Willamette Law Online

Oregon Court of Appeals

2014

( 43 summaries )

August

Fountaincourt Homeowners’ Assn. v. Fountaincourt Development, LLC

Insurance Law: When an insurer covers negligence performed by an insured, and that insured is legally obligated to pay damages for negligence, then the insurer is obligated to pay those damages. Attorney fees will not be awarded if the motion to assert a right to get them comes after entry of a judgment on the merits.

(Filing Date: 08-06-2014)

R & R Tree and Landscape, Inc. v. DCBS

Administrative Law: In order for payroll records to be "verifiable" under OAR 836-042-0060(1), the records must include a description of the duties performed by the employee without the need for additional explanation or interpretation and must be supported by original entries from other records prepared by the employee or the employee's direct manager or supervisor.

(Filing Date: 08-06-2014)

State v. Burciaga

Criminal Law: Request for reconsideration in light of factual errors made in Court's previous opinion.

(Filing Date: 08-06-2014)

State v. Frier

Criminal Law: A person who has been ordered to serve time in county jail as a condition of probation has been sentenced to a "term of imprisonment" for purposes of ORS 813.010(6)(c). Accordingly, that person would not be subject to the mandatory minimum $2,000 fine set forth in that statutory subsection; however, if the court wished to exercise its discretion under ORS 161.635(1)(a) in choosing to impose a fine not exceeding $6,250 for a Class A misdemeanor, it could do so.

(Filing Date: 08-06-2014)

State v. Hockersmith

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution, a warrantless inventory search of a vehicle incident to a lawful impounding is not permitted, unless the search is conducted pursuant to a properly authorized administrative program.

(Filing Date: 08-06-2014)

State v. McCullough

Criminal Procedure: The emergency aid exception requires an officer to believe entry is immediately necessary to aid someone who is suffering, or someone who is being imminently threatened with suffering.

(Filing Date: 08-06-2014)

State v. Ringler

Criminal Procedure: A trial court does not abuse its discretion by denying repeated motions for continuance when the record reflects that the moving party has not established good cause for a continuance.

(Filing Date: 08-06-2014)

State v. Suppah

Criminal Law: Under the Hall test, if there is a causal connection between unlawful police conduct and the discovery of evidence, the evidence cannot be admitted unless the State proves that its discovery was independent of, or only tenuously connected to, the illegal stop.

(Filing Date: 08-06-2014)

Bova v. City of Medford

Attorney Fees: The Court has no reason to reverse an award of attorney fees from invalid supplemental judgments; and, the “substantial benefit” doctrine is not applicable unless an important constitutional right applying to all citizens is asserted.

(Filing Date: 08-13-2014)

Field v. Coursey

Appellate Procedure: As determined by ORAP 5.45(1), generally no argument of error may be asserted in an appellate court that has not been preserved in the lower court.

(Filing Date: 08-13-2014)

Munson v. Valley Energy Investment Fund

Civil Procedure: Under ORCP 21(A)(1), a trial court errs when it rules based on necessarily decided disputed issues of material fact.

(Filing Date: 08-13-2014)

Nationwide Ins. Co. of America v. Tri-County Metro. Trans. District (TRIMET)

Insurance Law: An insurer who makes an outright payment to its insured is subrogated to the insured’s claim, and a subrogated insurer becomes the real party in interest under ORCP 21(A)6.

(Filing Date: 08-13-2014)

Rains v. Stayton Builders Mart, Inc.

Insurance Law: Settlement agreements that make reference to insurance are properly excluded under OEC 411, and do not automatically, as a matter of law, destroy diversity between parties. ORS 31.710(1) is properly applied to cap plaintiffs’ noneconomic damages claim but not plaintiffs’ loss of consortium claim.

(Filing Date: 08-13-2014)

State v. Brown

Appellate Procedure: Arguments that a defendant intends to raise on appeal must be preserved at the trial level.

(Filing Date: 08-13-2014)

State v. Etzel

Criminal Law: For the purposes of second-degree burglary, that a door is unlocked is not dispositive of the building not being a public space.

(Filing Date: 08-13-2014)

State v. Hamel-Spencer

Criminal Procedure: Defendant has the burden to prove that multiple offenses are the result of a single criminal episode and that the first prosecutor is aware of the multiple offenses to demonstrate double jeopardy.

