Willamette Law Online

Oregon Court of Appeals

2014

( 23 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)

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)

( 29 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)

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)

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)

( 33 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)

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)

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)

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)

( 45 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)

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)

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)

( 36 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)

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)

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)

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)

( 32 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)

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)

Dept. of Human Services v. R.B.

Family Law: A juvenile court may change a child permanency plan when its original jurisdictional judgment would put a reasonable parent on notice that the bases for the that decision would be used in a change of permanency plan.

(Filing Date: 06-25-2014)

State v. Geren

Criminal Procedure: An officer's reading of the statutory rights and consequences of refusing to submit to blood, breath, or urine testing does not render a defendant's consent to such testing involuntary; telling a defendant that his refusal may be used against him is not unconstitutional.

(Filing Date: 06-25-2014)

( 44 summaries )

July

Dept. of Human Services v. E. M.

Juvenile Law: Under ORS 419B.100(1)(c), to obtain exclusive jurisdiction of a child in juvenile court, a nexus between a current risk causing circumstance and risk of harm to the child must be established.

(Filing Date: 07-02-2014)

Easton v. SAIF

Workers Compensation: Workers' Compensation Board compensability determinations for proposed diagnostic procedures should refer to Claimant’s compensable injury.

(Filing Date: 07-02-2014)

Greenwood Products v. Greenwood Forest Products

Appellate Procedure: To justify a new trial under ORCP 64 B(4), newly discovered evidence must meet the following six requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must be such as, with reasonable diligence, could not have been discovered before or during the trial; (3) it must be such that it cannot, with reasonable diligence, be used during trial; (4) it must be material to an issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradicting of former evidence.

(Filing Date: 07-02-2014)

Safeco Ins. Co. v. Masood

Contract Law: While there is an implied duty to act in good faith, no additional contract terms may be added to a contract unilaterally, including the inclusion of a confidentiality agreement.

(Filing Date: 07-02-2014)

State v. Acuna

Criminal Procedure: A stop is legal if the officer, under the circumstances, has reason to believe suspect has engaged in unlawful activity; all circumstances are considered to determine whether the encounter with police has risen to the level of "compelling" and thus required the reading of Miranda rights.

(Filing Date: 07-02-2014)

State v. Buchalski

Appellate Procedure: When any legal errors made by the lower court are found to be harmless, the Court will affirm the decision of the lower court.

(Filing Date: 07-02-2014)

State v. E. D.

Civil Commitment: Under ORS 426.005(1)(e), in order to justify an involuntary civil commitment, the state must prove by clear and convincing evidence that a person has a mental disorder and that, because of that disorder, the person is a danger to self, a danger to others, or unable to meet his basic needs.

(Filing Date: 07-02-2014)

State v. Hernandez-Fabian

Criminal Procedure: A defendant's awareness of statements and their substance does not compensate for the State's failure to comply with notice requirements in OEC 803(18a)(b).

(Filing Date: 07-02-2014)

State v. Lange

Criminal Law: When an officer ordered defendant out of a restroom, that constituted a stop because a reasonable person in defendant's position would have believed that his freedom of movement was intentionally restricted.

(Filing Date: 07-02-2014)

State v. Moore

Criminal Procedure: Under the Article I, § 9 of the Oregon Constitution, an officer has a reasonable suspicion if he subjectively believes that the person has committed a crime; that belief, however, must be objectively reasonable in light of the totality of the circumstances.

(Filing Date: 07-02-2014)

State v. Rose

Criminal Procedure: Under ORS 136.583, a search warrant issued in Oregon can be executed in another state so long as the criminal matter is triable in Oregon and “exercise of jurisdiction over the recipient is not inconsistent with the Oregon Constitution or Constitution of the United States.”

(Filing Date: 07-02-2014)

State v. Salas-Juarez

Appellate Procedure: If a defendant fails to preserve error in trial, the Court may exercise its discretion whether to consider an error raised on appeal to be a plain error sua sponte.

(Filing Date: 07-02-2014)

State v. Thacker

Criminal Procedure: Under Article I, section 9, of the Oregon Constitution, police physically confining a vehicle in a driveway from driving away qualifies as a stop.

(Filing Date: 07-02-2014)

State v. Zamora-Martinez

Criminal Procedure: The test to determine whether a seizure has occurred "is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement."

(Filing Date: 07-02-2014)

State v. E.D.

Civil Commitment: Under ORS 426.005(1)(e), a single violent act and vague threats are not sufficient to qualify as clear and convincing evidence for the purposes of involuntary civil commitment.

(Filing Date: 07-03-2014)

Baker v. Croslin

Tort Law: Under ORS 471.565, the key factor in assessing a social host's liability is how much control the host had over the consumption of alcohol; when a host has no control over alcohol consumption, he is not liable.

(Filing Date: 07-09-2014)

State v. Bell

Criminal Law: The state can extend a defendant's probation sentence for failure to make payments conditional to the probation, regardless of the reason for the failure to pay.

(Filing Date: 07-09-2014)

State v. Cross

Sentencing: Under ORS 137.751, a trial court is no longer required to find “substantial and compelling reasons” to deny a defendant eligibility for alternative incarceration programs and early release.

(Filing Date: 07-09-2014)

State v. Goodenough

Criminal Law: For offenses committed after January 1, 2009, defendants' eligibility for AIPs must be analyzed under ORS 137.751(1) rather than ORS 137.750(1), the former statute used for AIP eligibility analysis.

