Willamette Law Online

Oregon Court of Appeals

2014

( 24 summaries )

January

1000 Friends of Oregon v. LCDC

Land Use: LCDC had not adequately explained why inclusion of certain land in a UGB was supported by substantial reason and consistent with Statewide Land Use Planning Goals 9 and 14 and other rules.

(Filing Date: 01-02-2014)

Delgado v. Del Monte Fresh Produce, N. A., Inc.

Remedies: "Employers" under ORS 653.010(3) may be liable for penalty wages on summary judgment under ORCP 61 B.

(Filing Date: 01-02-2014)

DHS v. J.G.

Juvenile Law: When a juvenile court makes an "active efforts" finding at a permanency hearing in which it changes an Indian child's permanency plan from return to parent to establishment of a durable guardianship, section 1912(d) of ICWA does not require the juvenile court to renew that "active efforts" finding at a later proceeding in which the court effects that guardianship placement under ORS 419B.366

(Filing Date: 01-02-2014)

State v. A. D. G.

Juvenile Law: Under ORS 419B.923(7), the juvenile court may enter default judgment, terminating an individual's parental rights, only when that person is absent from the hearing or trial on termination petition.

(Filing Date: 01-02-2014)

State v. Lane

Sentencing: OAR 213-012-0040(2) limits a trial court’s authority to impose consecutive prison terms when there is a single probation violation.

(Filing Date: 01-02-2014)

State v. Martin

Criminal Procedure: For an arrest for unlawful prostitution procurement activity (UPPA), the officer must have a substantial objective basis for believing that, more likely than not, the defendant had engaged in conduct constituting a substantial step in furtherance of an act of prostitution.

(Filing Date: 01-02-2014)

Assn. of Acupuncture v. Bd. of Chiropractic Examiners

Administrative Law: The State Board of Chiropractic Examiners is limited to making rules that fall within the definition of the practice of "chiropractic" as defined by ORS 684.010(2). Rules made outside the scope of that authority will be found invalid.

(Filing Date: 01-23-2014)

Central Oregon Intergovernmental Council v. Albert

Workers Compensation: The Worker's Compensation Board is required to use evidence on the record to determine whether a claimant has been released to his post-injury job, such as medical records, claimant's own description of work history, employer's Regular Duty Job analysis, and evidence about claimant's post injury capacity.

(Filing Date: 01-23-2014)

Chou v. Farmers Ins. Exchange

Attorney Fees: Under ORS 20.310, parties must only include as costs those that were necessarily incurred in appearing for the appeal, exclusive of computerized legal research.

(Filing Date: 01-23-2014)

Emerson v. Kusano

Contract Law: In the case of mutual mistake as to policy limits in a settlement agreement, in absence of clear and convincing evidence that the parties would have agreed to the actual policy limits, rather than what they mistakenly believed them to be, there is no antecedent agreement, and there is nothing to which the contract may be reformed.

(Filing Date: 01-23-2014)

Flaig v. Emert

Trusts and Estates: ORS 115.145 and ORS 115.165 do not authorize the summary determination of counterclaims by a personal representative.

(Filing Date: 01-23-2014)

McDowell Welding & Pipefitting v. US Gypsum Co.

Contract Law: Under ORS 81.010, a written offer of payment must communicate a present offer of timely payment. The prospect that payment might occur at some point in the future is not sufficient.

(Filing Date: 01-23-2014)

Rhoades v. Beck

Contract Law: Subsequent discovery of a lien will not negate a settled upon contract for full and final release of Defendant when there is evidence objectively establishing the existence of an agreement.

(Filing Date: 01-23-2014)

Root v. Klamath County

Land Use: To reverse a LUBA decision, the evidence must be so at odds with LUBA's evaluation that it is reasonable to infer that LUBA either misunderstood or misapplied its scope of review.

(Filing Date: 01-23-2014)

State v. Brewer

Sentencing: In order to justify the imposition of a downward departure sentence, ORS 137.712(2)(d)(B) requires a defendant to prove that representation of being armed with a dangerous weapon did not reasonably put the victim in fear of imminent significant physical injury.

(Filing Date: 01-23-2014)

State v. Cain

Evidence: When a business record is maintained in the ordinary course of business, and there is a duty to report, the document qualifies as admissible hearsay under OEC 803(6). Additionally, it is a plain error to impose post-judgment interest on restitution awarded for non-economic damages.

(Filing Date: 01-23-2014)

State v. Danielson

Criminal Procedure: Implied consent does not apply to officers opening an almost completely closed bedroom door; therefore, police officers' observations made after doing so are considered an unlawful search.

(Filing Date: 01-23-2014)

State v. Wieboldt

Criminal Procedure: Advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that the defendant makes an informed choice whether to engage in that behavior or not. Thus, a statement of the lawful consequences of refusal to submit to breath, blood, or urine tests is not unconstitutionally coercive.

(Filing Date: 01-23-2014)

Howe v. Greenleaf

Property Law: A statutory presumption exists that parcels of land which have a road as a boundary include up to the center line of the road unless the title to the road is clearly held by another party.

(Filing Date: 01-29-2014)

State v. Delong

Criminal Procedure: When an individual consents to a search following a custodial interrogation where Miranda warnings were not given, that consent is not a knowing and voluntary waiver of the individual's rights under the Oregon Constitution.

(Filing Date: 01-29-2014)

State v. Egeland

Evidence: When refusal to give a requested jury instruction results in a jury conviction that would have likely been affected by the rejected instruction, the court may have committed harmful error.

(Filing Date: 01-29-2014)

State v. Neal

Criminal Procedure: When a defendant is not brought to trial in accordance with ORS 135.763 to ORS 135.765 (Oregon's speedy trial provisions) and none of the exceptions under ORS 135.765(2) apply, a court is obligated to dismiss the case upon motion by defendant.

(Filing Date: 01-29-2014)

State v. S.N.R.

Juvenile Law: For a party to be found grossly negligent for falling asleep while driving, there must have been such prior warning that there was a likelihood they would fall asleep that continuing driving would constitute a conscious and reckless disregard of the possible consequences.

(Filing Date: 01-29-2014)

State v. Coverstone

Sentencing: When a trial court imposes court-appointed attorney fees upon a defendant despite no indication on the record of the defendant's ability to pay those fees, it is a "plain error" pursuant to ORAP 5.45(1).

(Filing Date: 01-30-2014)

( 33 summaries )

February

Stevens v. City of Island City

Land Use: Under ORS 197.835(9)(a)(C), LUBA can only reverse or remand the decision of the local government if the decision is not supported by substantial evidence in the record.

