Willamette Law Online

Oregon Court of Appeals

2013

( 27 summaries )

January

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

Juvenile Law: A juvenile court has jurisdiction in a case on an additional allegation if there is sufficient evidence, from which a reasonable fact-finder could conclude by a preponderance of the evidence, either that a current risk of harm to the child exists from the additional allegation standing alone, or that the additional allegation contributes to or enhances the risk associated with the already established bases of jurisdiction.

(Filing Date: 01-09-2013)

OR-OSHA v. CBI Services, Inc.

Employment Law: To determine whether an employer is guilty of a "serious violation" under ORS 654.086(2) by means of constructive knowledge and its employee's action, the relevant inquiry is not whether an employer could have known, with reasonable diligence, of the violation, but rather should the employer have known of the violation.

(Filing Date: 01-09-2013)

PIH Beaverton, LLC v. Super One, Inc.

Contract Law: Under ORS 12.135(3), an improvement to real property is considered substantially complete when the contractee has accepted the completion in writing or when a contractee has accepted construction that actually has been completed.

(Filing Date: 01-09-2013)

State v. Johnson

Appellate Procedure: Under ORS 138.690, a criminal defendant lacks the right to appeal a trial court's order dismissing his motion requesting DNA evidence.

(Filing Date: 01-09-2013)

State v. Marshall

Criminal Procedure: Voluntary consent to a search will not be found where a reasonable person would believe that a promise of immunity from prosecution would result from their consent.

(Filing Date: 01-09-2013)

State v. Murr

Criminal Procedure: Under ORS 135.747, “period of time” to bring a defendant to trial begins when the information is filed with the court and not with the service of citations.

(Filing Date: 01-09-2013)

City of Harrisburg v. Leigh

Land Use: In a judgment award for fixtures placed by a trespassing city onto an owner's property to the owner, when the city condemns the property, the value of the improvements and fixtures must be included in the fair market value assessment of the condemnation proceeding.

(Filing Date: 01-16-2013)

Holbrook v. Blacketter

Post-Conviction Relief: Under OEC 401, testimony of trial counsel is not irrelevant merely because the Supreme Court reversed a decision of the Bar trial panel.

(Filing Date: 01-16-2013)

State v. Beck

Criminal Law: A conviction under “criminally negligent homicide” encompasses the former crime of “negligent homicide” and cannot be set aside regardless of satisfaction of the other requirements for setting aside previous convictions.

(Filing Date: 01-16-2013)

State v. Maciel

Criminal Procedure: An officer has reasonable suspicion to stop a person when the officer subjectively believes the person has committed a crime and that belief is objectively reasonable in the totality of the circumstances. Reasonable suspicion must be based on specific articulable facts of the crime suspected to be objectively reasonable.

(Filing Date: 01-16-2013)

State v. Miller

Criminal Law: Judicial review on whether there was probable cause to issue a warrant is limited to a determination of whether the issuing judge could have reasonably concluded the affidavit established probable cause, given the facts and reasonable inferences.

(Filing Date: 01-16-2013)

State v. Weiner

Criminal Procedure: Under the unavoidable lull rule, it is not an unconstitutional seizure for an officer to make inquiries unrelated to a traffic stop while that officer is waiting for the results of a records check, so long as those inquiries do not unlawfully expand the stop.

(Filing Date: 01-16-2013)

Thomas v. Dept. of Land Conservation and Development

Property Law: Private real property that is owned by the same owner is "contiguous" for purposes of Measure 49, regardless of whether or not the lots designated for proposed development are connected by a common border. If each lot is connected by property owned by the same person, it is contiguous property.

(Filing Date: 01-16-2013)

Three Rivers Education Association v. Three Rivers School District

Administrative Law: An order fails substantial reason if finding no causal connection between two decisions while also finding one decision to be the impact of the other.

(Filing Date: 01-16-2013)

Tran v. Board of Chiropractic Examiners

Administrative Law: ORS 684.100 authorizes the Board of Chiropractic Examiners to (1) discipline individuals practicing chiropractic without a license, and (2) impose up to $10,000 in civil penalties per violation.

(Filing Date: 01-16-2013)

Walker v. D.M.V.

Administrative Law: Under ORS 813.440(1)(d) "illness" is a condition of the body or mind impeding an officer's attendance at a hearing and exhaustion can constitute "illness" where it caused the belief that he was not well enough to drive to the hearing.

(Filing Date: 01-16-2013)

Campbell v. State

Parole and Post-Prison Supervision: An inmate is not eligible to receive "good time" credit for his first sentence, under ORS 421.120, when he is serving consecutive sentences. Also, a date set for when an inmate is eligible for parole is not a reduction of his sentence.

(Filing Date: 01-30-2013)

Franklin v. Employment Dept.

Employment Law: When a claimant, during a negotiated resolution, has agreed to a stipulated order with her employer in which she agrees to a temporary suspension of her license, misconduct has not occurred as defined by ORS 657.610(4).

(Filing Date: 01-30-2013)

Garner v. Taylor

Family Law: A trial court cannot, on its own motion, set aside a prior judgment of visitation rights absent extraordinary circumstances.

(Filing Date: 01-30-2013)

Ogle v. Nooth

Post-Conviction Relief: Under ORS 138.580, documentation attached to a post-conviction petition are sufficient as long as they verify, corroborate, or substantiate the claims made in the petition that the petitioner aims to prove.

(Filing Date: 01-30-2013)

Ross v. Franke

Post-Conviction Relief: ORS 138.580 requires a petitioner to attach documentary evidence to support allegations in his petition.

(Filing Date: 01-30-2013)

State v. A.J.C.

Criminal Procedure: According to "State v. M.A.D." the determination for what is reasonable under a school-safety search depends on the nature of the safety threat. If the search is determined reasonable, then it is not a violation of a student's rights under Article 1, section 9 of the Oregon Constitution.

(Filing Date: 01-30-2013)

State v. Nelson

Appellate Procedure: A motion for relief from default order from the Circuit Court does not qualify as an appealable order under ORS 138.053.

(Filing Date: 01-30-2013)

State v. Wesley

Criminal Law: The doctrine of transferred intent exists for murder in Oregon despite it not having been codified in the Oregon Revised Statutes. Also, when determining the reliability of an eyewitness identification, it is proper for the Court to apply the test put forth by the Supreme Court in Lawson/James and analyze system and estimator variables.

(Filing Date: 01-30-2013)

Uhl v. Krupsky

Property Law: The statutory requirement under ORS 105.620 requiring an "honest belief of actual ownership" for claims of adverse possession does not apply to parties extinguishing an easement across their land through adverse possession.

(Filing Date: 01-30-2013)

Walker v. Providence Health System Oregon

Workers Compensation: Pursuant to ORS 656.268(5)(d), an employer must respond to a request for claims closure within 10 days, and failure to respond will result in a penalty equal to 25 percent of the benefits the employee is determined to be entitled to.

(Filing Date: 01-30-2013)

Wood Park Terrace Apartments Limited Partnership v. Tri-Vest, LLC

Contract Law: Under Oregon contract law, the statute of limitations for negligence claims begins to accrue at the moment established in the contract.

(Filing Date: 01-30-2013)

( 36 summaries )

February

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)

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)

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)

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)

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)

( 23 summaries )

March

Dept. of Human Services v. A. D.

Juvenile Law: A juvenile court's order of adoption rather than reunification will be upheld where it is established on the record that DHS made a reasonable effort at reunification and that the parents will not be able to make the progress necessary in order for the child to be returned to the home in a reasonable amount of time.

(Filing Date: 03-06-2013)

State v. Painter

Evidence: Admission of evidence that is qualitatively different than the evidence the jury was required to hear on a direct issue of the case causes harmful error.

(Filing Date: 03-06-2013)

State v. Plew

Criminal Procedure: Where a defendant requests counsel when being interrogated about a crime, and is interrogated by the police about a separate crime that is factually, temporally, and territorially similar, counsel must be present for both interrogations.

(Filing Date: 03-06-2013)

State v. White

Appellate Procedure: A defendant's appeal of supplemental judgment is timely when the 30-day appeal period under ORS 138.071(4) does not start running until actual notice of the supplemental judgment being entered has been received by the defendant or his counsel.

(Filing Date: 03-06-2013)

ZRZ Realty Company v. Beneficial Fire and Casualty Insurance

Insurance Law: Pursuant to ORS 742.061 (Recovery of attorney fees in action on policy or contractors bond): Once an insured obtains recovery that exceeds the insurer's tender, the insured is entitled to recover all of its attorney fees incurred in litigating the policy, including coverage issues; the proper standard against which attorney fees are measured is "reasonableness;" the lodestar method of calculating attorney fees is a common practice and is reasonable; and, lastly, unlike the duty to defend, which is a shared obligation that arises independent of completed litigation, liability for attorney fees under ORS 742.061 is a statutory obligation that arises only after the insured prevails at trial.

(Filing Date: 03-06-2013)

Dial Temporary Help Service v. DLF Int'l Seeds

Contract Law: In a breach of contract claim, ambiguity alone does not make summary judgment inappropriate, rather, a triable factual issue stemming from the existence of competing extrinsic evidence does.

(Filing Date: 03-13-2013)

Saldana-Ramirez v. State of Oregon

Criminal Procedure: Defendant's Padilla-based post-conviction claim could not stand because Padilla was decided after he was convicted, and it does not apply retroactively.

(Filing Date: 03-13-2013)

State v. Alexander

Sentencing: An offer by the State to Defendant that it "might" impose an upward durational departure beyond the statutory maximum sentence, without mention of the specific enhancement fact, did not satisfy the notice requirements in ORS 136.765(2).

(Filing Date: 03-13-2013)

State v. Ferry

Appellate Procedure: The Court may not reach an argument on appeal that was not preserved at trial.

(Filing Date: 03-13-2013)

State v. Gerlach

Criminal Law: The antimerger statute does not apply to multiple counts of kidnapping where the defendant continues to substantially interfere with the victim's liberty. The kidnapping continues as long as the seizure of the victim continues.

(Filing Date: 03-13-2013)

Friends of Yamhill County v. Yamhill County

Land Use: A farm-use-related commercial activity is a conditional use, determined by the county on a case-by-case basis, instead of a permitted use under ORS 215.283(1)(n).