(Filing Date: 07-09-2014)

State v. Mendoza

Criminal Procedure: Under Article I, section 12, of the Oregon Constitution, a person’s refusal to consent to something that he or she is not required to do is not admissible at trial.

(Filing Date: 07-09-2014)

State v. Paniagua-Montes

Evidence: Under ORS 135.455, if alibi evidence is offered by a witness who is not the defendant, proper notice must be provided; if proper notice is not provided, such evidence must be excluded unless there is good cause.

(Filing Date: 07-09-2014)

US Bank, NA v. Eckert

Property Law: Under former ORS 86.735, the appointment of a successor trustee to a deed of trust needs to be recorded with the county where the relevant property is located.

(Filing Date: 07-09-2014)

City of Portland v. Huffman

Civil Procedure: The correct time to assert the doctrine of issue preclusion is before the issue is relitigated, since all information is known before the trial court.

(Filing Date: 07-16-2014)

Heller v. BNSF Railway Company

Tort Law: To maintain a claim under the Federal Employer’s Liability Act, the plaintiff must show that they knew or had reason to know of the injury within three-years of bringing the claim and must have sufficient facts to show that the injury was caused by work related activities.

(Filing Date: 07-16-2014)

State v. Cline

Criminal Law: An officer's act of directing a person to alter the person's course of travel or to otherwise direct the person's movements may often constitute a "show of authority" that effectuates a seizure, but that is not a per se rule of Oregon constitutional law; instead, the officer's directive must be examined in the context of the encounter in which it was made.

(Filing Date: 07-16-2014)

State v. Durando, III

Appellate Procedure: Ordinary preservation analysis asks whether an appellant gave “the trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made.”

(Filing Date: 07-16-2014)

State v. Ferraro

Criminal Procedure: A trial court abuses its discretion when it fails to grant a continuance to a criminal defendant who has not had adequate opportunity to retain counsel, nor adequate time to mount a defense.

(Filing Date: 07-16-2014)

State v. Michel

Constitutional Law: Under the Fourth Amendment of the U.S. Constitution, and Article I, Section 9 of the Oregon Constitution, a renter does not have a reasonable expectation of privacy within the common area of a public storage facility.

(Filing Date: 07-16-2014)

State v. O'Dell

Criminal Law: Defendant's charges of felon in possession of a firearm should be merged if Defendant was found in constructive possession of the firearms and there is not sufficient evidence to show an interruption in the possession.

(Filing Date: 07-16-2014)

Dept. of Human Services v. A.B.

Juvenile Law: In a juvenile case to determine a parent’s jurisdiction of children, a single positive urinalysis taken prior to the trial is not sufficient to establish a substance abuse issue when accompanied by other negative urinalysis taken at the time of the trial.

(Filing Date: 07-23-2014)

SAIF Corporation v. Camarena

Workers Compensation: A physician does not need to explicitly state that a course of treatment is curative in order for that treatment to be compensable as long as a reasonable person can determine the curative purpose, and the treatment is supported by substantial evidence.

(Filing Date: 07-23-2014)

State v. Below

Attorney Fees: Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that defendant is, or may be, able to pay the fees and costs.

(Filing Date: 07-23-2014)

State v. Easton

Criminal Procedure: A police officer may take reasonable steps to protect herself or others, including conducting a warrantless search or seizure, "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present"; the state bears the burden of establishing that, based on the totality of the circumstance at the time, "the officer subjectively believed that a defendant posed an immediate threat of serious physical injury and that the officer's belief was objectively reasonable."

(Filing Date: 07-23-2014)

State v. Graves

Appellate Procedure: To preserve an error for appeal, a party must provide the trial court with an argument that is specific enough to ensure that the court can identify its alleged error with enough clarity to consider and correct it immediately, if correction is warranted.

(Filing Date: 07-23-2014)

State v. Lee

Criminal Procedure: It is not an illegal seizure of property if the officer does so in a reasonable attempt to protect himself or if he has a reasonable suspicion that the citizen poses an immediate threat of serious physical injury.

(Filing Date: 07-23-2014)

State v. Ramirez-Hernandez

Criminal Procedure: The state bears the burden of proving that a defendant "is or may be able to pay" attorney fees; mere speculation as to a defendant's ability to pay is insufficient.

(Filing Date: 07-23-2014)

State v. Shipe

Evidence: Evidence must be legally sufficient to prove beyond a reasonable doubt that a defendant "knowingly" acted; there must not be too great an inferential leap.

(Filing Date: 07-23-2014)

State v. Smith

Criminal Procedure: Under ORS 161.370, trial courts have the authority to commit defendants to hospitals for treatment designed to restore their competence to stand trial.

(Filing Date: 07-23-2014)

State v. Todd

Criminal Procedure: When a trial court presents a defendant with the option to continue with their present lawyer or proceed pro se, it must determine that the defendant fully understands the risks of pro se representation, and has intentionally relinquished their right to counsel.

(Filing Date: 07-23-2014)

Wright v. Nooth

Post-Conviction Relief: In regards to findings of fact, such as with a defendant’s waiver to testify on their own behalf, the Appellate Court will defer to the post-conviction court’s records. Additionally, in order to find error in counsel’s decision not to object to testimony, the testimony must have been of a kind that would have likely provided evidence that would have altered the outcome of the proceeding.

(Filing Date: 07-23-2014)

State v. Anderson

Criminal Law: Under ORS 163.415, the requirement that the victim not give consent is not a mens rea issue.