(Filing Date: 02-05-2014)

Campbell v. Tardio

Family Law: A dismissal of an award of custody does not change the date of "commencement of the proceeding" for purposes of determining the "home state" of the child under ORS 109.741(1).

(Filing Date: 02-12-2014)

Green v. Franke

Post-Conviction Relief: To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, a petitioner must show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. The Oregon Constitution does not give a criminal defendant the right to a perfect defense, but it requires that the lawyer do those things reasonably necessary to diligently and conscientiously advance the defense.

(Filing Date: 02-12-2014)

Relling v. Khorenian

Property Law: A multiplicity of access points to a landlocked parcel defeats an easement of necessity claim.

(Filing Date: 02-12-2014)

State v. Adame

Criminal Procedure: If a defendant understands that a refusal to perform verbal field sobriety tests cannot be used against him in a court of law, the defendant is not "compelled" to provide testimonial evidence for the purposes of the self-incrimination clause.

(Filing Date: 02-12-2014)

State v. Bax

Criminal Law: When an indictment uses the language of a specific intent, required by a statute, the court should not charge a defendant with lesser-included offenses that have different specific intent or elements than the statute

(Filing Date: 02-12-2014)

State v. Davis

Criminal Law: Second-degree burglary convictions affirmed and reversed based on whether buildings were "not open to the public" as defined in ORS 164.205(3)(a).

(Filing Date: 02-12-2014)

State v. Gruver

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

(Filing Date: 02-12-2014)

State v. Hikes

Sentencing: A trial court may take into account a defendant’s attitude at sentencing, as well as his extensive criminal history when determining eligibility for sentence modification programs.

(Filing Date: 02-12-2014)

State v. Nugent

Criminal Procedure: In a criminal trespass case, even if the court erred by giving a single instruction rather than a double instruction, the error does not require reversal if the instruction did not mislead the jury.

(Filing Date: 02-12-2014)

State v. Ohotto

Evidence: Testimony on the rate of dissipation of alcohol in the blood is improper lay opinion where the deputy testifying merely read training manuals on alcohol dissipation, took a training course, and conducted routine DUII investigations.

(Filing Date: 02-12-2014)

State v. Richardson

Criminal Law: A photograph depicting a fully-clothed child touching a person's leg who is engaged in sexual activity with a naked woman constitutes first-degree encouraging child sexual abuse under ORS 163.684. Additionally, a photograph that depicts a fully-clothed child standing near two people who are in a sexual situation constitutes using a child a in a display of sexually explicit conduct under ORS 163.670.

(Filing Date: 02-12-2014)

Barkers Five, LLC v. LCDC

Land Use: LCDC order acknowledging designation of urban and rural reserves in the Metro area was unlawful in substance because it (1) approved Washington County’s misapplication of rural reserve factors, (2) incorrectly found Multnomah County’s consideration of rural reserve factors sufficient, and (3) failed to review designation of Stafford as urban reserve for substantial evidence.

(Filing Date: 02-20-2014)

Brand Energy Services, LLC v. OR-OSHA

Workers Compensation: OR-OSHA rule 29 CFR section 1926.451(g)(1), requiring employees working on scaffolds to be protected by fall-protection systems, does not apply to employees dismantling a scaffold. However, 29 CFR section 1926.451(g)(2) does apply.

(Filing Date: 02-20-2014)

D.W.C. v. Carter

Civil Stalking Protective Order: Under ORS 30.866, a stalking protective order requires a petitioner have subjective alarm, that alarm to be objectively reasonable, and that alarm to be the result of multiple qualifying contacts.

(Filing Date: 02-20-2014)

Gambee v. Oregon Medical Board

Administrative Law: Under ORS 677.190(1)(b)(A), a doctor that puts his/her patients at a risk of harm greater than the standard treatment does not qualify as “alternative medical treatment.”

(Filing Date: 02-20-2014)

Haggerty and Haggerty

Family Law: The trial court erred when it failed to determine whether the parties had entered into a valid settlement agreement.

(Filing Date: 02-20-2014)

Leach v. Scottsdale Indemnity Co.

Insurance Law: An insurer's duty to defend arises when a claim against its insured could, without amendment, impose liability for conduct covered by the policy. An insurer's duty to indemnify arises only where the insured is actually liable for harm or injury covered by the policy.

(Filing Date: 02-20-2014)

Merrill Lynch Commercial Finance Corp. v. Hemstreet

Property Law: When a creditor has a judgment that includes both a money judgment and a foreclosure judgment, ORS 88.060 does not preclude the creditor from collecting on a money judgment independently and prior to the foreclosure sale.

(Filing Date: 02-20-2014)

Singh v. Sidhu

Civil Procedure: For a party to successfully argue for the reversal of a court's judgment on the basis of a jury's lack of evidence for their conclusion, the party must show that the jury substantially affected their rights.

(Filing Date: 02-20-2014)

State v. Clemente-Perez

Criminal Law: A person’s “place of residence” under ORS 166.250(2)(b) may encompass temporary structures and outdoor areas adjacent to temporary structures if used for daily living activities. The courts look to evidence of a person’s actual use to determine if it is used for daily living activities.

(Filing Date: 02-20-2014)

State v. Gray

Criminal Procedure: A court's failure to properly instruct a jury on the requisite culpable mental state required to commit the charged crime will result in plain error, which does not require preservation for appellate review.

(Filing Date: 02-20-2014)

State v. Stinstrom

Criminal Procedure: Administrative seizures are not subject to the inventory exception if the item is not already lawfully possessed by the officer.

(Filing Date: 02-20-2014)

Wright v. Turner

Insurance Law: The term "accident", as used in statutorily prescribed insurance contracts, is interpreted by legislative intent. Furthermore, whether more than one "accident" has occurred is ordinarily a question of fact reserved for the factfinder.

(Filing Date: 02-21-2014)

Dept of Human Services v. A.E.F.

Juvenile Law: Juvenile statutes authorize a court to order a parent to participate in a psychological evaluation if the evaluation bears a rational relationship to the bases the court found for taking jurisdiction over the child.

(Filing Date: 02-26-2014)

Dept of Human Services v. N.B

Family Law: A marked improvement in mental health condition is not necessarily sufficient to overcome the Court's wardship as to children.

(Filing Date: 02-26-2014)

Eclectic Investment, LLC. v. Patterson

Tort Law: The distinction between active and passive negligence is but one factor to consider when determining whether or not indemnification among co-defendants is proper.

(Filing Date: 02-26-2014)

Martin v. Gomes

Trusts and Estates: An expectancy interest is distinct from a property interest. An order relating to division of assets that addresses only property interests will not contravene a designated beneficiary's right to receive funds as an expectancy interest.