(Filing Date: 03-19-2013)

Dept. of Human Services v. F.L.B

Juvenile Law: Termination of mother's parental rights is appropriate under ORS 419B.504 when the state proves by clear and convincing evidence that the mother is unfit to provide her children with a safe home and not likely to be able to provide her children with a safe home within a reasonable time because of her own mental illness and incarceration.

(Filing Date: 03-20-2013)

Dexter Lost Valley Community Assn. v. Lane County

Land Use: ORS 197.830(13)(b) prohibits a state or local government from withdrawing a decision after the date set for filing the record.

(Filing Date: 03-20-2013)

Hale v. Belleque

Criminal Procedure: When an element of a crime depends on the specific crime that a defendant intends to commit, at least 10 of the same jurors must concur on the underlying crime that the defendant intended to commit before the defendant can be convicted.

(Filing Date: 03-20-2013)

State v. Hickman

Evidence: Lawson/James test determines reliability of eyewitness identification evidence in Oregon.

(Filing Date: 03-20-2013)

Dept. of Human Services v. J. F. D.

Juvenile Law: Under ORS 419B.340(1), DHS's reasonable efforts at the dispositional stage must be assessed as to each parent.

(Filing Date: 03-27-2013)

Fostveit v. Poplin

Contract Law: A trial court does not err when it properly weighs the evidence on the record, and find that a party substantially performed on the contract.

(Filing Date: 03-27-2013)

Miller v. City of Portland

Administrative Law: Under the doctrine of exhaustion, for an aggrieved party to exhaust its administrative remedies, an administrative remedy must be available and it must adequately serve the aggrieved party's interests.

(Filing Date: 03-27-2013)

SAIF Corp. v. Satterfield

Workers Compensation: A report issued a year after injury indicating increased functioning is new information under OAR 436-120-0350.

(Filing Date: 03-27-2013)

State v. Engerseth

Sentencing: Pursuant to ORS 136.773(1), a trial court's failure to receive a written waiver for a jury trial does not create a prejudicial error if defendant previously stipulated to the sentencing enhancement.

(Filing Date: 03-27-2013)

State v. Jones

Evidence: Harmless error results when evidence of prior bad acts is admitted but specifically not used in forming the basis of the verdict.

(Filing Date: 03-27-2013)

State v. Pinckney

Criminal Law: "Use" under ORS 166.220(1)(a) includes both physical force and the threat of physical force, and a trial court does not err when it rejects a proposed jury instruction that states that "use" includes only actual force.

(Filing Date: 03-27-2013)

State v. Valle

Evidence: Evidence is admissible as relevant impeachment evidence when it supports an inference that a witness had a personal interest or bias to testify in a particular manner.

(Filing Date: 03-27-2013)

( 34 summaries )

April

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)

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)

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)

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)

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)

( 42 summaries )

May

State v. Hemenway

Civil Procedure: When considering equitable factors to determine whether a vacatur is an appropriate remedy, the factor that a party caused the mootness by their own involuntary action, such as death during an appeal, should weigh in favor of vacatur.

(Filing Date: 02-04-2013)

Wah Chang v. PUC

Administrative Law: Administrative agency retains broad authority under ORS 757.230 in determining the formula for ratemaking based upon the effect of special contracts on private customers and may rely upon investigative reports and filings by agency staff in so doing.

(Filing Date: 04-17-2013)

State v. Ofodrinwa

Criminal Law: Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.

(Filing Date: 04-25-2013)

Davenport v. Premo

Standing: An appeal is moot when an inmate seeks habeas corpus relief, is subsequently transferred to a correctional facility out of state, and cannot demonstrate that the appeal would have a practical effect on his rights.

(Filing Date: 05-01-2013)

N.J.R. v. Kore

Family Abuse Prevention Act: The Court of Appeals lacks jurisdiction to hear an appeal of a dismissal of a FAPA violation when no substantial right has been affected. An SPO may only be given if requested as a remedy in civil action, or when a person complains to a law enforcement officer and that officer gives a citation with specific notice, not sua sponte.

(Filing Date: 05-08-2013)

State v. Haney

Criminal Law: Under ORS 161.067(2), two owners, are treated as a single owner, for the purposes of determining the number of separately punishable offenses, when they own joint interests in a vehicle.

(Filing Date: 05-08-2013)

State v. Monro

Sentencing: The "shift-to-column-I" rule is subject to Measure 11 when a Measure 11 sentence is imposed consecutively with another offense. Where a sentencing conflict between "shift-to-column-I" and Measure 11 exists, the sentence shall be the greater of the two prescribed regimes.

(Filing Date: 05-08-2013)

State v. Palomo

Criminal Law: A person will be convicted of prostitution under ORS 167.007 when sexual conduct is exchanged for something of economic value and the transaction is commercial in character.

(Filing Date: 05-08-2013)

Balcom v. Knowledge Learning Enterprises

Workers Compensation: Pursuant to ORCP 5.45(1), for consideration on judicial review an argument must be preserved in the lower court proceedings. To properly preserve an argument for consideration upon judicial review a party must provide the trial court with a specific explanation of her objection so as to ensure that the trial court can clearly identify the alleged error.

(Filing Date: 05-15-2013)

Campbell v. Employment Department

Employment Law: An order by the EAB will be upheld if it is supported by substantial evidence and reason.

(Filing Date: 05-15-2013)

Dept. of Human Services v. A. J. M

Juvenile Law: Under ORS 419B.923(1)(a), a juvenile court has the authority to issue a “corrected permanency judgment” if the correction is for an oversight or omission. In addition, the court has authority to correct the judgement at any time.

(Filing Date: 05-15-2013)

Dept. of Human Services v. A. R. S.

Juvenile Law: A juvenile court may not continue wardship over a child or change the permanency plan for the child from reunification to adoption based on conditions or circumstances that are not explicitly stated or fairly implied by the jurisdictional judgment.

(Filing Date: 05-15-2013)

Doyle v. City of Medford

Municipal Law: ORS 243.303(2) does not create a private right of action for damages.

(Filing Date: 05-15-2013)

Kaptur and Kaptur

Appellate Procedure: An issue may be considered on appeal as long as the appealing party raised the issue below with enough particularity to assure that the trial court can identify its alleged error and correct the error if it is warranted

(Filing Date: 05-15-2013)

Marton v. Ater Construction Co., LLC

Civil Procedure: A party who enters into a settlement with a claimant is not entitled to recover contribution or indemnity from a third-party whose liability is not extinguished by the settlement.

(Filing Date: 05-15-2013)

PacifiCorp v. SimplexGrinnell

Attorney Fees: ORS 20.096 does not create a reciprocal right to recover attorney fees when an indemnification agreement in the contract does not allow one party to recover attorney fees from the other.

(Filing Date: 05-15-2013)

Paton v. American Family Mutual Ins. Co

Insurance Law: An insurance company's express consent to the arbitration process suffices to "formally institute" arbitration proceedings under ORS 742.504(12)(a)(B).

(Filing Date: 05-15-2013)

Schutz v. La Costita III, Inc.

Criminal Procedure: ORS 471.565(1) bars all claims against licensed server(s) of alcohol that are brought by a patron who voluntarily consumes the alcohol served.

(Filing Date: 05-15-2013)

State of Oregon v. Marvin Opitz

Criminal Law: For a conviction of kidnapping the first degree, the defendant must move the victim to a "qualitatively different" location.

(Filing Date: 05-15-2013)

State v. Cossette

Appellate Procedure: Under State v. Baty, an argument is not preserved for appellate review if the argument substantially differs from the argument advanced at the trial court.

(Filing Date: 05-15-2013)

State v. Danby

Criminal Law: DUII convictions under "former" ORS 487.540 can serve as predicate convictions for satisfying ORS 809.235.

(Filing Date: 05-15-2013)

State v. M.L.R.

Civil Commitment: Failure to advise an allegedly mentally ill person of their rights under ORS 426.100(1) regarding a commitment hearing constitutes plain error requiring reversal.

(Filing Date: 05-15-2013)

State v. Mccallum

Sentencing: Post-prison supervision, when added to the prison term, may not exceed the statutory maximum indeterminate sentence for the crime of defendant's conviction.

(Filing Date: 05-15-2013)

State v. Oneill

Criminal Law: Under ORS 161.200, a defendant’s perception of a threat must be reasonable as gauged by an objective reasonable person standard, rather than a subjective, defendant-specific standard.

(Filing Date: 05-15-2013)

Stewart and Stewart

Family Law: A parent's incarceration does not require that visitation rights be denied. Each case must be decided on the merits, not on a general policy disallowing children to visit parents while incarcerated.

(Filing Date: 05-15-2013)

Bell v. Tri-Met

Civil Procedure: The two year statute of limitations on a tort action against a public body contained in ORS 30.275(9) supersedes the three year limitation on a survival action for personal injuries by a personal representative contained in ORS 30.075(1).

(Filing Date: 05-16-2013)

Estacada Rural Fire Dist. #69 v. Hull

Employment Law: When a physical disorder is caused by a stress-related mental disorder, the firefighters’ presumption does not apply. Stress-related physical disorders are not compensable under workers compensation claims unless heightened standards are met.

(Filing Date: 05-22-2013)

McMurchie and McMurchie

Family Law: When determining a parent's presumed income, for the purposes of determining a child support obligation, a court may consider the parent's actual income or potential income, but not both.

(Filing Date: 05-22-2013)

State v. Ashbaugh

Criminal Law: For the purposes of ORS 162.155, an escapee enters into the constructive custody of authorities upon verbal notice of a warrant for his arrest and the intent of authorities to place him under arrest.

(Filing Date: 05-22-2013)

State v. Milnes

Criminal Procedure: In order to issue the witness-false-in-part jury instruction a witness must clearly have consciously testified falsely.

(Filing Date: 05-22-2013)

State v. Ross

Criminal Procedure: For a passenger to be seized during a traffic stop, the officer must use physical force or a show of authority directed at the defendant, specifically.

(Filing Date: 05-22-2013)

Walker v. State

Post-Conviction Relief: The requirements of preservation do not apply when a party has no practical opportunity to object to the purported error before entry of judgment. Plain error is therefore inapposite.