(Filing Date: 08-13-2014)

State v. Hockeman

Criminal Procedure: Under the privacy interests implied in Article I, Section 9 of the Oregon State Constitution, when a property owner intends to exclude visitors from any portion of the property, that part of the property should have viewable signs that when approaching, the visitor can reasonably see and infer the property owner's intent to exclude.

(Filing Date: 08-13-2014)

State v. Kinney

Appellate Procedure: A trial court may deny self-representation on an anticipated disruption of the judicial process.

(Filing Date: 08-13-2014)

State v. Osorno

Criminal Procedure: An inadvertent revelation that Defendant invoked her right to remain silent was grounds to grant motions for mistrial and a new trial.

(Filing Date: 08-13-2014)

State v. Pass

Criminal Law: Because the elements of second-degree sexual assault and third-degree sodomy were congruent in this case as charged, the trial court committed a plain error by failing to merge these counts.

(Filing Date: 08-13-2014)

State v. Symons

Disability Law: Under ORS 125.025(1), a court having jurisdiction over a protective proceeding has broad authority to protect the welfare of protected persons, even over the statutory obligations of the LTCO.

(Filing Date: 08-13-2014)

State v. Thompson

Criminal Procedure: Whether a seizure has occurred is a fact specific inquiry into the totality of the circumstance of a particular case; the state has the burden of justifying a warrantless seizure of evidence, and that the seizure was not the fruit of an unlawful stop.

(Filing Date: 08-13-2014)

State v. V.B.

Civil Commitment: Under ORS 426.100(1), an allegedly mentally ill person must be advised of her statutory rights by the trial court. Failure to do so constitutes a plain error.

(Filing Date: 08-13-2014)

V.L.M. v. Miley

Civil Stalking Protective Order: A stalking protective order must be supported by evidence that contacts caused a subjective fear for personal safety and that such a fear was objectively reasonable.

(Filing Date: 08-13-2014)

Perry v. Hernandez

Landlord Tenant: As a general matter, when a party prevails on a claim for which attorney fees are authorized and a claim for which they are not, the trial court must apportion the fees incurred for each claim; however, there is an exception to that rule when the claims involve common issues: that exception is based on the premise that attorney fees should not be subject to apportionment when the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.

(Filing Date: 08-20-2014)

Regency Centers, L.P. v. Washington County

Land Use: A Washington County Traffic Control Master Plan allowed, but did not require, the County to leave a traffic signal in place at the intersection of Tualatin Sherwood Road and Petitioners' driveways. The final order of the Land Use Board of Appeals properly held jurisdiction over the decision, and did not err in substance under ORS 197.850(9)(a) in remanding the decision to the County to determine whether the traffic signal must be left in place.

(Filing Date: 08-20-2014)

Romayor v. Dept. of Public Safety Standards

Employment Law: Retroactive application of a rule is not automatically impermissible, and the question is one of intent of the agency.

(Filing Date: 08-20-2014)

State v. Austin

Criminal Procedure: ORS 162.295 requires that, in the absence of a pending proceeding at the time of the tampering, a person must have knowledge of a proceeding that is about to be instituted. Knowledge of a proceeding that is about to be instituted is not the same as a hope for a proceeding to be instituted at some indefinite point in the future.

(Filing Date: 08-20-2014)

State v. Campbell

Criminal Procedure: Pursuant to ORS 161.067(3), where the there is not sufficient evidence for a reasonable factfinder to conclude that there is no pause for reflection “to afford the defendant an opportunity to renounce the criminal intent,” the conduct should reflect a single conviction.

(Filing Date: 08-20-2014)

State v. Causey

Evidence: If an out-of-court statement's relevance depends on the truth of the content of the messages, the messages were hearsay and not admissible.

(Filing Date: 08-20-2014)

State v. Clements

Criminal Procedure: Where a criminal defendant agreed to a plea deal, but the State's sentencing recommendation was denied and the criminal defendant then fled for many years, what is the trial court bound to. Here, the defendant asserts three assignments of error.

