it provides the defendant the benefit of the agreement that led to the plea.

(Filing Date: 05-09-2012)

State v. Kinney

Evidence: Despite a defendant’s proffered stipulation, evidence may be admissible if it is relevant to prove a fact that is at issue notwithstanding the stipulation. Furthermore, evidence against a defendant is not unfairly prejudicial solely because it is graphic in nature.

(Filing Date: 05-09-2012)

State v. Massey

Evidence: Use of the Miles jury instruction is improper when there is insufficient evidence at trial to show that a defendant's physical condition made him more susceptible to the influence of intoxicants than he normally would be.

(Filing Date: 05-09-2012)

State v. Moore

Appellate Procedure: The Court of Appeals will not hear arguments that are not preserved at the trial court.

(Filing Date: 05-09-2012)

US Market #180, LLC v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0335(1), an employee selling alcoholic beverages is only required to visually verify a purchaser's age when the employee is not using age verification equipment under OAR 845-005-0335(5).

(Filing Date: 05-09-2012)

Berg and Berg

Family Law: ORS 107.105(1) requires that the division of marital property be "just and proper in all circumstances," Spousal support awards should be based on the trial court's discretion and supported by evidence in the record.

(Filing Date: 05-16-2012)

Blachana, LLC v. Bureau of Labor and Industries

Administrative Law: The administrative interpretation of "successor to the business of any employer" under the definition "employer" within ORS 652.310(1) should be interpreted as a party that has assumed or conferred upon it the legal rights and obligations of the predecessor.

(Filing Date: 05-16-2012)

Brown v. City of Eugene

Municipal Law: Under section 44(3) of the Eugene City Charter, "water service" means the direct provision of water to end users, and is not so broad as to include the sale of water to other entities that will then distribute the water.

(Filing Date: 05-16-2012)

Case v. Burton

Property Law: Under common law and ORS 105.620, a claim for adverse possession fails if the claimant does not adequately identify the area that was allegedly adversely possessed.

(Filing Date: 05-16-2012)

Crothers v. Employment Dept.

Employment Law: Unavailability to work during avocation hours will not disqualify a recipient of unemployment benefits so long as the unavailability does not interfere with regular hours of primary employment.

(Filing Date: 05-16-2012)

Department of Human Services v. C.M.M.

Family Law: When determining the fitness of a parent, the test is at the time of termination and focuses on the detrimental effects of the parent's conduct on the child.

(Filing Date: 05-16-2012)

Gay and Gay

Family Law: It is legally permissible and within the trial court's discretion to decide to not distribute shares to one spouse in a closely held corporation in exchange for an equalizing judgment.

(Filing Date: 05-16-2012)

J.L.B. v. K.P.B.

Civil Stalking Protective Order: Under ORS 30.866, taking numerous photographs of a person's home does not meet the standard of causing that person reasonable apprehension regarding his personal safety.

(Filing Date: 05-16-2012)

Krohn v. Hood River School District

Administrative Law: A plaintiff does not need to exhaust administrative remedies if the claims for which she is seeking relief are not governed by a collective bargaining agreement, but rather are statutory in nature.

(Filing Date: 05-16-2012)

Mannex Corp. v. Bruns

Employment Law: To claim the tort of intentional interference of economic relations the plaintiff must show that the defendant is a third party to the contract. Communications made by an employee to protect the interests of their employer are qualifiedly privileged.

(Filing Date: 05-16-2012)

State v. Delaportilla

Criminal Law: A court cannot convict on a charge for which the defendant was not indicted unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.

(Filing Date: 05-16-2012)

State v. Gaskill

Sentencing: Special conditions of probation must be reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both. Moreover, the conditions cannot be more restrictive than necessary to achieve the goals of probation.

(Filing Date: 05-16-2012)

State v. Hutton

Evidence: Evidence of prior misconduct is admissible to show intent even where it is not a contested issue so long as mens rea is an element to a crime charged.

(Filing Date: 05-16-2012)

State v. Taylor

Criminal Procedure: For a police inventory procedure to be valid, it must limit the discretion of the officers in searching and opening containers seized from arrested individuals. If the procedure gives too much discretion, it is constitutionally invalid.