(Filing Date: 02-26-2014)

Nkrumah v. City of Portland

Employment Law: To establish a wrongful discharge case on the basis of a "public duty" when the employee quits his or her employment, he or she must establish that the public entity created objectively intolerable working conditions, resulting in the employee's forced resignation, because of the employee's fulfillment of the asserted public duty.

(Filing Date: 02-26-2014)

Piazza v. Dept. of Human Services

Evidence: Written admissions, if used as evidence through testimony or closing argument, present cumulative evidence if presented as a jury instruction.

(Filing Date: 02-26-2014)

State v. Hawkins

Post-Conviction Relief: Under ORS 138.230, an error is not harmless when a defendant is denied their right to an acquittal and their right to have the judgment reflect that acquittal.

(Filing Date: 02-26-2014)

Utility Reform Project v. PUC

Administrative Law: The PUC is not required to order a return of overpayment of taxes to ratepayers where the utility did not earn a reasonable return on investment.

(Filing Date: 02-26-2014)

Wilson v. Gutierrez

Remedies: A benefit that is conferred not as a gift but as expected substituted payment can support a finding of unjust enrichment.

(Filing Date: 02-26-2014)

( 36 summaries )

March

C.M.V. v. Ackley

Civil Law: In order for a FAPA restraining order to be upheld, a party seeking to maintain the order must make a showing, with evidence, that conduct of the other presented imminent danger of further abuse and a credible threat to physical safety.

(Filing Date: 03-05-2014)

Dept. of Human Servs. v. D. A. S., Jr.

Juvenile Law: Under ORS 107.097(3)(a), to continue jurisdiction over a juvenile, the party asserting jurisdiction must present evidence that the juvenile would be exposed to a current threat of serious loss or injury.

(Filing Date: 03-05-2014)

Head v. Head

Trusts and Estates: The court may not grant relief in the form of modifying a trust instrument's terms, if modification was not reasonably contemplated by the parties and substantially departs from the pleadings and legal theories.

(Filing Date: 03-05-2014)

State v. Burton

Criminal Law: In cases litigated prior to State v. Mills, 354 Or 350 (2013), a defendant may challenge venue through a motion for judgment of acquittal.

(Filing Date: 03-05-2014)

State v. Daniels

Criminal Procedure: A prosecutor can obtain recordings of inmate conversations from the Department of Corrections for discovery and must disclose the recordings to the defendant if the recordings are in the prosecutor's possession or control.

(Filing Date: 03-05-2014)

State v. Ferguson

Criminal Procedure: For purposes of ORS 135.703 and ORS 135.705, the ‘person injured’ who must participate in a valid civil compromise is the person or persons directly injured by the acts criminalized by the statute under which a defendant is charged.

(Filing Date: 03-05-2014)

State v. Lopez

Criminal Law: Under ORS 137.106, restitution must be imposed within 90 days after sentencing or otherwise extended by the court for good cause and Defendant must be given an opportunity to be heard before the court on the imposition, amount, or distribution of the restitution.

(Filing Date: 03-05-2014)

State v. Weilert

Appellate Procedure: Given the state of the law at the time of defendant's trial, it would be unfair to hold that Defendant forfeited the opportunity to challenge venue prior to trial.

(Filing Date: 03-05-2014)

Fox v. Employment Department

Employment Law: A decision under OAR 471-030-0038 denying unemployment benefits for misconduct will not stand unless there are clear findings on intent. Conduct that amounts to an irreparable breach of trust does not remove the need to examine intent.

(Filing Date: 03-12-2014)

Neumann v. Liles

Tort Law: To avoid dismissal under ORS 31.150, Oregon’s anti-SLAPP statute, the plaintiff must demonstrate a prima facie case in support of their claim. The bar for presenting a prima facie case is low.

(Filing Date: 03-12-2014)

Fleming v. Board of Parole and Post-Prison Supervision

Administrative Law: Petitioner must first raise issues on administrative review in order for them to subsequently be considered on judicial review.

(Filing Date: 03-19-2014)

Gomez and Gomez

Family Law: In awarding child custody, a court must first determine what party is entitled the statutory preference in favor of the primary caregiver under ORS 107.137(1).

(Filing Date: 03-19-2014)

Ibarra v. Barnes

Family Law: In-chambers conversations held off the record may create an insufficient record for the Court of Appeals to review on appeal.

(Filing Date: 03-19-2014)

Sherwood Park Business Center, LLC. v. Taggart

Corporations: If a trial court declares a member's expulsion from an LLC and the remaining members exercise their option to purchase the expelled member's share, the interest owed for the purchase begins to accrue on the date the trial court enters its judgment.

(Filing Date: 03-19-2014)

State v. Barnes

Evidence: Erroneously admitted testimony admissible if there is "little likelihood" it affected the verdict.

(Filing Date: 03-19-2014)

State v. Negrete

Criminal Procedure: In order for a factfinder to find the essential elements of a crime beyond a reasonable doubt, the evidence must be sufficient under the totality of the circumstances.

(Filing Date: 03-19-2014)

Tolle v. Franke

Post-Conviction Relief: A petition for post-conviction relief that meets the requirements of ORS 138.580 should not be dismissed.

(Filing Date: 03-19-2014)

Cannon v. Dept. of Justice

Civil Procedure: Plaintiff commences a timely action under the Oregon Tort Claims Act, and ORS 30.275(2)(b), when he files an action within 180 days of injury and serves Defendant within 60 days of filing.

(Filing Date: 03-26-2014)

Clackamas River Water v. Holloway

Civil Law: Under ORS 31.150(1)(3), Oregon's anti-SLAPP statute, a defendant's successful special motion to strike canooot then "proceed to trial."

(Filing Date: 03-26-2014)

Dept. of Human Services v. I.S.

Juvenile Law: Under ORS 419B.100(1)(c), juvenile dependency jurisdiction is proper when "condition or circumstances are such as to endanger the welfare" of the child. If a court does not find that a parent has exposed children to reasonable likelihood of harm, then the conditions of jurisdiction have not been met.

(Filing Date: 03-26-2014)

Dept. of Human Services v. R.S.

Juvenile Law: An agency's initial jurisdiction in juvenile court is not subject to collateral attack in a later proceeding; the only proper jurisdictional challenge is to the court's continuing jurisdiction.

(Filing Date: 03-26-2014)

Frontgate Properties, LLC v. Bennett

Contract Law: Under the doctrine of merger, any inconsistency between the terms of a contract of purchase for real estate and there terms of the deed are governed by the deed, but this does not apply when, through fraud or relievable mistake, the grantee has been induced to accept something different from what was agreed upon by the parties.

(Filing Date: 03-26-2014)

Johnson v. DMV

Criminal Procedure: Under ORS 813.440(1)(d)and OAR 735-090-0120(4), an "official duty conflict" justifying the postponement of a suspension hearing is an obligatory task connected with a police officer that prevents the officer from appearing at a hearing. An officer's jury duty does not qualify.