(Filing Date: 05-22-2013)

Rivas v. Persson

Post-Conviction Relief: Credit for time served has no bearing on when an inmate will be released after the release date has passed. Instead, the ultimate release date is determined exclusively through the parole consideration process.

(Filing Date: 05-30-2013)

Rivers v. SAIF

Workers Compensation: The wage earning agreement between a worker and his or her employer may be a general agreement reflecting the payment aspect of the parties employment relationship, even if that agreement contemplates that the employee will be assigned to various jobs that will involve differing pay rates and hours.

(Filing Date: 05-30-2013)

State v. Brown

Evidence: Diagnosis of a victim as sexually abused or “highly concerning for sexual abuse” requires physical evidence to support it in order to be admitted into evidence since such a diagnosis has more than a little likelihood to affect a jury’s verdict.

(Filing Date: 05-30-2013)

State v. Coronado

Appellate Procedure: The Court follows a two-step process in deciding to review alleged plain error. First, if the error is unpreserved, it must be one of law, apparent or not reasonably in dispute, and appear on the face of the record. Second, the Court considers factors to decide if the error should be reviewed.

(Filing Date: 05-30-2013)

State v. Cruz-Gonzalez

Criminal Law: Driving away after damaging property, even for two minutes, completes the crime of failure to perform the duties of a driver when property is damaged, and a jury instruction on attempt is not warranted.

(Filing Date: 05-30-2013)

State v. Kingsmith

Criminal Procedure: Incriminating evidence obtained against a particular defendant during a traffic stop should be suppressed if the officer's reasonable suspicion of criminal activity was not based on actions or characteristics of that defendant.

(Filing Date: 05-30-2013)

State v. Meza-Garcia

Criminal Procedure: When an officer asks for consent to search following an illegal stop, evidence resulting from the search can be found admissible if the consent is "sufficiently attenuated" from the initial illegal stop.

(Filing Date: 05-30-2013)

State v. Stubbs

Evidence: Under ORCP 59 E, a jury is allowed to consider all evidence present on the record and a trial court is not allowed to instruct the jury as to matters of fact or comment on the evidence.

(Filing Date: 05-30-2013)

Two Two v. Fujitec

Tort Law: An affidavit outlining elements on which an expert will testify that lacks indication that the expert will testify as to causation, absent other supporting evidence, is not sufficient to establish an issue of material fact.

(Filing Date: 05-30-2013)

State of Oregon v. Jeffery Dean Beagley

Criminal Law: A parent has an absolute duty to provide medical care to a child, and that once a reasonable person should know that there is a substantial risk that a child will die without medical care, the parent must provide that care, or allow it to be provided.

(Filing Date: 06-19-2013)

( 22 summaries )

June

Afzal v. PERB

Disability Law: Under ORS 238.320(1), to establish eligibility for a disability retirement allowance, a claimant must be mentally or physically incapacitated for an extended duration and thereby unable to perform any work for which qualified.

(Filing Date: 06-05-2013)

SAIF Corporation v. Matt Jenkins Contracting

Workers Compensation: When a temporary service provider leases a worker to an employer, the temporary service provider becomes a worker leasing company responsible for providing workers' compensation coverage under ORS 656.850.

(Filing Date: 06-05-2013)

State v. Edblom

Evidence: When admitting certain hearsay statements under under OEC 803(18a)(b), notice must be served that identifies the substance of the statement sought to be introduced and also identify the witness or the means by which the statement will be introduced.

(Filing Date: 06-05-2013)

State v. Lovaina-Burmudez

Criminal Procedure: The retention and processing of clothing as evidence exceeds the scope of a lawful inventory and therefore is an unlawful search and seizure. For the State to use such evidence, it must be demonstrated that the evidence would inevitably be lawfully discovered.

(Filing Date: 06-05-2013)

Erskine v. Psychiatric Security Review Board

Post-Conviction Relief: Under ORS 161.341, an application for conditional release must be accompanied by a verified conditional release plan.

(Filing Date: 06-12-2013)

Mendoza v. Liberty Northwest Insurance Corporation

Workers Compensation: An employee who is injured while performing a duty of employment, even a duty not required and off-premises, is in the course of employment if it benefits and is permitted by the employer.

(Filing Date: 06-12-2013)

State v. Dierks

Criminal Procedure: An individual is subject to a stop requiring reasonable suspicion when an officer asks questions about criminal activity, acquires information about the individual’s identity, and returns to his patrol car with that information.

(Filing Date: 06-12-2013)

Trimet v. Wilkinson

Workers Compensation: An employer's denial of a Worker's Compensation claim involving a combined condition must be preceded by written notice of acceptance of the combined condition to the employee.

(Filing Date: 06-12-2013)

Baker v. Liberty Northwest Ins. Co.

Workers Compensation: New occupational disease claims, brought under ORS 656.802(2)(a), must be brought within one year of discovery of injury, due to ORS 656.807.

(Filing Date: 06-19-2013)

Cayton v. Safelite Glass Corp.

Workers Compensation: Success in obtaining penalty-based attorney fees under ORS 656.262(11) for delay in payment of compensation does not mandate an award of compensation-based attorney fees under ORS 656.382(1).

(Filing Date: 06-19-2013)

Dixon v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: On substantial evidence review of a final order of the Board of Parole and Post-Prison Supervision the Court must determine whether a reasonable person could make the findings the board made. The Board's final decision must be supported by substantial reasoning.

(Filing Date: 06-19-2013)

Friends of Columbia Gorge v. Columbia River

Administrative Law: Under ORS 196.115(3)(d), the Court shall remand the commission's acceptance of a proposal if it is inconsistent with an agency rule, or an officially stated position or practice, unless the inconsistency is explained, or if the commission's decision is in violation of a statutory provision.

(Filing Date: 06-19-2013)

Kalfas v. Adams

Property Law: When an express easement is clear and unambiguous, the court should not look to the surrounding circumstances to determine its meaning.

(Filing Date: 06-19-2013)

Pearson v. Phillip Morris, Inc.

Civil Procedure: When individuals and other putative class members suffer ascertainable losses and those losses can be litigated based on evidence common throughout the class, class certification may be appropriate.

(Filing Date: 06-19-2013)

State v. Beagley

Criminal Law: A parent has an absolute duty to provide medical care to their child, and once a reasonable person would know that there is a substantial risk that a child will die without medical care, the parent must provide medical care, or allow medical care to be administered.

(Filing Date: 06-19-2013)

State v. Magana

Criminal Procedure: All evidence that is derived from a stop, without mitigating circumstances, must be purged from the illegal stop, unless there is reasonable suspicion of criminal activity before the stop is made. Additionally, all evidence derived from an involuntary search must be suppressed if there are no intervening or mitigating circumstances present.

(Filing Date: 06-19-2013)

ZRZ Realty v. Beneficial Fire and Casualty Ins.

Attorney Fees: Under ORS 20.220(3)(a) if supplemental judgment is predicated on the underlying attorney fee award in the general judgment, the effect of reversing the general judgment is the reversal of the supplemental judgment as well.

(Filing Date: 06-19-2013)

Baldwin and Baldwin

Family Law: Under ORS 18.235, the trial court administrator is only required to enter satisfaction of a child-support judgment into the record if the judgment is paid in full.

(Filing Date: 06-26-2013)

ODOT v. Singh

Property Law: Under the requirements in ORS 35.346, just compensation for damages resulting from a condemnation action need to be calculated based on specified terms promised in the agreement.

(Filing Date: 06-26-2013)

State v. Kinslow

Criminal Law: Under ORS 163.225(1)(a), movement of an individual from one room to another within the same house does not meet the asportation element.

(Filing Date: 06-26-2013)

State v. Teitsworth

Evidence: Evidence of uncharged misconduct that is introduced to show hostile motive toward the victim and is also probative of intent must pertain to a disputed issue and meet the Johns test.

(Filing Date: 06-26-2013)

State v. Thompson

Criminal Procedure: Under Article I, section 42 of the Oregon Constitution, a victim who has been economically harmed has a right to restitution even after Defendant is sentenced.

(Filing Date: 06-26-2013)

( 34 summaries )

July

Dept. of Human Services v. M.K.

Juvenile Law: Under ORS 419B.476, "reasonable efforts" to allow a ward to be returned home must be determined by a totality of the circumstances analysis and not a single factor such as cost.

(Filing Date: 07-03-2013)

Shelter Products v. Steelwood Construction

Contract Law: When a contract is terminated "for convenience" and not "for cause," a general contractor cannot deduct their damages from the amount awarded for work completed by a subcontractor.

(Filing Date: 07-03-2013)

State v. Avila-Nava

Criminal Procedure: Follow-up and clarifying questions after giving Miranda warnings are permissible only when the invocation of the right to remain silent is equivocal. Error allowing prosecution to impeach witness is not harmless error when the defendant's credibility is vital to the defense.

(Filing Date: 07-03-2013)

State v. May

Evidence: In assessing sufficiency of evidence, a trier of fact may draw a conclusion when there is a reasonable probability that the conclusion flows from the proven facts.

(Filing Date: 07-03-2013)

Aponte v. State

Post-Conviction Relief: If factual findings of a post-conviction court’s ruling remain unchallenged and Defendant is unable to prove, by a preponderance of the evidence, that defense counsel provided ineffective legal assistance, post-conviction relief will be denied.

(Filing Date: 07-10-2013)

Bianco v. DMV Services Division

Administrative Law: Absent any evidence that an administrative agency intended to part with the legislature's definition of specific terms, the Court will align its decision with the traditional reading of the specific terms.

(Filing Date: 07-10-2013)

Bianco v. DMV Services Division

Administrative Law: Absent any evidence that an administrative agency intended to part with the legislature's definition of specific terms, the court will align its decision with the traditional reading of the specific terms.

(Filing Date: 07-10-2013)

Couey v. Brown

Civil Procedure: The Court may find that a dispute is moot when the facts upon which the dispute rests are more contingent and hypothetical than imminent and certain.

(Filing Date: 07-10-2013)

Dept. of Human Services v. R.D.

Juvenile Law: To change a plan from reunification to adoption at a permanency hearing, DHS has the burden of proving that (1) DHS made reasonable efforts to make it possible for the child to return home safely, and (2) that the parent had not made sufficient progress for that to occur.