(Filing Date: 07-30-2014)

State v. Cook

Evidence: Erroneous admission of hearsay evidence is unacceptable only when the error is harmful in that it has a possible influence on the verdict rendered. When the erroneously admitted hearsay evidence is central to the parties’ theory of the case and their credibility, the error will be considered harmful and influential to the rendered verdict.

(Filing Date: 07-30-2014)

The Foster Group, Inc. v. City of Elgin, Oregon

Tort Law: A taking occurs when the government takes physical possession of land, not when the idea of taking the land became known. The discovery rule comes into effect when a plaintiff should have known the harm took place.

(Filing Date: 07-30-2014)

State v. Dierks

Criminal Procedure: Mere identification made in the course of a lawful police-citizen encounter does not in and of itself constitute a seizure.

(Filing Date: 07-31-2014)

( 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)

( 39 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)

Justice and Crum

Appellate Procedure: In order to properly preserve an issue for appeal, the matter must be clearly and unequivocally objected before judgment is entered, rather than a party waiting on an adverse or undesirable judgment.

(Filing Date: 09-24-2014)

Shell v. Schollander Companies, Inc.

Tort Law: This Court previously concluded that ORS 12.135 “applies to any action, 'in contract, tort, or otherwise,' regardless of the type of damages sought, so long as the action arises out of the specified construction-related circumstances.” The Court further concludes that these claims need to arise out of a construction contract.

(Filing Date: 09-24-2014)

State v. Purrier

Evidence: The jury’s task is to weigh evidence, judge the credibility of witnesses and the reliability of their testimony, and to resolve conflicts in the evidence.

(Filing Date: 09-24-2014)

( 58 summaries )

October

Flores-Salazar v. Franke

Post-Conviction Relief: Failure to request a jury instruction for a lesser offense does not necessarily entail inadequate assistance of counsel, particularly when accompanied by a strong defense and as part of a tactical decision.

(Filing Date: 10-01-2014)

Gordon v. Teacher Standards and Practices Commission

Administrative Law: A plaintiff must exhaust all administrative remedies, including requesting an agency hearing, before objecting to the substance of an administrative order before the court.

(Filing Date: 10-01-2014)

Herrera v. C & M Victor Company

Tort Law: To prove a defamation per se claim, the plaintiff only needs to show that the statement was published and was per se harmful. This is distinguished from an ordinary defamation claim that requires proof of “special harm,” defined as “the loss of something having economic or pecuniary value.”

(Filing Date: 10-01-2014)

Housing Authority of Jackson County v. City of Medford

Land Use: A petition, the resolution of which would not have a practical effect on either party to it, must be dismissed for being not being justiciable, and therefore moot.

(Filing Date: 10-01-2014)

Norris v. R & T Manufacturing, LLC

Corporations: Under ORS 95.230(1)(a), a transfer of all business assets to a newly formed company is fraudulent when the transfer is made for the purpose of avoiding payment of a judgment, where the new company conducted business nearly identical to the old company, and no other reason existed for transferring assets other than to avoid paying the judgment.

(Filing Date: 10-01-2014)

State v. Gonzales

Criminal Procedure: A police officer cannot rely on the "good-faith exception" to the Fourth Amendment of the U.S. Constitution to impound a car that does not impede traffic or pose a threat to safety when that police officer should have been on notice that the "community-caretaker exception" does not apply.

(Filing Date: 10-01-2014)

State v. Lambert

Criminal Procedure: Revisiting a previous decision where the case was vacated and remanded for the trial court to sort out the inevitable discovery of evidence after an illegal search, the Court held that their decision to vacate and remand was error and, under Article I, Section 9, of the Oregon Constitution, evidence obtained after a person's rights are violated is tainted evidence.

(Filing Date: 10-01-2014)

State v. Newcomer

Criminal Law: To prove that a defendant knowingly failed to appear on a criminal citation, ORS 133.076, the state has the burden of proof to prove that the defendant knew of his or her obligation to appear.

(Filing Date: 10-01-2014)

State v. Truong

Evidence: The party offering the scientific evidence at issue has the burden of establishing that it is scientifically valid.

(Filing Date: 10-01-2014)

State v. Vanderzanden

Criminal Law: A jury instruction that follows the statute must not construe the statutory language contrary to caselaw.

(Filing Date: 10-01-2014)

Stoecklin and A. L. C.

Family Law: The party petitioning the court for the name change of a child has the burden to establish the name change is in the best interest of the child.

(Filing Date: 10-01-2014)

Adams v. West Coast Trust

Trusts and Estates: The probate court did not abuse its discretion by declining to reconsider an order approving the sale of mineral rights.

(Filing Date: 10-08-2014)

Department of Human Services v. H.H.

Juvenile Law: When one parent, who otherwise appears to be a fit parent, allows their children to be home alone with a parent who has caused harm to a child, the totality of the circumstances tend to show that there will be a reasonable likelihood of additional harm to the child.

(Filing Date: 10-08-2014)

Espinoza v. Evergreen Helicopters, Inc.

Civil Procedure: The inconvenient forum doctrine is available in Oregon and should be applied by weighing private and public interest factors. In order to dismiss, a defendant must show the factors are strongly in favor of dismissal.

(Filing Date: 10-08-2014)

Lewis v. Beyer

Remedies: Without changing the analysis or outcome, the Court offers clarification on a few matters of a prior decision of the same name.

