Willamette Law Online

Oregon Court of Appeals

( 36 summaries )

Opinions Filed in February 2013

Brownstone Homes Condominium Ass'n v. Brownstone Forest Heights, LCC

Insurance Law: If a plaintiff engages in a settlement agreement with a defendant that includes a nonexecution covenant releasing the defendant, any assignment of rights by the defendant for claims against defendant's insurer will be subject to the Stubblefield Rule.

(Filing Date: 02-27-2013)

Doughton v. Morrow

Civil Procedure: Under ORS 12.110, the statute of limitations does not begin to run at the time of discovery of facts that serve only as a trigger a duty to inquire about whether an injury has occurred. For a claim to relate back to the date of the original complaint, the original complaint must put the reasonable defendant on notice of such an additional basis of liability.

(Filing Date: 02-27-2013)

RJ Enterprises LLC of Oregon v. DCBS

Workers Compensation: A person subject to the employer’s direction, control, and who provides services for remuneration is a subject worker within the meaning of workers' compensation law.

(Filing Date: 02-27-2013)

State v. Ehrensing

Criminal Law: The evidence return provisions of the Oregon Revised Statutes require that the person the evidence is returned to be lawfully entitled to possess the evidence. Because possessing marijuana is illegal under federal law, the statute does not require it be returned to a defendant.

(Filing Date: 02-27-2013)

State v. McGee

Criminal Procedure: When applying ORS 135.747 in a motion to dismiss for lack of a speedy trial, the Court uses a two-step approach. First, the Court determines the total amount of delay and subtracts any delay caused by Defendant's application or consent. Second, the Court determines whether the remaining delay is reasonable.

(Filing Date: 02-27-2013)

State v. Pinard

Appellate Procedure: Where the defendant does not raise a merger argument at the trial court, he must establish plain error that is apparent on the record and it must be such that the "legal point is obvious, not reasonably in dispute."

(Filing Date: 02-27-2013)

State v. Stookey

Criminal Procedure: Violating ORS 815.020(1)(a) requires a vehicle to be so sufficiently unsafe that its occupants face a danger of probable harm or loss. A horizontal crack in defendant's windshield did not "endanger any person" under ORS 815.020 and therefore the officer's objective belief was not reasonable.

(Filing Date: 02-27-2013)

Tracy v. Nooth

Appellate Procedure: A court may allow reconsideration to clarify its disposition.

(Filing Date: 02-27-2013)

Dept. of Human Services v. M.E.

Juvenile Law: Under ORS 419B.100(1)(c), the juvenile court has jurisdiction when conditions and circumstances are such that the welfare of the children is endangered. The trial court's decision is reviewed de novo, and is measured by the totality of the circumstances.

(Filing Date: 02-21-2013)

Herring v. American Medical Response Northwest

Remedies: "Vulnerable person" under ORS 124.100 includes a temporary incapacitated person. ORS 124.100(2)(b) unambiguously requires the court to triple noneconomic damages resulting from physical abuse.

(Filing Date: 02-21-2013)

Hostetter v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: Under OAR 253-11-004(3), the maximum term of incarceration that may be imposed for any single violation is 90 days for a technical violation, and 180 days for conduct constituting a crime.

(Filing Date: 02-21-2013)

Singh v. McLaughlin

Civil Procedure: A directed verdict by the trial court will be reversed and remanded by the Court of Appeals if the Court find that the plaintiff presented enough evidence for his claims to be evaluated by a jury.

(Filing Date: 02-21-2013)

State v. Pugh

Criminal Law: A person duplicates a sexually explicit image for purposes of ORS 163.684 when he or she downloads it on their personal computer. In addition, venue is proper in the county in which the download took place.

(Filing Date: 02-21-2013)

Byers v. Premo

Post-Conviction Relief: Petitioner must prove by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result. While petitioner satisfied the first prong when his counsel failed to tell him that by stipulating to facts at trial, he could face consecutive sentences, he failed to prove that but for counsel's advice, he would not have agreed to a stipulated facts trial.

(Filing Date: 02-13-2013)

Endres v. DMV

Administrative Law: On judicial review of a final administrative order, the Court of Appeals reviews whether the order is supported by substantial evidence in the record.

(Filing Date: 02-13-2013)

Hughes v. City of Portland

Tort Law: Under ORS 30.275, the tort claims notice requirement, reimbursement to an insurance company counts as partial payment towards plaintiff's claim.

(Filing Date: 02-13-2013)

Malpass and Malpass

Family Law: The proper calculation of the marital portion of husband's pension should use a fraction of the entire actual pension, not a hypothetical pension, and adjust the wife's survivor benefits.