(Filing Date: 07-10-2013)

Lehman v. Bielenberg

Civil Procedure: Failure to file responsive pleadings does not entitle the opposing party to a default judgment unless the opposing party complies with the requirements of ORCP 69.

(Filing Date: 07-10-2013)

Lotches v. Premo

Post-Conviction Relief: The Oregon Constitution does not grant a right to a perfect defense in criminal cases. It requires only that counsel act to diligently and conscientiously advance the defense.

(Filing Date: 07-10-2013)

State v. Fredinburg

Criminal Procedure: When a party does not show sufficient cause to support a motion to postpone trial and a motion for self-representation would have been disruptive to the orderly conduct of the trial, those motions will be denied.

(Filing Date: 07-10-2013)

State v. Gruhlke

Criminal Procedure: An information, like an indictment, must contain facts that sufficiently allege the charged offense is timely.

(Filing Date: 07-10-2013)

State v. Sewell

Evidence: Evidence may be admitted at trial if its probative value is not substantially outweighed by the potential of unfair prejudice towards the Defendant.

(Filing Date: 07-10-2013)

Waid and Waid

Family Law: Under ORS 107.135(4), a court must consider whether change in circumstances justifies reconsidering a spousal support award.

(Filing Date: 07-10-2013)

Kemp v. MasterBrand Cabinets, Inc

Employment Law: (1) A common law wrongful discharge claim should not be dismissed for adequacy of other statutory remedies if the common law claim preexisted any statutory remedy; (2) attorneys fees are not improper if they are connected to a claim of unlawful discrimination; and (3) if an evidentiary matter was improperly decided, but was not central to the case, it is a harmless error.

(Filing Date: 07-17-2013)

OR-OSHA v. Moore Excavation, Inc.

Administrative Law: OR-OSHA has the burden of proving, in its prima facie case when a hazardous condition is presumed to exist, that employee exposure to the hazardous condition is "reasonably predictable."

(Filing Date: 07-17-2013)

Park v. Dept. of Corrections

Attorney Fees: It is impermissible to award attorney fees simply because a witness is disbelieved or because their credibility is challenged.

(Filing Date: 07-17-2013)

Rucker v. Rucker

Contract Law: A substituted contract must show the intent of the parties to substitute the new promise for the original liability. Recording the agreement in court and signing a memorialization is sufficient to show such intent.

(Filing Date: 07-17-2013)

State v. Finlay

Criminal Procedure: (1) Under State v. Meharry, Defendant is not required to be driving the vehicle in order for the police to "encounter" the vehicle during a warrantless search. (2) An attached trailer qualifies as a "vehicle" for the purposes of the automobile exception to the warrant requirement. (3) Under Meharry, the automobile exception to the warrant requirement permits a warrantless search of a vehicle when the police have probable cause or the vehicle is mobile at the time of the encounter.

(Filing Date: 07-17-2013)

State v. Lubbers

Criminal Procedure: A waiver of the right to counsel is valid when the totality of circumstances indicates that the defendant is aware of his or her right to counsel, the benefits of having counsel, and the disadvantages of self-representation.

(Filing Date: 07-17-2013)

Dept. of Human Services v. N.P.

Juvenile Law: When reviewing a juvenile court's decision under ORS 419B.100(1)(c), the court: (1) assumes the juvenile court's findings of historical fact are correct if there is any evidence in the record to support them; (2) assumes that, if the juvenile court is silent on an issue of material fact, the issue is resolved in a manner consistent with the juvenile court's decision; (3) combines (1) and (2) along with non-speculative inferences to determine if ORS 419B.100(1)(c) was satisfied.

(Filing Date: 07-24-2013)

PacifiCorp v. SimplexGrinnel

Contract Law: Transposition of parties in the Court's hypotheticals pertaining to a contractual indemnification clause were immaterial.

(Filing Date: 07-24-2013)

State v. Alvarado

Criminal Law: Under ORS 166.450, the phrase "presumptive evidence" is not that same as a rebuttable presumption, and does not shift the burden of proof to the Defendant. Additionally, reasonable suspicion is determined at the time the traffic stop is improperly extended, and does not include factors that arise after the unlawful extension.

(Filing Date: 07-24-2013)

State v. Brand

Sentencing: Under OAR 213-012-0040(2), the court is required to impose concurrent sanctions when the Defendant has committed a single probation violation.

(Filing Date: 07-24-2013)

State v. Cupp

Criminal Procedure: A delay of 11 months for a trial for DUII, when only 34 days of that time are unaccounted for, does not amount to an unreasonable delay and, consequently, a denial of a speedy trial.

(Filing Date: 07-24-2013)

State v. Lewis

Sentencing: Per OAR 213-012-0040(2), when a defendant is serving multiple terms of probationary supervision and commits one probation violation, the court can revoke and impose only concurrent sentences and not consecutive sentences.

(Filing Date: 07-24-2013)

State v. Wagoner

Sentencing: ORS 136.106 does not prevent a court from imposing restitution more than 90 days after sentencing.

(Filing Date: 07-24-2013)

State v. Whitmore

Evidence: Expert testimony of a scientific nature is so inherently persuasive that not only must an expert's credentials be testified to a jury, but a foundation must be built showing their methodology is scientifically valid.

(Filing Date: 07-24-2013)

Multnomah County Corrections v. Multnomah County

Employment Law: Requirement of a minimum of 40 hours training for strike-prohibited corrections employees cannot be reasonably understood to relate to a matter of on-the-job employee safety under ORS 243.650.

(Filing Date: 07-31-2013)

State v. Briggs

Criminal Procedure: Consent to entry occurs where the officer presents an alternative to allowing the officer enter.

(Filing Date: 07-31-2013)

State v. Klontz

Evidence: Evidential error is not presumed to be prejudicial; a decision can be upheld if the court makes it clear that it did not rely on the disputed evidence in making its decision.

(Filing Date: 07-31-2013)

T. S. R. v. J. B. C.

Family Law: Oregon's statutory policies consider a child's best interests with great weight when trying to promote relationships between a child and a noncustodial parent.

(Filing Date: 07-31-2013)

Woodroffe v. Nooth

Habeas Corpus: Past deliberate indifference is insufficient to support habeas relief.

(Filing Date: 07-31-2013)

( 39 summaries )

August

Greene v. Homesales, Inc.

Civil Procedure: The doctrine of “law of the case” precludes re-litigation of issues that have been decided at earlier stages of the same case.

(Filing Date: 08-07-2013)

Spain v. Jones

Civil Procedure: The Yowell doctrine precludes a grant of summary judgment on common law negligence claims, and premises-liability claims when a genuine issue of material fact exists.

(Filing Date: 08-07-2013)

State v. Hunter

Criminal Law: If an act of an alleged crime occurred within the limitations period then the indictment for the alleged crime is facially sufficient.

(Filing Date: 08-07-2013)

State v. Roquez

Evidence: Under OEC 404(3), "other crimes" evidence cannot be used when the prior crime is insufficiently similar to the acts involved in the charged offenses, or when attempting to use one victim's state of mind to prove another's.

(Filing Date: 08-07-2013)

State v. Thomas

Evidence: Under OEC 609, record of a previous judgment is considered public record for purposes of impeachment against an adverse witness when it can be established that the judgment is part of an actual public record.

(Filing Date: 08-07-2013)

State v. Wells

Appellate Procedure: A court may exercise its discretion to review for plain error to apply the law as it exists at the time an appeal is decided.

(Filing Date: 08-07-2013)

Vigor Industrial, LLC v. Ayres

Workers Compensation: A "combined condition" is compensable only if the otherwise compensable injury is the major contributing cause of the combined condition disability or the major contributing cause of the need for treatment of the combined condition as compared to the contributions from the preexisting conditions.

(Filing Date: 08-07-2013)

Chelius v. Employment Dept.

Employment Law: For unemployment insurance tax purposes, administrative rule OAR 471-031-0181 provides that, whether an individual maintains control over the ‘means and manner’ of performance determines whether that individual is either an employee or an independent contractor

(Filing Date: 08-14-2013)

Dam v. Board of Parole and Post-Prison Supervision

Criminal Procedure: Erred psychological report leading to denial of parole requires new psychological evaluation pursuant to ORS 144.226 and ORS 144.228.

(Filing Date: 08-14-2013)

Dept. of Human Services v. C. F .

Juvenile Law: The court will look to the totality of the circumstances to determine if the record is legally sufficient to permit a court's ruling that there was a current threat of serious injury to the children.

(Filing Date: 08-14-2013)

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

Juvenile Law: Juvenile jurisdiction over a child may be established when the court has sufficient evidence linking past conditions or circumstances endangering the welfare of the child to a current threat of harm to the child.

(Filing Date: 08-14-2013)

Dept. of Human Services v. D.A.N.

Juvenile Law: Parent who fails to meet obligations under an action agreement due to brevity of incarceration allows a court to conclude that parent has not made sufficient progress under ORS 419B.476(2) when reunification would not occur for a minimum of nine months.

(Filing Date: 08-14-2013)

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

Juvenile Law: To change a permanency plan from reunification to guardianship, the parent must fail to make sufficient progress in his or her relationship with the child to remove the jurisdictional basis.

(Filing Date: 08-14-2013)

Dept. of Human Services v. J. G.

Evidence: Statements that the court relied on to establish jurisdiction were admissible under OEC 803(4) as statements for the purpose of medical diagnosis or treatment.

(Filing Date: 08-14-2013)

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

Juvenile Law: Under the Indian Child Welfare Act the State must prove beyond a reasonable doubt the factual basis for terminating parental rights. Additionally, under ORS 419.504, the State must demonstrate the parent's conduct and environmental conditions are seriously detrimental to the child, and will not be resolved within a reasonable period of time.

(Filing Date: 08-14-2013)

Dept. of Human Services v. M. H.

Juvenile Law: Under ORS 419.476(5)(d) and ORS 419B.498(2), compelling reasons must be stated to terminate parental rights before a permanency judgment can be entered.

(Filing Date: 08-14-2013)

State v. A.D.S.

Civil Commitment: A mental commitment order cannot be based on speculation that a person cannot care for their own personal needs, and that a person's needs can be met through their own resources or through the help of another.