(Filing Date: 03-26-2014)

Mesta v. Franke

Post-Conviction Relief: The Oregon Constitution does not require appellate counsel to put forth every possible argument in the small chance a subsequent change in law will make the argument effective at a later date.

(Filing Date: 03-26-2014)

Miller v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: A parole-release date that has been challenged, if past the date, will be deemed moot because there is no practical effect on the rights of the parties.

(Filing Date: 03-26-2014)

State v. Beauvais

Evidence: Simply because evidence subsequently becomes irrelevant after the state's dismissal of charges relating to another defendant, is not sufficient to demonstrate prejudice.

(Filing Date: 03-26-2014)

State v. Berry

Criminal Procedure: To raise a timely double jeopardy claim, the defendant must raise the claim before the second trials starts if all of the facts that are required to prove double jeopardy are well-known.

(Filing Date: 03-26-2014)

State v. Bistrika

Criminal Law: Jury instructions which insert an irrelevant issue into a case constitute a reversible error.

(Filing Date: 03-26-2014)

State v. J.C.L.

Criminal Procedure: A warrantless seizure of a youth's computer and hard drive can be justified by the exigent circumstances exception to the warrant requirement.

(Filing Date: 03-26-2014)

State v. King

Criminal Law: Under ORS 161.067(3), a single criminal episode of assault may be multiple violations when an assault is commenced, stops, and begins again. The pause must constitute a sufficient opportunity to renounce criminal intent.

(Filing Date: 03-26-2014)

State v. Licari

Criminal Procedure: A denial for a continuance is measured on an abuse of discretion standard, while looking at the particular circumstances of the case and the reasons presented to the court at the time of denial.

(Filing Date: 03-26-2014)

State v. Lobo

Criminal Law: In a criminal case, when a error that was not exclusionary of any new evidence occurs and would not affect the verdict, it is a harmless error and is not reversible. Additionally, OEC 803(18a)(b) does not requires the trial court to hold a pretrial conference to determine the availability of a witness where the hearsay declarant testifies and is subject to cross-examination.

(Filing Date: 03-26-2014)

State v. Poitra

Criminal Law: The state of mind of an arresting officer is not relevant to a self-defense analysis and risks confusing the jury, which instead must evaluate the defendant's reasonable belief as to the circumstances.

(Filing Date: 03-26-2014)

State v. Rivera

Sentencing: Court remands for resentencing in the absence of factual findings on proportionality of a Measure 11 sentence as required by State v. Rodriguez/Buck.

(Filing Date: 03-26-2014)

State v. Roelle

Criminal Procedure: Under ORS 132.560(3), when a jury can easily separate whether a defendant is guilty of two separate types of crimes, joinder is not necessary to prevent prejudice.

(Filing Date: 03-26-2014)

State v. Smith

Evidence: Under ORS 163.670(1), compelling or inducing a child to engage in sexually explicit conduct may be inferred by a factfinder from sexually explicit photographs in which a child’s facial expression conveys that the child has been persuaded or influenced to participate. A jury can infer from the nature of photographs, and the context of other evidence, that they are sexually explicit.

(Filing Date: 03-26-2014)

( 47 summaries )

April

Aleali v. City of Sherwood

Land Use: A deficiency in pre-hearing notice invoking delayed appeal rights, under ORS 197.830(3), is determined solely by state law procedures, and not by local law.

(Filing Date: 04-02-2014)

Bova v. City of Medford

Employment Law: Under ORS 243.303(2), the Supreme Court has rejected the argument that "if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost or other circumstances" and reasons that the statute was not intended to be “unduly burdensome”; Under ORS 659A.030(1)(b), a plaintiff’s complaint must plead age discrimination based on a theory of disparate impact.

(Filing Date: 04-02-2014)

Bradley v. State of Oregon

Land Use: Under ORS 376.185(1), a court shall not unreasonably withhold its consent to a landowner's petition for a way of necessity. Whether consent is unreasonably withheld is measured by whether the withholding was arbitrary or capricious.

(Filing Date: 04-02-2014)

Croghan v. Don's Dugout, LLC

Civil Procedure: When a party believes that a verdict is inconsistent it must (1) object to the verdict before the jury is discharged, and (2) request jury clarification of the matter under ORCP 59 G(4).

(Filing Date: 04-02-2014)

Dept. of Human Services v. J.M.

Juvenile Law: In a permanency hearing, evidence relating to a child's original unexplained injury is not irrelevant as an attack on DHS's jurisdiction because it may be probative in the remedial steps parents must make toward reunification.

(Filing Date: 04-02-2014)

Sellwood-Moreland Improv. League v. City of Portland

Land Use: Unless the Plan District’s code expressly precludes density transfers between sites in multi-dwelling zones, the density transfer will be allowed to preserve development opportunities for new housing and to reduce development pressure on environmentally sensitive sites.

(Filing Date: 04-02-2014)

State v. Andrews

Evidence: In order to preserve an assignment of error, Defendant must argue at trial that testimony must be proven by a preponderance of the evidence.

(Filing Date: 04-02-2014)

State v. Arnold

Evidence: In order to admit evidence of a prior bad act, the state must show that the acts were "so distinctive that both crimes can be attributable to one criminal. In other words, the modus operandi must be unusual."

(Filing Date: 04-02-2014)

State v. Lewallen

Post-Conviction Relief: Under ORS 138.083, a court is not required to grant a motion to correct an alleged error with a hearing, rather, the court has discretionary authority to grant or deny such relief.

(Filing Date: 04-02-2014)

State v. Medina

Criminal Law: Under ORS 165.800, signing a false name to a police document, which is then used to discover the signer’s true name, constitutes converting and uttering the “personal identification of another person… with intent to deceive.”

(Filing Date: 04-02-2014)

State v. Peters

Criminal Procedure: Asking a person lawfully stopped for a traffic violation the location of a known associate that is at large does not constitute an unlawful extension of the stop via Article 1, Section 9 of the Oregon Constitution.

(Filing Date: 04-02-2014)

State v. Prieto-Rubio

Criminal Law: Police must notify a Defendant's attorney before interviewing him or her about separate but factually related offenses when he or she has obtained representation in one of the cases.

(Filing Date: 04-02-2014)

State v. Shumate

Criminal Procedure: Remand denied where defendant failed to identify flaws in original sentencing proceeding. For a court order to be appealable, it must resolve all charges brought in the case.

(Filing Date: 04-02-2014)

State v. Webb

Criminal Law: A structure is a "building" under ORS 164.205(1) if it has been adapted for carrying on a business.

