Willamette Law Online

Oregon Court of Appeals

( 34 summaries )

Opinions Filed in April 2013

Dept. of Human Services v. J. R. L

Juvenile Law: A juvenile court cannot rely on facts extrinsic to the jurisdictional judgment in determining the basis for continuing jurisdiction.

(Filing Date: 04-24-2013)

Dow and Dow

Family Law: In modifying a stipulated judgment of dissolution, a provision that does not contravene public policy or the law does not limit a court's ability to modify it. Additionally, a change of circumstances initiating modification can be the product of either party.

(Filing Date: 04-24-2013)

Herald and Steadman

Family Law: Under ORS 107.105(1)(f), division of marital property at divorce must be just and proper manner in all the circumstances.

(Filing Date: 04-24-2013)

McPhillips Farm, Inc. v. Yamhill County

Land Use: A Land Use Compatibility Statement is not a "land use decision" when it permits modification of a feature that is encompassed by a previous land use decision. Accordingly, the Land Use Board of Appeals does not have jurisdiction to review the Land Use Compatibility Statement.

(Filing Date: 04-24-2013)

Miller v. Jones

Property Law: An easement will be found when the agreement between the parties shows the intent to do so. An easement will be appurtenant so long as there is no contrary intent and the dominant estate is identified.

(Filing Date: 04-24-2013)

State v. Bertha

Criminal Procedure: Mere acquiescence to an officer's command does not amount to consent to search a home without a warrant.

(Filing Date: 04-24-2013)

State v. Clark

Evidence: When a mental state of recklessness is required, a jury instruction laying out elements of reasonable driving is not irrelevant to the jury in determining whether a defendant disregarded reasonable risks of driving.

(Filing Date: 04-24-2013)

State v. Erb

Criminal Procedure: Under Article I, Section 11, of the Oregon Constitution, a waiver of the right to counsel must be voluntarily and intelligently made.

(Filing Date: 04-24-2013)

State v. Hernandez

Evidence: The State need only present sufficient evidence from which a rational trier of fact could draw an inference that a charged crime had occurred.

(Filing Date: 04-24-2013)

State v. Petterson

Criminal Procedure: After the appearance of new information which vitiates probable cause, an investigation must cease.

(Filing Date: 04-24-2013)

State v. Saechao

Sentencing: Consecutive minimum sentences are plain error which are properly remanded for resentencing if there is no indication that the trial court will necessarily keep intact the total aggregate sentence.

(Filing Date: 04-24-2013)

AGAT Transport Inc. v. Employment Department

Tax Law: In assessing unemployment tax, the Employment Department looks to ORS 670.600 to determine if a person qualifies as an independent contractor.

(Filing Date: 04-17-2013)

Department of Human Services v. K. H.

Juvenile Law: No due process violation results when a court limits submission of evidence to an offer of proof, and then decides based on that evidence that a further evidentiary hearing is unnecessary.

(Filing Date: 04-17-2013)

Dept. of Human Services v. M. H.

Family Law: Under ORS 109.741(3), personal jurisdiction over a child is not required for a court to have jurisdiction over a matter concerning the custody of the child, including dependency jurisdiction. Under ORS 419B.100, the totality of evidence can be used to grant subject matter jurisdiction, even if every element is not met.

(Filing Date: 04-17-2013)

Hamilton . SAIF Corportaion

Workers Compensation: An employer's requirement that an employee stand on a hard floor does not significantly increase the risk of injury, and, therefore, by itself, cannot prove a causal nexus between employment conditions and injuries resulting from falling down.

(Filing Date: 04-17-2013)

Krisor v. Lake County Fair Board

Employment Law: A court may apply a transactional approach to determine claim preclusion and separate related claims when they are not connected by the same factual transaction.

(Filing Date: 04-17-2013)

McKinnon v. McKinnon

Family Law: Minor changes in monthly income does not constitute a substantial change in circumstances for the purpose of assessing spousal support obligations.