(Filing Date: 08-14-2013)

State v. Bailey

Criminal Procedure: Discovery of an outstanding warrant for a defendant's arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of evidence obtained as a result of an arrest on the warrant.

(Filing Date: 08-14-2013)

State v. Faubion

Criminal Procedure: An officer is permitted to verify the accuracy of information obtained during a stop, even when there is a lawful explanation of the behavior.

(Filing Date: 08-14-2013)

State v. Higgins

Evidence: Failure by the trial court to sua sponte prevent the victim's mother in a sexual penetration, sodomy and rape case to comment on the victim's credibility constitutes plain error and requires reversal.

(Filing Date: 08-14-2013)

State v. Huffman

Criminal Law: Reasonable suspicion must be evaluated based on the information that is available to the officer under the circumstances in which the decision must be made. Reasonable suspicion does not require that the facts as observed by the officer conclusively indicate illegal activity, only that those facts support the reasonable inference of illegal activity by that person.

(Filing Date: 08-14-2013)

State v. Jones

Appellate Procedure: Improper admission of prior bad acts evidence is subject to review under the "plain error" standard.

(Filing Date: 08-14-2013)

State v. Stradley

Criminal Law: More than one person can be found guilty of “frequenting” in violation of ORS 167.222(1) when there are joint owners or occupiers in a home as long as they knowingly possess the controlled substance. Having another person jointly occupying the home without reasonably knowing of the controlled substance is not enough evidence to convict the Defendant of “frequenting” within the meaning of the statute.

(Filing Date: 08-14-2013)

State v. Williams

Evidence: Under OEC 404(3), in sexual abuse cases a defendant's history of sexual wrongs, crimes, or acts is inadmissible character evidence unless the evidence is logically relevant to the defendant's specific intent of the alleged wrongdoing.

(Filing Date: 08-14-2013)

Stiles v. Godsey

Property Law: A ruling or decision that has been made in a particular case is binding on a second appeal. It can only be reviewed as a matter of law if the judgment conflicts or was contrary to the ruling or decision.

(Filing Date: 08-14-2013)

White v. Vogt

Civil Procedure: A court does not have writ of review jurisdiction over decisions that are purely ministerial in nature.

(Filing Date: 08-14-2013)

Berg v. Nooth

Post-Conviction Relief: An attorney’s failure to object to vouching testimony by expert witnesses results in prejudice to the defendant, and entitles the defendant to a new trial.

(Filing Date: 08-21-2013)

Quick Collect, Inc. v. Higgins

Appellate Procedure: Under ORAP 5.45(1), a party claiming error must present the claim of error to the trial court before the Court of Appeals will consider it on appeal.

(Filing Date: 08-21-2013)

SAIF Corp. v. Sparks

Workers Compensation: Subsistence and travel pay that are combined with an employee's wages and are paid in addition to regular hourly wages in a singular paycheck will not be treated as reimbursements and will be due as a part of the worker's disability benefits.

(Filing Date: 08-21-2013)

Sparling v. Providence Health System Oregon

Workers Compensation: An injured worker's "attending physician" is not the only medical provider who can provide medical services to the injured worker. However, only the "attending physician" may authorize the payment of temporary total disability compensation to the injured worker.

(Filing Date: 08-21-2013)

Sparling v. Providence Health Systems

Workers Compensation: An injured worker's "attending physician" is not the only medical provider who can provide medical services to the injured worker. However, only the "attending physician" may authorize the payment of temporary total disability compensation to the injured worker.

(Filing Date: 08-21-2013)

SPS Of Oregon, Inc. v. GDH, LLC

Evidence: (1) Elements under wrongful initiation of a civil proceeding are not identical to those necessary for proving enhanced prevailing party fees under ORS 20.190, thus issue preclusion does not apply; (2) a party's reliance upon his or her attorney's advice, and the reasonableness of such reliance after a full and frank disclosure of pertinent facts, are all issues of fact to be determined by a jury; and (3) an attorney's malice requires a purpose other than recovery of damages, which is a question of law.

(Filing Date: 08-21-2013)

State v. Gonzalez-Valenzuela

Criminal Law: Under ORS 163.575(1)(b), when a person in possession of controlled substances knowingly permits minors to remain in a place where unlawful activity involving controlled substances is maintained that person may be convicted of endangering the welfare of a minor.

(Filing Date: 08-21-2013)

State v. Riley

Evidence: In order for hearsay statements to be admitted under OEC 803(18a)(b), a notice of intent must adequately identify the substance of the evidence introduced and the witness or the method by which the statements will be introduced.

(Filing Date: 08-21-2013)

Atkeson v. T & K Lands, LLC

Property Law: It is not inequitable to impute an attorney’s knowledge to the client where the attorney is hired to perform due diligence in a real estate transaction.

(Filing Date: 08-28-2013)

Bridgeview Vineyards, Inc. v. State Land Board

Administrative Law: If parties dispute material facts essential to an agency's order, the circuit court must allow a petitioner to supplement the administrative record through an evidentiary hearing.

(Filing Date: 08-28-2013)

Kennedy v. Wheeler

Civil Procedure: When there is a twelve-person jury, the same nine or more jurors must agree on every interdependent element of a particular claim against a particular defendant.

(Filing Date: 08-28-2013)

State v. Beisser

Evidence: Under OEC 404(1), a defendant may introduce evidence of victim's character and victim's prior violent acts against defendant when asserting the affirmative defense of self-defense, and when character is an essential element of the charge, claim or defense.

(Filing Date: 08-28-2013)

State v. J.N.S

Juvenile Law: Intent to commit a crime therein does not suffice for a burglary charge under ORS 164.215, if the intent is formed while merely remaining on the premises, when the accused had knowledge that they were not originally authorized to enter onto the premises.

(Filing Date: 08-28-2013)

( 21 summaries )

September

Aguilar v. Employment Dept.

Employment Law: To receive unemployment benefits, the "good cause" standard is determined as whether a reasonable person would have considered the circumstances to be sufficiently grave that he or she had no alternative but to resign.

(Filing Date: 09-05-2013)

Bagley v. Mt. Bachelor, Inc.

Contract Law: An individuals right to disaffirm a voidable contract is destroyed upon ratification.

(Filing Date: 09-05-2013)

Jenkins v. Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: ORS 144.335(3) requires a parole board to provide an inmate with some explanation of the rationale for concluding that the inmate's parole date should be postponed.

(Filing Date: 09-05-2013)

Portland Columbia Symphony v. Employment Dept.

Employment Law: Factors indicating that an employer is only in direction and control of a desired result over its workers, rather than authority to control the way that work is performed by the workers, favors a finding that the workers are independent contractors.

(Filing Date: 09-05-2013)

Cayton v. Safelite Glass Corp.

Workers Compensation: Penalties are not considered “compensation” under the Worker’s Compensation Law and therefore cannot be used to award attorney fees under ORS 656.382(1).

(Filing Date: 09-11-2013)

Daugherty v. SAIF

Workers Compensation: Under ORS 656.704, the Workers' Compensation Board is vested with exclusive authority to determine the causal relationship between a claimant's injury and medical services.

(Filing Date: 09-11-2013)

Epler and Epler

Family Law: Once a court's child-custody determination has been memorialized in a dissolution judgment, the presumption in ORS 109.119 that the legal parent acts in the best interest of the child would have no effect in any subsequent modifications under ORS 107.135 which requires there to be a substantial change in circumstances before a court can consider whether to modify custody.

(Filing Date: 09-11-2013)

State v. Hurtado-Navarrete

Criminal Law: Police are not required to re-advise a defendant of his Miranda rights when he has been provided Miranda rights on multiple occasions including two the day before the statements were made.

(Filing Date: 09-11-2013)

Yi v. City of Portland

Workers Compensation: Claim preclusion applies where the facts that entitled the plaintiff to relief in the first action are the same in the second action, and are of such a nature that they could have been joined in the first action.

(Filing Date: 09-11-2013)

Blue Iguana, Inc. v. Oregon Liquor Control Commission

Administrative Law: The “crowd management exemption” under ORS 181.871(2), which permits limited use of unlicensed security personnel at events involving liquor, applies only to “organized events,” and the discretion to define the terms of that statute rests with the Oregon Liquor Control Commission.

(Filing Date: 09-18-2013)

Salgado and Salgado

Family Law: When a trial court in a dissolution case relies on a particular valuation methodology, there must be some evidence in the record that sets forth that methodology.

(Filing Date: 09-18-2013)

State v. Gruver

Criminal Law: Leaving the supervision of an unarmed civilian not on the premises of a correctional facility is not escape in the second or third degree and instead constitutes unauthorized departure under ORS 162.175.

(Filing Date: 09-18-2013)

Andersen and Andersen

Family Law: A spouse seeking support bears the burden of showing that the earning capacity of the other spouse exceeds their actual income and can only be sustained by non-speculative evidence based on present earning capacity.

(Filing Date: 09-25-2013)

Cascade Physical Therapy v. Hartford Casualty Ins.

Insurance Law: OAR 436-009-0040(1) sets a maximum for fees paid for medical services of injured workers, and is not intended to prevent parties from agreeing on a lower rate than would normally be paid under the fee schedule.

(Filing Date: 09-25-2013)

Dept. of Human Services v. A.R.S.

Juvenile Law: Under ORS 419B.100(1)(c), a juvenile court has jurisdiction of a child whose condition or circumstances, under the totality of the circumstances, are such that there is a reasonable likelihood that the welfare of the child is endangered.

(Filing Date: 09-25-2013)

Grimm v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: When an inmate, whose dangerousness is based on a disability, is found to be a danger to the community, 42 USC §§ 12101-12213, the Americans with Disabilities Act and ORS 659A.142 will not limit the Board of Parole and Post-Prison Supervision's ability to defer the inmates release.

(Filing Date: 09-25-2013)

Hale v. Belleque

Post-Conviction Relief: Relief cannot be granted for a claim that is not alleged in the petition and not litigated by the post-conviction court. Petitioner does not need to show evidence of prejudice if the trial court fails to give a proper concurrence instruction.

(Filing Date: 09-25-2013)

Rains v. Stayton Builders Mart, Inc.

Civil Procedure: ORCP 71 B(2) does not override ORCP 71 B(1)(C)'s requirement that in order to set aside a party's judgment a motion shall be made within one year after receiving notice of the judgment.