(Filing Date: 10-08-2014)

Norris v. R & T Manufacturing, LLC

Attorney Fees: Oregon courts adhere to the "American rule" of attorney fees, under which courts generally will not award attorney fees to the prevailing party absent statutory or contractual authorization.

(Filing Date: 10-08-2014)

Patton v. Mutual of Enumclaw Insurance Co.

Insurance Law: If a homeowner's insurance policy contains ambiguous provisions relating to the time-frame in which an insured may recover, those provisions are held against the drafter of the policy.

(Filing Date: 10-08-2014)

Spurger v. SAIF

Workers Compensation: Under OAR 436-035-0019 a worker is entitled to chronic condition impairment value if the worker is "significantly limited" in the repetitive use of certain body parts.

(Filing Date: 10-08-2014)

State v. Campbell

Appellate Procedure: The factors that the court considers in determining whether to correct an unpreserved plain error include the ends of justice in the particular case, the gravity of the error, and whether the policies underlying the preservation requirement were served in another way; one of the policies underlying the preservation requirement is that of allowing the opposing party the opportunity to respond to the asserted error.

(Filing Date: 10-08-2014)

State v. Canfield

Criminal Procedure: When a police officer requests identification from a person, the request alone, without more, does not constitute a stop for purposes of Article I, section 9 of the Oregon Constitution.

(Filing Date: 10-08-2014)

State v. Carle

Evidence: Because the sender of a text message has no reasonable expectation of privacy in the digital copy of a text message delivered to a recipient’s cell phone, a “search” of the sender does not occur under Article I, section 9, or the Fourth Amendment, where police discovered a text message from Defendant on a recipient’s cell phone.

(Filing Date: 10-08-2014)

State v. Coffman

Criminal Procedure: Warrantless entrance onto residential curtilage is likely a trespass, unless the resident has given implied or express consent. When determining implied consent to enter the curtilage of a home that consists of multiple units, the Court looks at the physical layout of the units and the residents' use of the area to see whether an objective member of the public would understand that there is an implied consent to enter.

(Filing Date: 10-08-2014)

State v. Gensler

Criminal Law: Under ORS 132.560(3), charging instruments that have been consolidated may be severed upon motion if the defendant is substantially prejudiced by the joinder of offenses.

(Filing Date: 10-08-2014)

State v. Moulton

Constitutional Law: In order to survive a motion to suppress evidence, the State must prove that a police officer’s warrantless search or seizure was constitutionally justified by an exception to the warrant requirement.

(Filing Date: 10-08-2014)

State v. Washington

Criminal Law: Removal of a victim to a different location as part of a rape is considered the separate offense of kidnapping if the intent behind the move was to limit the victim's freedom and isolate the victim.

(Filing Date: 10-08-2014)

Weldon v. Bd. of Lic. Pro. Counselors and Therapists

Administrative Law: Under ORS 183.650(3), an agency may only modify the ALJ’s finding of fact when there is “clear and convincing evidence” that the finding was incorrect. If a party challenges this modification then the court will review the finding of fact de novo and remand to the agency if the court finds that the modification was an error.

(Filing Date: 10-08-2014)

Westfall v. Oregon Department of Corrections

Appellate Procedure: Arguments not presented to the trial court in the first instance cannot be raised on appeal.

(Filing Date: 10-08-2014)

Dept. of Human Services v. M.H.

Juvenile Law: Under ORS 419B.500 and ORS 419.498(3), a termination of parental rights petition will be based upon the most recent permanency plan determination since it is based on the current circumstances of the child.

(Filing Date: 10-15-2014)

Horizon Air Industries, Inc. v. Davis-Warren

Workers Compensation: Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.

(Filing Date: 10-15-2014)

Horizon Air Industries, Inc. v. Davis-Warren

Workers Compensation: Under ORS 656.005(7)(a), to establish a compensable injury a claimant must prove that an injury was suffered in the course of employment and that the injury resulted in death, disability, or was severe enough to require medical services, including medical services with only a diagnostic or prophylactic purpose.

(Filing Date: 10-15-2014)

Kraai v. Bur. of Fire and Police Dis. & Ret. Fund

Disability Law: Under the Fire and Police Disability and Retirement Fund Rule (FPDR) § 5.7.03(D), a disability claim for an aggravated injury must be submitted within 30 days of objective findings of medical evidence or an expert medical opinion indicating the worsening of the prior work injury.

(Filing Date: 10-15-2014)

State v. Berrellez

Criminal Procedure: Under Art. I, sec. 10 of the Oregon Constitution and former ORS 135.747 (2011), a defendant’s defense is not unreasonably prejudiced by an 8-year delay due to evasion of police, destruction of non-valuable case notes, and the death of a witness.

(Filing Date: 10-15-2014)

State v. Fujimoto

Criminal Law: When the same conduct satisfies more than one theft statute that do not each contain an element that the other does not, the theft offenses will merge into one offense.

(Filing Date: 10-15-2014)

State v. Parker

Criminal Law: The guiding principle in determining whether an encounter is a constitutionally significant seizure is whether the officer had manifested a “show of authority” that intentionally and significantly restricts an individuals’ liberty.

(Filing Date: 10-15-2014)

State v. Phillips

Criminal Procedure: A notice of the introduction into evidence of hearsay statements under OEC 803(18a)(b) need not set out verbatim the statements that the State intends to offer.

(Filing Date: 10-15-2014)

State v. Reineke

Criminal Procedure: Where the prosecution impermissibly references a defendant’s invocation of his right to remain silent, the defendant’s right to a fair trial is prejudiced.