(Filing Date: 02-13-2013)

Papworth v. DLCD

Land Use: Under Section 6(6)(f) of Measure 49, a landowner is not allowed to build more home sites on her property if, at the owner's acquisition date, the zoning ordinance did not allow for the establishment of more dwellings even if a "sunset provision" was present in the zoning ordinance.

(Filing Date: 02-13-2013)

State v. Cluver

Criminal Procedure: Criminal defendants are entitled to have lesser-included offenses included in jury instructions despite the likelihood of being convicted of the greater offense.

(Filing Date: 02-13-2013)

State v. Gilbert

Criminal Procedure: For a jury trial to be properly waived, the defendant must act knowingly and voluntarily and mere reference to such a waiver in the record is not sufficient.

(Filing Date: 02-13-2013)

State v. Pirtle

Criminal Procedure: To fall within the automobile exception to the warrant requirement, the automobile must be mobile at the time the police discover that it was connected with a crime.

(Filing Date: 02-13-2013)

State v. Preuitt

Evidence: An expert witness may not testify as to the credibility of another witness. An expert may testify to matters that would assist a jury in reaching a conclusion, but may not include her own conclusions as to the witness' truthfulness.

(Filing Date: 02-13-2013)

Tilton v. Lee

Attorney Fees: Under ORS 116.103, reduction of a requested attorney fee award by a trial court does not constitute an objection in an estate proceeding.

(Filing Date: 02-13-2013)

Underwood and Mallory

Appellate Procedure: An error will not be reversed on appeal when the party alleging the error was instrumental in bringing it about.

(Filing Date: 02-13-2013)

Grabhorn Inc v. Washington County

Land Use: Courts may not decide land use decisions unless they fall into the exceptions listed in ORS 197.015(b). ORS 197.825 gives Land Use Board of Appeals exclusive jurisdiction over land use decisions.

(Filing Date: 02-12-2013)

Cavitt v. Coursey

Post-Conviction Relief: Under ORS 138.580, "documentary evidence" is satisfied by an affidavit in support of a Petitioner's claim for post-conviction, and is enough evidence to support a claim for relief in Petitioner's claim for post-conviction relief.

(Filing Date: 02-06-2013)

Cron v. Zimmer

Contract Law: An agreement is not fully integrated, and the parol evidence rule does not bar evidence of prior oral agreements, if the prior oral agreement is consistent with the subsequent writing and the prior oral agreement is the kind of agreement that would naturally be made separately from the writing.

(Filing Date: 02-06-2013)

Deberry v. Summers

Civil Procedure: Trial court did not err in granting summary judgment in favor of defendant-attorney after he filed a motion under ORCP 47 E because the witness plaintiff planned to call had no personal knowledge of the events; therefore no genuine issue of material fact existed, and summary judgment was proper.

(Filing Date: 02-06-2013)

Dept. of Human Services v. N. P.

Juvenile Law: A juvenile court may not continue a wardship if the jurisdictional facts on which it is based have ceased to exist.

(Filing Date: 02-06-2013)

Gearhart v. Public Utilities Commission of Oregon

Administrative Law: Unless a court gives direction to the contrary, an agency has discretion to act within its authority, as granted by the legislature.

(Filing Date: 02-06-2013)

State v. Aitken

Criminal Law: Under ORS 161.067(3), criminal violations involving the same conduct against the same victim will merge unless the violations can be separated by a sufficient pause in the defendant's criminal conduct that would allow an opportunity to renounce the criminal intent.

(Filing Date: 02-06-2013)

State v. Cam

Criminal Law: Posting signs identifying one’s property as “private” is insufficient in manifesting a clear intent to exclude casual visitors and therefore evidence obtained from police observations may be admitted.

(Filing Date: 02-06-2013)

State v. Molette

Criminal Procedure: To establish plain error, a defendant must establish that a point of law is obvious, not merely that a point of law is reasonably disputed.

(Filing Date: 02-06-2013)

State v. Roberts

Post-Conviction Relief: A plea of no contest to a municipal violation constitutes a conviction for purposes of expunction under ORS 137.225(5)(e)

(Filing Date: 02-06-2013)

State v. Stephens

Evidence: Evidence of uncharged incidents of sexual conduct between the victim and the defendant are admissible under OEC 404(4).

(Filing Date: 02-06-2013)

Topaz v. Board of Examiners for Engineering

Civil Law: Signing a complaint as "P.E." for professional engineer, when one lacks an active license, in a complaint regarding a public body's sewer rehabilitation plans is enough to constitute a violation of Oregon's professional engineering statute, because there is no mens rea requirement in ORS 672.045.

(Filing Date: 02-06-2013)