(Filing Date: 05-16-2012)

American Energy, Inc. v. City of Sisters

Civil Law: Under section 25 of the Oregon Jobs and Transportation Act, an ordinance is deemed enacted when it is adopted by it's governing body, rather than after it has been referred for a citizen's vote.

(Filing Date: 05-31-2012)

Blunier v. Staggs

Attorney Fees: Attorney fees that are reasonably incurred while enforcing the terms of a trust deed are considered an expense of the trust.

(Filing Date: 05-31-2012)

Kollman v. Cell Tech International, Inc.

Corporations: Claims for monetary damages are tried at law before a jury. A stockholder, asserting a breach of fiduciary duty, who suffered harm individually and will receive the benefit of the recovery, is entitled to a direct claim.

(Filing Date: 05-31-2012)

Maguire v. Clackamas County

Property Law: Procedural error by LUBA is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby and LUBA review is preempted by ORS 195.318(1) which states a county's determination under Measure 49 is not a land use decision.

(Filing Date: 05-31-2012)

Muzzy v. Uttamchandani

Property Law: An unrecorded deed is void as against a subsequent bona fide purchaser for value unless the purchaser can prove that he bought in good faith, for valuable consideration, and filed first for record.

(Filing Date: 05-31-2012)

Noble v. Dept. of Fish and Wildlife

Administrative Law: An interpretation by an agency of its own rule will be upheld as long as it is plausible and consistent with the rule itself.

(Filing Date: 05-31-2012)

State v. McMullen

Criminal Procedure: The fleeting nature of a suspect’s blood alcohol level is an allowable exigent circumstance that will ordinarily permit a warrantless blood draw when an officer has probable cause to believe the defendant is under the influence of intoxicants.

(Filing Date: 05-31-2012)

State v. Nguyen

Civil Stalking Protective Order: A defendant who seeks to challenge a conviction under ORS 163.750 for violating a stalking protective order on free speech grounds must first successfully attack the underlying protective order.

(Filing Date: 05-31-2012)

State v. Rambo

Evidence: Nonscientific expert opinion evidence based on independently admissible scientific evidence is admissible, as long as the expert is established as qualified through experience and training and does not use scientific language or suggest that his conclusion was based on a scientific method or data collection.

(Filing Date: 05-31-2012)

State v. West

Criminal Procedure: A trial court properly denies a defendant’s request to exclude breath test results when there is an absence of satisfactory foundational requirements for scientific evidence; breath test results are admissible when the procedures of ORS 813.160(1) and associated rules have been followed.

(Filing Date: 05-31-2012)

State v. Wirfs

Criminal Law: An error is not harmless when a criminal defendant is precluded from rebutting the state's argument due to sustained objections to the defense's direct questions. Additionally, the scope of redirect examination cannot exceed that which was covered during cross examination.

(Filing Date: 05-31-2012)

Trees v. Ordonez

Tort Law: In medical malpractice cases, expert testimony must not only establish causation, but must also provide evidence of the applicable standard of care customarily used by a reasonably careful practitioner.

(Filing Date: 05-31-2012)

( 40 summaries )

June

Holbrook v. Employment Dept.

Employment Law: Under ORS 183.470(2), an employment appeals board must support their decisions with findings and explain how the board reached a specific conclusion.

(Filing Date: 06-06-2012)

Nickerson v. Employment Dept.

Employment Law: Unemployment benefits eligibility under ORS 657.221 are determined at the time of the claim based on whether a "reasonable assurance" of employment exists. Gaining reasonable assurance of employment after being eligible cannot retroactively defeat unemployment benefits eligibility.

(Filing Date: 06-06-2012)

SAIF v. DCBS

Workers Compensation: The status of a "worker" requires the application of both the "right to control" and the "nature of the work" tests.

(Filing Date: 06-06-2012)

Smith v. Board of Parole

Administrative Law: A notice-of-rights form constitutes a rule under ORS 183.310(9) requiring compliance with the Administrative Procedures Act when it details practices and procedures that are generally applicable to all hearings.

(Filing Date: 06-06-2012)

State v. Martinez

Sentencing: In absence of any evidence on the record to support a particular amount awarded for restitution, the Court can exercise its discretion to correct the plain error.