(Filing Date: 09-25-2013)

Riemer v. PERB

Administrative Law: Before qualifying for PERS retirement, an individual must first be considered an "employee".

(Filing Date: 09-25-2013)

State v. Fessenden

Criminal Procedure: A police officer, who has an objectively reasonable belief that an animal has suffered, or will imminently suffer a serious physical injury or death, is justified in conducting a search or seizure without a warrant to provide immediate aid or assistance.

(Filing Date: 09-25-2013)

State v. Holiday

Criminal Procedure: A search occurs when officers interfere with a person’s protected privacy interest. To argue “inevitable discovery,” police must prove that they would have obtained disputed evidence through lawful procedures.

(Filing Date: 09-25-2013)

( 46 summaries )

October

Clayton v. DAS

Administrative Law: Under ORS 195.318(3)(b), challenges must be preserved in order to be reviewed.

(Filing Date: 10-02-2013)

Perez v. Persson

Criminal Procedure: ORS 137.123(1) provides that a sentence imposed by the court may be made concurrent or consecutive to any other sentence, subject to various specific limitations. There is nothing in the language of that statute that limits the court in the exercise of its discretion from imposing partially consecutive sentences and concurrent sentences.

(Filing Date: 10-02-2013)

State v. Currin

Criminal Procedure: A plain, white envelope does not intrinsically suggest that it contains contraband, and therefore the plain-view doctrine requirement that in item's incriminating character be immediately apparent is not met.

(Filing Date: 10-02-2013)

State v. Farmer

Criminal Procedure: The reliability of a drug-detection dog must be determined on a case-by-case basis, considering the dog's training, testing and the certification of the dog's handlers.

(Filing Date: 10-02-2013)

Alcutt v. Adams Family Food Services, Inc.

Workers Compensation: The exclusive remedy provision of the Workers' Compensation Law is unconstitutional as applied to a worker left with no process through which to seek redress for an injury for which a cause of action exists at common law.

(Filing Date: 10-09-2013)

Garrett Hemann Robertson, P.C. v. Winn

Contract Law: Arbitration exception orders are not appealable under any provision of law

(Filing Date: 10-09-2013)

Gilmore and Ambrose

Family Law: When calculating child support obligations the court must follow the steps of the child support guidelines formula.

(Filing Date: 10-09-2013)

Minihan v. Stiglich

Property Law: An intentional trespass action may properly result in compensatory and punitive damages for both loss of use and emotional distress even if emotional distress is not specifically alleged.

(Filing Date: 10-09-2013)

O'Neil v. Martin

Civil Procedure: Personal jurisdiction is established if a person purposefully directs his activities at a given state, the action “arises out of” the activities directed at the state, and the person can reasonably foresee being haled into the courts of that state. Under ORCP 23 A, a plaintiff has an opportunity to amend his complaint once before the trial court can dismiss it with prejudice.

(Filing Date: 10-09-2013)

State v. Beltran

Criminal Procedure: A motion for consolidation is untimely when the motion is not filed until the same day of the trial, and the defendant is not given the opportunity to make a calculated response.

(Filing Date: 10-09-2013)

State v. C.C.

Civil Commitment: Insistence on fulfilling a delusional plan and refusing to take life saving medication is sufficient under ORS 426.005(1)(e)(A) for a court to order involuntary commitment for up to 180 days.

(Filing Date: 10-09-2013)

State v. Coughlin

Post-Conviction Relief: A charge of contempt of court is considered neither a conviction nor an offense for purposes setting aside a past conviction under ORS 137.225(1).

(Filing Date: 10-09-2013)

State v. Evilsizer

Appellate Procedure: In review of a judgment of acquittal, when the court is asked to determine whether evidence was presented to the jury from which the jury could find the defendant guilty, the Court must read the jury instructions as the jury might reasonably have understood them.

(Filing Date: 10-09-2013)

State v. Goff

Evidence: Under OEC 404(3), evidence of prior misconduct is inadmissible to show intent if defendant has not admitted the act in question.

(Filing Date: 10-09-2013)

State v. Hutton

Evidence: Evidence of prior bad acts can only be used to prove intent under OEC 404(3) where the defendant admits committing the actus reus or the judge instructs the jury that it must first find the defendant committed the actus reus before using prior bad acts to determine intent

(Filing Date: 10-09-2013)

State v. Sagdal

Criminal Procedure: Under Article I, section 11 and Article VII (Amended), section 9 of the Oregon Constitution, it is proper for the trial court to empanel a six-person jury for a defendant’s misdemeanor case, and that jury’s verdict is valid.

(Filing Date: 10-09-2013)

State v. Taylor

Criminal Procedure: A defendant released pursuant to a security release may be convicted for second degree failure to appear without evidence of a sworn writing.

(Filing Date: 10-09-2013)

State v. Wallace

Attorney Fees: A defendant represented by court appointed counsel shall not be ordered to pay attorney fees unless it can be determined that the defendant may be able to pay them.

(Filing Date: 10-09-2013)

State v. Wynne

Criminal Law: A motion to suppress evidence on the grounds of unlawful seizure must establish a causal connection between the unlawful seizure and the discovery of challenged evidence.

(Filing Date: 10-09-2013)

Love v. Prime, Inc.

Administrative Law: Plaintiff need not exhaust all administrative remedies when a party is not challenging an agency process or its outcome, nor does the primary jurisdiction doctrine apply when there is no basis for resolution of an administrative issue under the administrative construct, intended only to be applicable to an different stage of contest.

(Filing Date: 10-16-2013)

Smith v. TRCI

Administrative Law: A correctional facility's housing unit guidelines which are not "mere applications" of existing rules, are rules subject to APA rulemaking procedures.

(Filing Date: 10-16-2013)

State v. Cadger

Criminal Law: A defendant cannot be convicted of escape from a correctional facility under ORS 162.155 when he or she is authorized to depart from the jail and is not under the supervision of a law enforcement official when he or she absconds from a work site.

(Filing Date: 10-16-2013)

State v. Roelle

Evidence: Under OEC 404(3), evidence of a prior criminal conviction used to prove the intent element of a crime, when the defendant denies the act took place, requires a jury instruction limiting them to first find the defendant committed the act before considering the prior conviction for intent.

(Filing Date: 10-16-2013)

State v. Smith

Criminal Procedure: To prove that a defendant "hindered" a report under ORS 165.572, the state must establish that the defendant's actions made it slow or difficult for another person to make a report. That requires proof of some discernible interruption or delay in the making of a report above the de minimis level.

(Filing Date: 10-16-2013)

DeArmitt v. Dept. of Corrections

First Amendment: The limited scope of review under ORS 183.400 does not allow the Court to review such rule challenges to determine whether the rules find adequate evidentiary support in the rulemaking record therefore both of the Oregon Department of Corrections rules, OAR 291-131-0035(1)(a)(D) and OAR 291-131-0025(11)(b)(D), are held valid.

(Filing Date: 10-23-2013)

Dept. of Human Services v. L.A.S.

Juvenile Law: Under ORS 419B.476, there is no requirement that the juvenile court consider whether a child can be safely returned to the parent within a reasonable time, before changing a permanency plan from reunification to adoption.

(Filing Date: 10-23-2013)

Dept. of Human Services v. S.D.I.

Juvenile Law: For ORS 419B.100(c) to apply, the State must show sufficient evidence of the type, degree and duration of any psychological or emotional damage that would justify juvenile court jurisdiction over the child.

(Filing Date: 10-23-2013)

LaVoie v. Power Auto, Inc.

Civil Procedure: To survive a Motion for Summary Judgment, a responding attorney's affidavit that uses future expert testimony to satisfy a prima facie claim must state genuine issues of material fact that address any affirmative defenses raised by the opposition.

(Filing Date: 10-23-2013)

State v. Farokhrany

Criminal Procedure: When prosecutors mention rape laws of the Middle East during voir dire in a case where the defendant is a Muslim from the Middle East, the court must grant a curative instruction to ensure the jury does not impermissible consider race and religion during deliberations.

(Filing Date: 10-23-2013)

State v. King

Criminal Procedure: In issuing a warrant, the magistrate could reasonably conclude that the totality of the facts set out in the affidavit, separate from the informant's allegations, sufficiently corroborated the anonymous informant's statements.

(Filing Date: 10-23-2013)

State v. Olive

Criminal Law: Under ORS 162.315, it must be shown that an individual intended to resist arrest in order to satisfy the elements of the offense. Additionally, in order to form the required intent the person must know they are being arrested.

(Filing Date: 10-23-2013)

State v. Patton

Criminal Law: Material variance between pleadings and proof does not exist when a rational trier of fact could conclude, based on credible testimony and reasonable inferences, that a defendant committed the alleged crime.

(Filing Date: 10-23-2013)

State v. Woodall

Criminal Procedure: Offering curative jury instructions in the event that inappropriate information reaches the jury may be enough to ensure a defendant receives a fair trial.

(Filing Date: 10-23-2013)

Hamlin v. Wilderville Cemetery Association

Civil Procedure: Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. There is no genuine issue of material fact if, based on the summary judgment record no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.

(Filing Date: 10-30-2013)

Pierce and Pierce

Family Law: Common-law rules regarding payments from debtor to creditor apply in the domestic relations context. A debtor, making a payment to a creditor with multiple claims, may designate application of his payment as long as the debtor manifests his intent as to where the particular payment is to be applied at or before the time of payment.

(Filing Date: 10-30-2013)

Pollock and Pollock

Family Law: It is an abuse of discretion for a trial court to disregard the terms of a marital settlement agreement due to allegedly inequitable conduct by one of the parties, where the parties considered and structured the agreement around such conduct. Additionally, a party that sings a marital settlement agreement purporting to resolve all claims between the parties waives its right to continue discovery under ORS 107.105(1)(f).

(Filing Date: 10-30-2013)

State v. D.P.

Juvenile Law: In determining whether or not a circumstance is compelling in the case of a juvenile and thus requiring Miranda warnings, the court will look at the totality of the circumstances.

(Filing Date: 10-30-2013)

State v. Flores

Criminal Law: Under ORS 161.067, the court must merge two convictions when a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all elements of one offense are necessarily included in the commission of the other offense.