(Filing Date: 10-15-2014)

State v. Stanton

Criminal Law: Under Oregon's "anti-merger" statute--ORS 161.067--a trial court, before issuing separate convictions arising from one incident, must determine if either (1) there were separate victims, or (2) there was sufficient pause between crimes committed against one victim.

(Filing Date: 10-15-2014)

State v. Underwood

Evidence: For hearsay to qualify as an excited utterance, three requirements must be satisfied: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition.

(Filing Date: 10-15-2014)

State v. Waterhouse

Criminal Law: Evidence that a stolen item has some market is sufficient to prove the value element of theft in the third-degree, even if that value is speculative.

(Filing Date: 10-15-2014)

State v. Wilson

Evidence: Admitting testimony from an officer trained as a drug-recognition expert (DRE) in the absence of an adequate scientific foundation is not in error because the testimony constitutes nonscientific expert opinion evidence.

(Filing Date: 10-15-2014)

Dept. of Human Services v. J. M.

Juvenile Law: In order to show a change in plan is a "foster care placement" within the meaning of ICWA, a "significant shift in legal rights" must occur.

(Filing Date: 10-22-2014)

Gordon v. Board of Parole

Criminal Procedure: In 1977 Oregon adopted a "matrix" standard in place of the former "discretionary" system which eventually gave rise to a new development for board review. Under the new system, the board could only consider the current psychological condition rather than the entire record. To determine what standard to use, a dispositive issue is when the inmate elected to enroll in the system.

(Filing Date: 10-22-2014)

Smith v. Franke

Criminal Law: In order to constitute inappropriate vouching for a minor, a witness’s testimony in regards to the minor’s ability to distinguish between truth and lie is insufficient.

(Filing Date: 10-22-2014)

State v. Lewis

Criminal Law: For a conviction of assault in the fourth degree, the state must show the victim suffered physical injury in the form of "impairment of physical condition or substantial pain."

(Filing Date: 10-22-2014)

State v. McCrary

Criminal Procedure: An in-trial Horizontal Gaze Nystagmus test is an unlawful search without a warrant or exception to the warrant requirement because Nystagmus is not an observation made or commonly understood by the public.

(Filing Date: 10-22-2014)

E.T. v. Belete

Civil Stalking Protective Order: Assaultive acts and statements within a church was legally sufficient to prove objective alarm, warranting entry of a stalking protective order.

(Filing Date: 10-29-2014)

Evergreen West Business Center, LLC v. Emmert

Remedies: When expenses are incurred in good faith, without being part of a calculated breach, those expenses should not be reimbursed as damages.

(Filing Date: 10-29-2014)

Hamilton v. Pacific Skyline, Inc.

Workers Compensation: Under ORS 656.262(11)(a), a claimant is entitled to penalties and attorney fees where a Board’s determination is not supported by substantial reason.

(Filing Date: 10-29-2014)

Riverview Condominium Assn. v. Cypress Ventures

Civil Procedure: ORCP 22 does not run afoul of constitutional ripeness issues by authorizing an accelerated timeline for deciding minimally contingent third-party claims.

(Filing Date: 10-29-2014)

Riverview Condominium Assn. v. Cypress Ventures

Property Law: When an injury to the "interest of another in real property" is raised under ORS 12.080 the statute of limitations will be six-years.

(Filing Date: 10-29-2014)

State v. Chen

Criminal Law: Under ORS 475.860, a reasonable jury could convict a defendant on a charge of delivery of marijuana when presented with evidence of their frequent presence at a grow operation, transportation of marijuana trimmings, and large amounts of drugs on the property. These factors considered cumulatively create a logical inference that a defendant intends to sell the marijuana, which constitutes delivery.

(Filing Date: 10-29-2014)

State v. Chen

Traffic Infractions: Stopping in the middle of the road causing vehicles to slow and swerve is impeding the normal and reasonable movement of traffic.

(Filing Date: 10-29-2014)

State v. James

Criminal Law: It must be shown that Defendant controlled the supply of alcohol that minors consumed to sustain a conviction for furnishing alcohol to minors.

(Filing Date: 10-29-2014)

State v. Meek

Criminal Law: A letter, as a form of “written communication” is not considered an “object” under ORS 163.750(1)(c).

(Filing Date: 10-29-2014)

State v. Rudnitskyy

Criminal Procedure: Under Art. I, Sec. 9 of the Oregon Constitution, or the Fourth Amendment of the U.S. Constitution, a police "stop" occurs when a reasonable person would believe that an officer either physically restrains a citizen's liberty in a significant way, or engages in a "show of authority" that reasonably conveys to the person a significant restriction on that person's freedom.

(Filing Date: 10-29-2014)

State v. Stapp

Evidence: Evidence of prior, uncharged misconduct, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; such evidence of prior acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior, uncharged misconduct may also be used to impeach the credibility of the defendant's testimony.

(Filing Date: 10-29-2014)

State v. Thomas

Criminal Procedure: For a trial court to properly exercise its discretion to deny a motion for continuance, it must inquire into the nature, and evaluate the merits, of a defendant’s complaints.

(Filing Date: 10-29-2014)

State v.Zibulsky

Criminal Law: Named account holders of joint bank accounts are not culpable for identity theft under ORS 185.800 for using accounts within their legal rights as joint bank account holders.