(Filing Date: 06-06-2012)

State v. Reeves

Criminal Law: Under ORS 161.067(2), because the children depicted in pornographic images are "multiple victims" for the purpose of Encouraging Child Sexual Abuse in the First Degree, merger of more than one guilty verdict into one conviction is precluded, regardless of whether it is the same criminal episode.

(Filing Date: 06-06-2012)

State v. Witherspoon

Criminal Procedure: Two criminal counts which arose from continuous, uninterrupted conduct that were joined in time, place, and circumstances are not separate criminal episodes for the purpose of calculating defendant's criminal history score.

(Filing Date: 06-06-2012)

U.S. Market #109 v. OLCC

Administrative Law: When the OLCC places a restriction on the liquor license requiring the Licensee to install age verification equipment and train the employees to use it, the Licensee must require its employees to use the equipment in appropriate circumstances.

(Filing Date: 06-06-2012)

State v. Steffens

Criminal Procedure: Outside the a natural lull occuring during the preparation of a citation or investigation, the police may only inquire about a matter unrelated to a traffic stop if there is a reasonable suspicion of crime-related activity or danger to the officer or the public.

(Filing Date: 06-07-2012)

Eagles Five, LLC v. Lawton

Property Law: Injunctive relief is only an appropriate remedy when a party will experience immediate or irreparable harm without it, and it is not appropriate for future contingencies.

(Filing Date: 06-13-2012)

Homebuilders Assoc. of Metro. Portland v. Metro

Tax Law: Expanding the scope of Metro's construction tax did not make it a new tax subject to the restrictions of SB 1036 or MC 2.19.200 because it was an extension or continuation of the present tax and did not materially alter it.

(Filing Date: 06-13-2012)

Kercher v. Employment Dept.

Administrative Law: Substantial evidence exists when a reasonable person could make that finding based on the entire record and substantial reason ensures that the order explains the reasoning between the facts and the conclusion.

(Filing Date: 06-13-2012)

Knotts v. Psychiatric Security Review Board

Civil Commitment: Decisions of the Psychiatric Security Review Board must be supported by "substantial reasoning" in order to be affirmed by the Court of Appeals. Thus, if the board's reasoning cannot be ascertained or is faulty, the order must be reversed and remanded.

(Filing Date: 06-13-2012)

Schleiss v. SAIF

Workers Compensation: Under OAR 436-035-0013, workers may receive permanent partial disability benefits only when the disability was caused by a compensable condition. Also, apportionment is not precluded unless the compensable injury worsened or rendered symptomatic a noncompensable condition.

(Filing Date: 06-13-2012)

State v. Cordova

Criminal Procedure: General Order 66.1.2 of the Marion County Sheriff's Office, allowing for the search of all closed containers that could contain valuables during an inventory search following arrest, is overly broad and therefore a violation of Article 1, section 9 of the Oregon State Constitution.

(Filing Date: 06-13-2012)

State v. Johnson

Criminal Law: Under ORS 166.382(1)(a)(A), the meaning of the term "bomb" requires that a device be capable of detonating under certain conditions. The statute does not suggest that a device is not a "bomb" just because the device is temporarily disabled.

(Filing Date: 06-13-2012)

State v. Moresco

Criminal Law: A violation of ORS 162.385, the crime of giving false information to a police officer, requires a showing that the person knowingly gives a fictitious name, address or date of birth to a police officer, and the officer asked for the information for the purpose of arresting the person on a warrant.

(Filing Date: 06-13-2012)

Lamka v. KeyBank

Civil Procedure: Under ORCP 23A and ORCP 21A, a plaintiff may amend a pleading once as matter of right before a responsive pleading is served, even if the trial court has dismissed the complaint.

(Filing Date: 06-20-2012)

Mark Latham Excavation, Inc. v. Deschutes County

Land Use: When a county makes a decision concerning a Goal 5 land plan/use, the reasons it relies upon in garnering that decision must have existed at the time the original regulation was adopted. If the local government never contemplated a particular act, then the reasons do not exist

(Filing Date: 06-20-2012)

State v. Arreola

Evidence: Where curative instruction is insufficient to cure prejudicial effect on the jury, denial of mistrial is improper.