(Filing Date: 08-20-2014)

State v. Moore

Criminal Procedure: Under ORS 136.432.1, a court cannot suppress relevant evidence, even if obtained in violation of statutory provision, unless there is an exception under the United States Constitution or the Oregon Constitution; the rules of evidence governing privileges and the admission of hearsay; or, the rights of the press.

(Filing Date: 08-20-2014)

State v. Ramirez

Appellate Procedure: Review of a trial court’s refusal to give a requested jury instruction for errors of law are reviewed in light of facts most favorable to defendant.

(Filing Date: 08-20-2014)

State v. Russum

Constitutional Law: If a prosecutor makes an accidental intrusion into the defendant’s privileged communications with his client, the defendant bears the burden of proving that his constitutional rights have been prejudiced.

(Filing Date: 08-20-2014)

State v. Sullivan

Criminal Law: Under Article I, section 9, of the Oregon Constitution, a warrantless home entry by police is not lawful unless there is an exigent circumstance making the entry necessary; and, for the entry to be lawful, the State must be able to make some showing of the feasibility of obtaining a warrant.

(Filing Date: 08-20-2014)

State v. Tooley

Criminal Law: Under ORS 131.505(4), multiple murders committed in furtherance of an overarching criminal objective are part of the same criminal episode, despite a gap in time between the commission of each murder.

(Filing Date: 08-20-2014)

State v. Wabinga

Criminal Procedure: Reasonable suspicion does not require that the facts observed by the officer indicate illegal activity, but only that those facts support a reasonable inference of illegal activity.

(Filing Date: 08-20-2014)

State v. Walker

Criminal Law: Casual and informal associations of individuals, as well as organizations with formal structures, can constitute an "enterprise" within the meaning of ORS 166.715(2); the key is whether the association or entity is engaged in ongoing, coordinated criminal activity and undertakes a purposeful venture, undertaking, or activity through a pattern of criminal activity.

(Filing Date: 08-21-2014)

16th Group, LLC v. Lynch Mechanical Construction, LLC

Attorney Fees: Under ORS 20.077, attorney fees are awarded to a prevailing party on a “claim-by-claim” basis.

(Filing Date: 08-27-2014)

Kleinsasser and Lopes

Family Law: Pursuant to ORS 109.119, the Court "shall grant custody" to a third party who establishes a child-parent relationship, "if to do so is in the best interest of the child."

(Filing Date: 08-27-2014)

State v. Davis

Civil Procedure: Under Article I, Section 11 of the Oregon Constitution, a defendant has the right for a jury to find all elements of the charged offense beyond a reasonable doubt. Issue preclusion, therefore, cannot be used to definitively establish essential facts to obtain a conviction because it hinders a jury's duty to deliberate and find every element of a crime.

(Filing Date: 08-27-2014)

State v. Goecks

Criminal Procedure: An affidavit for a search warrant must contain a connection between the defendant and the illegal activity to be considered to have probable cause.

(Filing Date: 08-27-2014)

State v. Goldman

Civil Law: If nonappearance on a citation constitutes "mistake, inadvertence, surprise or excusable neglect" under ORS 153.820(7), an individual is relieved from the doubling of fines.

(Filing Date: 08-27-2014)

( 36 summaries )

September

American Federation of State, County and Municipal Employees, Council 75, Local 2043 v. City of Lebanon

Municipal Law: Under ORS 243.672(1), certain actions by an employer or employer's agent are considered unfair labor practices. A city councilor was found not to be a city's agent.

(Filing Date: 09-04-2014)

Broadway Cab LLC v. Employment Department

Tax Law: Unemployment taxes are properly assessed for employee taxicab drivers who receive remuneration for services provided to benefit their employer, where the taxicab drivers do not qualify as independent contractors under ORS 670.600(3).

(Filing Date: 09-04-2014)

Burcham v. Franke

Post-Conviction Relief: An attorney's failure to challenge a lack of "consent" to consume alcohol being defined, by opposing counsel, as evident from the victim being 16 years old was inadequate assistance of counsel.

(Filing Date: 09-04-2014)

Oregon v. Hunt

Evidence: ORS 131.615. The reasonable suspicion of an officer to ask someone for identification and run a warrant check reasonably related to an investigation is justified if the officer has a reasonable suspicion that that person has committed a crime.