(Filing Date: 04-02-2014)

Rogue Valley Sewer Services v. City of Phoenix

Municipal Law: Where a city's charter broadly confers all authority not denied by state or federal law, it confers on the city the power to impose local taxes and to regulate matters subject to municipal regulation.

(Filing Date: 04-09-2014)

State v. Andrade

Sentencing: Ballot Measure 11 and ORS 137.700 convictions of first-degree rape and first-degree sodomy do not require that the court impose consecutive mandatory minimum sentences.

(Filing Date: 04-09-2014)

State v. Goetzinger

Evidence: Bruising to an infant child alone does not constitute sufficient evidence to show medical care was necessary under ORS 163.200.

(Filing Date: 04-09-2014)

State v. Rodriguez-Perez

Criminal Procedure: Under Article I, section 9, of the Oregon Constitution, officers’ reasonable suspicion must is examined for what is objectively reasonable. An individual appearing agitated while his brother is being searched is not enough to warrant reasonable suspicion.

(Filing Date: 04-09-2014)

Adair Homes, Inc. v. Dunn Carney

Contract Law: A court resorts to the general policy in favor of arbitration only when a contract is ambiguous and there is no extrinsic evidence of the parties' intent.

(Filing Date: 04-16-2014)

Blankenship v. Smalley

Civil Law: Under ORS 67.040, a business partner’s actions will be binding on his partner unless the other party had actual knowledge or notice of that partner’s lack of authority to bind his partner.

(Filing Date: 04-16-2014)

City of Beaverton v. Pack

Criminal Procedure: When reviewing the sufficiency of a jury instruction, the Court will review all instructions given to determine whether the jury was properly informed of the applicable requirements of the crime charged.

(Filing Date: 04-16-2014)

Ramirez v. Northwest Renal Clinic

Civil Procedure: Notice of voluntary dismissal does not require a court ruling to be effective, and is thus sufficient to dismiss an action without prejudice despite pendency of the grant of a motion for summary judgment.

(Filing Date: 04-16-2014)

Sohn v. Thi

Civil Procedure: Under ORCP 54 A, dismissal of a case is to be with prejudice where the plaintiff’s dismissed action and prior action was (1) against the same defendant and (2) for the same claim.

(Filing Date: 04-16-2014)

State v. Durando

Criminal Procedure: If conviction would have occurred despite the evidence in question being suppressed then it is considered a harmless error; however, unlawfully obtained evidence that is the sole evidence leading to a conviction will be suppressed.

(Filing Date: 04-16-2014)

State v. Newcomb

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution governing privacy rights with respect to personal effects, extraction and testing of a dog's blood is a "search" because those actions constitute a physical invasion of a defendant's personal property which reveal otherwise concealed evidence.

(Filing Date: 04-16-2014)

C.J.L. v. Langford

Civil Stalking Protective Order: In order for an Stalking Protective Order to be issued, under ORS 30.866, a petitioner must show that speech-based contacts instill a fear of imminent and serious personal violence from the speaker, are unequivocal, and are objectively likely to be followed by unlawful acts, such that the addressee believes the actor intends and is able to carry them out. Threats that are hyperbole, rhetorical excesses, and impotent expressions of anger or frustration are insufficient, even if they alarm the addressee.

(Filing Date: 04-23-2014)

Cardona and Cardona

Family Law: Under ORS 107.105(1)(f)(A), a pension is marital property which, as long as the presumption of equal contribution has not been rebutted, should be divided evenly upon marital dissolution.

(Filing Date: 04-23-2014)

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

Family Law: In a hearing to determine Mother's motion to set aside relinquishments, an attorney should be provided in order to ensure the procedural protections required for a fundamentally fair hearing.

(Filing Date: 04-23-2014)

Dickson v. Dickson

Civil Procedure: In situations in which a party puts itself in a position of needing to seek the services of a different attorney before or during trial, a court does not abuse its discretion in denying a motion for a continuance.

(Filing Date: 04-23-2014)

Lewis v. Beyer

Administrative Law: Under OAR 860-022-0041, the “automatic adjustment clauses” determined by the Public Utility Commission only apply to taxes levied on or after January 1, 2006. Furthermore, attorney’s fees are not appropriate in this case under ORS 183 (Administrative Procedures Act).

(Filing Date: 04-23-2014)

Ponderosa Properties, LLC v. Employment Department

Employment Law: Under ORS 670.600(2), an independent contractor is “(a) free from direction and control over the means and manner of providing services [and] (b) customarily engaged in an independently established business[.]”

(Filing Date: 04-23-2014)

State ex rel Gary Schrodt v. Jackson County

Land Use: The text and context of ORS 215.402(2) reflect the legislature intended the phrase "application for discretionary approval of a proposed development of land" to include requests for discretionary approval of a proposed use of land.

(Filing Date: 04-23-2014)

State v. Barajas

Criminal Procedure: Appellate tag lines must be read in the context of the opinion as a whole.

(Filing Date: 04-23-2014)

State v. Bistrika

Evidence: Evidence of independent crimes that threaten the safety of police officers do not need to be suppressed even if evidence is obtained as a result of unlawful police conduct.

(Filing Date: 04-23-2014)

State v. Doyle

Criminal Procedure: To determine whether an initial violation of Miranda is cured before the start of a second interview, the court should consider the time between the first and second interview, whether Miranda rights were read before the second interview, and whether those rights were understood and intelligibly waived prior to the second interview.

(Filing Date: 04-23-2014)

State v. Fox

Criminal Law: Under ORS 162.005(2), a member of the Oregon National Guard qualifies as a public servant for the purposes of a sexual coercion charge.

(Filing Date: 04-23-2014)

State v. Pearson

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution, which governs privacy rights with respect to personal effects, an officer unlawfully extends a traffic stop if he inquires about the presence of a weapon once the officer’s source of suspicion has been dispelled.

(Filing Date: 04-23-2014)

State v. Whitlow

Criminal Procedure: A court will balance the actual prejudice caused to a defendant by the state’s pre-indictment and speedy trial delay with the state’s justification for that delay in deciding whether or not to grant dismissal of charges.

(Filing Date: 04-23-2014)

State v. Wiggins

Criminal Procedure: If a dog sniff produces incriminating evidence, that would not have happened but for an unlawful search, it is the unattenuated product of that illegality and should be suppressed.

(Filing Date: 04-23-2014)

Bazzaz v. Howe

Evidence: Evidence that may be "relevant and essential" to a causation based defense, which requires a finding of fact that cannot have been made by a judge on summary judgment, is admissible, so long as the jury is not making a determination on the causation issue.

(Filing Date: 04-30-2014)

State v. Corkill

Criminal Law: A court does not have a duty to sua sponte exclude testimony where the questioning leading to this testimony did not present "vouching" concerns.