(Filing Date: 10-29-2014)

( 31 summaries )

November

State v. Hite

Criminal Procedure: Under Article I, Section 9 of the Oregon Constitution, an administrative inventory search policy must not be overly broad nor allow for officer discretion outside the stated policy.

(Filing Date: 11-05-2014)

State v. Marquez-Vela

Criminal Procedure: A witness cannot testify to the credibility or truthfulness of another witness. The trier of fact must make these determinations.

(Filing Date: 11-05-2014)

State v. Pumphrey

Criminal Law: Under ORS 137.106, a Defendant must pay restitution for economic damages incurred by violating a stalking protective order so long as there is a “but for” causal relationship between the criminal activity and the resulting the economic damages.

(Filing Date: 11-05-2014)

Clatsop County District Attorney v. City of Astoria

Criminal Procedure: A city attorney has all the powers of a district attorney with respect to a violation of any offense created by statute that is subject to the jurisdiction of a municipal court and committed or triable in that city.

(Filing Date: 11-13-2014)

Dept. of Human Services v. M.D.

Indian Law: When an Indian child is involved, DHS must show that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful.

(Filing Date: 11-13-2014)

Isayeva v. Employment Dept.

Administrative Law: In evaluating whether an instance of workplace misconduct was an “isolated instance of poor judgment,” the proper standard is not whether an employer “could” conclude that the continued relationship impossible, but whether an employer would have so concluded.

(Filing Date: 11-13-2014)

Leung v. Employment Dept.

Administrative Law: Under OAR 471-040-0010(2), the phrase "gaining knowledge that the person needed or was entitled to such [language] assistance" "refers to the department's knowledge or awareness, obtained by any means, that the person needed or was entitled to oral or written language assistance."

(Filing Date: 11-13-2014)

Saunders v. Nooth

Post-Conviction Relief: Where a defense attorney in a post-conviction relief appeal does not renew a pretrial motion to suppress the evidence at trial, the attorney does not fail to provide adequate assistance of counsel.

(Filing Date: 11-13-2014)

State v. Bafus

Criminal Procedure: Whether it is a reversible “error of law apparent on the written record,” ORAP 5.45(1), when a trial court held a bench trial and convicted defendant without first obtaining a written waiver of her right to a jury trial.

(Filing Date: 11-13-2014)

State v. Enyeart

Criminal Law: Defendant could not be convicted of interfering with a peace office as a lesser-included offense of eluding a police officer because the intentional mental state of ORS 162.247(1)(b) is not subsumed in the knowing mental state of ORS 811.540(1)(b)(A) and the charging instrument did not expressly allege that Defendant had intentionally refused to obey a lawful order.

(Filing Date: 11-13-2014)

State v. Garrison

Evidence: Under OEC 403 and OEC 404, character evidence admitted will not be considered to be an abuse of a trial courts discretion where it is deemed to have little prejudicial effect and the jury has been offered a curative jury instruction. A curative instruction will be assumed to be followed by the jury unless there is an “overwhelming possibility” that the jury was incapable of following it.

(Filing Date: 11-13-2014)

State v. Glazier

Criminal Procedure: If the trial court commits an error in sentencing that requires resentencing, the appellate court will remand the entire case for resentencing. ORS 138.222(5)(a).

(Filing Date: 11-13-2014)

State v. Taylor

Appellate Procedure: Under ORS 138.050, the Court of Appeals does not have jurisdiction when defendant's claim is not a claim that the fee exceeds the maximum allowable by law or is unconstitutionally cruel and unusual.

(Filing Date: 11-13-2014)

Deckard v. Bunch

Tort Law: Under ORS 471.565, a statutory liability is created for social hosts who serve visibly intoxicated persons.

(Filing Date: 11-19-2014)

Liberty Northwest Ins. Corp. v. Vera-Chavez

Workers Compensation: Under ORS 656.268(1) and ORS 656.268(10), after a claimant has completed an authorized training program, a disability claim can only be closed when the worker is medically stationary and there is sufficient information to determine disability.

(Filing Date: 11-19-2014)

PUC v. Employment Department

Employment Law: Under ORS 657.176(2)(c), a claimant is not entitled to unemployment insurance benefits when that claimant’s good cause for voluntarily leaving is based on medical necessity with no reasonable alternative and when the claimant has medical leave available through employment.

(Filing Date: 11-19-2014)

State v. Behee

Criminal Law: Under ORS 166.270(2), objects described as “ninja climbing claws” are not “metal knuckles” because their intended purpose is tree climbing, not punching.

(Filing Date: 11-19-2014)

State v. K.M.

Civil Commitment: It is not sufficient for a client to be informed by their attorney as to the possible outcomes of a hearing to determine mental illness and possible involuntary confinement. The trial judge must advise the alleged mentally ill person of their rights pursuant to ORS 426.100.

(Filing Date: 11-19-2014)

State v. Welsh

Sentencing: Under ORS 137.123(5), consecutive sentences must only be granted for convictions arising out of continuous and uninterrupted courses of conduct if the court finds that the violation was not merely an incidental violation, but actually an indication of defendant’s willingness to commit a separate crime, or that the offense created a risk of causing greater harm or injury to the victim.

(Filing Date: 11-19-2014)

Ventana Partners, LLC v. LaNoue Development, LLC

Property Law: Whether an underlying claim has been settled before a party tenders their defense to a title insurer is a genuine issue of material fact.