(Filing Date: 06-20-2012)

State v. Holdorf

Criminal Law: In cases involving “reasonable suspicion” there is no bright line rule, and courts must employ an individualized, objective test based on the facts.

(Filing Date: 06-20-2012)

State v. Hoover

Criminal Law: In the absence of a statutory definition for “penetration” in the crime of sexual penetration, the act merely requires proof that the victim's vagina, rather than external genitalia, was penetrated, however slightly.

(Filing Date: 06-20-2012)

State v. Powell

Criminal Procedure: Multiple second-degree robbery verdicts merge into a single count per victim; however, second-degree robbery verdicts do not merge with first-degree robbery verdicts.

(Filing Date: 06-20-2012)

State v. Reynolds

Criminal Law: In an assault in which the aiding person is present, an assisting assailant may not be charged with assault in the third-degree as an accomplice.

(Filing Date: 06-20-2012)

Agrons v. Strong

Civil Procedure: The trial court may permit a Plaintiff to amend his complaint under ORCP 23 B if the trial court in its determination decides that the presentation of the merits of the action will not be subserved by the amendment, nor will the admission of such evidence prejudice the adverse party in maintaining an action or defense on the merits.

(Filing Date: 06-27-2012)

Amalgamated Transit Union, Division 757 v. Tri-Met

Administrative Law: A public employer commits a per se unfair labor practice if it institutes a unilateral change to the status quo involving a CSI policy, but the challenger bears the burden to prove the status quo. Substantial evidence exists when a reasonable person could come to that conclusion based on the whole record. A board is authorized to take such affirmative action as necessary to remedy unfair labor practice violations. A board's decision to rescind a disciplinary action that was the result of binding arbitration based on unfair labor practice is not tantamount to rescinding the arbitration award.

(Filing Date: 06-27-2012)

City of Eugene v. McDermed

Workers Compensation: Compensation for an injury is correctly awarded to a police officer injured while getting coffee if the officer was on duty at the time of the injury, and thus was within the scope of her employment.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S. A.

Juvenile Law: Under ORS 419B.476(5), a juvenile court is required to make a permanency plan determination after a permanency hearing, even where the hearing is combined with a guardianship hearing.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S.N.

Family Law: It is not error for a juvenile court to change a permanency plan, despite progress by a parent, when the environment that the child would be placed in would not be conducive to the child's needs.

(Filing Date: 06-27-2012)

Legacy Health Systems v. Noble

Workers Compensation: An injury arises out of employment when the risk is connected with the nature of the work or the work environment.

(Filing Date: 06-27-2012)

State v. Cruz-Renteria

Criminal Procedure: Marion County Sheriff’s Office Policy 3315 requires that “when taking custody of a prisoner’s property for temporary storage,” deputies are required to “open closed containers designed to typically carry identification, cash, valuables, medications or contraband,” and not open those that merely could contain such items.

(Filing Date: 06-27-2012)

State v. Danford

Criminal Procedure: Under ORS 135.747, a delay in prosecution, not brought on or consented to by the defendant, shall be dismissed if it is an unreasonable length of time. A 41-month delay substantially exceeds a reasonable period of time.

(Filing Date: 06-27-2012)

State v. Dennis

Criminal Law: An officer may not extend the duration of a stop by inquiring into unrelated criminal matters as an alternative to going forward with the processing of the current infraction. Any evidence that is obtained by inquiring into unrelated criminal matters is admissible only if it is obtained during an "unavoidable lull" in the initial stop.

(Filing Date: 06-27-2012)

State v. Hollywood

Evidence: Testimony of one witness regarding the credibility of another witness is impermissible. Additionally, the Court suggests that the trial judge should summarily cut off questions that elicit testimony on the credibility of a witness so that a jury is not contaminated by it.

(Filing Date: 06-27-2012)

State v. Ibarra-Ruiz

Evidence: When a party makes an objection, his explantion of his position must be specific enough to give enough clarity to the court to identify its alleged error and to allow it to consider and correct the error immediatly, if needed.

(Filing Date: 06-27-2012)

State v. Mast

Constitutional Law: Under Article I, section 9, a private office constitutes a protected privacy interest which requires a warrant in order to search. The administrative search exception does not give an officer the authority to "forcibly enter" said private office or premises.