(Filing Date: 04-30-2014)

State v. Dalessio

Criminal Procedure: Under State v. Moore/Coen, a defendant's trial testimony is considered tainted by the erroneous admission of unconstitutionally-obtained statements even if Defendant did not move to exclude his pretrial statement during his first trial.

(Filing Date: 04-30-2014)

State v. Davis

Evidence: Under Article I, section 9 of the Oregon Constitution, police inventory procedures may constitute an unlawful search if they have no precise or meaningful limitations.

(Filing Date: 04-30-2014)

State v. Miller

Criminal Procedure: Although ORS 137.540(2) allows a court to impose special provisions of probation when reasonably related to the crime of conviction or the needs of the petitioner for the protection of the public or reformation of the probationer, no provision exists for the forfeiture of property as a condition of probation.

(Filing Date: 04-30-2014)

State v. Villanueva-Villanueva

Evidence: In the absence of overwhelming evidence of guilt, erroneously admitted hearsay evidence that significantly reinforces the declarant's testimony at trial constitutes error requiring reversal of the defendant's conviction.

(Filing Date: 04-30-2014)

PNC Multifamily Capital Institutional Fund XXXIV Limited Partnership v. AOH-Regent

Civil Procedure: The Court will not affirm a trial court's decision if it was made for the "wrong reason" because the record could have developed differently with a different argument.

(Filing Date: 05-30-2014)

State v. Ruiz-Piza

Criminal Procedure: A confession induced through fear is a strong indicator of involuntariness when considered as part of the totality of the circumstances during a suppression hearing.

(Filing Date: 05-30-2014)

( 39 summaries )

May

Brown v. SAIF

Workers Compensation: The correct test in determining a combined condition claim is whether claimant's work-related injury incident is the major contributing cause of the combined condition.

(Filing Date: 05-07-2014)

DHS v. T.L.

Civil Procedure: The Court of Appeals will not address arguments not preserved for appeal in the lower court.

(Filing Date: 05-07-2014)

Dunmire v. Bd. of Parole & Post-Prison Supervision

Appellate Procedure: Where a petitioner shows collateral consequences that stem from a board’s decision to impose incarceration based on legally incorrect premises the petition for judicial review is moot.

(Filing Date: 05-07-2014)

IAFF, Local 3564 v. City of Grants Pass

Labor Law: Passage of the PECBA, which permits employees to bargain collectively with their public employers, did not nullify the ORS 652.080 mandate that firefighters’ authorized vacation or sick leave time shall be considered as time on regular duty for the purpose of calculating overtime entitlement.

(Filing Date: 05-07-2014)

SAIF v. Carlos-Marcia

Workers Compensation: Diagnostic services related to discovery of the cause of complaints of pain can be reasonable and necessary expenses, even if the results of the testing reveal that the condition was unrelated to the compensable condition.

(Filing Date: 05-07-2014)

Sather v. SAIF

Workers Compensation: Under ORS 656.218(3), an estate is not among the persons entitled to pursue a claim for worker's compensation.

(Filing Date: 05-07-2014)

State v. Cherry

Criminal Law: When a jail deputy, pursuant to an invalid administrative inventory policy, removes items from defendant's pocket, the evidence discovered as a result of the search must be suppressed.

(Filing Date: 05-07-2014)

Dept. of Human Services v. J. B. V.

Family Law: When DHS seeks to change a ward’s permanency plans, DHS must prove that it made reasonable efforts to effect reunification, and that the parent did not make sufficient progress to allow the child’s safe return home, despite DHS's efforts.

(Filing Date: 05-14-2014)

Miller v. American Family Mutual Ins. Co.

Civil Procedure: Under ORCP 54 E, an accepted offer of judgment by a defendant is entered by the court as a “stipulated judgment” and cannot be used as a “confession of judgment” to preclude the defendant from offering further evidence related to the issue.

(Filing Date: 05-14-2014)

Rowlett v. Fagan

Civil Procedure: A properly stated negligence claim cannot be dismissed on the merits after an answer has already been filed before trial.

(Filing Date: 05-14-2014)

State v. Kenny

Criminal Law: Under ORS 133.076(1), the phrase "issued under" merely describes the type of citation created and does not create an additional element of the offense; in establishing "knowingly" under the same statute, "logically relevant" testimony under OEC 401 is permitted, including testimony of a defendant.

(Filing Date: 05-14-2014)

State v. Vanburen

Evidence: Under ORS 98.005, in order for an officer to conduct a warrantless search of a closed bag, the officer’s subjective belief that the property is lost must be objectively reasonable—only then may the officer search the property to identify its owner.

(Filing Date: 05-14-2014)

State v. Wilcher

Criminal Law: A defendant’s right to be heard “by himself” is fully exercised by testifying under oath as a witness, and does not include the right to make an unsworn statement to the jury during the case-in-chief.

(Filing Date: 05-14-2014)

Bova v. City of Medford

Attorney Fees: Where a trial court ruling awards a plaintiff costs and attorney fees with respect to contempt and age discrimination claims, and the Court of Appeals affirms one of those claims and reverses the other, the award of costs and attorney’s fees should also be reversed with respect to the claim that is reversed.

(Filing Date: 05-21-2014)

City of Eugene v. Comcast of Oregon II, Inc.

Tax Law: Registration fees on revenue for internet service providers are barred under the Internet Tax Freedom Act (ITFA); but licensing fees are not a tax under the ITFA.

(Filing Date: 05-21-2014)

Friends of the Hood River Waterfront v. City of Hood River

Land Use: ORS 197.175(2) represents a mandatory requirement to identify the 100-year floodplains in connection with a project on a site where the floodplains have not yet been identified; however, nothing in the text or context of that provision expressly requires that identification to take the form of a map prepared by the applicant.

(Filing Date: 05-21-2014)

Fuentes v. Tillett

Civil Law: Under ORS 125.480, intermediate accounting orders are final only as to the conservator's liability with respect to matters that were actually presented to, and considered by, the probate court when it approved the intermediate accountings.

(Filing Date: 05-21-2014)

PGE v. Ebasco Services, Inc.

Civil Procedure: Under ORCP 71 B(1), which allows a court to relieve a party from a judgment for "mistake, surprise, or excusable neglect," a party seeking relief from a default judgment on excusable-neglect grounds must offer evidence that at least demonstrates the existence of procedures for responsibly responding to lawsuits.

(Filing Date: 05-21-2014)

State v. Beasley

Criminal Law: An individual is not “stopped” when an officer engages in “mere conversation” with the individual absent an explicit or implicit show of authority that objectively restricts the individual’s liberty; an individual is not “seized” when an officer requests and checks the individual’s identification with the consent of the individual, and retains the identification for a reasonable period of time to examine it.