(Filing Date: 10-30-2013)

State v. Jackson

Criminal Law: Where a stalking charge is based purely on communication, the State must prove that the communication was an unequivocal threat.

(Filing Date: 10-30-2013)

State v. Mercier

Criminal Procedure: Under ORS 135.747, an argument that a certain amount of delay is attributable to the State and is reasonable will fail if more time is attributable to the State and no argument has been made that it is also reasonable delay.

(Filing Date: 10-30-2013)

State v. Steltz

Criminal Procedure: Under ORS 161.067(1), when the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

(Filing Date: 10-30-2013)

State v. Teixeira

Sentencing: For purposes of OAR 213-008-0002(1)(b)(G), a "victim" is a person who is directly, immediately, and exclusively injured by the commission of the crime--not a person injured only by subsequent, additional criminal conduct.

(Filing Date: 10-30-2013)

State v. Tidwell

Criminal Procedure: Upon a showing that consolidation would cause substantial prejudice, the court will sever the multiple counts.

(Filing Date: 10-30-2013)

Stuart and Ely

Family Law: A spouse may not seek transitional spousal support under ORS 107.105(1)(d)(A) when the spouse will not use the support for educational or job training purposes.

(Filing Date: 10-30-2013)

Tough and Tough

Family Law: When there is a dispute as to the division of benefits, the Court is to look at the construction of the dissolution judgment.

(Filing Date: 10-30-2013)

York v. Paakkonen

Civil Procedure: Under ORS 31.555, the Dougherty Rule does not apply in a party's favor for partial satisfaction when that same party has objected to the use of a segregated verdict form, which allows for distinguishing between the various types of economic and non-economic damages at issue in the case.

(Filing Date: 10-30-2013)

( 32 summaries )

November

State v. Peterson

Criminal Procedure: Determining whether a stop has been unlawfully extended is done by a totality of the circumstances analysis.

(Filing Date: 11-06-2013)

Cascade v. Georgia-Pacific

Property Law: The interpretation of an express easement is a question of law to be decided by the courts. In construing an easement, a court's task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner.

(Filing Date: 11-14-2013)

Hale v. State

Civil Procedure: To grant an action for declaratory judgment, the complaint must state a justiciable controversy. A justiciable controversy must include present facts, not an issue based on future events, and must result in specific relief through a binding decree, not a non-binding advisory opinion.

(Filing Date: 11-14-2013)

Logan v. State of Oregon

Post-Conviction Relief: In order to qualify for post-conviction relief based on trial counsel's failure to object to testimony, a defendant must be prejudiced by the attorney's failure to do so.

(Filing Date: 11-14-2013)

State ex rel Dewberry v. Kitzhaber

Tribal Law: The Governor has broad powers to enter into tribal-state gaming compacts with various Native American tribes residing in Oregon.

(Filing Date: 11-14-2013)

State v. Anderson

Criminal Procedure: Under Article I, Section 9 of the Oregon Constitution, to have probable cause in a traffic stop, the officer must (1) subjectively believe a violation has occurred, and (2) that belief must be objectively reasonable under the circumstances.

(Filing Date: 11-14-2013)

State v. Burns

Civil Procedure: A trial decision that alters a defendant’s criminal history determination, but does not alter the sentence received, is justiciable as a defendant’s only avenue for challenging a criminal history determination. Under ORS 131.505(4), a series of crimes may constitute a single criminal objective if separated by only a short period of time.

(Filing Date: 11-14-2013)

State v. Dorsey

Sentencing: A Defendant may only be required to pay restitution for pecuniary damages for criminal activity when he or she has been convicted or has admitted to the crime.

(Filing Date: 11-14-2013)

State v. Labar

Criminal Law: Under ORS 137.106(1)(a) when a person is convicted of a crime and the victim suffered economic damages as a result of that crime, the court may order the defendant to “pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages”. Further, market value is the correct measure for determining retail value and restitution.

(Filing Date: 11-14-2013)

State v. Lasky

Evidence: Evidence used to prove the required mental state of a particular crime is relevant unless the evidence is otherwise excluded by other State or Federal law.

(Filing Date: 11-14-2013)

State v. Parsons

Criminal Procedure: The proper timing for a defendant’s challenge to venue is before trial through a pretrial objection because it (1) protects defendants from potential undue hardship and unfairness of standing trial in a distant venue and (2) precludes defendants from waiting until trial to raise the issue of venue, thus creating a need for a new trial or implicating double jeopardy.

(Filing Date: 11-14-2013)

State v. Pitts

Criminal Law: A burglary conviction can be based on disobeying a peace officer's order only if the original order, the unlawful entry, and the intent to refuse to obey that order all take place as part of a single continuous criminal episode.

(Filing Date: 11-14-2013)

State v. Tuter

Sentencing: A drug treatment program that was mandated by a governmental actor in order to avoid adverse, judicially imposed consequences is sufficiently similar to a DUII diversion program and can preclude the participant from being awarded DUII diversion.

(Filing Date: 11-14-2013)

C.P. v. Bernstein

Attorney Fees: ORS 20.105 and 36.715 requires an award of attorney fees and the court must award them as authorized under these statutes.

(Filing Date: 11-20-2013)

Leloff and Fong

Family Law: Retroactive child support may not be awarded solely under a petition pursuant to ORS 109.103 where there is no filiation action.

(Filing Date: 11-20-2013)

Oregon v. Alarcon

Criminal Procedure: A judgment for conviction notwithstanding an erroneous admission of evidence will be affirmed if there is little likelihood that the admission of the evidence affected the verdict. The court will consider the nature of the erroneously admitted evidence in the context of other evidence on the same issue.

(Filing Date: 11-20-2013)

State v. Gillson

Appellate Procedure: To preserve an argument, the party must explain the objection to the trial court specific enough to ensure that the court can identify an alleged error, consider the error, and correct the error if warranted.

(Filing Date: 11-20-2013)

State v. Lykins

Sentencing: A person who suffers physical and mental harm, is manipulated, and whose short-term and long-term vulnerability to harm is increased meets the definition of a “vulnerable victim” under OAR 213-008-0002(1)(b)(B).

(Filing Date: 11-20-2013)

State v. McClatchey

Criminal Procedure: The State has the burden to show that a warrant obtained after an illegal search is untainted by the original search. Additionally, a person is not required to assert a privacy interest in their cell phone to receive Article I Section 9 protections.

(Filing Date: 11-20-2013)

State v. Meier

Criminal Procedure: A search incident to arrest is valid, when the intervening discovery of an outstanding warrant is sufficient to purge an unlawful seizure, under Article I, §9 of the Oregon constitution.

(Filing Date: 11-20-2013)

State v. Wright

Criminal Procedure: A fact finder may logically infer, beyond a reasonable doubt, that a single transaction was the result of a continued scheme of defraudment based on previous transactions of similar nature.

(Filing Date: 11-20-2013)

Young v. Davis

Civil Law: Under Oregon's anti-SLAPP statutory scheme, as provided under ORS 31.150, a plaintiff need not show "likelihood of success of the merits," but instead, present "substantial evidence to support a prima facie case."

(Filing Date: 11-20-2013)

Brown and Brown

Family Law: When reviewing spousal support amounts in settlement agreements not incorporated into a stipulated judgment courts should consider whether the agreement is just and equitable not whether it violates public policy.

(Filing Date: 11-27-2013)

Dept. of Human Services v. D. J.

Juvenile Law: ORS 419B.875(2) provides in part that the rights of the parties include, but are not limited to the right to call witnesses, cross-examine witnesses and participate in hearings. A party’s right to participate includes the right to testify on the party’s own behalf.

(Filing Date: 11-27-2013)

Dept. of Human Services v. F.J.S.

Juvenile Law: A history of anger management and substance abuse problems, coupled with failure to attend court-ordered therapy, constituted sufficient evidence to show a parent was unfit and their child could not be integrated into that parent's home within a reasonable time.

(Filing Date: 11-27-2013)

Hernandez-Nolt v. Washington County

Civil Procedure: In a wrongful discharge claim, an employee’s claim cannot be considered untimely where a genuine dispute regarding the date an employee leaves employment exists, because a wrongful discharge claim does not accrue until the employee leaves the employment.

(Filing Date: 11-27-2013)

State v. Marino

Criminal Procedure: A second search cannot be based on consent obtained for the first search when a reasonable person would perceive that the first consent search had terminated.

(Filing Date: 11-27-2013)

State v. Parker

Sentencing: To determine whether a sentence would shock the moral sense for purposes of Oregon's proportionality clause: "(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."

(Filing Date: 11-27-2013)

State v. Stewart

Criminal Procedure: Upon review of a judgment of acquittal, the court looks at the facts, in a light most favorable to the respondent, to determines if any reasonable trier of facts could find that the essential elements were proved beyond a reasonable doubt.

(Filing Date: 11-27-2013)

State v. Watts

Evidence: Admission of improper character evidence is not harmless when it relates to a central factual issue at bar.

(Filing Date: 11-27-2013)

Wilson v. Dept. of Corrections

Administrative Law: OAR 291-131-0035 is not overbroad, does not exceed Department authority, and is therefore valid.

(Filing Date: 11-27-2013)

( 44 summaries )

December

Hale v. Belleque

Post-Conviction Relief: If an issue was not raised before the post-conviction court it cannot be considered on appeal. In addition it is sufficient to establish prejudice in the context of post-conviction relief if there is uncertainty regarding what elements were agreed to and use by the jury.

(Filing Date: 09-25-2013)

Greenfield v. Multnomah County

Land Use: Under the farm stand statute, ORS 215.283, outdoor farm-to-plate dinners may be within the scope of the statute and food carts are considered "structures."

(Filing Date: 12-04-2013)

Montara Owners Association v. La Noue Development, LLC

Contract Law: A jury instruction based on diminished value must only be given when evidence in the record allows a jury to reach a conclusion as to the diminished value, and an indemnity clause that offends ORS 30.140(1) because it requires a subcontractor to indemnify a contractor for the contractor's own negligence remains enforceable to the extent that it also requires the subcontractor to indemnify the contractor for the subcontractor's negligence.

(Filing Date: 12-04-2013)

Back in Action v. Liberty Northwest Ins. Corp.