(Filing Date: 09-04-2014)

State v. Abraham

Evidence: Under OEC 401, when a defendant--after the alleged crime--makes a statement of intent to commit that same crime in the future cannot be admitted as evidence of intent.

(Filing Date: 09-04-2014)

State v. Duvall

Criminal Procedure: Trial court that assumes the jury has an understanding of a legal definition and then fails to give that definition to the jury risks having the trial remanded.

(Filing Date: 09-04-2014)

State v. Gallegos

Evidence: A trial court does not abuse its discretion by denying a motion for continuance when a Defendant cannot show that an eyewitness could "be produced."

(Filing Date: 09-04-2014)

State v. Hall

Criminal Procedure: Under former ORS 135.747 and in cases where that statute still governs, a court must determine whether a delay in a trial was acceptable by determining the extent to which the delay was justified.

(Filing Date: 09-04-2014)

State v. Lucero

Evidence: Evidence showing the legality of legal proceedings resulting in an eviction is not admissible at trial when those proceedings are final and have no consequence regarding the legality of Defendant's entry or whether Defendant was aware that the entry was otherwise licensed or privileged.

(Filing Date: 09-04-2014)

State v. Turntine

Criminal Law: The words "previously convicted" in ORS 163.160(3)include those offenders found guilty of previously assaulting the same victim, even if a formal judgment of conviction has not yet been entered on the previous assault.

(Filing Date: 09-04-2014)

C. J. R. v. Fleming

Civil Stalking Protective Order: The standard set by ORS 30.866(1) also applies to non-expressive contact. In order for a non-expressive contact to apply, the petitioner must prove that the communication instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.

(Filing Date: 09-10-2014)

Federal National Mortgage Assn. v. Bellamy

Property Law: Prima facie evidence, in the form of a trustee’s deed, is sufficient to show forcible entry and wrongful detainer (FED) if the evidence is unchallenged and confirmed though the adverse party’s admission.

(Filing Date: 09-10-2014)

Hopper v. SAIF

Workers Compensation: For a claimant to prevail after denial on a claim for failure to cooperate, the claimant must prove one of three things: (1) that claimant, in fact, "fully and completely cooperated with the investigation"; (2) that claimant "failed to cooperate for reasons beyond the [claimant's] control"; or (3) that SAIF's "investigative demands were unreasonable"; to satisfy number (2), the claimant must prove that any failure to cooperate was because of--in other words, causally connected to--reasons beyond the worker's control.

(Filing Date: 09-10-2014)

State v. Aung

Criminal Procedure: If two officers or more are at the scene of a lawful stop, then while one officer is writing a citation or conducting a records check, another officer may investigate matters unrelated to the initial stop without unlawfully extending the stop.

(Filing Date: 09-10-2014)

State v. Bennett - McCall

Evidence: Automobile and officer safety exceptions applied to searches incident to an arrest for the sale of drugs where, with probable cause, officers searched defendants’ vehicle and a backpack found within; neither exception applied to a later search of the same backpack where defendants posed no immediate threat to officer safety and officers were in control of defendant’s backpack.

(Filing Date: 09-10-2014)

State v. Carlon

Criminal Procedure: To avoid error, trial courts should ensure that when answering a jury's question, further instructions are applicable to the charges at hand and not further focusing the jury on irrelevant issues.

(Filing Date: 09-10-2014)

State v. Davis

Criminal Procedure: Crimes which occur at different times do not merge if there has been the opportunity to renounce criminal intent.

(Filing Date: 09-10-2014)

State v. Magna/Rivera

Criminal Law: Courts may look to several factors to determine whether a defendant’s consent to a search was voluntary or a result of coercion, including: “whether physical force was used or threatened”; “whether weapons were displayed”; “whether the consent was obtained in public”; “whether the person who gives consent is the subject of an investigation”; and “whether the atmosphere surrounding the consent [was] antagonistic or oppressive[.]”

(Filing Date: 09-10-2014)

State v. McKarge

Criminal Law: Under ORS 135.230(4)(c), the portion of the definition of "family or household members" that refers to "persons related by * * * marriage," is limited to "[a]dult persons related by * * * marriage" and does not apply to a minor child.