(Filing Date: 05-21-2014)

State v. Cuevas

Evidence: The admission of evidence, while denied for one purpose, may be admitted for an unrelated purpose, so long as it remains within the purpose or scope of what is being examined. When determining a sentence, courts are to use the “shift-to-I” rule; however, the courts failure to do so may not necessarily be a reversible error.

(Filing Date: 05-21-2014)

State v. Hernandez

Criminal Procedure: The focus in determining whether an issue has been adequately preserved in a particular case is whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it.

(Filing Date: 05-21-2014)

State v. Jimenez

Criminal Procedure: An officer may not investigate matters unrelated to a stop absent reasonable suspicion of that unrelated matter, an unavoidable lull in the inquiry process, or some exception to the warrant requirement.

(Filing Date: 05-21-2014)

State v. Mannix

Appellate Procedure: Pursuant to ORS 136.220, a juror who is committed to becoming related to a primary witness does not have implied bias. Pursuant to ORAP 5.45, a party may not raise claims of error that are not preserved on the trial court record, even if it is a plain error.

(Filing Date: 05-21-2014)

State v. Pichardo

Criminal Procedure: When consent is given to a search after questioning that unlawfully extends a stop, evidence obtained must be suppressed.

(Filing Date: 05-21-2014)

Vanecek v. Angelozzi

Post-Conviction Relief: The petitioner has the burden to prove, by a preponderance of the evidence, that the trial counsel failed to provide adequate representation by exercising professional skill and judgment and that the petitioner suffered prejudice as a result.

(Filing Date: 05-21-2014)

Yale Holdings, LLC v. Capital One Bank

Property Law: Summary judgment is only appropriate when the terms of a deed are unambiguous.

(Filing Date: 05-21-2014)

Dept. of Human Services v. G.N.

Family Law: In reviewing a juvenile court's judgment, the court views the evidence, as supplemented and buttressed by permissible derivative inference, in the light most favorable to the juvenile court's disposition and asses whether, when so viewed, the record was legally sufficient to permit that outcome.

(Filing Date: 05-29-2014)

Nielsen v. Employment Dept.

Employment Law: Under ORS 657.176(2)(c) (see also OAR 471-030-0038(4)), a former employee seeking unemployment benefits who resigns her position rather than confront her employer or file a BOLI complaint can still qualify for those benefits, as long as it was reasonable for her to do so.

(Filing Date: 05-29-2014)

Oregon v. Heater

Criminal Procedure: Physical characteristics and overall demeanor are not sufficient reasonable suspicion to extend a lawful stop for an unrelated matter.

(Filing Date: 05-29-2014)

Schmidt v. Slader

Tort Law: Direct causation, rather than reasonable foreseeability, is the sine qua non of respondeat superior liability. Evidence regarding acts that are the outgrowth of and within the scope of employment ought to be obtained and presented to the court.

(Filing Date: 05-29-2014)

State v. Ashkins

Criminal Law: A jury instruction requiring all jurors to agree on which occurrence constituted a crime is not required when the evidence shows multiple occurrences of the offense and does not give jurors the ability to factually distinguish one occurrence from another in a manner that could lead to differing conclusions about the commission of the crime.

(Filing Date: 05-29-2014)

State v. Brown

Criminal Procedure: When an incorrect legal standard is applied to a motion to dismiss in a trial court, and the correct legal standard would require findings of fact not already made, then that decision may be vacated.

(Filing Date: 05-29-2014)

State v. Campbell

Criminal Procedure: Whether a police-citizen interaction rises beyond a mere encounter to the level of a seizure under Article I, section 9, depends on whether a reasonable person would believe that an officer has intentionally and significantly restricted, interfered with, or otherwise deprived a citizen of his or her liberty or freedom of movement; for police to seize an individual under Article I, section 9, an individual must have an objectively reasonable perception that police are exercising coercive authority; asking for identification is not enough to show coercive authority.

(Filing Date: 05-29-2014)

State v. Ellis

Criminal Law: The speedy trial delay period is measured from the date of the most recent accusatory instrument where prior accusatory instruments were dismissed, even when a new accusatory instrument is issued before the previous one is dismissed. This is measured from the initial filing date of the original instrument when that instrument was amended but not dismissed. A net delay of approximately 12 months due to insufficiency of judges is not unreasonable.

(Filing Date: 05-29-2014)

State v. Gardner

Criminal Procedure: Even if a search violates Article I, section 9 of the Oregon Constitution, because it resulted in constitutionally tainted information being included in a warrant application, it does not compel the conclusion that a search conducted pursuant to that warrant was invalid.

(Filing Date: 05-29-2014)

State v. Olson

Evidence: Under OEC 404(3), a court considers six factors to determine whether evidence of prior acts may be admitted to demonstrate intent in a criminal trial.

(Filing Date: 05-29-2014)

State v. Richards

Evidence: Where erroneously excluded evidence relates to the central factual issue, rather than a tangential issue, and thereby is more likely to effect the trier of fact’s determination, the evidentiary error is not harmless.

(Filing Date: 05-29-2014)

State v. Straughan

Criminal Procedure: A defendant’s motion to dismiss on speedy trial grounds should be granted when the delay caused by the state is both unexpected and unreasonable.

(Filing Date: 05-29-2014)

State v. Straughan

Criminal Law: Under former ORS 135.747 (2011), an unjustified delay of trial for nearly seven months out of 21 months of delay in general is unreasonable, and must be dismissed without showing of "sufficient reason" to continue the case.

(Filing Date: 05-29-2014)

( 31 summaries )

June

Amerivest Financial, LLC v. Malouf

Corporations: When the expected profits of investment transactions are the result of management and control by a company’s own officers, the investment transactions are not “investment contracts” for the purposes of securities fraud under ORS 59.137.

(Filing Date: 06-04-2014)

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

Family Law: To determine whether jurisdiction over a minor is proper, the inquiry is based on “whether, under the totality of circumstance, there is a reasonable likelihood of harm to the welfare of the child.”

(Filing Date: 06-04-2014)

State v. Kelly

Appellate Procedure: Pursuant to ORAP 5.45, Appellate courts have broad discretion to determine the prejudice of a plain error committed in the circuit court. Furthermore, sentencing guidelines may be discretionary with regards to unranked offenses. Finally, unspecified pleadings which are subsequently substantiated by discovery are not in error.

(Filing Date: 06-04-2014)

State v. Sines

Criminal Procedure: When the state is sufficiently involved in a search or seizure conducted by a private party, state constitutional protection is triggered.