(Filing Date: 06-27-2012)

State v. Montoya-Franco

Evidence: Statements translated by interpreters are admissible under the residual hearsay rule if the interpreters are shown to be qualified to translate.

(Filing Date: 06-27-2012)

State v. Sanchez-Jacobo

Criminal Law: It was not improper "vouching" for a witness's credibility when she testified that part of her plea bargain included coming to court and telling the truth, and a prosecutor's misstatement of law during closing argument was not plain error, nor was it preserved on appeal.

(Filing Date: 06-27-2012)

State v. Vanornum

Appellate Procedure: An objection to instructions given by the trial judge must adequately identify the asserted error to the trial court so “the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” If the objection is too “generalized,” it will not be preserved for review on appeal.

(Filing Date: 06-27-2012)

Worthington v. Estate of Milton E. Davis

Civil Procedure: Under ORCP 23C, the decedent and the representatives of decedent's estate are entirely different parties. Choosing the incorrect party constitutes misidentification and an amended complaint will only relate back if it satisfies the requirements of ORCP 23C.

(Filing Date: 06-27-2012)

( 40 summaries )

July

Brown v. City of Medford

Constitutional Law: Under the doctrine of unconstitutional conditions, the government need only impose an unconstitutional condition rather than actual invasion of the property, for the government to have violated a person's constitutional rights. A nexus exists when "the exaction substantially advances the same interests that the city authorities asserted would allow them to deny the permit altogether."

(Filing Date: 07-05-2012)

Dept. of Human Services v. L. G.

Juvenile Law: A juvenile court only has jurisdiction over a child as long as the bases for the jurisdiction are currently present.

(Filing Date: 07-05-2012)

Dept. of Human Services v. T.R.

Juvenile Law: Changing a permanency plan from reunification to adoption requires a showing that a parent has not made sufficient progress in spite of DHS's reasonable efforts to provide the child a safe home.

(Filing Date: 07-05-2012)

State v. Edwards

Criminal Procedure: ORS 164.415(1) and its three subsections (a)-(c) are alternative theories that define a single crime. Therefore, it is improper to charge a person with multiple counts stemming from a single incident that simultaneously satisfy multiple subsections of ORS 164.415(1).

(Filing Date: 07-05-2012)

State v. Fauce

Constitutional Law: A due process violation exists when the state fails to preserve evidence that is known to be favorable to the defendant and hard for the defendant to produce otherwise. However, if the evidence is only known to be “potentially useful” and it is speculative whether the evidence is favorable, a defendant bears the burden to prove that the state’s failure to preserve such evidence was in bad faith.

(Filing Date: 07-05-2012)

State v. Hauskins

Appellate Procedure: Under ORS 136.425, a confession without corroboration is insufficient to warrant a conviction. Secondly, the imposition of a punitive sanction for contempt is analogous enough to a criminal conviction that it carries a similar collateral consequence of stigma that will not be rendered moot because the sentenced incarceration was completed.

(Filing Date: 07-05-2012)

State v. Petersen

Criminal Procedure: UTCR 4.010 requires that all pretrial motions that are subject to an omnibus hearing be filed at least 21 days before trial.

(Filing Date: 07-05-2012)

State v. Spainhower

Criminal Procedure: ORS 33.096 requires a court to impose sanctions for contempt at or before the defendant’s trial in which the contempt was held unless there is an overriding interest for delay.

(Filing Date: 07-05-2012)

State v. Wan

Criminal Law: Officers that viewed a woman crying in the fetal position, inside of an apartment, after an argument, had sufficient evidence for the application of the emergency aid exception to the warrant requirement. A jury instruction, regarding the right to self-defense during an arrest involving unlawful force may be utilized, when the defendant believed that the force being used exceeded the force reasonably necessary to make the arrest.

(Filing Date: 07-05-2012)

Evergreen Pacific, Inc. v. Cedar Brook Way, LLC

Property Law: A contractor forfeits his right to a construction lien when a contractor secures the debt through a mortgage or trust deed.