(Filing Date: 09-10-2014)

State v. Miller

Criminal Procedure: In order to initiate a valid DUII search under the state and U.S. Constitutions, a police officer must have probable cause, a subjective belief that is objectively reasonable, that the driver being searched was driving under the influence of intoxicants; the officer may rely on a totality of the circumstances, including his own experience and judgment, to form this probable cause.

(Filing Date: 09-10-2014)

State v. Muhammad

Criminal Law: A defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which s/he was not convicted or which he did not admit having committed.

(Filing Date: 09-10-2014)

State v. Patnesky

Criminal Law: Under ORS 162.247, the passive resistance exception to the crime of interfering with a peace officer only applies to actions “commonly associated with governmental protest or civil disobedience.”

(Filing Date: 09-10-2014)

State v. Russell

Criminal Procedure: The implication by a party, stopped by police, that he is in possession of a weapon was reasonable grounds an officer’s safety concerns.

(Filing Date: 09-10-2014)

State v. Strickland

Criminal Procedure: A waiver of the right against self-incrimination applies to a defendant’s submission of an affidavit at a motion hearing.

(Filing Date: 09-10-2014)

State v. Worthington

Criminal Procedure: Reasonable suspicion to make a stop must be supported by the totality of the circumstances and the police officer’s application of his experience to interpret those circumstances.

(Filing Date: 09-10-2014)

Chalmers v. Concrete Bob, Inc.

Contract Law: Interpretation of a contract is matter of law, but where the trial court's interpretation depends on factual determinations, those are accepted if supported by any competent evidence.

(Filing Date: 09-17-2014)

Lay v. Raymond

Property Law: When a party has the right to partition, then the court must follow the statutory procedure for partition under ORS 105.205 and ORS 105.255.

(Filing Date: 09-17-2014)

ODOT v. Alderwoods (Oregon), Inc.

Property Law: Evidence of diminution in value was properly excluded in determining the compensation award for loss of access due to highway construction.

(Filing Date: 09-17-2014)

SAIF v. Tono

Workers Compensation: Under ORS 656.039(5), workers’ compensation for state-funded home care workers is not limited to state-funded activities.

(Filing Date: 09-17-2014)

State ex rel Schrodt v. Jackson County

Attorney Fees: A court may use its discretion to award attorney's fees to deter intervenors from taking unreasonable positions on appeal and encouraging compliance with the rules of appellate practice while, at the same time, not discouraging the pursuit of meritorious appeals by intervenors who become involved in mandamus proceedings as a result of local governments' derelictions of duty.

(Filing Date: 09-17-2014)

State ex rel Simons v. Simons

Family Law: In determining whether a defense of nonparentage may be raised, the law that governs is the law of the state where parentage is asserted to have been previously determined.

(Filing Date: 09-17-2014)

State v. Baker

Criminal Procedure: It is important to consider “whether all elements of one offense are subsumed within the elements of the other offense” when determining whether two counts should merge as one. While “underlying factual circumstances of the crime” might seemingly overlap to a degree, the statutory duplication of all elements are what analysis hinges on.

(Filing Date: 09-17-2014)

State v. Cook

Criminal Law: ORS 164.235(1) requires both possession and intent to use a burglary tool to commit or facilitate a forcible entry or theft by physical taking. The intent element cannot be proven merely by proving the possession element.

(Filing Date: 09-17-2014)

State v. Scott

Evidence: Evidence that a complainant assaulted a defendant ten years prior is relevant to a determination of self-defense by a factfinder.

(Filing Date: 09-17-2014)

State v. Washington

Criminal Procedure: In Owens, 302 Or at 200, the Court established that the permissible scope and intensity of a search incident to arrest does not turn on whether or not a particular criminal offense is a traffic offense; rather, it turns on whether the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest. State v. Brody, 69 Or App 469, 686 P2d 451 (1984) was overruled to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense.

(Filing Date: 09-17-2014)

State v. Wright

Criminal Procedure: Under State v. Backstrand, and other cases, briefly holding a person’s identification card does not necessarily mean that a person is stopped; rather, a stop can take place when a request for identification is done in conjunction with other police conduct.

(Filing Date: 09-17-2014)