(Filing Date: 06-04-2014)

Alfieri v. Solomon

Civil Procedure: While communications in mediation an settlement may not be admitted into evidence under ORS 36.222, communications afterwards may. Under ORCP 23, a plaintiff must be allowed to amend his complaint once as a matter of right.

(Filing Date: 06-11-2014)

Benson and Benson

Property Law: When property is purchased with one spouse's pre-marital assets, the court's task is to determine each spouse's contribution to the acquisition of the house; to assess whether, in light of those contributions, the presumption of equal contribution has been rebutted; and, if so, to evaluate the just and proper distribution of the assets in the light of factors considered by the court.

(Filing Date: 06-11-2014)

Chapman v. Mayfield

Tort Law: In order to show violence resulted from an establishment negligently serving alcohol to a visibly intoxicated person, a plaintiff must show that the violent act was a reasonably foreseeable result of service though sufficient evidence.

(Filing Date: 06-11-2014)

Chernaik v. Kitzhaber

Civil Procedure: Under the Uniform Declaratory Judgments Act, a complaint can be justiciable when it seeks a judicially issued declaration regarding duties that the state may have under a legal doctrine.

(Filing Date: 06-11-2014)

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

Juvenile Law: The fact that a juvenile was in foster care at the time of the state's amended petition, alleging that there is a serious risk of harm to the child, is not sufficient to dismiss an allegation.

(Filing Date: 06-11-2014)

In re Hall and Buth-Hall

Family Law: Under ORS 107.407 and ORS 107.412(2), a person relying on spousal support must show a reasonable effort to become self-sufficient by exercising reasonable options, even if those options turn out to be fruitless.

(Filing Date: 06-11-2014)

Kraft v. Estate of John Ronald Cooper, Sr

Contract Law: In a title report made by a title insurance company to a purchaser of property, the explicit dimensions stated overshadow any general, qualitative terms made in regard to the size of the property unless the contract states otherwise.

(Filing Date: 06-11-2014)

State v. Burciaga

Criminal Law: Under O.R.S. 163.205(1)(a), a parent commits a crime of criminal mistreatment in the first degree if that parent withholds essential attention that is necessary to provide for a child’s basic bodily needs and survival.

(Filing Date: 06-11-2014)

State v. Fernaays

Sentencing: Where remand of a sentencing hearing would not materially promote the “ends of justice” the Court of Appeals has the ability to decline to exercise its discretion to remedy the statutory error.

(Filing Date: 06-11-2014)

State v. Nelson

Criminal Law: Under ORS 166.240, an object must be "designed and intended primarily as weapons to inflict bodily injury or death" to qualify as a weapon or similar instrument.

(Filing Date: 06-11-2014)

State v. Pierce

Criminal Procedure: If a judge does not have personal knowledge of the matter in controversy then the judge does not violate the “neutral and detached” requirement of Oregon and federal law when granting search warrants.

(Filing Date: 06-11-2014)

State v. Simkins

Criminal Law: Offense surcharge imposed on crimes not falling under the time frame of the statute constitutes error.

(Filing Date: 06-11-2014)

State v. Verardo

Evidence: When a defendant proffers exculpatory hearsay statements for the truth of the matter asserted during his case-in-chief, defendant is subject to impeachment under OEC 806, even where the State had offered the statements in the first instance as statements of a party opponent under OEC 801(4)(b)(A).

(Filing Date: 06-11-2014)

Camacho v. SAIF

Workers Compensation: A claimant's statements in medical reports constitute prima facie evidence under ORS 656.310(2) if those statements were for the purpose of medical diagnosis or treatment; otherwise, a claimant's statements in medical reports are hearsay to which the board may afford whatever weight it deems appropriate under the circumstances. Additionally, the agency shall seek the services of an interpreter whenever one is necessary to perform an adjudicative function.

(Filing Date: 06-18-2014)

Dept. of Human Services v. B.A.

Appellate Procedure: Courts do not have authority to decide moot cases; a case is moot when it involves a matter that no longer is a controversy between the parties.

(Filing Date: 06-18-2014)

State v. Bisby

Criminal Procedure: A criminal defendant has the right to object to improper venue, but only in a pretrial motion as it is not a material allegation under Article I, § 11 of the Oregon Constitution.

(Filing Date: 06-18-2014)

State v. Blevins

Criminal Procedure: Under former ORS 135.747, a delay of 21 months for a trial, 11 of which were unjustified, is unreasonable.

(Filing Date: 06-18-2014)

State v. Cale

Criminal Law: Criminal charges may not be merged where "sufficient pause" between acts is not present.

(Filing Date: 06-18-2014)

State v. Charles

Criminal Procedure: A totality of the circumstances test is to be used when determining whether actions constituted a show of authority such that a reasonable person would have believed that the officer had intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.

(Filing Date: 06-18-2014)

State v. Fletcher

Criminal Procedure: An issue can be preserved for appeal when the party asserting error had requested that the jury hear his argument, but was prevented by the trial court from advancing that argument.

(Filing Date: 06-18-2014)

State v. George

Criminal Law: Under ORS 811.540, the term “flee” applies to any instance where an individual knowingly avoids compliance with the requests of a pursuing officer.

(Filing Date: 06-18-2014)

State v. Lambert

Criminal Procedure: The administrative seizure exception applies when the seizure is "specifically authorized by law," and suspicions of criminal activity "play no part" in the officer's decision to seize the property; a tent falls within the burglary statute if the tent was modified for use in a business.

(Filing Date: 06-18-2014)

State v. Marker

Criminal Law: Under ORS 163.305(5), a person who is asleep is “physically helpless.”

(Filing Date: 06-18-2014)

State v. Martinez

Criminal Procedure: A request for legal counsel is evaluated under the totality of the circumstances and may be based on what a reasonable officer would have believed. Asking to speak to an attorney only in direct response to an offer of privacy to call an attorney prior to a breath test would not have been understood by a reasonable officer as an invocation of defendant’s right to counsel.

(Filing Date: 06-18-2014)

State v. Ritchie

Criminal Procedure: Under ORS 138.071, if a defendant fails to appeal a judgment within 30 days, he cannot appeal a supplemental judgment entered afterwards because the same issues could have been raised after the first judgment was entered.

(Filing Date: 06-18-2014)

State v. Shutoff

Criminal Procedure: Under ORS 136.040, a criminal defendant has a right to be present at his trial. This right may be waived, but that requires sufficient evidence to support finding that defendant intentionally relinquished his right.

(Filing Date: 06-18-2014)

Union Lumber Co. v. Miller

Alternative Dispute Resolution: Failure by an arbitrator and opposing counsel to serve documents related to arbitration and judgment as required by law are mistakes that require a court to set aside a judgment under ORCP 71B.

(Filing Date: 06-18-2014)