(Filing Date: 07-11-2012)

Poppa v. Laird

Appellate Procedure: The appellant is required to provide the appellate court with a sufficient appellate record to decide the issues on appeal. The appellate court will not decide issues that were not preserved as an error in the court below.

(Filing Date: 07-11-2012)

S.M.H. v. Gerald Wayne Anderson

Family Abuse Prevention Act: Isolated contact without overt threats or an effort to be present in the same state as a petitioner is not sufficient to qualify as an immanent or credible threat to the physical safety of a person.

(Filing Date: 07-11-2012)

Sjomeling v. Lasser

Appellate Procedure: Under ORS 19.415(3), unless the Court of Appeals uses its discretion in reviewing an equitable matter de novo, the standard of review for a trial court's determination regarding the best interests of a child is abuse of discretion.

(Filing Date: 07-11-2012)

State v. Bertsch

Evidence: A person's proximity to criminal activity does not give rise to a reasonable suspicion that the person is involved in the criminal activity. Also, evidence collected during an unlawfully extended traffic stop, even after consent from the vehicle's owner, should be suppressed.

(Filing Date: 07-11-2012)

State v. Gonzales-Sanchez

Criminal Procedure: A six-year delay in prosecuting a DUII charge did not violate the defendant's right to a speedy trial because the delay was primarily caused by the defendant by failing to fulfill his obligations under the diversion agreement he entered into with the court.

(Filing Date: 07-11-2012)

State v. Goodenow

Sentencing: Pursuant to ORS 131.550 and ORS 131.604, a court's order that a defendant forfeit the entirety of her lottery ticket winnings, which were acquired in a fraudulent manner, does not constitute a violation of the Excessive Fines Clause of the 8th Amendment.

(Filing Date: 07-11-2012)

State v. Morfin-Estrada

Criminal Law: Reasonable suspicion must be based on the totality of the circumstances, and includes an officer’s subjective belief that a person is or was committing a crime, and that the belief is objectively reasonable.

(Filing Date: 07-11-2012)

State v. Morgan

Evidence: In a DUII case involving a prescribed dose of medication, defense counsel may impeach the officer under OEC 706 as to the authority of the NHTSA manual which says that FSTs are not reliable to assess the impairment of someone who has taken that medication.

(Filing Date: 07-11-2012)

State v. Worthington

Criminal Law: Under ORS 163.200(1)(a), the material part of the charge is the failure to provide necessary and adequate medical care, not whether the actions led to death or another result. For a motion in arrest of judgment, the grounds for a challenge must be based on the face of the accusatory instrument without any inclusion of extrinsic facts.

(Filing Date: 07-11-2012)

Dept. of Human Services v. K. M. P.

Juvenile Law: A juvenile court may have abused its discretion in terminating parental rights when the parent has missed a hearing due to an excusable mistake and has shown a good faith effort to appear.

(Filing Date: 07-18-2012)

Niday v. GMAC Mortgage, LLC

Property Law: The beneficiary of a trust deed is the party to whom the obligation is owed. Under ORS 86.735 any assignment of a beneficial interest in a trust deed must be recorded in the county mortgage records.

(Filing Date: 07-18-2012)

State v. Birchard

Criminal Procedure: A trial court commits plain error when it refuses to merge two guilty verdicts for resisting arrest from a single offense into a single conviction based on the efforts of two officers.

(Filing Date: 07-18-2012)

State v. Graham

Criminal Law: A release agreement is sufficient evidence to prove knowledge of all trial and required court appearances. Also, when a defendant files a motion for judgment of acquittal due to insufficient evidence he must state the specific theory on which the proof is insufficient.

(Filing Date: 07-18-2012)

State v. Harper

Criminal Law: To be reviewable, any challenge to a jury instruction must be preserved at trial. When there is a single victim for the two events, convictions for stealing property and then selling that property must be merged as a single conviction.

(Filing Date: 07-18-2012)

State v. Hites-Clabaugh

Evidence: First, timeliness of one’s disclosure of the need to elicit testimony from an expert witness about particular subject matter is different from timeliness of one’s intention to call an expert witness. The latter must comply with ORS 135.865. Second, ORS 418.747(1),(3), and (4) indicate that “all law enforcement personnel in a county shall conduct child abuse investigations pursuant to the protocols developed by the county’s multidisciplinary team.” Third, expert testimony about child sexual abuse that a layperson usually is unfamiliar with is admissible.