Workers Compensation: Both the temporary, OAR 436-009-0040 (07/07/08), and permanent, OAR 436-009-0040(1), rules permit the enforcement of fee discount contracts because they only set an upper limit on fees for medical services.

(Filing Date: 12-11-2013)

Burgdorf v. Weston

Civil Procedure: If, in a civil dispute, upon viewing the evidence in a light most favorable to the plaintiff a fact finder could reasonably determine evidence provides grounds for enforcing plaintiff's claims, then granting a defendant's motion for summary judgment on those claims is an error by the trial court.

(Filing Date: 12-11-2013)

Guirma v. O'Brien

Civil Procedure: Under ORCP 21 A(9), a motion to dismiss on the ground that it was untimely under the statute of limitations for professional negligence cannot be granted if the jury could find that plaintiff did not know critical facts until less than two years before filing her action.

(Filing Date: 12-11-2013)

WaterWatch of Oregon, Inc. v. Water Resources Dept.

Water Rights: Under ORS 537.230(2) the measuring point for determining the portion of a permit that is "undeveloped" for purposes of ORS 537.230(2)c, and the "maximum rate diverted for beneficial use before the extension" for the purposes of ORS 537.230(2)b, is the expiration of the development deadline in the permit or last-issued extension.

(Filing Date: 12-11-2013)

State v. Pipkin

Tax Law: A one time sale of intangible assets is excluded from the definition of "sales" under ORS 314.665(6)(a) and is not included in that definition under the "unless" clause of that statute.

(Filing Date: 12-12-2013)

Cejas Commercial Interiors, Inc., v. Jorge Torres-Lizama

Employment Law: The right-to-control test should be used to define the employment relationship in terms of direction and control or a contractual relationship.

(Filing Date: 12-18-2013)

Cejas Commercial Interiors, Inc. v. Torres-Lizama

Employment Law: The economic-realities test is the appropriate test to determine whether an entity has functional control over a worker, even if formal control is absent.

(Filing Date: 12-18-2013)

Conrady v. Lincoln County

Land Use: An ordinance in Lincoln County, LCC 1.1375(2)(m), which requires a landowner to obtain a conditional use permit prior to opening a "firearms training facility," is not preempted by ORS 166.170, ORS 166.171, or ORS 166.176.

(Filing Date: 12-18-2013)

Dept. of Human Services v. G.L.H.

Juvenile Law: ORS 419B.476(2)(a) requires that the juvenile court determine whether DHS has made reasonable efforts and whether the parent has made sufficient progress to make it possible for the ward to return safely home.

(Filing Date: 12-18-2013)

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

Juvenile Law: A voluntarily untreated mental illness that is seriously detrimental to the child, may support a finding of parental unfitness and termination.

(Filing Date: 12-18-2013)

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

Juvenile Law: For DHS to take jurisdiction of a child under 419B.100(1)(c), it must establish a current risk of serious loss or injury to the child.

(Filing Date: 12-18-2013)

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

Juvenile Law: ORS 419B.100 provides that jurisdiction over a child is appropriate when there is a current, non-speculative threat to the welfare of the child.

(Filing Date: 12-18-2013)

Hettle v. Construction Contractors Board

Contract Law: Under ORS 701.140, “improper work” can be characterized as work not suited to the circumstances under which it was performed. To recover economic damages in negligence, the “economic loss” doctrine requires the existence of a heightened standard of care, such as one arising out of special relationship or statute.

(Filing Date: 12-18-2013)

Jenkins v. Portland Housing Authority

Tort Law: The Oregon Tort Claims Act is applicable when a duty arises from statute or common law, and is independent from the terms of a specific contract.

(Filing Date: 12-18-2013)

State v. Ashcroft

Criminal Law: When a trial court properly grants a motion to continue under ORS 135.763(2), after the district attorney receives notice from Defendant requesting a speedy trial under ORS 135.760 to 135.765, the trial court is not required to dismiss the case if time lapsed is greater than 90 days.

(Filing Date: 12-18-2013)

State v. Dickerson

Criminal Law: Under ORS 164.354, the phrase “property of another” includes property in which another has any legal or equitable interest and is not limited to proprietary or possessor ownership.

(Filing Date: 12-18-2013)

State v. Granberry

Criminal Procedure: The State must initiate proceedings for a probation-violation before the probationary term has expired.

(Filing Date: 12-18-2013)

State v. Guckert

Criminal Law: An indictment that alleges specific sexual touching need not be proven wherein the indictment is more specific than the legal standard in ORS 163.427.

(Filing Date: 12-18-2013)

State v. Harris

Evidence: Under the due process clause of the Fourteenth Amendment to the United States Constitution, it is an error of law to admit evidence against a defendant when the defendant does not have an opportunity to confront the evidence presented against her.

(Filing Date: 12-18-2013)

State v. Langford

Criminal Procedure: When a defendant is sentenced to and agrees to community service, then that defendant is not also subject to a work crew unless specified by the judgment. The standard of review is the same as that of reviewing a judgment of acquittal.

(Filing Date: 12-18-2013)

Brown v. MacDonald and Associates, LLC

Trusts and Estates: Proving a person is financially incapable under ORS 125.400 requires evidence that the risk of exploitation or bad financial management was caused by a person's lack of capacity.

(Filing Date: 12-26-2013)

Cortese and Cortese

Family Law: A court may award transitional spousal support based on an earning capacity that is greater than actual income when there is sufficient evidence in the record supporting the increase.

(Filing Date: 12-26-2013)

Davis v. F.W. Financial Services, Inc.

Contract Law: In the event that a debtor has unresolvable financial problems, a secured party has not waived its priority by allowing the debtor to attempt to cure default.

(Filing Date: 12-26-2013)

Department of Human Services v. J. M.

Juvenile Law: The Department of Human Services has the burden of showing, by the preponderance of the evidence, that the conditions that were originally found to endanger the child persist to a degree that they currently pose a threat of either serious loss or injury that is reasonably likely to be realized.

(Filing Date: 12-26-2013)

Dizick v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: The Board of Parole and Post-Prison Supervision does not have authority to correct sentencing errors, so it also cannot decide the presumptive sentence.

(Filing Date: 12-26-2013)

McNeff v. Emmert

Evidence: As stated in Strawn v. Farmers Ins. Co., a plaintiff needs to show "the defendant made a material misrepresentation that was false; the defendant did so knowing that the representation was false; the defendant intended the plaintiff to rely on the misrepresentation; the plaintiff justifiably relied on the misrepresentation; and the plaintiff was damaged as a result of that reliance,"; not that there was a "meeting of the minds."

(Filing Date: 12-26-2013)

SAIF v. Walker

Workers Compensation: In a Workers' Compensation action, the reviewing Court will not reweigh the evidence or choose sides among members of the board who initially reviewed the claim. A reversal of the board's decision will only occur when the credible evidence apparently weighs overwhelmingly in favor of one finding and the board finds the other without giving a persuasive explanation.

(Filing Date: 12-26-2013)

State v. Badillo

Criminal Law: The Criminal Law Revision Commission intended ORS 161.485(2) to prevent multiple convictions for attempt, solicitation, and conspiracy on the basis of a defendant's single course of conduct, as opposed to preventing multiple convictions for multiple instances of one or another of the inchoate crimes.

(Filing Date: 12-26-2013)

State v. Evans

Evidence: An exception to OEC 504(2), ORS 419B.040(1) allows for the admissibility of therapists testimony, as long as the testimony references only exculpatory or inculpatory information regarding the abuse of the child in the case being decided.

(Filing Date: 12-26-2013)

State v. Fitzhugh

Criminal Law: A "dependent person" under ORS 163.205(2)(b) is not limited to a person suffering from permanent or enduring disabilities.

(Filing Date: 12-26-2013)

State v. Groner

Criminal Procedure: An individual suspected of DUII has only the right to a reasonable opportunity to contact an attorney, not the right to have an attorney present; therefore, the presence of an attorney as a condition to submitting to a breath test constitutes a refusal.

(Filing Date: 12-26-2013)

State v. Link

Criminal Procedure: When some of a defendant's convictions are remanded, the trial court must grant defendant a sentencing proceeding.

(Filing Date: 12-26-2013)

State v. Mazzola

Criminal Procedure: Under Article I, section 9, an officer can conduct field sobriety tests (FSTs) if the tests are justified by probable cause and exigent circumstances.

(Filing Date: 12-26-2013)

State v. Moore

Criminal Procedure: Under Article 1 Section 9 of the Oregon Constitution a warrantless search of a pretrial detainee's cell is unreasonable unless an exception to the warrant requirement can be shown.

(Filing Date: 12-26-2013)

State v. Ramirez-Estrada

Evidence: If it is plausible that the defense counsel did not object to inadmissible testimony as a strategic decision, the trial court's failure to take corrective action is not plain error.

(Filing Date: 12-26-2013)

State v. Sills

Criminal Procedure: Under the former fugitive doctrine, an appellate court has judicial authority to dismiss an appeal if a fugitive's escape significantly interfered with the appellate process.

(Filing Date: 12-26-2013)

State v. Wier

Criminal Procedure: Generally, a party is entitled to have a proposed jury instruction given if the instruction properly states the law applicable. However, a trial court does not err in declining to give a correct instruction that is fully covered by the trial courts other instructions.

(Filing Date: 12-26-2013)

State v. Wolf

Criminal Law: The “place of residence” exception to ORS 166.250 includes temporary residences and areas outside of residential structures.

(Filing Date: 12-26-2013)

Talbott v. Teacher Standards & Practices Commission

Administrative Law: A good faith answer to employment related questions that proves to be false is not knowingly misrepresenting facts under ORS 183.650(4). While a writing directly related to professional duties made while off duty does violate professional standards, a writing that is a private expression of opinion does not.

(Filing Date: 12-26-2013)

Tilson and Tilson

Family Law: Modification of spousal support award is warranted upon spouse's remarriage if the remarriage constitutes a substantial, unanticipated change in economic circumstances. Continuation of maintenance support award may be appropriate if the remarriage does not address or fully satisfy the purposes of the original spousal support award.

(Filing Date: 12-26-2013)

Uhde and Uhde

Family Law: If a party is deemed to have not appeared in front of the court, they are not entitled to proper service or the opportunity to object under ORCP 68 C.

(Filing Date: 12-26-2013)