(Filing Date: 04-17-2013)

Silberman-Doney v. Gargan

Civil Procedure: Under ORCP 64B(1), to prevail on a motion for new trial due to an irregularity in the court's proceedings, the proponent must show the court deviated from an established rule or practice.

(Filing Date: 04-17-2013)

State v. Cam

Appellate Procedure: Questions of fact not raised at the trial court level will, on reconsideration, be viewed as consistent with the trial court's ultimate conclusion.

(Filing Date: 04-17-2013)

State v. Collins

Criminal Procedure: Courts now should utilize the Lawson/James test for determining the admissibility of in court and out of court identifications.

(Filing Date: 04-17-2013)

State v. Hooper

Criminal Procedure: A trial court's statement to counsel that there is, "no issue here as to venue," in the presence of the jury is not an abuse of discretion where the jury is otherwise instructed that venue is a material element.

(Filing Date: 04-17-2013)

State v. Mather

Criminal Law: Under ORS 162.205, a person is considered to be released from a “correctional facility” when the release agreement from the pretrial services office is signed.

(Filing Date: 04-17-2013)

State v. McClure

Criminal Procedure: Taking a person into custody for a parole violation constitutes an "arrest" for the purposes of the resisting arrest statute, ORS 162.315.

(Filing Date: 04-17-2013)

State v. Middleton

Evidence: The jury is presumed to have followed the Court's instructions to disregard testimony, absent a high probability that they would be unable to do so.

(Filing Date: 04-17-2013)

State v. Montgomery

Appellate Procedure: An argument on appeal that is qualitatively different from the one presented at trial is not preserved for review. A denial for a motion of acquittal can be based on circumstantial evidence that allows a rational trier of fact to find the elements of the crime beyond a reasonable doubt.

(Filing Date: 04-17-2013)

Whalen v. American Medical Response Northwest, Inc.

Civil Procedure: Under ORCP 47 E, expert testimony referred to in an affidavit may create a genuine dispute of fact, even when that information is very limited. Under ORS 12.110, the "discovery rule" applies to battery charges, beginning the two year statute of limitations from when the battery is reasonably discoverable.

(Filing Date: 04-17-2013)

James v. Clackamas County

Contract Law: A contract right to payment from a specified fund ceases to exist when that right is contingent upon money contained in that fund and that money is exhausted.

(Filing Date: 04-11-2013)

Greer v. Ace Hardware Corp.

Tort Law: In a claim against asbestos manufacturers, a plaintiff must proffer evidence showing both the specific products used and specific instances of their use.

(Filing Date: 04-10-2013)

Hatley v. Umatilla County

Land Use: An ordinance must specifically seek to protect Goal 5 resources for it to be subject to the state's regulations regarding amending land-use plans. Also, when an ordinance is rejected by LUBA and a similar, but not identical one, is enacted by the local government, one challenging the ordinance has not waived any arguments or objections to the ordinance because the new challenge is a separate proceeding and not subject to waiver or preclusion.

(Filing Date: 04-03-2013)

Krisor v. Henry

Standing: A case becomes moot when substantive remedy sought would no longer have a practical effect on the injured's rights.

(Filing Date: 04-03-2013)

Re. v. PERS

Administrative Law: The Court of Appeals will not directly or indirectly overrule Supreme Court Case Law.

(Filing Date: 04-03-2013)

State v. Lopez-Cruz

Criminal Law: An expert’s diagnosis of “abuse”, in the absence of physical evidence to corroborate that diagnosis, amounts to an impermissible comment on the credibility of the patient.

(Filing Date: 04-03-2013)

State v. Reed

Criminal Law: Under ORS 161.067, the antimerger statute applies if the criminal violations were (1) completed before the next violation began, and (2) there was a significant pause between each attempt, affording the defendant the opportunity to renounce his criminal intent.

(Filing Date: 04-03-2013)

State v. Tovar

Criminal Procedure: Statements made by a defendant after being unlawfully seized must be suppressed.

(Filing Date: 04-03-2013)