(Filing Date: 11-19-2014)

Walker v. Providence Health System Oregon

Workers Compensation: Under ORS 656.262(11)(a), unreasonable delay in accepting a claim for a "major depression and panic disorder" was grounds for imposition of penalties and attorney fees.

(Filing Date: 11-19-2014)

Davis v. State

Civil Procedure: ORS 12.220 applies to claims against the state notwithstanding the preemptive language of ORS 30.275(9), and the savings statute applies when some claims were dismissed with and without prejudice.

(Filing Date: 11-26-2014)

Dept. of Human Services v. S.W.

Juvenile Law: Father's failure to participate with DHS in its efforts to reunify him with his daughter did not undermine the reasonableness of those efforts.

(Filing Date: 11-26-2014)

Dept. of Human Services v. T.S.

Family Law: To determine whether Department of Human Services (DHS) established reasonable efforts to reunify both the mother and the father, the efforts should be viewed through the totality of the case. DHS needs to endeavor to reunify both parents, even if it appears that only one will eventually be reunified.

(Filing Date: 11-26-2014)

Gordon v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: Under the matrix system, once the board sets an inmate's initial parole release date, the board may postpone that date only if, among other reasons, the inmate has a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.

(Filing Date: 11-26-2014)

Nay v. Dept. of Human Services

Administrative Law: Amended provisions OAR 461-135-0835(1)(e)(B)(iii) and OAR 461-135-0832(10)(b)(B)(viii) are invalid because they exceed the statutory authority granted by ORS 416.350 and 42 USC sec. 1396p.

(Filing Date: 11-26-2014)

Sherwood Park Business Center, LLC v. Taggart

Attorney Fees: Under ORS 20.083 and 20.096, where a losing party is a stranger to an agreement that contains an attorney fee provision, the losing party shall not be subject to an assessment of fees against it even where it asserts a reciprocal right to fees. A party’s conduct that is merely an attempt to extract himself from litigation post-bankruptcy and that is not voluntary affirmative action shall not subject him to assessment of attorney fees against him for further litigation regarding the discharged debts.

(Filing Date: 11-26-2014)

State v. Lusk

Appellate Procedure: The Court of Appeals should exercise their discretion to correct plain error left unpreserved at trial when a defendant is convicted of a crime that the State did not sufficiently prove, and correcting the error would not undermine procedural fairness policy of the preservation rule.

(Filing Date: 11-26-2014)

State v. Ramos

Remedies: Expenses arising out of the insurance company’s investigation of a fraudulent claim are pecuniary damages and recoverable in restitution under ORS 137.106, which allows restitution in criminal cases.

(Filing Date: 11-26-2014)

State v. Ryder

Criminal Law: Under ORS 161.155(2)(b) and 163.165(1)(e), the least degree of collusion is enough to sustain a conviction of aiding and abetting a crime; however, mere presence during the crime is not enough to sustain such a conviction.

(Filing Date: 11-26-2014)

State v. Sparks

Criminal Law: Under ORS 163.545, certain offenses concerning the welfare of children apply only to parents or persons in loco parentis to children. The child-neglect statute similarly applies to such individuals; it also applies, to "temporary custodians," those who are not "lawfully charged with" the care, custody, or support of a child but who nevertheless have "control" of the child.

(Filing Date: 11-26-2014)

( 28 summaries )

December

Assn. of Oregon Corrections Employees v. State of Oregon

Employment Law: Waiver of right to bargain does not occur unless a written notice of proposed changes is issued and there is no demand to bargain.

(Filing Date: 12-03-2014)

K.E.A. v. Halvorson

Civil Stalking Protective Order: Under ORS 30.866(1)(c), a stalking protective order shouldn’t have been issued when a respondent drives through a petitioner’s neighborhood three times and only makes contact with members of petitioner’s household as a response, despite respondent’s history of infrequent incidents of anger and aggression towards others.

(Filing Date: 12-03-2014)

Liberty Oaks Homeowners Assn. v. Liberty Oaks, LLC

Standing: In a construction defect claim, the subcontractors were not liable as a third party respondent under ORCP 22 C, where the subcontractors’ liability was contingent upon the developers’ liability to the plaintiff.

(Filing Date: 12-03-2014)

Ouma v. Skipton

Tort Law: Medical expert testimony is not necessary to establish causation for a broken tooth, because it is a simple injury which layperson is competent to testify to establish causation.

(Filing Date: 12-03-2014)

SAIF v. Thompson

Workers Compensation: Under ORS 656.802(4), the “clear and convincing” standard of proof required to rebut the firefighter’s presumption under Workers Comp law does not require the defendant to prove an alternative cause of the condition, only that it’s asserted claim is “highly probable.”

(Filing Date: 12-03-2014)

State v. Bonilla

Criminal Procedure: A third party’s actual authority to consent to search a residence does not extend to a search personal property, like a passenger’s rights against search of their personal belongings when a driver consents to a search of the vehicle.

(Filing Date: 12-03-2014)

State v. Klein

Criminal Law: Conviction for first-degree criminal trespass requires a showing by the State that Defendant was not licensed or privileged to enter the dwelling.

(Filing Date: 12-03-2014)

State v. Koch

Criminal Procedure: Evidence acquired after a Miranda violation should be inadmissible, and its admission is grounds for reversal.

(Filing Date: 12-03-2014)

State v. Oregon

Criminal Procedure: A court should suppress evidence obtained during a traffic stop when the officer obtained this evidence by extending the scope of the stop beyond that which reasonably relates to the traffic infraction.