(Filing Date: 07-18-2012)

State v. McCarthy

Evidence: A witness, expert or otherwise, may not give an opinion on the credibility of another witness, or whether he believes a witness is telling the truth. The assessment of credibility is for the trier of fact only.

(Filing Date: 07-18-2012)

State v. O'Hara

Criminal Law: To satisfy the element of forcible compulsion, the trier of fact may consider circumstances known to the defendant that relate to whether the victim was in fact compelled.

(Filing Date: 07-18-2012)

California Casualty Indemnity Exchange v. Federated Mutual Ins. Co.

Insurance Law: Under ORS 742.534, the legislature's intent was to provide a mandatory arbitration remedy in regards to legal liability and the amount of PIP reimbursement, and therefore these two issues may not be litigated.

(Filing Date: 07-25-2012)

Clackamas Grocery Outlet Warehouse v. OLCC

Administrative Law: A retail location which sells alcoholic beverages for off-premises consumption may only store those items that it intends to sell at the same location.

(Filing Date: 07-25-2012)

Dawson v. Employment Dept.

Employment Law: Employment benefits were rightfully denied when claimant was wantonly negligent, indifferent to consequences, and should have been aware that his decision to drive under the influence of intoxicants would violate an employer's expectations of an employee.

(Filing Date: 07-25-2012)

Department of Human Services v. T.C.A.

Family Law: Overturning a termination of parental rights does not, by implication, mean that DHS must pursue re-unification of parent and child.

(Filing Date: 07-25-2012)

Dept. of Human Services v. M. R.

Civil Procedure: The denial of a motion to unseal records by the trial court is not an error when the records were never sealed to begin with.

(Filing Date: 07-25-2012)

Fay and Fay

Family Law: Without a showing of evidence, the division of property is at the discretion of the trial court. Under ORCP 68 C(4)(b) and ORCP 10, 3 days shall be added to the objection period if the notice is served by mail. Thus, an objection being served by mail is allotted 17 days rather than 14.

(Filing Date: 07-25-2012)

Murphy v. All-State

Civil Procedure: The question of whether a claim for fraud against an insurance company is time barred pursuant to ORS 12.110(1), or whether the plaintiff justifiably relied on the statements, or whether there was a special relationship, is a fact intensive inquiry that ought to be made by a jury.

(Filing Date: 07-25-2012)

State v. Doser

Criminal Procedure: When determining whether a defendant invoked his right to remain silent, courts must view the statement using a totality of the circumstances test from a reasonable officer's perspective.

(Filing Date: 07-25-2012)

State v. Kolb

Criminal Procedure: An officers suspicion that a suspect is under the influence of drugs, and that the suspect is in possession of the instrumentalities necessary to ingest the drugs does not by itself, provide the officer with reasonable suspicion to stop the suspect.

(Filing Date: 07-25-2012)

State v. McDaniel

Criminal Law: Under ORS 161,055(1) the defense of entrapment has two elements that the state must disprove beyond a reasonable doubt: that the defendant did not intend to perform the proscribed conduct, and that the defendant would not have otherwise engaged in the proscribed conduct.

(Filing Date: 07-25-2012)

State v. Oneill

Criminal Procedure: Under the community caretaking exception to the warrant requirement, police may impound vehicles that impede traffic, jeopardize public safety, and are subject to vandalism or theft.

(Filing Date: 07-25-2012)

State v. Toland

Criminal Law: A trial court may not preclude a presented defense when the defendant offers evidence to support that defense.

(Filing Date: 07-25-2012)

State v. Vanlieu

Criminal Procedure: When a trial court fails to use its statutory discretion to extend a probationary period, it cannot revoke probation based on conduct which occurred after the original probationary period was set to expire.

(Filing Date: 07-25-2012)

( 54 summaries )

August

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)

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)

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)

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)

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)

( 30 summaries )

September

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)

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)

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)

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)

( 36 summaries )

October

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)

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)

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)

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)

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)

( 29 summaries )

November

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)

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)

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)

( 46 summaries )

December

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)

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)

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)

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)

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)