(Filing Date: 12-03-2014)

W.M. v. Muck

Civil Stalking Protective Order: Under ORS 30.866(3), a child overhearing a conversation she assumes to be about her father in an abstract though unpleasant way is not sufficient to subjectively place her in apprehension of her father’s safety when the comment was made during a telephone call to someone else, on the declarant’s property, while not attempting to contact or even look at the child.

(Filing Date: 12-03-2014)

???Portland Fire Fighters’ Assn. v. City of Portland

Labor Law: Under ORS 243.672(1)(g), it is an unfair labor practice for a party to fail to comply with the results of an agreed-upon binding arbitration.

(Filing Date: 12-10-2014)

City of Portland v. Portland Firefighters' Assn.

Arbitration: The duty of the Employment Relations Board, under ORS 240.115 and 240.086(2), is to review and enforce arbitration decisions, and may, pursuant to ORS 243.676(2)(c), take action to enforce those decisions.

(Filing Date: 12-10-2014)

Clark v. Oregon

Post-Conviction Relief: A petitioner for post-conviction relief must prove prejudice either under Cuyler v. Sullivan, or Oregon Rules of Professional Conduct 1.7(a)(2) to prove ineffective assistance of counsel.

(Filing Date: 12-10-2014)

DCBS v. Muliro

Insurance Law: An injured worker seeking supplemental disability has the burden of satisfying the requirements of ORS 656.210(2)(b); when the worker does not provide the necessary information, the entity responsible for processing the claim is not obligated to independently seek that information out.

(Filing Date: 12-10-2014)

Entrepreneurs Foundation v. Employment Dept.

Administrative Law: An “ALJ may have an obligation to assist a litigant in following up on potentially favorable lines of factual inquiry, [but] that duty does not remove a party's obligation to raise issues for preservation purposes.”

(Filing Date: 12-10-2014)

Goodwin v. Kingsmen Plastering, Inc.

Civil Procedure: For injury to an interest in real property, the six-year statute of limitations in ORS 12.080(3) governs, and accrues upon the discovery of a claim.

(Filing Date: 12-10-2014)

Kroetch v. Employment Dept.

Administrative Law: Where the Employment Appeals Board decision fails to explain a credibility determination for whether there is good cause for a late filing it is without substantial reason.

(Filing Date: 12-10-2014)

State v. Blaylock

Evidence: Evidence of prior bad acts is admissible to prove lack of mistake when a defendant claims self defense under OEC 404(3).

(Filing Date: 12-10-2014)

State v. Digesti

Criminal Law: Under ORS 163.305(2), which defines forcible compulsion necessary for first-degree sexual assault, the compulsive physical force exhibited against the victim need not be applied directly to the physical body but need only be sufficient to compel the victim to submit to the sexual conduct.

(Filing Date: 12-10-2014)

State v. Lomchanthala

Civil Procedure: A defendant is not entitled to a jury instruction defining a “voluntary act” unless some evidence has been presented that would show his acts were involuntary.

(Filing Date: 12-10-2014)

State v. Olendorff

Criminal Procedure: After an arrest, if a request by arrestee is made to hand over personal belongings to another person and no exception pursuant to an arrest warrant exists at the time of the arrest, then the officer is to release said personal belongings to the other person as requested.

(Filing Date: 12-10-2014)

Brown v. Guard Publishing Co.

Civil Law: Under ORS 192.410, a public records request is only exempt from disclosure when there is enough specificity about the contents of the contract to determine whether all of the information within it was exempt from disclosure; it does not protect other material in the contract that may be reasonably severed from the exempt material.

(Filing Date: 12-17-2014)

Colombia Riverkeeper v. Clatsop County

Land Use: The County Board denying an application, after LUBA issued a final action approving an application based on the board’s prior approval, cannot be “for the purposes of avoiding the requirements of ORS 215.427.” As that was not the case, ORS 197.835(10)(a)(B) did not require LUBA to reinstate the board's original decision.

(Filing Date: 12-17-2014)

S.L.L. v. MacDonald

Civil Stalking Protective Order: While a conditional threat alone is not sufficient to satisfy the immediacy element for granting a stalking protective order (SPO), the context of the threat and other evidence can sufficiently establish an immediate threat for a court to grant an SPO.

(Filing Date: 12-17-2014)

State v. Harrison

Appellate Procedure: When a claimed “plain error” is associated with a trial court not having sua sponte interrupted a line of questioning, the existence of any error does not depend solely on whether the lawyer’s questions or the elicited answers would have been inadmissible if they had been objected to.

(Filing Date: 12-17-2014)

State v. Nelson

Criminal Law: Under ORS 166.023(1), a defendant who responds to a friend’s social network account about an emergency at a school is not considered to have initiated or circulated a report. Also, such behavior does not qualify as having knowingly done so.

(Filing Date: 12-17-2014)

State v. S.R.

Civil Commitment: When petitioning for civil commitment as a result of mental illness, the state is not obligated to wait until a person is on the threshold of dying to petition for said commitment, but still needs to show that the person is so unable to care for their basic needs as a result of a mental disorder that they are “at risk of death in the near future.”

(Filing Date: 12-17-2014)

State v. Traylor

Criminal Law: Under ORS 137.123(5)(a) the fact that defendant was more destructive of property than he needed to be in the manner in which he conducted the burglary permits the inference that defendant was willing to commit the separate offense of criminal mischief in addition to the offense of burglary.

(Filing Date: 12-17-2014)